IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 448-DB of 2003 DATE OF DECISION : 23.07.2010 Sumer Singh .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MOHINDER PAL Present: Mr. K.D.S. Hooda, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Sumer Singh was tried by the court of Additional Sessions Judge, Rohtak, for committing the murder of his wife Babita, subjecting her to cruelty and harassment on account of demand of dowry and for causing her injuries with an intention to prevent a child being born alive. Vide judgment and order dated 12.5.2003, the appellant was convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/- under Section 302 IPC; to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 7,000/- under Section 315 IPC; and to undergo rigorous imprisonment for two years and to pay fine of Rs. 2,000/- under Section 498-A IPC. All the sentences Crl. A. No. 448-DB of 2003 -2- were ordered to run concurrently. It was further ordered that in case of realisation of amount of fine, 90% thereof shall go to the father of the deceased. 2. In brief, the prosecution story is that appellant Sumer Singh was married with Babita (deceased) on 20.2.1996. From the wed-lock, a female child was born. In the marriage, sufficient dowry articles as per the capacity of the father of Babita was given, but later on, the appellant started harassing Babita for bringing more dowry. In the year 1999, a case under Sections 406, 498-A IPC was got registered by Babita against the appellant, his parents and other relatives, for harassing her to bring more dowry. In January, 2002, the matter was compromised and an assurance was given by the appellant that he will not demand any dowry and will not cause any harassment to his wife Babita, but 3-4 months after the said compromise, the appellant again started harassing his wife for bringing Rs. 30,000/- as dowry. One day before the occurrence, i.e. on 26.8.2002, brother of Babita, namely Ajay (PW.11), came to her matrimonial home at Rohtak, in order to leave her daughter, who was residing at Sampla with Balwan (PW.10), father of Babita. It is alleged that in the presence of Vijay, the appellant asked his wife Babita to arrange Rs. 30,000/-, otherwise she would be finished. Then Ajay returned to Sampla and told all the aforesaid facts to his parents. On the next day i.e. on 27.8.2002, the parents of Babita received a message that their daughter has been murdered and her dead body was lying in the house of the appellant. On receiving the said information, Balwan, Crl. A. No. 448-DB of 2003 -3- father of the deceased, reached Rohtak and found the dead body of his daughter lying in the kitchen of the house in a pool of blood with injuries on her head, neck and other parts of the body. He made statement (Ex.PE) to the police, which was recorded by ASI Jagbir Singh (PW.16) at 8.00 PM, on the basis of which formal FIR (Ex.PE/1) was registered against the appellant. According to the prosecution, Ashu (PW.9), six years minor daughter of the appellant and the deceased, was present in the house and she had seen the alleged occurrence. According to her, the death of her mother has been caused by her father. 3. On the same day i.e. on 27.8.2002, the police reached the spot, prepared the inquest report (Ex.PC), rough site plan (Ex.PQ). The broken bangles and blood stained earth were lifted from the spot and were taken into possession vide memo Ex.PK. The dead body was sent for post mortem examination. 4. On 28.8.2002, Dr. Narinder Singh (PW.1) along with Dr. Kiran Bala conducted the post mortem of deceased Babita. They found the following injuries on the body of the deceased : 1. There were multiple reddish brown contusions of varying sizes 1.5 cm to 2.5 cm over neck. On dis-section, underlying subcutaneous haemorrhage was present all over the neck. Hyoid bone was healthy. 2. Multiple reddish brown contusions of varying sizes 1.5 cm to 3.5 cm on both arms. 3. Multiple contusion reddish brown over face 2 cm to 3 cm right and left cheeks. Crl. A. No. 448-DB of 2003 -4- 4. A lacerated wound 3 cm x 1.5 cm x 2.5 cm over left side of chin. Blood was effused in adjacent tissues. 5. A contusion reddish in colour 3.5 cm x 2.5 cm over the posterior side (occipital region was present). 6. A contusion reddish in colour 3.5 cm x 1.5 cm over left side of skull near the mid line over left parietal region. 7. Multiple reddish brown abrasions of varying sizes 1.5 cm to 2 cm over the both knees and lower legs. 8. Multiple reddish contusions over the back of varying sizes 3.5 cm x 2.5 cm all over. On dis-section, on removing scalp, extracranial haemorrhage was present more left side left parietal bone extending upto left frontal bone and left orbital cavity and over occipital area. Fracture of the left parieto temporal bone was present. On removing skull cap there was extradural haemorrhage sub dural haemorrhage were present. Occipital area of the cerebral hemispheres was full of blood. Uterus was containing six to seven months male baby. In the opinion of the Doctors, the cause of death of the deceased was due to shock and haemorrhage as a result of head injury. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. The Post Mortem Report of the deceased has been proved on record as Ex.PA. 5. On 29.8.2002, the appellant was arrested. On the same day, on police request (Ex.D9), Dr. Vimal Sharma (DW.3) medico legally examined the appellant and found the following injuries on his body : 1. There was abrasion 2 x 1.5 cm on the lower part of left knee Crl. A. No. 448-DB of 2003 -5- joint. Scab was present. 2. There was abrasion on the right knee joint 1 x 0.5 cm. Scab was present. 3. There were abrasions on the anterior surface of upper 1/3rd of right leg, varying from 1 cm x 0.5 cm to 0.5 cm to 2 cm of the size. Scab were present. 4. There was abrasion on the back of right elbow, 2 cm x 0.5 cm with scab. 5. Abrasions on the palmer 1 x 1 cm of the size, with scab. In the opinion of the Doctor, the aforesaid injuries could have been caused by blunt weapon and the probable duration of these injuries was within 1 to 3 days. On all the five injuries, scabs were present, which indicate that the injuries were 2 or 3 days old. The MLR of the appellant has been proved as Ex.D8. 6. On 30.8.2002, during interrogation, in pursuance of his disclosure statement (Ex.PO), the appellant got recovered a `Sota' (Ex.P1) from the bushes, behind his house. It was taken into possession vide recovery memo Ex.PP, in the presence of Sarwar (PW.15). Rough site plan (Ex.PS) of the place of recovery was prepared. 7. On 1.9.2002, dowry articles were recovered from the house of the appellant, in presence of his brother Surender, which were taken into possession vide memo (Ex.D3), signed by complainant Balwan. 8. On 22.9.2002, the wedding card (Ex.P10) of the marriage of appellant and Babita (deceased) was also taken into possession vide memo Ex.PT. Crl. A. No. 448-DB of 2003 -6- 9. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offences under Section 302 IPC, in the altnernative for the offence under Section 304-B IPC, under Sections 498-A and 315 IPC, to which the appellant did not plead guilty and claimed trial. 10. In support of its case, the prosecution examined 16 witnesses. PW.2 SI Jai Parkash, PW.3 SI Mahabir Singh, PW.4 Constable Sumit Kumar, PW.5 HC Jagram, PW.6 HC Kulbir Singh, PW.7 Constable Vijay Pal, PW.8 HC Ranbir Singh and PW.14 Sanjay are the formal witnesses. 11. PW.1 Dr. Narinder Singh, who conducted the post-mortem on the dead body of deceased Babita, proved the Post Mortem Report (Ex.PA) of the deceased. 12. PW.9 Ashu alias Anu is a child witness, who is a material witness in this case. The trial court, after recording its satisfaction that the witness can understand the questions put, rationally and can answer rationally, recorded her statement. While appearing in the witness box, she fully supported the case of the prosecution. 13. PW.10 Balwan (the complainant) PW.11 Ajay (brother of the deceased) and PW.12 Roshni (mother of the deceased) are the material witnesses and they have also fully supported the case of the prosecution. 14. PW.13 Constable Rameshwar Singh brought original FIR register pertaining to Police Station Sampla for the year 1999 and proved FIR No. 34 dated 18.2.1999 (Ex.PL) under Sections 498A, 406 IPC, which Crl. A. No. 448-DB of 2003 -7- was got registered by Babita (deceased) against the appellant and his family members. 15. PW.15 Sarwar is the witness to the disclosure statement (Ex.PO) made by the appellant and the consequent recovery of `Sota' (Ex.P1) vide memo Ex.PP. 16. PW.16 ASI Jagbir Singh is the Investigating Officer of the same. 17. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence and false implication in the case. He stated that after his marriage with Babita, under the pressure of her parents, his wife got registered a false case under Sections 498A, 406 IPC against him and his family members. After registration of that case, his mother died due to shock. Later on, he made a report against the father and brother of his wife for causing injuries to him. Thereafter, a compromise was arrived at between them, under which he along with his wife started residing at Rohtak separately from his parents. On 20.8.2002, his wife at the behest of her parents left his daughter at Sampla due to her pregnancy. For that, he was not happy. Due to that, on 27.8.2002, he went to Sampla to bring his daughter, but parents and brother of his wife refused to send her with him, which resulted into exchange of hot words between them. Thereafter, he returned back to Rohtak. When he reached his house at about 4 PM, he found that his wife was lying dead in the kitchen and the police was there. Crl. A. No. 448-DB of 2003 -8- The police told him that they had received information about the incident through control room. They asked him the address of his in-laws and then sent message to them. On search of his house, gold ornaments worn by his wife and kept in the house and cash amount were found missing. He further stated that he also called his relative Mann Singh at the spot. On arrival of the complainant party, they gave beating to him in the presence of the police. They demanded a sum of Rs. 2 lacs from him or to face consequences. On his refusal, a false case was registered against him by the police, on complaint of his father-in-law. 18. In defence, the appellant examined three witnesses. 19. DW.1 Om Parkash, Record Keeper, Judicial Record Room, Rohtak, brought the decided case file of FIR No. 34 of 1999 under Sections 498A, 406 IPC of Police Station Sampla. He proved the certified copies of the statements of Babita (Ex.D6) and Balwan (Ex.D7), recorded in that case, whereby the matter was compromised. On the basis of the said compromise, the appellant and his family members were acquitted on 5.4.2002. 20. DW.2 Attar Singh is the maternal uncle (mother's brother) of the appellant, who stated that marriage of the appellant was solemnized with the deceased. 21. DW.3 Dr. Vimal Sharma, who conducted the medico legal examination of the appellant, proved the MLR (Ex.D8) of the appellant. 22. The trial court, while relying upon the prosecution evidence, particularly the statement of Ashu (PW.9), the child witness, as well as the Crl. A. No. 448-DB of 2003 -9- statements of PW.10 Balwan, PW.11 Ajay, and PW.12 Roshni, who are the father, brother and mother of the deceased, convicted and sentenced the appellant, as indicated above. Hence, this appeal. 23. We have heard the arguments of learned counsel for the parties and have gone through the trial court record. 24. Learned counsel for the appellant argued that in the instant case, the trial court has committed grave illegality, while convicting the appellant for the offence under Section 302 IPC, solely on the basis of statement of PW.9 Ashu, a minor child, aged six years, who was actually not present at the time of the occurrence and had not seen the occurrence. According to the learned counsel, at the time of the alleged occurrence, Ashu (PW.9) was at Sampla with her maternal grand-father. He argued that one day prior to the occurrence, the appellant had gone to his in-laws house to bring his minor daughter Ashu, but his father-in-law and brother-in-law did not send her with him. Learned counsel further argued that in their statements, PW.10 Balwan (the complainant) PW.11 Ajay (brother of the deceased) and PW.12 Roshni (mother of the deceased) have categorically stated that when they reached the place of occurrence, after receiving the information about the death of Babita, Ashu was not found present at the place of occurrence, as she was left at Sampla by Babita on 22.8.2002, when she visited there on the eve of Raksha Bandhan and one day prior to the occurrence, she was left at Rohtak by Ajay with Babita, mother of the child. While referring to this portion of their statements, learned counsel argued Crl. A. No. 448-DB of 2003 -10- that these witnesses have concocted the aforesaid version, because actually Ashu was residing with her maternal grand-father and on the day of the alleged occurrence, she was not present in the house at Rohtak with her mother. According to the learned counsel, the said witness was later on tutored by the parents of Babita and then produced as a witness to the alleged occurrence. Therefore, the presence of the said witness at the time of the alleged occurrence is highly doubtful and the trial court has committed grave illegality while convicting the appellant on the basis of the statement of this witness. Learned counsel further argued that when the alleged occurrence had taken place, the appellant was not present in the house. He came there later on and by that time, the police had already reached there. He called his relative Mann Singh and when the complainant party came at the place of occurrence, they gave beatings to the appellant in the presence of the police. Later on, he was falsely implicated in this case. According to learned counsel, the house of the appellant was situated at a deserted place, outside the Abadi. In the vicinity of the house, there was no other residential house. Therefore, being a lonely place, some person might have killed his wife with an object to commit theft/robbery, but since parents of his wife were greedy persons, they have falsely implicated him in the case. Learned counsel further argued that recovery of wooden `Sota' has been planted on him, which was alleged to have been stained with blood, whereas according to the Doctor, who conducted the post mortem on the body of the deceased, no blood could have been on the weapon, because of Crl. A. No. 448-DB of 2003 -11- the nature of the injuries found on the person of the deceased. Learned counsel further argued that the police had recovered some other Lathi from the spot, which might have been used for the crime, but later on, in order to implicate the appellant, the wooden `Sota' was planted and was shown to have been got recovered from him. Learned counsel also argued that the statements of PW.10 Balwan, PW.11 Ajay and PW.12 Roshni with regard to the alleged harassment of the deceased by the appellant and the alleged motive also do not inspire any confidence, because they are highly interested witnesses and on earlier occasion, they had caused beatings to the appellant, for which a case was registered against them, which was later on compromised. Therefore, conviction of the appellant is totally illegal and unjustified. 25. On the other hand, learned Additional Advocate General, Haryana, supported the judgment of conviction and the order of sentence, passed by the trial court and submitted that the appellant has been rightly convicted and sentenced, on the basis of the evidence, available on the record. 26. After carefully considering the various submissions, made by learned counsel for the parties, we do not find any merit in the instant appeal. 27. From the evidence led by the prosecution, particularly from the statements of PW.10 Balwan, PW.11 Ajay and PW.12 Roshni, it has been proved that the relationship between the husband and wife were strain. It Crl. A. No. 448-DB of 2003 -12- has come in the statements of these witnesses that after the marriage, the appellant started harassing his wife Babita (deceased) on account of demand of dowry, regarding which in the year 1999, a case under Sections 406, 498A IPC was registered against the appellant and his family members. The charges were framed in that case. It has also come in evidence that the appellant also got registered a case against the father and brother of the deceased. Later on, a compromise was arrived at between the parties and in view of that compromise, the appellant and his family members were acquitted vide judgment dated 5.4.2002 and the Babita (deceased) started living with the appellant in a separate house at Rohtak. It has further come in the statements of the aforesaid three witnesses that soon thereafter, the appellant again started harassing his wife and was raising demand of an amount of Rs. 30,000/-. In this background, on 27.8.2002, Babita was found dead in the kitchen of her matrimonial home, having injuries on head, neck and other parts of her body. On receiving the information, the police called the parents of the deceased and on the statement of the father of the deceased, the case was registered against the appellant. During post mortem examination, the doctors found eight injuries on the body of the deceased. Nature of all these injuries clearly indicate that the same could not have been self suffered by the deceased. In our opinion, these injuries, which are on various parts of the body, which were caused by a blunt weapon, could not have been caused by a thief or robber. 28. According to the prosecution, at the time of the occurrence, Crl. A. No. 448-DB of 2003 -13- Ashu, six years old minor daughter of the appellant and the deceased, was present in the house. She had seen the occurrence. While appearing in the court as PW.9, she has categorically stated that her mother has been killed by her father. Before recording her statement in the court, the trial court had asked 13 questions to her about her name, age, name of her school, name of her mother etc., in order to ascertain as to whether she was able to understand the things, rationally and was capable to answer the questions put to her. After considering the replies to those questions, the trial court recorded its satisfaction that the witness was capable to understand and answer the questions put, rationally. While recording statement of the minor child, the trial court had taken all care and caution and correctly recorded the facts stated by her. We have gone through the said statement. The child was cross-examined at length by the learned defence counsel. Many questions were asked to her about her school, living at village of her maternal grand-father, what they eat on the day of occurrence, where she was taken after the occurrence and in whose company she lives after the occurrence. The witness replied all the questions. She has categorically stated that at the time of the occurrence, she was present in the house and her mother was killed by her father. She has further stated that her father used to beat her mother. After the compromise, her mother was brought from the house of her maternal grand-father. Then they started living in a house on rent. She has further stated that a day before the occurrence, she was brought to Rohtak by her maternal uncle Ajay and after leaving her Crl. A. No. 448-DB of 2003 -14- with her mother, he went away. She further stated that after the occurrence, she was sent to village Sisrauli on a scooter. After noon time, her uncle Surinder (brother of the appellant) took her. The statement of this witness clearly shows that immediately after the occurrence, she was taken away from the scene of occurrence and that is why, when the parents of the deceased came at the place of occurrence in the evening, Ashu was not found there. The statement of this child witness itself answers the questions posed by learned counsel for the appellant. 29. During the course of arguments, learned counsel for the appellant argued on two points. Firstly, that PW.9 Ashu was not present at the time of the occurrence and she had not seen the occurrence and later on, by tutoring her, she was introduced as a witness to the occurrence. Secondly, it is not safe to rely upon the testimony of this child witness for convicting the appellant for the offence of murder. After carefully considering the submissions made by learned counsel for the appellant on these issues, we are of the opinion that it has been proved that PW.9 Ashu was present at the time of the occurrence. Her presence in the house at the time, when the crime was committed, was very much natural. The statement made by PW.11 Ajay that a day prior to the occurrence, he himself left the minor child with her mother at Rohtak is reliable and trust-worthy, because this part of his statement has been corroborated by the statement of PW.9 Ashu. On the other hand, the defence taken by the appellant that one day prior to the occurrence, he had gone to his in-laws house at Sampla and Crl. A. No. 448-DB of 2003 -15- insisted to bring his minor daughter Ashu with him, but she was not sent by his in-laws, does not inspire confidence, for various reasons, which will be discussed in the later part of the judgment. In our opinion, the testimony of PW.9 Ashu cannot be discarded only on the ground that at the time of the alleged occurrence, she was only six years old. In Panchhi v. State of U.P., (1998) 7 SCC 177, it was held by the Hon'ble Supreme Court that it cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. In that case, while relying upon the statement of a child witness, the accused were convicted for the offence of murder. In Suryanarayana v. State of Karnataka, (2001) 9 SCC 129, while following the aforesaid judgment, the Supreme Court has held as under : “The evidence of the child witness cannot be rejected per se, but the court, as a