Crl. Appeal No.349-DB of 2002 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.349-DB of 2002 Date of Decision: 29.02.2008 Joginder Pal ....Appellants. Versus State of Punjab ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. D.K. Kaushal, Advocate for the appellant. Mr. S.S. Bhinder, A.G., Punjab for the respondent. ... J.S. Khehar, J. The instant appeal has been filed by the accused/appellant Joginder Pal against the order passed by the Sessions Judge, Gurdaspur in Session Case No.37 of 2000, decided on 10.1.2002. By the impugned judgement, the accused/appellant Joginder Pal has been held guilty of the murder of his wife Rajwant Kaur @ Gogi, under Section 302 of the Indian Penal Code. By a separate order passed on the same date i.e. on 10.1.2002, the accused/appellant Joginder Pal was sentenced to undergo imprisonment for life and to pay a fine of Rs.3,000/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. Crl. Appeal No.349-DB of 2002 2 The prosecution version of the incident is based on the complaint made by Jaswant Singh PW3. It would be pertinent to mention, that the complainant Jaswant Singh PW3 was the brother of the deceased Rajwant Kaur @ Gogi. The statement of Jaswant Singh PW3 was recorded by ASI Lakhbir Singh PW5. In his complaint dated 21.3.2000, Jaswant Singh PW3 stated that the deceased Rajwant Kaur @ Gogi was his youngest sister, and that, she was married to the accused/appellant Joginder Pal about ten years prior to the occurrence. From her marriage, the deceased Rajwant Kaur @ Gogi had one son and one daughter. According to the complainant, the accused/appellant Joginder Pal was addicted to gambling and drinking. In order to satisfy his aforesaid passions, he used to beat Rajwant Kaur and send her to her parent's house to bring money. On all such earlier occasions, on account of intervention of relatives and respectables, and after the accused/appellant Joginder Pal had apologized from Rajwant Kaur, she used to go back to his house. On the date of recording of the statement i.e. on 21.3.2000 at about 2.00 PM, the complainant Jaswant Singh PW3 claims to have gone to see his sister Rajwant Kaur at the house of the accused/appellant Joginder Pal. He saw, the accused/appellant Joginder Pal beating his wife Rajwant Kaur. Whereafter, the accused/appellant Joginder Pal poured kerosene oil on Rajwant Kaur from a container and then set her on fire, and then ran away from the place of occurrence. It is the assertion of the complainant Jaswant Singh PW3, that he ran after the accused/appellant Joginder Pal so as to apprehend him, but the accused/appellant Joginder Pal managed to escape. When he returned to the house, he saw that his sister Rajwant Kaur, who had been badly burnt, had died. Having seen the occurrence, the Crl. Appeal No.349-DB of 2002 3 complainant Jaswant Singh PW3 claims to have gone to his village Shampura so as to inform his mother Santo and other respectables, of the incident under reference. Whereafter, he alongwith his mother Santo and member panchayat Gurbax Singh were proceeding towards the police station to lodge the report when they came across ASI Lakhbir Singh PW5, who recorded his statement at about 7.00 PM. According to ASI Lakhbir Singh PW5, he forwarded the statement of the complainant Jaswant Singh PW3 for the registration of a First Information Report. A First Information Report bearing No.93 was, accordingly, registered at Police Station, Civil Lines, Batala on 21.3.2000. After recording the statement of Jaswant Singh PW3, ASI Lakhbir Singh PW5 proceeded to the place of occurrence and on reaching the residence of the accused/appellant Joginder Pal, he prepared the rough site plan of the place of occurrence. He took possession of the container smelling of kerosene oil and a match box which he found at the place of occurrence. He also recorded the statements of those present at the place of occurrence and prepared the inquest report of the dead body of Rajwant Kaur @ Gogi. He then sent the dead body of Rajwant Kaur for postmortem examination to the Civil Hospital, Batala, through Head Constable Kuldeep Singh. He also arrested the accused/appellant Joginder Pal on the following day i.e. on 23.3.2003. After completing the formalities of investigation, a challan was presented before the Sub Divisional Judicial Magistrate, Batala on 2.6.2000. By an order dated 15.7.2000, the Sub Divisional Judicial Magistrate, Batala arrived at the conclusion that a prima-facie case under Section 302 of the Indian Penal Code was made out against the accused/appellant Joginder Pal. Since the offence under Section 302 of the Crl. Appeal No.349-DB of 2002 4 Indian Penal Code is exclusively triable by the Court of Session, the Sub Divisional Judicial Magistrate, Batala by an order dated 15.7.2000 committed the case to the Court of Session. The Sessions Judge, Gurdaspur by his order dated 8.9.2000 charged the accused/appellant Joginder Pal of having committed the murder of his own wife Rajwant Kaur, under Section 302 of the Indian Penal Code. The accused Joginder Pal was then confronted with the charge levelled against him. He pleaded not guilty and claimed trial. During the course of trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution before the trial Court, is being summarised hereunder. The prosecution first of all, examined Satish Chander as PW1. A perusal of the statement of Satish Chander PW1 reveals that he had prepared the scaled site plan of the place of occurrence. The next witness examined, was Dr. Jagdev Singh PW2. Dr. Jagdev Singh, while he was posted as Medical Officer, Civil Hospital, Batala, had conducted the postmortem examination on the dead body of Rajwant Kaur @ Gogi on 22.3.2000. A perusal of the statement of Dr. Jagdev Singh PW2 reveals that he had found the body smelling of kerosene oil. As per his statement, the whole of the body of Rajwant Kaur was burnt and charred. Only both feet and a small area on her left leg was spared. According to Dr. Jagdev Singh PW2, the body of Rajwant Kaur bore 95% burns. The hair of Rajwant Kaur had also been burnt. In the opinion of Dr. Jagdev Singh PW2, Rajwant Kaur had died due to burn shock, and that, burn injuries on her body were ante-mortem in nature, and were sufficient in the ordinary course of nature to result into death. The statement of the complainant Jaswant Singh was Crl. Appeal No.349-DB of 2002 5 recorded as PW3. It would be pertinent to mention, that the complainant Jaswant Singh PW3 was the brother of the deceased Rajwant Kaur @ Gogi. In his statement, the complainant Jaswant Singh PW3 reiterated the version of the incident depicted by him, at the time when he made a complaint to the police on 21.3.2000. It needs to be noticed, that during the course of his cross-examination, the complainant Jaswant Singh PW3 acknowledged that in the first instance, after the occurrence, he had proceeded to village Shampura to inform his mother and other relations, for which he had boarded a bus from the Bus Stand, Batala. He also admitted, that there was a police post falling on the way to the bus stand, but he did not make a report at the said police post because he was perturbed and wanted to bring the occurrence to the notice of his relatives in the first instance. He also stated that his village was at a distance of about 50 kms. Having gone to his village and reported the matter to his relations and other respectables, he is stated to have returned to the house of the accused/appellant Joginder Pal alongwith the relations and other villagers by the same route, and despite the fact that the police post again fell on their way, he again did not register any complaint about the death of his sister Rajwant Kaur @ Gogi. In his cross-examination, the complainant Jaswant Singh PW3 also stated, that when he returned to the house of the accused/appellant Joginder Pal, he found that her body had gone stiff. He also stated, that the sarpanch and members of the panchayat had gone to the police station in the first instance, and that, he had reached the police station to make a complaint later on. The statement of LC Subhash Chander was recorded as PW4. He tendered into evidence his affidavit Ex.PE. He stated, that he had taken the special report of the case under reference and presented the same before the Ilaqa Crl. Appeal No.349-DB of 2002 6 Magistrate, Batala at 8.15 PM. The statement of ASI Lakhbir Singh was recorded as PW5. In his statement, ASI Lakhbir Singh PW5 acknowledged, that he had recorded the statement of the complainant Jaswant Singh PW3. He also affirmed the fact, that he investigated the matter as has already been narrated hereinabove. After the statement of ASI Lakhbir Singh PW5 was recorded, the prosecution evidence was closed by order. The statement of the accused/appellant Joginder Pal was recorded under Section 313 of the Code of Criminal Procedure, on 17.9.2001. During the course of recording his aforesaid statement, the incriminating evidence appearing on the record, was put to him. He denied the same. In his statement, he only stated that he was innocent and had been involved in the case falsely. In his defence, the accused/appellant Joginder Pal produced two witnesses, namely, Smt. Prito as DW1 and Smt. Santo as DW2. In her statement, Prito DW1, who is the sister of the deceased Rajwant Kaur @ Gogi, stated that she came to know about the occurrence from the daughter of her husband's younger brother Balwinder Kumar. On receipt of the aforesaid information, she proceeded to the house of the accused/appellant Joginder Pal. As per the statement of Prito DW1, the accused/appellant Joginder Pal was not present at his residence when she had reached there. On reaching the residence of the accused/appellant Joginder Pal and having come to know of the occurrence, she conveyed the message thereof on telephone to her relations. Her mother Smt Santo is stated to have reached at the place of occurrence alongwith some other persons. According to the statement of Prito DW1, Rajwant named by her, is Jaswant Singh PW3 as he Crl. Appeal No.349-DB of 2002 7 is called by that name also. In her cross-examination, she asserted that her sister Rajwant Kaur @ Gogi was 4/5 years younger to her. She acknowledged that the accused/appellant Joginder Pal was addicted to liqour and used to beat his wife Rajwant Kaur @ Gogi. She denied any knowledge in respect of her sister having been sent to her parents by the accused/appellant Joginder Pal to collect money. She acknowledged that panchayats were convened for the aforesaid purpose on many occasions, and the accused/appellant Joginder Pal was requested not to mal-treat the deceased Rajwant Kaur @ Gogi. She, however, acknowledged that the accused/appellant Joginder Pal had taken a loan of Rs.1,000/- from her parents and had not returned the same. In her cross-examination, she denied that on the date of occurrence, the accused/appellant Joginder Pal was at his residence. She also denied the presence of the complainant Jaswant Singh PW3 at the time of occurrence. She denied that her brother Jaswant Singh PW3 had witnessed the occurrence. In her statement, Smt. Santo DW2 i.e. the mother of the deceased Rajwant Kaur @ Gogi, as also, the mother of the complainant Jaswant Singh PW3 stated, that she had received a telephonic message about the occurrence from her daughter Prito, who was married to the brother of the accused/appellant Joginder Pal. She asserted that she alongwith 5/6 other women of the village had reached the residence of the accused/appellant Joginder Pal. She first stated, that the accused/appellant Joginder Pal was not present at his residence when she had reached there. She, however, corrected herself by then stating, that the accused/appellant Joginder Pal was present in the house when she reached there, and further that he was weeping. She acknowledged that her son Jaswant Singh PW3 alongwith some other persons of the village, had Crl. Appeal No.349-DB of 2002 8 reached the place of occurrence in the evening. She denied any knowledge as to how her daughter Rajwant Kaur @ Gogi came to be burnt. Interestingly, in her cross-examination, she spilled her beans by stating that she had made her statement in Court so as to save the accused/appellant Joginder Pal from the clutches of law so that he can bring up his children. After the statements of the aforesaid defence witnesses were recorded, on the statement of the accused/appellant Joginder Pal, the defence evidence was closed. The Sessions Judge, Gurdaspur delivered the judgement in Sessions Case No.37 of 2000, on 10.1.2002. The accused/appellant Joginder Pal was found guilty of having murdered his wife Rajwant Kaur @ Gogi, under Section 302 of the Indian Penal Code. On the same day i.e. on 10.1.2002, after having heard the accused/appellant Joginder Pal on the question of sentence, the Sessions Judge, Gurdaspur sentenced the accused/appellant Joginder Pal to undergo imprisonment for life, as also, to pay a fine of Rs.3,000/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Sessions Judge, Gurdaspur reveal that while convicting the accused/appellant Joginder Pal, the Sessions Judge, Gurdaspur placed exclusive reliance on the ocular evidence of the complainant Jaswant Singh PW3. The complainant Jaswant Singh PW3 undoubtedly is a chance witness and relative of the deceased Rajwant Kaur @ Gogi. Be that as it may, his testimony was accepted as correct as he was an eye witness to the occurrence. Reliance was also placed on expert evidence placed on the record of the case through the Crl. Appeal No.349-DB of 2002 9 statement of Dr. Jagdev Singh PW2. The trial Court arrived at the conclusion that the accused/appellant Joginder Pal used to mal-treat his wife Rajwant Kaur @ Gogi. On the date of the occurrence i.e. on 21.3.2000 at about 2.00 PM, he had poured kerosene oil on her wife and had set her on fire. The fact that the deceased Rajwant Kaur @ Gogi had died on account of burn injuries received by her, was sought to be established by the testimony of the statement of Dr. Jagdev Singh PW2, as he had deposed that the dead body of Rajwant Kaur @ Gogi smelt of kerosene oil, and also, that her death had taken place on account of burn injuries suffered by her. Mr. D.K. Kaushal, Advocate as amicus curae, appearing on behalf of the accused/appellant Joginder Pal has seriously contested the veracity of the statement of the complainant Jaswant Singh PW3. It is the contention of the learned counsel for the accused/appellant that the testimony of the complainant Jaswant Singh PW3 must be examined with suspicion, and only if it is corroborated by other evidence available on the record of the case, it should be accepted. Since it is not a matter of dispute that the complainant Jaswant Singh PW3 was not only a chance witness, but also was a relative of the deceased Rajwant Kaur @ Gogi, it is the submission of the learned counsel for the accused/appellant, that his testimony should be viewed with suspicion and accepted after examining it cautiously and with close scrutiny. In this behalf, learned counsel for the accused/appellant has placed reliance on the decision rendered by the Supreme Court in Bahal Singh Vs. State of Haryana, 1976 Current Law Journal (Criminal) 137. In continuation of the submissions noticed in the foregoing paragraph, it is also the contention of the learned counsel for the Crl. Appeal No.349-DB of 2002 10 accused/appellant, that the testimony of the complainant Jaswant Singh PW3 is quite unnatural. In this behalf, it is pointed out that despite the fact that he allegedly saw the accused/appellant Joginder Pal giving a beating to his real sister Rajwant Kaur @ Gogi, he did not interfere in his aforesaid acts, as against his own sister. It is further submitted that as per the statement of Jaswant Singh PW3, he himself witnessed the accused/appellant Joginder Pal pouring kerosene oil on his real sister and then set her on fire and yet, did nothing to stop him from doing so. It is submitted, that since the instant behaviour at the hands of the complainant Jaswant Singh PW3 was unnatural, it is natural to conclude that he was not actually present at the place of occurrence, and that, he was introduced later on to fill up the gaps in the prosecution case. In continuation of the submission noticed in the foregoing paragraph, it was also the contention of the learned counsel for the accused/appellant, that in case his sister had actually been set ablaze, his first reaction would be to save his sister rather than to run after the accused/appellant Joginder Pal so as to apprehend him. All these facts, according to the learned counsel for the accused/appellant clearly demonstrate that he was not really an eye witness to the occurrence. It is also the contention of the learned counsel for the accused/appellant, in continuation of the submissions noticed in the foregoing paragraph, that after such an occurrence, it is the first responsibility of an eye witness to report the matter to the police. However, as per the cross-examination of Jaswant Singh PW3, although, he crossed the police post on two occasions immediately after the occurrence, he did not make a complaint to the police in respect of the occurrence. This fact Crl. Appeal No.349-DB of 2002 11 also, according to the learned counsel for the accused/appellant goes a long way to establish that the fact that the complainant Jaswant Singh PW3, did not witness the occurrence at all. Reference has also been made to the statements of Smt Prito DW1 and Smt Santo DW2 in order to demonstrate that the complainant Jaswant Singh PW3 came to the residence of the accused/appellant Joginder Pal well after Prito DW1 and Santo DW2 had reached the place of occurrence. On the basis of the contention noticed in the foregoing paragraph, it is submitted that it would be too harsh to accept that the complainant Jaswant Singh PW3 had witnessed the occurrence himself. It is, accordingly, pleaded that the testimony of Jaswant Singh PW3 should not be taken into consideration, while recording conclusions in this case. It is submitted that in the absence of the deposition of Jaswant Singh PW3, there is no evidence to record a finding against the accused/appellant Joginder Pal. We have considered the aforesaid submissions. We must acknowledge that each one of the contentions advanced by the learned counsel for the accused/appellant Joginder Pal seems to be attractive and could possibly lead to the conclusion that the complainant Jaswant Singh PW3 may not have been at the place of occurrence when the same had taken place on 21.3.2000. In terms of the decision rendered by the Supreme Court in Bahal Singh's case (supra), relied upon by the learned counsel for the accused/appellant Joginder Pal, we have examined the matter cautiously. A close scrutiny of the matter, however, has compelled us to decline each one of the aforesaid submissions. The reasons for our aforesaid conclusion are being narrated hereunder. Crl. Appeal No.349-DB of 2002 12 First and foremost, no benefit would accrue to the complainant Jaswant Singh PW3 in making a statement to the effect recorded by him while appearing as PW3, during the trial of the case. His statement as PW3, concurs with the earlier statement made by him as a matter of complaint to the police on 21.3.2000. In the absence of any personal gain, there could hardly be any justification for not accepting the veracity of the statement made by the complainant Jaswant Singh PW3. Secondly, the beans in respect of the truth of the matter came to be spilled by the accused/appellant Joginder Pal himself when he examined Prito DW1 and Santo DW2 in his defence. Undoubtedly, the statements of the two defence witnesses are apparently in favour of the accused/appellant Joginder Pal. It, however, clearly emerges from the statement of Santo DW2, that she had recorded the statement keeping in mind the future of the children of her deceased daughter Rajwant Kaur @ Gogi. While appearing as a witness, Santo PW2 during the course of her cross-examination admitted that she had made her statement so that the accused could be saved from the clutches of law so that he could bring up his children. It is, therefore apparent, that the truth was to the contrary, and in case, the truth had been uttered, the accused/appellant Joginder Pal could not have saved himself from the clutches of law. Thirdly, the accused/appellant Joginder Pal was living under the same roof with the deceased Rajwant Kaur @ Gogi. The deceased Rajwant Kaur @ Gogi died on account of burn injuries at his house. It was natural for him to know as to how she had suffered the burn injuries. The aforesaid responsibility must be deemed to have been placed on his shoulders under Section 106 of the Indian Evidence Act, 1872. Whether Rajwant Kaur @ Gogi committed suicide by pouring kerosene oil on herself and then set Crl. Appeal No.349-DB of 2002 13 herself on fire ? Were the burn injuries on the person of the deceased Rajwant Kaur @ Gogi caused accidentally ? Rather than disclosing the manner in which Rajwant Kaur @ Gogi came to have suffered burn injuries, the accused/appellant Joginder Pal in his statement under Section 313 of the Code of Criminal Procedure, merely made a declaration of his innocence, without stating any thing further. If there were sufficient reasons for not knowing how the occurrence took place, he should have narrated the same. Since the accused/appellant Joginder Pal did not adequately discharge the onus placed on his shoulders under Section 106 of the Indian Evidence Act, 1872, it is natural that an adverse inference has to be drawn against him. The instant conclusion of ours is also based on the fact that the accused/appellant Joginder Pal in his statement under Section 313 of the Code of Criminal Procedure did not dispute the fact that he was not at his residence when the occurrence took place. The cross-examination of Jaswant Singh PW3 at the hands of the accused/appellant also does not suggest that the accused/appellant Joginder Pal was not at his residence at the time of occurrence. Fourthly, the social status of the family members of the deceased Rajwant Kaur @ Gogi, as also, the witness must be taken into consideration before recording any final inference on the veracity of their statements. It has emerged from the evidence that all the family members are illiterate labourers. The statement of Santo mother of the deceased Rajwant Kaur @ Gogi also reveals, that she earns her livelihood by working as a labourer. The reaction of all the witnesses, therefore, must be gauged by keeping the aforesaid factual position in mind. Would it be natural for the complainant Jaswant Singh PW3 to consult his family members after witnessing the occurrence wherein his sister Rajwant Kaur @ Gogi was set Crl. Appeal No.349-DB of 2002 14 ablaze by her husband Joginder Pal ? In examining the aforesaid query, we are of the view, that the answer to the aforesaid has to be in the affirmative. Since serious consequences would emerge, it was natural for an illiterate person to have consulted his relations and respectables of his village. This is exactly what Jaswant Singh PW3 did before he recorded his complaint to the police on 21.3.2000. It is, therefore, not very material in the facts and circumstances of the present case that the complainant Jaswant Singh PW3 had crossed the police post