Crl.Appeal No. 103-DB of 2000 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No. 103-DB of 2000 Date of Decision:29.01.2009 1. Ashwani Kumar son of Joginder Pal son of Bihari Lal, Shopkeeper, resident of village Bhaini Rajputan. 2. Shukla Rani w/o Rajinder Kumar son of Baldev Raj, household, village Bhaini Rajputan. .... Appellants Versus The State of Punjab .... Respondent ---- CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. G.K. Maan, Advocate for the appellants. Ms.Gurveen Singh,Additional Advocate General, Punjab for the respondent-State. **** SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 05.11.1999, rendered by the Court of Sessions Judge, Amritsar, vide which Crl.Appeal No. 103-DB of 2000 --2-- it convicted the accused (now appellants), for the offence, punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life each and to pay a fine of Rs.5000/- each, and in default of payment of the same, to undergo further rigorous imprisonment for a period of six months each. 2. The facts, in brief, are that on 18.09.1998 Shiv Nath, Assistant Sub Inspector alongwith Daljit Kumar, Head Constable and other Police officials, was present on patrol duty, and in that connection, they were going through the streets of village Bhaini on their respective cycles and when at about 1.30 PM, they reached in the middle of the village, they heard shrieks from one room of the house, which was bolted from inside. From the gaps in the door of that room, Shiv Nath, Assistant Sub Inspector peeped inside the same ( room ) and found that one man was sitting on the chest of a lady, who was made to lie on the ground and he was pressing her neck. One lady was standing near that place, who was holding a pucca brick, in her hand. That lady gave two blows, with the said brick, on the person of the lady, lying on the ground, and then threw the same on one side of the room when it broke into two pieces. The name of the said lady was Shukla Rani. She Crl.Appeal No. 103-DB of 2000 --3-- told her co-accused Ashwani Kumar that the said lady namely Ashma, his wife, was insulting her before others. Shukla Rani, accused, also exhorted her co-accused Ashwani Kumar that he should finish her, upon which Ashwani Kumar lifted a Khurpa and gave blows with it, in the abdomen of Ashma, his wife. Shiv Nath, Assistant Sub Inspector continued knocking at the door, while witnessing the occurrence. Ashma became unconscious. After killing her, both the accused opened the door and came out. As soon as they came out, they proclaimed that they had accomplished their job, and they should be arrested. Shiv Nath, Assistant Sub Inspector, apprehended Ashwani Kumar and Ashma Rani, accused, brother and sister respectively. Ashma was lying in a pool of blood, on the ground, and had died because of the injuries, caused by the accused, on her person. It was stated that on account of paddy harvesting season, no public witness was available. Shiv Nath, Assistant Sub Inspector lifted two pieces of blood stained brick, blood stained earth and the ordinary earth, from the spot, which were made into three parcels, duly sealed, and taken into possession, vide separate recovery memo. Shiv Nath, Assistant Sub Inspector sent ruqa Ex.PC, to the Police Station, Sarai Amant Khan, on the basis whereof, formal FIR Ex.PD was Crl.Appeal No. 103-DB of 2000 --4-- recorded by Jasbir Singh, Sub Inspector. The statements of the witnesses were recorded. In the meanwhile Sohan Singh, Sub Inspector, Station House Officer, Police Station Sarai Amant Khan, reached the place of occurrence, who took over the investigation from Shiv Nath, Assistant Sub Inspector. Before that Shiv Nath, Assistant Sub Inspector had also taken into possession a Khurpa without handle from the spot. Shiv Nath, Assistant Sub Inspector had also prepared inquest report, in respect of the dead body of Ashma and had despatched the same for post-mortem examination through Prabh Dial, Head Constable and Kapil Dev, Constable and Sohan Singh, Sub Inspector, Station House Officer, arrested both the accused, at the spot. 3. On 19.09.1998 Kapil Dev, Constable produced the clothes, removed from the dead body of Ashma and handed over to him by the doctor, before Sohan Singh, Sub Inspector, Station House Officer, which were taken into possession, vide separate recovery memo. After the completion of investigation, the accused were challaned. 4. On their appearance, in the Court of the committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case Crl.Appeal No. 103-DB of 2000 --5-- was received by commitment, charge under Section 302 read with Section 34 IPC, was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. Ashok Chanan, Assistant Professor, Department of Forensic Medicines, Government Medical College, Amritsar, ( PW-1 ), who conducted post-mortem examination, on the dead body of Ashma Rani, deceased. Shiv Nath, Assistant Sub Inspector, ( PW-2 ), the complainant-cum-eye witness, Daljit Kumar, Head Constable, ( PW-3 ), another eye witness to the occurrence, Kuldip Singh, Moharrir Head Constable, ( PW-3 ), a formal witness, who tendered his affidavit Ex.PK into evidence, Hardial Singh, Constable, ( PW-5 ), another formal witness, who tendered his affidavit Ex.PL, into evidence, Amarjit Singh, Constable, ( PW-6 ), another formal witness, who tendered his affidavit Ex.PM, into evidence, and Sohan Singh, Sub Inspector, Station House Officer, ( PW- 7 ), who partly investigated the case. Thereafter, the Public Prosecutor for the State, gave up Bimla Rani, prosecution witness, as won over. He tendered into evidence Ex.PQ, report of the Chemical Examiner, and closed the prosecution evidence. Crl.Appeal No. 103-DB of 2000 --6-- 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Ashwani Kumar, accused, submitted his written statement, wherein he took up the following plea: “On the day of occurrence, I left my house for going to Amritsar. On the way, I found that I have left my purse at my house. As such, I returned back to take my purse. I saw a man holding my wife in his arms and my wife also holding him. On seeing me, he ran away. In a rage, I gave push to my wife and her head struck against wall. My wife started saying that I cannot satisfy her sexually and continued to say that my six months old son is not from my loins but is from the loins of this person. She told that she will have other child from loins of her lover also. I lost control over myself and under this provocation caused injures to my wife. I had extreme love with my child. I myself had appeared before police and informed about the occurrence. The police made Crl.Appeal No. 103-DB of 2000 --7-- out a false case against me lateron and police men became false witnesses.” Shukla Rani, accused, in her statement, recorded under Section 313 Cr.P.C., took up the following plea:- “I am innocent. I was not present at the time of the alleged occurrence. I am residing at Amritsar. On learning about the alleged incident, I reached village Raja Taal from Amritsar at about 1 PM Thereafter, the police came and I was also taken to the Police Station. Before my arrival, Ashwani Kumar had already been taken by two persons on duty at the bank.” In their defence, the accused examined Chanan Singh, DW1. Thereafter, the accused closed the defence evidence. 7. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellants. Crl.Appeal No. 103-DB of 2000 --8-- 9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellants, at the very outset, contended that no occurrence, in the manner, deposed to by the prosecution witnesses, took place. She further submitted that the conduct of Shiv Nath, Assistant Sub Inspector was most un-natural and improbable. She further submitted that had Shiv Nath been present at the spot, he would have broken open the door of the room, in side which the injuries were allegedly being caused on the person of Ashma Rani, deceased, by the accused. She further submitted that, on the day of occurrence, Ashwani Kumar, left his house, for going to Amritsar and when he came to know that he had left his purse, in his house, he returned, to lift the same. She further submitted that, at that time, he saw a man holding his wife Ashma Rani, in his arms and she was also holding him. She further submitted that on seeing him ( Ashwani Kumar ) that man ran away. She further submitted that, in a rage, he gave push to his wife and her head struck against the wall, resulting into her death. She further submitted that Ashma Rani, wife of Crl.Appeal No. 103-DB of 2000 --9-- Ashwani Kumar, accused, was saying him that he could not satisfy her sexually. She also continued saying that her six months son, was not from his loins, but from the loins of the person, who ran away. She was also telling him that she will have an other child from the loins of her lover. It was further submitted by her that, in these circumstances, Ashwani Kumar, accused, lost control over himself and under grave and sudden provocation, caused injuries to Ashma Rani. She further submitted that Ashwani Kumar, accused, appeared himself before the Police and informed about the occurrence. She further submitted that later on the police introduced false witnesses to falsely implicate both he accused, in the instant case, by projecting a different story. It was further submitted by her that Shukla Rani, accused, who belongs to Amritsar, was not present at the place of occurrence, at the relevant time. She further submitted that the trial Court was wrong in recording conviction and awarding sentence under Section 302 IPC. She further submitted that, at the most, Ashwani Kumar, accused, could be said to have committed the offence punishable under Section 304 Part-I IPC. 11. On the other hand, the Counsel for the respondent-State submitted that Shiv Nath, Assistant Sub Crl.Appeal No. 103-DB of 2000 --10-- Inspector, and Daljit Kumar, Head Constable, who saw the occurrence, had no ill-will, grudge and enmity against the accused. She further submitted that they could be said to be the most natural witnesses at the time, when the occurrence took place. She further submitted that the defence set up by Ashwani Kumar, accused, was only an afterthought, concocted to save himself from the clutches of law. She further submitted that the trial Court was right, in convicting and awarding sentence to both the accused, on the basis of cogent, convincing, reliable and trust-worthy evidence, produced by the prosecution. 12. The First Information Report, in this case, was promptly lodged. The occurrence took place at about 1.30 PM. Shiv Nath, Assistant Sub Inspector , sent ruqa from village Bhaini Rajputan, where the occurrence took place, at about 3.40 PM , to the Police Station, at a distance of 8/9 Kms. from the place of occurrence and the FIR was recorded at 4.15 PM. Had Shiv Nath, Assistant Sub Inspector, and Daljit Kumar, Head Constable been not been present, at the time of occurrence, at about 1.30 PM, it would not have been possible for Shiv Nath, Assistant Sub Inspector to send the ruqa at about 3.40 PM. There was no time, in between to hold consultations to concoct a story, to introduce false witnesses Crl.Appeal No. 103-DB of 2000 --11-- and falsely implicate the accused. The FIR having been lodged within the shortest possible time, it could be said that the occurrence took place, in the manner, deposed to by the prosecution witnesses. The principle of law, laid down, in State of Punjab v. Jugraj Singh 2002(1) RCR ( Criminal ), 753 ( SC ) was to the effect that prompt lodging of the FIR and its despatch to Magistrate strengthened the belief that there was no possibility of either wrong persons being impleaded as accused, or persons who have not seen the occurrence produced as eye witnesses. The principle of law, laid down, in the aforesaid authority, is fully applicable, to the facts of the instant case. The prompt lodging of the First Information Report, in the present case, ruled out the possibility of false implication of both the accused, introduction of false witnesses, and concoction of story. Prompt lodging of the First Information Report also ensures the truthfulness of the case, presented by the prosecution. 13. The prosecution case was unfolded by Shiv Nath, Assistant Sub Inspector ( PW-2 ). According to him, on 18.09.1998, when he was posted in Police Station Sarai Amanat Khan , he alongwith Daljit Kumar, Head Constable and other Police officials, was on patrol duty and in that Crl.Appeal No. 103-DB of 2000 --12-- connection they were going through the streets of Bhaini Rajputan, and when at about 1.30 PM, they passed through the main bazar of the said village and reached in the middle of the same ( village ), shrieks were heard from a house. Shiv Nath, Assistant Sub Inspector alongwith other Police officials went inside the house, as the outer-gate thereof was open. As soon as he alongwith the other Police officials entered the house, they found that a room was bolted from inside. He peeped through the gaps of the door, inside the room, and saw that a lady, whose name was lateron, came to be known as Ashma Rani, had been made to lie on the ground, and Ashwani Kumar, accused, was sitting on her chest and pressing her neck. His statement is further to the effect, that Shukla Rani, accused gave two brick blows on the head of that lady and thereafter, she threw away the same, as a result whereof, it broke into two pieces. Shiv Nath, Assistant Sub Inspector knocked at the door of the room, but the same was not opened. Thereafter, Ashwani Kumar, accused, got up from the chest of Ashma, and picked up a Khurpa, without wooden handle and gave 15/16 khurpa blows, on the person of Ashma. Thereafter, both Ashwani Kumar, and Shukla Rani, accused, came outside the room, after opening the door thereof, saying that they had Crl.Appeal No. 103-DB of 2000 --13-- accomplished their job. Both of them were apprehended at the spot. The statement of Shiv Nath, Assistant Sub Inspector was duly corroborated through the evidence of Daljit Kumar, Head, Constable, ( PW-3 ), who was with him, at the time of occurrence and also witnessed the same. The ocular evidence was duly corroborated by the medical evidence, provided by Dr. Ashok Chanan, Assistant Professor, Department of Forensic Medicines, Government Medical College, Amritsar, ( PW-1 ), who conducted the post-mortem examination on the dead body of Ashma Rani on 19.09.1998, at about 12.15 PM and found the following injuries, on her person:- “1. A lacerated wound 2.4 x 1 cm with clotted blood and underlying bone visible was present on left side of the forehead, 2 cm above the central eyebrow and was obliquely placed. 2.A lacerated wound 3 x 1.4 cm muscle deep with clotted blood was present on left side of the forehead 3.5 cm above the outer end of the eyebrow and was obliquely placed. 3.A lacerated wound 5 x 3.5 cm with clotted blood bone deep, was present on the left side of the forehead 8 cm above the inner end of left eyebrow. 4.Multiple (12) stab wounds varying in size from 4 x 1 cm to 1.8 x 0.7 cm irregularly placed, with ragged margins were scattered on the front and Crl.Appeal No. 103-DB of 2000 --14-- center of the abdomen in between xiphisternum and umblical region. 14. According to the doctor, the injuries, on the person of Ashma Rani, deceased, were ante- mortem in nature. The doctor opined that the cause of death was hemorrhage and shock, as a result of the stab injuries 6,7,8 as described under heading 4, which were sufficient to cause death, in the ordinary course of nature. The probable of time that elapsed between injuries, and death, was immediate and between the death and post mortem examination, was about 12 to 24 hours. The injuries which were found on the dead body of Ashma Rani, were lacerated wound and stab wounds numbering 12 . These injuries could be caused with a blunt weapon like brick and Khurpa, a sharp edged weapon. Further corroboration to the ocular version was provided through the recovery of blood stained Khurpa, one of the weapons of offence, from the spot, which was taken into possession, vide recovery memo Ex.PG/1 and broken standard brick, stained with blood, which was taken into possession, vide memo Ex.PH. Still further corroboration to the ocular version, was provided through Ex.PQ, report of Crl.Appeal No. 103-DB of 2000 --15-- the Chemical Examiner. According to this report, one Khurpa, two pieces of brick, lifted from the spot,. salwar and shirt of the deceased, were found to be stained with blood. Shiv Nath, Assistant Sub Inspector and Daljit Kumar, Head Constable, eye witnesses, did not have any ill-will, grudge, and enmity against the accused, to falsely implicate them, in the instant case. They stood the test of touchstone of all probabilities, during the course of their cross-examination. On in-depth scrutiny of the evidence of Shiv Nath, Assistant Sub Inspector (PW-2) and Daljit Kumar, Head Constable, (PW- 3 ), the same has been found to be cogent, convincing, reliable and trust-worthy. The trial Court, was thus, right in relying upon the cogent and convincing evidence of both these eye witnesses, duly corroborated by the medical evidence and the aforesaid circumstantial evidence, for coming to the conclusion that the accused committed the offence, punishable under Section 302 read with Section 34 IPC. The finding of the trial Court, in this regard, being based on the correct appreciation of evidence, warrant no interference and deserves to be upheld. Crl.Appeal No. 103-DB of 2000 --16-- 15. No doubt, accused Ashwani Kumar, in his written statement, submitted by him, at the time of recording his statement, under Section 313 Cr.P.C. stated that he killed Ashma, his wife, when he found her, in a compromising position with some other person, who ran away from the spot. Shukla Rani, accused, took up the plea of alibi stating that she was present at Amritsar and on hearing the news, came to the place of occurrence. The accused also took up another plea that, in fact, after Ashwani Kumar had committed thse murder of Ashma Rani, many persons had collected, in the house of Rajinder Kumar, the place of occurrence, which included Joginder Singh, and Chanan Singh. According to the defence version, Ashwani Kumar, accused disclosed about the occurrence to these persons, who then went to Raja Taal Co-operative Bank and informed the same to Karam Singh, Constable and Kultar Singh, SPO. Thereafter, Karam Singh and Kultar Singh, SPO, took Ashwani Kumar, accused with them to Police Station Sarai Amanat Khan . In order to prove the defence plea, taken up by the accused, Chanan Singh, was examined Crl.Appeal No. 103-DB of 2000 --17-- as DW-1. During the course of cross-examination, he stated that he had not moved any application, to the higher Police officials, or the Executive authorities, to the effect, that the case was falsely instituted against Ashwani Kumar or that the story of the occurrence was given a different colour, by the Police. In case, the occurrence had not taken place, in the manner, deposed to by Shiv Nath, Assistant Sub Inspector , ( PW-2 ) and Daljit Kumar, Head Constable, ( PW-3 ), both the eye witnesses, then there would have been no impediment in the way of Chanan Singh, DW-1, claiming himself to be a public spirited man, to move an application, before the higher Police authorities, or higher Administrative authorities, stating therein, that the occurrence took place, in a different manner, but the Police gave a different colour to the same, to falsely implicate the accused. Why he did not do so, and slept over the matter, for such a long time, is a matter which remained shrouded in mystery. Even Joginder Singh, Karam Singh, Constable, and Kultar Singh, SPO, referred to above, were not examined, by the accused, as defence witnesses, to prove their version. Even the Crl.Appeal No. 103-DB of 2000 --18-- name of the person, who was allegedly found in compromising position, with Ashma Rani, wife of Ashwani Kumar, accused, was not disclosed. Had Ashma Rani been found in compromising position, with another man, Ashwani Kumar, must be knowing his name. Why he did not disclose his name, is a matter, which also remained shrouded in mystery. This goes to show that Ashma Rani was never found in compromising position, with another man, but Ashwani Kumar, accused, gave a different colour, to the story, just on legal advice. If Ashma Rani was saying that the child of six months, was not from the loins of Ashwani Kumar, then he could certainly get himself and the child subjected to DNA test, to find out as to whether he was his son or not. No step was taken up by the accused, in that direction. Both the accused were arrested at the spot. Under these circumstances, the plea of alibi of Shukla Rani, accused, to the effect, that she was not present at the time of occurrence, nor she participated in the same, was false. The defence version, set up by the accused, was nothing but a tissue of lies. The defence version was an afterthought just Crl.Appeal No. 103-DB of 2000 --19-- concocted by the accused, to save themselves from the clutches of law. The trial Court was, thus, right in disbelieving and discarding the defence version, and the defence evidence, produced by the accused, in support of that version. This Court, after in-depth scrutiny of the defence version, and the defence evidence, also comes to the same conclusion. There is no reason, to interfere with the finding recorded by the trial Court, for disbelieving and discarding the defence version and the defence evidence. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 16. The Counsel for the appellants, however, placed reliance on Bant Singh v. State of Punjab, 2007(2) RCR ( Criminal ) 607, ( P&H ) ( Division Bench ), in support of her contention, that Ashwani Kumar, at the most committed an offence punishable under Section 304 Part-1 IPC. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The defence version set up by the accused, has been held to be an afterthought and the defence evidence has been found to be unreliable. In these Crl.Appeal No. 103-DB of 2000 --20-- circumstances, it could not be said that the accused, caused injuries on the person of Ashma Rani, under grave and sudden provocation. The manner, in which the injuries, were caused by both the accused, on the person of Ashma Rani, deceased, clearly showed that there was an intention on their part to kill her. It was not that one injury was caused, on