In the High Court of Punjab and Haryana at Chandigarh [CASE NUMBER] Date of decision:6.11.2012 [ENTITY] Appellant v. [ENTITY] Respondent Coram: Hon'ble Mr. Justice [ENTITY] Hon'ble Mr. Justice [ENTITY] Present: Mr. [ENTITY], Advocate for the appellant. Mrs. [ENTITY], Additional Advocate General, Punjab for the respondent-State. [ENTITY], J.
This appeal has been filed by appellant-[ENTITY] against the judgment and order dated 2.9.2008 passed by Sessions Judge, Gurdaspur whereby he has been held guilty and convicted for the offence under [SECTION] of the [ACT] (hereinafter referred to as `[ACT]') and sentenced to undergo imprisonment for life and to pay a fine of `5,000/- for the offence under [SECTION] [ACT] for the murder of [ENTITY]. He has also been sentenced to undergo imprisonment for life and to pay a fine of `5,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months for the offence under [SECTION] [ACT] for the murder of [ENTITY]. However, both the substantive sentences have been ordered to run concurrently.
[CASE NUMBER] FIR in the present case has been registered on the statement of [ENTITY], who mainly stated that his wife [ENTITY] had been admitted in Civil Hospital, Gurdaspur about 7/8 days back for conducting stone operation. He and his daughter [ENTITY] aged 16/17 years had come to Civil Hospital at Gurdaspur to look after her. He had kept his daughter [ENTITY] in the house of his brother-in-law [ENTITY], resident of Village Bala Pindi. He usually used to remain with his wife in the hospital to look after her and in the night he used to go to the house of his brother-in-law [ENTITY] for sleeping. He further stated that on 19.9.2006, after leaving his sister [ENTITY] with his wife, he came to the house of [ENTITY]. In the night after taking meals, he and [ENTITY] slept in one room, his daughter [ENTITY], [ENTITY]'s daughter [ENTITY] aged 18/19 years and [ENTITY] aged 26/27 years son of [ENTITY] slept in another room on separate beds. On the intervening night of 19/20.9.2006 at about 12.30 a.m., the complainant heard loud shrieks. He and [ENTITY] came out of the room and saw that [ENTITY] son of [ENTITY], who was having small `[ENTITY]' in his hand, was inflicting blows on his sister- [ENTITY]. [ENTITY] in order to save herself jumped across the wall of her house and entered in the adjacent house of her neighbour. [ENTITY] followed [ENTITY] with `[ENTITY]' after scaling over the wall and gave many `[ENTITY]' blows on her within his and [ENTITY]'s sight. She fell on the ground. Complainant and his brother-in-law raised alarm, then [ENTITY] ran away from the spot with `[ENTITY]'. On reaching there, they saw that [ENTITY] had received many injuries on her body. After coming back [CASE NUMBER] in the room, the complainant saw that the neck of his daughter [ENTITY] had been amputated with `[ENTITY]' while she was sleeping and she had died. After arranging vehicle, he and his brother-in-law and [ENTITY] took [ENTITY] to Civil Hospital, Gurdaspur, who died near the hospital. Motive behind this occurrence was that [ENTITY] had suspicion on the character of his sister [ENTITY] and cousin [ENTITY] and they were out of his control. Due to this reason, [ENTITY] had killed [ENTITY] and [ENTITY]. After recording the statement of the complainant by Inspector [ENTITY], SHO, Police Station Dinanagar at 4.10 a.m., `[ENTITY]' was sent to the Police Station, on the basis of which formal FIR was registered.
Inspector [ENTITY], SHO then went to the spot i.e. the house of [ENTITY]. Dead body of [ENTITY] was found lying there on a cot. He inspected the spot and prepared inquest report. He took into possession blood stained earth after preparing sealed a parcel. He also took into Police possession the blood stained folding bed etc. Then he went to Civil Hospital where dead body of [ENTITY] was lying. He prepared inquest report. Dead bodies were sent for getting conducted post-mortem examination. On that very day, he arrested accused [ENTITY]. On 23.9.2006, during the course of interrogation, the accused made disclosure statement and then in pursuance of his disclosure statement he got recovered blood stained `[ENTITY]'. Rough site plan of the place of recovery was prepared and the `[ENTITY]' was taken into Police possession after preparing a sealed parcel. On 24.9.2006, accused produced before him his blood stained clothes. Statements of the witnesses were recorded. After necessary investigation, the challan was presented.
[CASE NUMBER] On presentation of challan, the trial Court finding prima facie charge against accused-appellant [ENTITY], framed charge for the offence under [SECTION] [ACT] for the murder of [ENTITY] and [ENTITY]. The accused pleaded not guilty to above charge and claimed trial.
In support of its case, the prosecution examined PW-1 Dr. [ENTITY], who conducted post-mortem on the dead body of [ENTITY] on 20.9.2006 and found the following injuries:-
"1. Incised wound 8 cm x 1 cm x 4 cm on left part of face from medial end of left eye brow downward to cheek. Clotted blood present underlying bones of orbit surrounding nasal bones and bones of face crushed and fractured at multiple sides. Dissection revealed multiple injuries underlying muscles, nerves and vessels.
2. Big incised wound 15 cm x 4 cm x 5 cm on right side of neck obliquely placed extending from posterior hairline towards mid line of body anteriorly. Clotted blood present. Underlying muscles, nerves, vessels cut at multiple places. Further exploration revealed fracture of cervical vertebra at multiple places.
3. Incised wound 5 cm x 1 cm x 5 cm on extensive surface of middle of right hand. Clotted blood present. Underlying bones fractured and tendons, muscles and vessels cut.
4. Incised wound 4 cm x 1 cm x 0.5 cm on extensor surface of middle of left hand. Underlying bones cut and fractured. Underlying tendons, muscles and vessels cut and crushed at [CASE NUMBER] multiple places.
5. Incised wound 4 cm x 1 cm x 0.5 cm on right inguinal region obliquely placed. Underlying vessels, nerves and muscles cut."
In his opinion the cause of death in this case was due to injuries to vital organ, haemorrhage and shock caused due to injuries No.1 and 2. All injuries were found ante-mortem in nature and caused by sharp edged weapon.
On the same day, he also conducted post-mortem examination on the dead body of [ENTITY] and found the following injuries:-
"1. Incised wound 8 cm x 1 cm x 2 cm on right side of cheek and nose. Clotted blood present. Underlying bones of face and nose cut and fractured at multiple places. Dissection revealed multiple cut injuries to underlying muscles, nerves and vessels.
2. Incised wound 4 cm x 0.5 cm on chin lower part underlying bones cut and fractured at multiple places, muscles, vessels cut.
3. Incised wound 8 cm x 1 cm x 1 cm on head back in right occipital regions obliquely placed. Underlying skull bone cut and fractured at multiple places. Further dissection revealed cut on right occipital lobe or brain.
4. Incised wound 5 cm x 1 cm x 1 cm on left forearm middle part. Underlying muscles, tendon, vessels cut.
5. Incised wound 4 cm x 1 cm x 0.5 cm on left wrist extensor surface underlying muscles, tendon, vessels and bone cut.
[CASE NUMBER]
6. Another incised wound 4 cm x 1 cm x 0.5 cm on left hand extensor surface 3 cm distal to injury No.5. Underlying muscles tendons, vessels bone cut.
7. Incised wound 5 cm x 1 cm x 0.5 cm on right forearm middle part extensor surface. Underlying muscles bones, tendons and vessels cut.
8. Incised wound 4 cm x 1 cm x 0.5 cm on right hand extensor surface. Underlying bones, vessels, verve's and tendons cut."
In his opinion, the cause of death in this case was due to injury to vital organs, haemorrhage and shock due to injuries No.1 and 3. All injuries were found ante-mortem in nature and caused with sharp edged weapon.
PW-2 [ENTITY], Photographer mainly deposed regarding the photographs Exs.P.1 to P.8. PW-3 [ENTITY] [ENTITY] is a formal witness, who tendered in evidence his affidavit Ex.PF. PW-4 [ENTITY] is the eye witness and brother-in-law of complainant [ENTITY]. He has not supported the prosecution version and was declared hostile. He stated that accused is his son. [ENTITY] PW-5 is his brother-in-law. [ENTITY] is wife of [ENTITY]. She had kidney problem and was admitted in Civil Hospital, Gurdaspur. Deceased [ENTITY] was daughter of [ENTITY]. [ENTITY] came to his house on the intervening night of 19/20.9.2006. He was not present in his house. On the intervening night, [ENTITY] and [ENTITY] were murdered in his house but he did not know who murdered [ENTITY] and [ENTITY]. When his cross-examination was conducted by the Public Prosecutor, he denied that his statement was recorded by the Police. He was duly confronted with the statement but he denied the contents of the statement.
[CASE NUMBER] PW-5 [ENTITY] in his chief-examination deposed as per prosecution version. His cross-examination was deferred and when he was cross-examined on 2.1.2008, he resiled from his statement and stated that on the intervening night of 19/20.9.2006 he was present in his house at Dasuya. He also stated in cross-examination that the Police accompanied by [ENTITY] PW-4 came to his house in the morning of 20.9.2006 and had brought him and his son [ENTITY], as also [ENTITY] to Dinanagar. It was for the first time that at Police Station, Dinanagar the Police disclosed to him that [ENTITY] and [ENTITY] had been murdered. They went to Village Bala Pindi for the first time on 20.9.2006 to cremate dead bodies of [ENTITY] and [ENTITY]. He further stated that [ENTITY] and [ENTITY] were not murdered in his presence and he was not present in Village Bala Pindi during the said intervening night. The Police had obtained his signatures on blank papers and did not record any proceedings in his presence. PW-6 [ENTITY], Draftsman mainly deposed regarding preparing of scaled map. PW-7 [ENTITY], DSP mainly deposed regarding the investigation of the case. He also stated that he recorded the statement Ex.PG of [ENTITY] correctly without any addition and omission. PW-8 [ENTITY], PW-9 [ENTITY] and PW-10 [ENTITY] are formal witnesses, who tendered in evidence their affidavits Exs.PJ, PK and PL respectively. The Public Prosecutor then closed the evidence.
After closing of prosecution evidence, the accused was examined under [SECTION] [ACT] and was confronted with the evidence of the prosecution. He stated that he is innocent and had been falsely [CASE NUMBER] implicated in this case. In defence no witness has been produced.
After going through the evidence and material on record, the learned trial Court convicted and sentenced the accused-appellant for the offence as mentioned above.
At the time of arguments, the learned counsel for the appellant mainly argued that there is no evidence against the accused-appellant. PW- 4 [ENTITY] has not supported the prosecution version. The other eye witness PW-5 [ENTITY] in cross-examination has admitted that he was not present at the spot and was in Dasuya at the time of occurrence. This witness has also not seen the occurrence. Therefore, there is no incriminating evidence against the accused-appellant. Learned counsel for the appellant also argued that no other witness was examined to support and corroborate the prosecution version On the other hand, learned Additional Advocate General, Punjab appearing for the respondent-State argued that case of the prosecution has been duly proved by [ENTITY]-complainant. The Court has to scrutinize the evidence of the witness and to reach at the truth. The statement made by the complainant PW-5 in cross-examination cannot be believed whereas the statement in examination-in-chief can be relied upon. She further argued that recovery of blood stained `[ENTITY]' in pursuance of the disclosure statement supports and corroborates the prosecution version. The FSL report stating that the `[ENTITY]' was stained with blood further supports and corroborates the prosecution version. She further argued that the murder took place in the house of [ENTITY] and there is no cogent [CASE NUMBER] explanation given by him. She argued that other witnesses, who were given up, were not material witnesses, therefore, on this ground no reasonable doubt exists in the prosecution version. She argued that the case of the prosecution is duly proved beyond reasonable doubt and there being no merit in the appeal, the same should be dismissed.
We have heard learned counsel for the parties and with their assistance have gone through the evidence on record minutely and carefully.
First of all it is a case of direct evidence. As per prosecution version, complainant PW-5 [ENTITY] and PW-4 [ENTITY] had seen the occurrence. [ENTITY] is father of deceased [ENTITY] and [ENTITY] is father of deceased [ENTITY]. Two young girls had been murdered in the house of [ENTITY] at night time by [ENTITY]-brother of [ENTITY] and cousin of [ENTITY]. PW-5 who got recorded the FIR has deposed consistently as per prosecution version and has stated that he and [ENTITY] were sleeping in a separate room in the same house. [ENTITY] came from outside after eating and drinking and then he killed both the above said girls. He had seen appellant-[ENTITY] killing both the girls. Then the appellant ran away from the spot. He stated that his statement was recorded, which is Ex.PW.5/A. From the record, we find that chief-examination was conducted on one date, then the cross-examination was deferred and he was cross-examined after a gap of time and then the witness in cross- examination resiled from his statement. However, he admitted the fact in the cross-examination that his wife [ENTITY] was operated upon and was admitted in Civil Hospital, Gurdaspur. There is no explanation given [CASE NUMBER] by this witness why he made statement in chief-examination by stating that he was present at the spot and had seen accused causing injuries and killing both the girls. There is no explanation in the cross-examination that he made statement in chief-examination under pressure or it was a false statement. His statement in chief-examination is corroborated by FIR. Therefore, his statement in cross-examination that he was not present at the spot cannot be believed. He admitted his signatures indirectly by stating that Police obtained his signatures on blank papers whereas in chief- examination he admitted that he got recorded his statement before the Police, which is Ex.PW.5/A. This version that Police obtained his signatures on blank papers in cross-examination cannot be believed. The presence of PW-5 at the place of occurrence also looks natural as his wife was admitted in Civil Hospital, Gurdaspur, which fact is not disputed. The complainant used to look after his wife [ENTITY]. The version given in chief- examination is reliable and can be believed and the version given in the cross-examination by PW-5 cannot be believed. It looks otherwise unnatural that Police came to him along with [ENTITY] at Dasuya and taken him to Dinanagar and then the Police told regarding the murder of his daughter [ENTITY]. Therefore, on careful scrutiny of the evidence, we believe the chief- examination stated by PW-5 as correct and reliable statement. The statement given in cross-examination by PW-5 and resiling from the same in cross-examination may be due to the close relations with the accused. This was also the reason that PW-4 [ENTITY], who is father of the accused, had also resiled from his statement. The statement of PW-5 [ENTITY] in [CASE NUMBER] chief-examination has been duly supported and corroborated by medical evidence and further by recovery of blood stained `[ENTITY]' by the accused in pursuance of his disclosure statement. As per FSL report, `[ENTITY]' was found stained with blood.
The FIR in the present case is prompt one and there is no unnecessary delay. There is also no reason or ground why the complainant, who is close relative, will falsely implicate the appellant in this case.
Even no defence evidence has been produced by the appellant nor he had taken any specific plea in the statement under [SECTION] [ACT] The appellant was supposed to be present in the house. The murders had been committed in the house of [ENTITY], by appellant [ENTITY] and no explanation is coming how the murder of [ENTITY] and [ENTITY] took place in the house at the night time. Blood stained earth was also taken from the place of occurrence. Further we find that other PWs [ENTITY], [ENTITY] or [ENTITY] neighbours etc. were not the material witnesses. They were not eye witnesses of the occurrence. Therefore, their non-examination, in no way, create any doubt in the prosecution version. Further we find that blood stained `[ENTITY]' has been got recovered by the accused-[ENTITY] in pursuance of his disclosure statement which also supports and corroborates the prosecution version. The FSL report stating that the `[ENTITY]' was stained with blood further supports and corroborates the prosecution version. There is no explanation from the accused how blood came on the `[ENTITY]'. Even no defence evidence has been produced to show the innocence of the accused. Similarly, even in the statement under [SECTION] [ACT], there is nothing why case was registered against him. In the [CASE NUMBER] case of a witness, who is resiling from his statement, the Court is duty bound to scrutinize the evidence carefully to separate truth from the falsehood. The Court is to separate the grain from the `chaff'.
In the case [PRECEDENT], it has been held that the evidence of hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. Therefore, we accept the statement of PW-5 [ENTITY] given in chief- examination as a true version and the statement given in cross-examination as false. From the evidence on record, it is also clear that PW-4 [ENTITY] being father of the accused has resiled from his statement. However, he has been confronted with the statement recorded by the Police under [SECTION] [ACT] Hon'ble Supreme Court in [PRECEDENT] held as under:
"No doubt a statement to the Police is ordinarily not admissible in evidence in view of [SECTION] [ACT], but as mentioned in the proviso to [SECTION] [ACT] it can be used to contradict the testimony of a witness. Smt. [ENTITY] also appeared as a witness before the trial Court, and in her cross examination, she was confronted with her statement to the Police to whom she had stated that her son (the accused) had told her that he had killed [ENTITY]. On being so confronted with her statement to the police she denied that she had made such statement.
[CASE NUMBER] We are of the opinion that the statement of Smt. [ENTITY] to the police can be taken into consideration in view of the proviso to [SECTION] [ACT], and her subsequent denial in court is not believable because she obviously had afterthoughts and wanted to save her son (the accused) from punishment. In fact in her statement to the police she had stated that the dead body of [ENTITY] was removed from the bed and placed on the floor. When she was confronted with this statement in the court she denied that she had made such statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso of [SECTION] [ACT]."
Therefore, in view of the above law laid down by the Hon'ble Supreme Court, the statement given by [ENTITY] before the Police can be taken into consideration. The statement of [ENTITY] has been duly proved by PW-7 [ENTITY], DSP, who stated that he recorded the statement Ex.PG of [ENTITY] correctly without any addition or omission. Therefore, from the evidence on record, we find that prosecution has duly proved its case by leading cogent evidence. It has been duly proved that accused [ENTITY] has committed murder of [ENTITY] and [ENTITY] and he has been rightly convicted and sentenced. Therefore, from the above discussion, [CASE NUMBER] filed by appellant is dismissed.
Before parting with the judgment, we find that in the present [CASE NUMBER] case PW-5 [ENTITY] was examined-in-chief on 25.5.2007 and cross- examination was deferred and he was cross-examined on 2.1.2008. While deferring his cross-examination, no reason or ground has been given by the trial Court. This witness has been cross-examined after a long delay. [SECTION] [ACT] deals with power to postpone or adjourn proceedings, which reads as under:-
"309. Power to postpone or adjourn proceedings.- (1) In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence under [SECTION] of the [ACT], the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses. (2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a [CASE NUMBER] warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
Provided also that-
(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.
[CASE NUMBER] Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused." (emphasis added).
A perusal of the record of this case shows that the adjournment in this case had been given by the trial Court in a casual manner which resulted in resiling from the statement by PW-5 [ENTITY]. It is the duty of the trial Court to supervise the sessions trial effectively. A perusal of the record shows that when PW-5 was cross-examined, no question had been asked by the Court whether his statement in examination-in-chief was correct or in cross- examination was correct. No explanation was sought from the witness that he gave two contradictory statements in examination-in-chief and cross- examination. There is also no question by the Court why he signed on blank papers at the asking of the Police. From the record of this case, we further find that even the role of the Public prosecutor is not upto to the mark. He should have declared the witness PW-5 hostile in the cross- examination but he has not opted for the same. Giving up PWs by making statement is another instance which shows that even the Public Prosecutor has not taken keen interest in conducting the trial properly.
Therefore, the Registrar (General) of this Court is directed to circulate a copy of this judgment to all the Sessions Judges in the States of [CASE NUMBER] Punjab and Haryana and the Sessions Judge, Chandigarh, to further circulate it to all the Judicial Officers working in their respective Sessions Divisions, with instructions to keep in mind the provision of [SECTION] [ACT], while postponing or adjourning the hearing of the criminal cases, particularly, when a material witness in a criminal trial has been partly examined.
([ENTITY]) Judge November 6, 2012. ([ENTITY]) Judge *hsp*