STATE OF HIMACHAL PRADESHversusJAI CHAND

                        (2013] 10 S.C.R. 646


A                STATE OF HIMACHAL PRADESH
                                 v.
                            JAi CHAND
                 (Criminal Appeal No. 269 of 2007)
                            JULY 3, 2013
8
             [A.K. PATNAIK AND SUDHANSU JYOTI
                     MUKHOPADHAYA, JJ.]

         Penal Code, 1860 - s. 302 - Murder of wife - Conviction
C   by trial court - Acquittal by High Court - Held: Order of High
    Court was unsustainable as the same was passed in disregard
    of the medical evidence and the material witnesses - In view
    of the medical evidence, evidence of the independent witness
    and the conduct of the accused, he is liable to be convicted
D   - Order of conviction restored.
         Respondent-accused No.1 was prosecuted for the
    offences punishable ulss. 302 rlw. s. 34 and 498-A IPC,
    alongwith accused Nos.2 and 3. The prosecution case
    was that the respondent brought his wife (deceased) to
E   hospital in serious condition, for medical treatment. On
    information by the Medical Officer, police official reached
    the hospital and, on the basis of the statement of PW-1
    (father of the deceased), recorded FIR. Respondent-
    acc used No.1 and accused No.3 made disclosure
F   statements to the effect that accused No.1 dipped the
    head of the deceased in a bucket full of water and then
    throttled her with his hands with the help of accused
    Nos.2 and 3. Thereafter, all the accused hung the body
    of the deceased. Trial court convicted respondent-
G   accused No.1 for the offences charged and acquitted
    accused Nos. 2 and 3. In appeal, High Court acquitted
    the respondent-accused. Hence the present appeal by
    the State.

H                                646
  STATE OF HIMACHAL PRADESH v. JAi CHAND              647


    Allowing the appeal, the Court                            A
    HELD: 1. The findings by the Division Bench of the
High Court, rejecting the evidence of PW-10, the doctor
who conducted post mortem and other material witnesses
including PW-3 and PW-5 are clearly unsustainable,            s
whereas those given by the trial court, accepting the
evidence of these witnesses were weighty and sound.
[Para 28) [663-E-F]
     2. The High Court was clearly in error, in formulating   C
its own opinion based on conjectural premises and
deciding the case on the basis of that, discarding the
opinion of the medical experts regarding the nature of the
injury and cause of death. The High Court proceeded on
erroneous premise to hold that PW-10, the doctor, who
conducted the post-mortem, might have acquired some           0
experience as Medical Officer but he was not a forensic
expert to give the level of an expert witness examined in
the Court. It is true that post-mortem report (PW-10/A) is
not a substantive piece of evidence. But the evidence of
such doctor cannot be insignificant. In the present case,     E
the post-mortem was conducted by a team of doctors,
I.e. PW-10 and PW-8. PW-10 conducted the post mortem
and the forensic expert (PW-8) conducted the viscera test
In cross-examination, no suggestion was made on behalf
of the defence that they were not competent or that they      F
had not expertised to perform post mortem of a body.
[Paras 19,20,21 and 22) [660-D-E, G-H; 661-A-D]
     State of Haryana v. Ram Singh (2002) 2 SCC 426: 2002
(1) SCR 208 - relied on.                                  G
    3. Medical evidence completely falsifies the case of
accu~ed No. 1 that the ligature mark of 10cm long and 1.5
cm. wide In horizontal position cannot be caused by
hanging but could have been caused by strangulation.          H
                                                               -
    648     SUPREME COURT REPORTS             [2013] 10 S.C.R.


A   The conduct of the accused No. 1 was also not natural.
    When he found his wife hanging, he neither made hue
    and cry nor called the villagers nearby. He along with
    others brought down the body of the deceased. He, even
    thereafter, did not report the matter immediately on his
B   own to police. The act of bringing his wife, to the hospital
    cannot absolve the guilt of accused No. 1 of an offence
    committed by him. He was the best person who could
    have explained the reasons for the horizontal ligature
    mark of 10 cm. x 1.5cm. on the neck of the deceased
c   and as to why he did not inform the matter to the villagers
    before bringing down the body of the deceased. [Paras
    26 and 27] [663-B-D]

       4. PW-3 is an independent witness. In his testimony,
  he inter alia deposed that he met accused No. 1 and 'D',
0
  carrying the deceased on the cot to the road side for
  carrying her to the hospital and it was the accused No. 1
  who told him that as the deceased was ill, hence being
  taken to the hospital. The accused No. 1 has thus,
E misrepresented the factual position to PW-3 which
  shows guilty intention on his part. Accused No.1, in
  reply to question No. 11, though denied having
  represented so to PW-3 and as per his version, the said
  witness was told that deceased had strangulated herself,
F but there is no reason to disbelieve the testimony of PW-
  3, as a matter of fact, PW-3 is an independent witness.
  Reply to question No. 11 shows that accused No. 1 also
  accepted that PW-3 met him on the spot in the early
  morning. Therefore, it cannot be said that the PW-3 was
G interested in the case of either of the parties. Not only
  this, as per version of PW-3, the deceased at that time was
  silent and there was no movement in her body, meaning
  thereby that she was already dead in the house itself and
  in order to mislead the village folks and to create
  evidence that he made efforts to save his wife's life he
H
  STATE OF HIMACHAL PRADESH v. JAi CHAND               649

took her dead body to the hospital. Such conduct on his       A
part amply demonstrates that it is the accused No. 1
alone who caused the death of his wife. [Para 25] [662-
C-H]
     5. It is true that PW-1, father of the deceased, PW-2,
brother of the deceased and PW-5 belonged to the same         8
village. However their being related to each other and
being residents of the same place is not fatal to the
prosecution case, because they have deposed about the
facts which are not in controversy save and except that
the deceased was being tortured by the ac.cused               C
persons. However, the present case is not a case of
suicidal death of the deceased on being fed-up with the
torture of the accused persons, but a case of homicidal
death · and as such, the version of PWs. 1 and 2 in this
behalf is not so material. [Para 23] [661-D-F]                D
     6. The recovery of bucket(Ex.P-8) has been proved,
as the same has been produced by accused No. 1
himself before the police as recorded in memo (Ex.PW-
5/C) recorded at his instance in the presence of PW-5         E
and 'P'. As a matter of fact, the bucket was lying in the
courtyard where it was identified by accused No. 1 and
thereafter, was taken into possession by the police. The
recovery of an incriminating article from a place which
is open and accessible to others, alone cannot vitiate        F
such recovery under Section 27 of the Evidence Act.
Thus, in the present case it can be held that the bucket
(Ex.P-8) is the same which was used by the respondent
for drowning and strangulating his wife, (the deceased).
(Para 24) [661-G-H; 662-B-C]
                                                              G
                    Case Law Reference:
    2002 (1) SCR 208        relied on   .        Para 19
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 269 of 2007.                                              H
    650     SUPREME COURT REPORTS                (2013] 10 S.C.R.


A       From the Judgment & Order dated 16.11.2004 of the High
    Court of Himachal Pradesh at Shim la in Criminal Appeal No.
    392 of 2002.

         Varinder Kumar Sharma, Varun Thakur, Himinder Lal for
B   the Appellant.

         Dr. Krishan Singh Chauhan, Ajit Kumar Ekka, Chand
    Kiran, Ravi Prakash for the Respondent.

       ... J.~e_:~udgment of the Court was delivered by
c
         SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This
    appeal,is preferred by the State of Himachal Pradesh against
    the judgment dated 16th November, 2004 in Criminal Appeal
    No. 392 of 2002. By the impugned judgment the Division Bench
D   of the Himachal Pradesh High Court at Shimla, acquitted the
    accused-respondent by allowing the appeal and set aside the
    order of conviction under Section 302 IPC and Section 498-A
    IPC with sentence thereunder, passed by the Sessions Judge,
    Hamirpur, HP on 13th June, 2002.
E        2. The respondent{herein} Jai Chand, along with two
    others were tried for offence punishable under Section 302 {r/
    w Section 34}1PC and Section 498-A IPC. Learned Sessions
    Judge, Hamirpur found Jai Chand, accused no. 1 to be guilty
    under Section 302 and 498-A IPC. He was sentenced to
F   undergo Imprisonment for life and to pay fine of Rs.5000/-, in
    default of payment of fine, to undergo imprisonment for one
    year. No separate sentence under Section 498-A IPC was
    imposed upon the accused. The two other accused, namely,
    Prem Chand and Smt. Nimmo Devi were acquitted. .
G
         3. The record reveals that accused no. 1, Jai chand
    {respondent herein} and accused no. 2, Prem Chand are real
    brothers whereas accused no.3, Nimmo Devi is their sister-in-
    law {Bhabhi}, the.wife of their elder brother, Prakash Chand.
H
     STATE OF HIMACHAL PRADESH v. JAi CHAND                    651
        [SUDHANSU JYOTI MUKHOPADHAYA, J.]
I       4. The prosecution version as unfolded during the trial may   A
.. briefly be stated as follows:
         Smt. Vidya Devi (since deceased) was wife of Jai Chand,
   accused no. 1(respondent herein). She was married to Jai
   Chand in the year 1996. On 13th July, 2001, Smt. Vidhya Devi 8
   was brought to District Hospital, Hamirpur in serious condition
   by accused no. 1 for medical treatment. The Medical Officer
   on duty had informed the police, Police Station at Sadar vide
   Rapat No. 3 dated 13th July, 2001 (Ex.PW-8/A) that one woman
   was brought to the hospital for medical treatment under c
   suspicious circumstances. On the said information, Sansar
   Chand (PW-8), lnspector/S.H.O. accompanied by other police
   officials went to the hospital where he found the dead body of
   Vidya Devi lying in the Varanda. Roshan Lal, (PW-1), father of
   the deceased was standing near the dead body. He made D
   statement (Ex.PW-1/A) that his son-in-law, Jai Chand(accused
   No.1) is a habitual drunkard and under the influence of liquor,
   he was in the habit of beating and treating his daughter with
   cruelty. Prem Chand (accused no.2) and Smt. Nimmo Devi
   (accused no.3) also used to taunt and abuse the deceased. E
   Two years ago, accused no. 1, left the deceased at her parents'
   house. PW-1 pacified his daughter that all this happens in joint
   families and sent her, back to matrimonial house. In these
   circumstances, Vidhya Devi committed suicide due to mal-
   treatment and torture by all the accused persons. On 13th July, F.
   2001 at about 8.30A.M. one Kashmir Singh, resident of his
   Village Kot, informed PW-1 that his daughter Vidhya Devi had
   been brought to the hospital at Hamirpur where she expired.
   PW-1 alongwith his son, Ajit Singh(PW-2) went to the hospital
   and found Vidhya Devi dead. PW-1 had noticed injuries on her G
   person. The statement of PW-1 (Ex.PW.1/A) was forwarded by
   PW-8 (vide Ex.PW-8/A) to the Police Station for registration
   of the case. First Information Report (Ex.PW..fJ/A) was recorded
   by PHC Ramesh Chand( PW-6) P.S. Sadar Hamairpur, H.P ..
   Investigation was conducted initially by PW-8. He prepared H
    652      SUPREME COURT REPORTS                 [2013] 10 S.C.R.

A inquest reports (Ex.PW-2/A) and Ex.PW-2/B). He wrote an
  application (Ex.PW-8/B) to the Senior Medical officer, Zonal
  Hospital, Hamirpur for conducting the post-mortem to the dead
  body of the deceased. Photographs (Ex.P-9 to Ex.P-14) of the
  dead body were also taken. Jai Chand (accused no. 1) was
B present in the hospital and he handed over 'dupattas' (Ex.P-
  2),'shirt' (Ex.P-3) and 'Salwar' (P-6) of the deceased to PW-8
  which were taken into possession vide memos; (Ex.PW-2/C
  and PW-2/D) respectively. Thereafter, PW-8 handed over the
  file for investigation to Hari Ram (PW-9). PW-9 collected the
c post-mortem repot(Ex.PW-10/A). On the basis of the report, the
  case was converted from Section 306 IPC to under Section 302
  IPC.
       5. Jai Chand, accused no. 1 made the alleged disclosure
  statement (Ex.PW-5/A) under Section 27 of the Evidence Act
0
  to the effect that he alongwith co-accused had hanged the
  deceased with 'Barli' (a wooden kari placed horizontally on the
  walls of the room). To the same effect, disclosure statements
  (Ex.PW.5/B and Ex.PW-5/D) were made by accused no. 3. Jai
E Chand, accused no. 1 also got recovered one iron bucket (Ex.P-
  7) which was taken into possession vide disclosure memo(PW-
  5/C). PW-9 prepared the site map(Ex. PW-9/A) depicting the
  place where the accused person had put the face of the
  deceased in the bucket filled with water and pointed the place
F where her body was tied with 'barli' by accused persons.

       6. As per, the disclosure statement of Jai Chand, (accused
  no. 1) and Nimmo Devi (accused no. 3), on the intervening night
  of 12th/13th July, 2001, Vidhya Devi came out of the room and
  went to a place where the cattle were used to be kept. Her
G husband, Jai Chand, accused no. 1 also followed her and
  asked his wife to go to bed but she did not respond thereto.
  Both of them entered into verbal fight. Accused no. 1 at that
  time dipped the head of the deceased in the bucket full of water
  lying there. As a result thereof, she felt suffocated and. the water
H
  STATE OF HIMACHAL PRADESH v: JAi CHAND                    653
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
entered into her mouth as well as in stomach. Accused no. 1 A
then. lifted her from that place and laid her on the cot. Accused
no. 1 called accused nos. 2 and 3. Accused no. 3 caught hold
of arms of the deceased whereas accused no. 2 caught hold
of her legs. Accused no. 1 throttled the deceased with hands
and caused her death. On finding no movement in her body, · B
all the accused hanged the deceased wit.h dupattas and
thereafter laid the dead body of the deceased Vidhya Devi on
a cot. On the following morning, Jai Chand, accused no. 1 told
his mother that his wife had become unconscious during the
night and now she· is not speaking anything. Jai Chand, C
accused no. 1 then took her wife to the courtyard and laid her
body on a cot lying there. The residents of the village were
informed about the death of Vidhya Devi. One Smt. Damodri
Devi brought some milk from her house but the deceased
could not inhale the same. Thereafter, accused no. 1 D
accompanied by Kartar Singh and Deepak Kumar brought the
deceased on the cot to the road side. Prakash Chand, brother
of~ccused no.1 who had gone to call the doctor, had brought
the taxi and the deceased was thus taken to the Zonal Hospital,
Hamirpur where she was declared dead. The body of the E
deceased was sent for post mortem. PW-10, Dr. K. C. Chopra
submitted post mortem report (Ex.PW-10/A). The stomach
contents including viscera etc. preserved by the team of doctors
 has been got analysed and as per report Ext. PW-8/B, neither
the contents of any poison nor intoxicant could be·detected on F
analysis thereof. Thus, no case of poisoning was found.

      7. On receipt of post mo;-tem report (Ex.PW-10/A) and
report of. the Chemical Examiner(Ex.PW-8/D), it was found that
the deceased had not committed suicide but she was killed by       G
the accused no. 1 by dipping her face into a bucket of water
and strangulating her. All the three accused were sent for trial
for the office under Section 302 read with Section 34 IPC and
498-A IPC.

    8. PW-10, Dr. K. C. Chopra, Medical officer, Zonal             H
    654       SUPREME COURT REPORTS               [2013) 10 S.C.R.


A   Hospital, Hamirpur, H.P., in his statement stated that he
    alongwith Dr. K.S. Dogra conducted post mortem of the dead
    body of Smt. Vidhya Devi, wife of Jai Chand and observed as
    follows:
          "EXTERNAL APPEARANCE:
B
                 Dead body was lying in supine with face in the
          centre (there was no fuming of face to either side). White
          Jeathorty foam seen at both nostrils which was more on
          pressing the epigastriun. No sticky saliva was present on
c         the angle of the mouth. No postmortem staining was
          present over the back and legs. No petechcial
          haemorrages seen over the chest or legs. Two
          contusions 3x2 cm present on the left upper arm, reddish
          blue in colour. No stretching and elongation of neck, head
D         inclined to neither side.
          LIGATURE MARK
                There was 1O cm long ligature mark of dark brown
          colour extending from left stemocleide mastoid to the
E         right sternocleide mastoid below cricoids cartilage,
          reddish brown in colour, abrasion to be on the right side.
          Ligature mark encircles the neck only on front side. No
          encircling of the neck on the back and away from
          stemecleid mastoid. There was ligature of 1. 5 cm wide
F         or less than it at places (ligature used was not presented
          by the police at the time of postmortem examination). It
          was not with the body either. No abrasion/brusises on the
          mouth, nose, cheeks, forehead. Lips were blue. Tongue
          was in drawn, plinching of teeth, on opening base of
          tongue swollen; No injury to tough, clinching of hands
G
          present.
          DISSECTION OF NECK
                On dissection, there was extra vasation of blood
          into sub-subcutanous tissue under ligature mark on right
H
  STATE OF HIMACHAL PRADESH v. JAi CHAND                   -SSS
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    side present. Platysma and right sternocloide mastoid          A
    muscle lacerated. No laceration of sheath of carotid
    artries. No fracture of hyoid bone or thyroid cartilage.
    Epiglottis not cyanosed Trachea and larynx were
    congested and have forthy mucous. First 2-3 rings of
    trachea fractured.                                             B
    ABDOMEN:
          Walls and peritoneum were normal. Mouth Pharynx
    and oasophagus had whitish fluid. Stomach was
    containing 500 cc of fluid mixed with mucous and small         c
    sticky material. Small Intestine was containing semi-
    digested food but no fluid are present. Faecal matters
    were present in large intestine. Liver was normal, it was
    dark in colour. on cutting dark fluid came out. The spleen
    was dark in colour and was congested. Kidney was normal        D
    in size and was congested. The bladder was empty.
    Organ of generation was normal. There was no evidence
    of rape or any injury.
    CRANIUM SPINAL CORD
                                                                   E
         There was no fracture of skullbone. Brain was
    congested and also the membrane.
    THORAX:
           Walls, ribs, cartilages and pleurae were normal.        F
    Larynx and trachea was congested and contained white
    fluid, no sand or mud seen, no food particles present.
    Right and left lung were distended, pale grey, indented
    by the ribs, heavy cedemataous, spongy, pite on
    pressure. On pressing, frothy whitish fluids came through      G
    bronchials. Heart was normal, left side was empty and the
    right was full. No fracture/dislocation of bones were found.
    9. Dr. K.C. Chopra (PW-10) also stated their opinion as
to cause of death of the deceased. The same is quoted
hereunder:                                                         H
    656       SUPREME COURT REPORTS               [2013] 10 S.C.R.


A              "In our opinion deceased died due to asphyxia
          caused by drowning and strangulation. The probable
          time between injury and death was immediate and
          between death and postmortem within 24 hours.
                xxxxxxxxx
8
                 In our opinion as mentioned in Ex.PW-10/A
          strangulation in this case was not caused by suspending
          the body. The chances of dupatta as ligature mark in the
          case were minimum, i.e. dupatta like Ex P-2 and P-3.
c         Drowning and strangulation are possible in this case
          while putting the face/mouth of deceased in bucket Ex-
          P-8 filled with water and with pressure being applied."
        10. Dr. K.C. Chopra (PW-10) further stated that the post
    mortem report was written by Dr. K.S. Dogra (PW-8) and was
0   signed by both of them.

         11. The accused no. 1 (respondent herein) made a plain
    denial of the prosecution case. In statement under Section 313
    Cr.P.C., accused no. 1(respondent herein) alleged that
E   witnesses have falsely deposed against him being relative of
    the deceased and due to enmity with him. In reply to question
    no. 26, the accused no. 1 stated as follows:

          "Q.26 Anything else you want to say?
F         Ans. The deceased had illicit relations with my nephew
          Banku Ram, Slo Shri Rohli Ram. On one occasion when
          I came on leave to the house, came across few love
          letters written by said Banku Ram to the deceased; on
          this I inquired from her about such relations and asked
G         her to discontinue such relations. On this she went to the
          house of her parents and stayed there for about 3 months
          and when brought to my house by her parents, she used
          to remain depressed. She has, thus committed suicide
          due to her own problems and not on account of the
H         alleged torturing attributed to him. I am thus innocent and
   STATE OF HIMACHAL PRADESH v. JAi CHAND                   657
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    implicated falsely in this case. It is, however, submitted      A
    that those letters were burnt by me with the idea to
    maintain cordial relations with the deceased and also to
    forget whatever as happed in the past."
     12. The Trial Court considered the version of Kartar Chand     B
(PW-3) posted as Primary Education Teacher in Government
High School, Barhi, an independent witness, Post Mortem
Report (PW-10/A), statement of Dr. K.C. Chopra (PW-10),
report and the testimony of PW-1 and PW-2 and held that "the
circumstances reveal that the deceased has been done away           C
to death by the said accused and none else" .... "The
                                     ·•·
circumstances appearing in the prosecution evidence are
conclusive in nature and leads to the only conclusion that it is
accused no.1 who has caused the death to the deceased."
    13. The Division Bench of the High Court rejected the           D
evidence of the prosecution witnesses for the reasons which
may be summed up as below:
            (1) Dr. K.C. Chopra (PW-10) had no experience as
            a forensic expert, therefore, his evidence cannot be    E
            read under Section 45 of the Evidence Act.
            (2) The Division Bench appreciated the medical
            evidence itself and·held that there was no sign of
            injuries suggestive of resistance on the part of the
            deceased to establish that the face of the deceased     F
            was forcibly thrust into iron bucket filled in with
            water. Only 500cc of fluid mixed with mucous and
            small sticky material was found in the stomach. The
            hairs of the deceased was not found wet. Dr. K.C.
            Chopra (PW-10) found marks of injuries on the neck      G
            of the deceased but in his cross examination he
            stated that if the force was applied, in that event,
            the bucket which was used as ligature could touch
            both the ears. But no injuries were found on the ears
                                                                    H
    658      SUPREME COURT REPORTS              [2013] 10 S.C.R.


A              of the deceased or on any part of her mouth or
               head.
               (3) The conduct of Jai Chand, accused no.1 would
               go to show that he tried very hard to save the life
               of his wife by taking her to the Zonal Hospital,
B              Hamirpur for medical treatment. Had Smt. Vidhya
               Devi been killed by .her husband, he would not have
               dare to take the dead body of the deceased to the
               hospital to get the medical opinion against himself.
c       14. Learned Counsel on behalf of the appellant-State
  submitted that the High Cotilt was wrong in ignoring the medical
  evidence which clearly established that it was not a case of
  suicide but a case of homicide which ultimately has been
  caused by the husband of the deceased. The High Court also
D failed to notice the statement of Jai Chand, accused no. 1
  (respondent herein}, husband of the deceased under Section
  313 which is self explanatory that he had been keeping a
  hatred attitude towards his wife due to her illicit relation with
  his nephew and which resulted in motive and intention to kill
E her during night. This statement coupled with other
  circumstantial evidence leave no doubt that the accused no.1
  cannot escape himself from the commission of offence. Further
  according to the appellant as deceased Vidhya Devi was
  staying with the respondent and died unnatural death, it was
F for Jai Chand (respondent) being husband to explain the
  circumstances under which she died. Learned counsel also
  contended that the High Court failed to appreciate that although
  there is no direct evidence, chain of circumstances appeared
  on record is so complete to fetch conviction to the husband of
G the deceased if not to all the accused. It is on the basis of
  disclosure statement of accused no.1 a bucket which is most
  relevant evidence relating to the medical evidence is recovered,
  which is sufficient to convict the respondent.
          15. Learned counsel appearing on behalf of the
H
    STATE OF HIMACHAL PRADESH v. JAi CHAND                       659
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
 respondent referred to the findings of the Division Bench of the        A
 High Court in support of the respondent.
       16. The principal contention raised in support of the appeal
 filed on behalf of the State is that the medical evidence available
 on record completely supports the prosecution case. Let us,
                                                                         B
 therefore, have a look at medical evidence available on record.
 Post-Mortem Report(PW-10/A) has already been noticed
 above. The plea raised by accused no. 1(respondent herein)
 was that the deceased died due to suicidal hanging cannot be
 accepted for the reason that her body was not found stretched.          C
 If she had strangulated herself, her body should have been
 stretched and the fracture of hyoid bones and thyroid cartilages
 should have been there. Post mortem Report clearly shows that
 there is no such fracture and the testimony of Dr. K.C. Chopra(
 PW-10) supports the same. In a death case, by way of hanging,
                                                                         0
 the tongue of the deceased should not have been indrawn as
 has been noticed in the post mortem report(Ex.PW-10/A), buf
 the same should have been out of the mouth. There being the
 evidence of 2-3 rings of trachea fractured, trachea, larynx,
 spleen and kidney being congested is also suggestive of the
 fact that it was not a suicidal death, but a homicidal one. The         E
 team of doctors after observing so, during the examination,
 have come to the conclusion that the cause of death was
 Asphyxia caused by drowning and strangulation. The probable
 time between injury and death had been recorded minimum.
                                                                         F
 The death by way of drowning and strangulation can be caused
 instantaneously. Admittedly, it is not the case of either of the
 parties that the death is caused by way of poisoning, however,
 in order to rule out the possibility in this behalf also, the stomach
 contents including viscera etc. preserved by the team of doctors        G
 got analysed and as per report (Ex.PW-8/D), neither the
 contents of any poison nor any intoxicant could be detected on
 analysis thereof.
       17. Dr. K.C. Chopra (PW-10) is specific while deposing
. in his examination-in-chief that strangulation in this case has        H
    660       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A not been found to be caused by suspending the body. He also
  ruled out the chances of dupattas (Ex.P-2 and P-3) being the
  ligature used for strangulation by the deceased and to the
  contrary, he specifically stated that drowning and strangulation
  are possible in this case by dipping the face/mouth of the
B deceased into the bucket (Ex.P-8) filled with water and by
  applying force in pressing her mouth therein.
         18. Much stress was made by learned counsel appearing
  on behalf of the respondent that there is no possibility of the
C ears touching the top of bucket, even if mouth of anyone is
  dipped therein and pressed with force. An effort was thus been
  made to discard the testimony of PW-10. However, in our view,
  it is not so relevant as to whether the bucket used as a ligature
  was touching the ears or not.
D       19. It is true that post-mortem report(PW-10/A) is not a
    substantive piece of evidence. But the evidence of such doctor
    cannot be insignificant. This Court in State of Haryana v. Ram
    Singh, (2002) 2 SCC 426 held as under:
          "1. While it is true that the post-mortem report by itself is
E
          not a substantive piece of evidence, but the evidence of
          the doctor conducting the post-mortem can by no means
          be ascribed to be insignificant. The significance of the
          evidence of the doctor lies vis-a-vis the injuries
          appearing on the body of the deceased person and likely
F         use of the weapon therefor and it would then be the
          prosecutor's duty and obligation to have the corroborative
          evidence available on record from the other prosecution
          witnesses. n

G        20. In the present case, the post-mortem was conducted
    by a team of doctors, namely, Dr. K.C. Chopra and K.S. Dogra.
    In cro~-examination, no suggestion was made on behalf of the
    defence that they were not competent or that Dr. K.C. Chopra
    and Dr. K.S. Dogra have not expertised to perform post mortem
H
  STATE OF HIMACHAL PRADESH   JAi CHAND  v:                  661
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
of a body. The viscera test was done by forensic expert (PW-         A
8), who submitted the report.
     21. From the aforesaid evidence, it is clear that Dr.. K.C.
Chopra (PW-10) conducted the post mortem and the forensic
expert (PW-8) conducted the viscera test. The High Court
                                                                     8
proceeded on erroneous premise to hold that "Dr. K.C. Choopra
might have acquired some experience as Medical Officer but
he is not a forensic expert to give the level of an expert witness
examined in the Court."
     22. The High Court was thus, clearly in error, in formulating C
its own opinion based on conjectural premises and deciding
the case on the basis of that, discarding the opinion of the
medical experts regarding the nature of the injury and cause of
death. The conclusions are not sustainable otherwise also.
                                                                     D
     23. It is true that PW-1, father of the deceased, PW-2,
brother of the deceased and PW-5 Prem Chand belong to the
same village. However they being related to each other and
being residents of the same place is not fatal to the prosecution
case, because they have deposed about the facts which are            E
not in controversy save and except that the deceased was being
tortured by the accused persons. However, the present case
is not a case of suicidal death of the deceased on being fed-
up with the torture of the accused persons, but a case of
homicidal death and as such, the version of PWs. 1 and 2 in          F
this behalf is not so material.
     24. The recovery of bucket(Ex.P-8) has been proved as
                                                     I

the same has been produced by accused no. 1(respondent
herein) himself before the police as recorded in memo (Ex.PW-
5/C) recorded at his instance in the presence of Prem Chand G
(PW-5) and Pyare Lal. As a matter of fact, the bucket was lying
in the courtyard where it is identified by accused no.
1(respondent herein) and thereafter, was taken into possession
by the police. The reference in this behalf can be made to the
statement of Prem Chand(PW-5) who stated that accused no. H
    662      SUPREME COURT REPORTS               [2013) 10 S.C.R.


A   1 had shown the bucket to the police which was sealed in a
    parcel and thereafter taken into possession vide recovery
    memo ((Ex.PW-5/C). Not only this, he even identified the
    bucket(Ex.P-8) to be the same. The recovery of an incriminating
    article from a place which is open and accessible to others,
B   alone cannot vitiate such recovery under Section 27 of the
    Indian Evidence Act. Thus, the present is the case where there
    is no difficulty in holding that the bucket(Ex.P-8) is the same
    which was used by the respondent(herein) for drowning and
    strangulating his wife, Vidhya Devi.
c       25. Kartar Chand(PW-3) is an independent witness. In his
  testimony, he deposed that on his way to school on 13th July,
  2001 from his village, when he reached Village Ulehra, (native
  place of the accused) around 7.15 AM., he met accused no.
   1(respondent) and Deepak carrying the deceased on the cot
D to the road side for carrying her to the hospital and it was the
  accused no. 1(respondent herein) who told Kartar Chand(PW-
  3) that as she was ill, hence being taken to the hospital. The
  accused no. 1 has thus, misrepresented the factual position to
E PW-3 which shows guilty intention on his part. No doubt, in reply
  to question no. 11, he denied having represented s·o to Kartar
  Chand(PW-3) and as per his version, the said witness was told
  that deceased had strangulated herself, but there is no reason
  to disbelieve the testimony of PW-3, as a matter of fact, PW-3
  is an independent witness. Reply to question no. 11 shows that
F accused no. 1 also accepted that PW-3 met him on the spot
  in the early morning. Therefore, it cannot be said that the PW-
  3 was interested in the case of either of the parties. Not only
  this, as per version of PW-3, the deceased at that time was
  silent and there was no movement in her body, meaning thereby
G that she was already dead in the house itself and in order to
  mislead the village folks and to create evidence that he made
  efforts to save his wife's life he took her dead body to the
  hospital. Such conduct on his part amply demonstrates that it
  is the accused no. 1 (respondent herein) alone who caused the
H death of his wife, Vidhya Devi.
  STATE OF HIMACHAL PRADESH v. JAi CHAND                     663
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     26. Post mortem report(PW-10/A) prepared by Dr. K.C. A
Chopra(PW-10) shows that there was ligature mark on the neck
of the deceased. The opinion of the doctor is clear and definite
that the ligature mark of 1Ocm long and 1.5 cm. wide in
horizontal position cannot be caused by hanging but could have
been caused by strangulation. Medical evidence, therefore, 8
completely falsify the case of accused no. 1(respondent herein).
The conduct of the accused no. 1 was also not natural. When
he found his wife hanging, he neither made hue and cry nor
called the villagers nearby. He along with others brought down
the body of the deceased. He, even thereafter, did not report c
the matter immediately on his own to police.
     27. The act of bringing his wife, Vidhya Devi to the hospital
cannot absolve the guilt of accused no. 1(respondent herein)
of an offence committed by him. He was the best person who
could have explained the reasons for the horizontal ligature         D
mark of 10 cm. x 1.5cm. on the neck of the deceased and as
to why he did not inform the matter to the villagers before
bringing down the body of the deceased.
     28. Therefore, we find that all the findings by the Division    E
Bench of the High Court, rejecting the evidence of Dr. K.C.
Chopra (PW-10) and other material witnesses including Kartar
Chand (PW-3) and Prem Chand (PW-5) are clearly
unsustainable, whereas those given by the Trial Court accepting
the evidence of these witnesses were weighty and sound.
                                                              F
     29. Hence, we allow the appeal and set aside the
impugned order of acquittal passed by the Division Bench of
the High Court of Himachal Pradesh on 16th November, 2004
and convict the accused-respondent under Section 302 IPC for
the murder of his wife, Vidhya Devi and sentence him to G
imprisonment for life. We, thereby restore the order of
conviction passed against the accused-respondent by the Trial
Court. The accused-respondent shall surrender immediately to
serve out the remainder of the sentence.
K.K.T.                                          Appeal allowed.      H