IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 102-DB of 2002 DATE OF DECISION : 07.10.2010 Roshan Lal .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. D.S. Pheruman, Advocate, for the appellant. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellant Roshan Lal was tried by the Court of Sessions Judge, Hoshiarpur, for the offence under Section 302 IPC, for committing the murder of his wife Samittra Devi, who was aged about 28 years. The trial court, vide its judgment and order dated 18.1.2002, convicted and sentenced the appellant to undergo imprisonment for life. 2. In the present case, the FIR (Ex.PF/2) was registered against the appellant on the statement (Ex.PF) of Sohan Lal (PW.2), the real brother of the deceased, which was recorded by ASI Resham Singh (PW.9) on 31.8.2000 at 5.45 PM. According to his statement, his sister Samittra Devi was married to Roshan Lal (appellant herein) about four years back. She had Crl. A. No. 102-DB of 2002 -2- not given birth to any child. On that pretext, the appellant oftenly used to beat her. She used to tell about the same to them. On 30.8.2000 at about 4 PM, the appellant along with his wife Samittra Devi was coming to the village of the complainant to meet them. In the way, when they reached near Hydel Project, Mukerian on Singhowal bridge, the appellant stopped his scooter there and after giving beatings to Samittra Devi, he pushed her into the canal, as a result of which she died. Thereafter, he fled away from the spot. On 31.8.2000, when the complainant along with Bishambar Dass, Sarpanch, reached near Power House No. 4, Mukerian, in search of the dead body of his sister Samittra Devi, they found her dead body entangled in the gate of the canal. They took out the dead body from the canal. In the meanwhile, on the information given, the police came on the spot and recorded the aforesaid statement of the complainant. The complainant stated that his brother-in-law Roshan Lal pushed Samittra Devi in the canal and killed her on the pretext that no child was born to her. 3. The inquest report (Ex.PE) was prepared by ASI Resham Singh. In the inquest proceedings, the dead body of Samittra Devi was identified by Bishambar Dass Sarpanch and Hem Raj, another brother of the deceased. Their statements were recorded. The dead body was sent to Civil Hospital, Dasuya, for post-mortem examination. It is the further case of the prosecution that on the same day, i.e. on 31.8.2000, the police recorded the supplementary statement of the complainant (Ex.DA) (though no specific time of recording this statement was given), wherein he stated that Crl. A. No. 102-DB of 2002 -3- Balwinder Singh (PW.7) and Gowardhan Singh (PW.8) had seen the occurrence and according to them, the appellant gave beatings to his wife and thereafter, pushed her into the canal. 4. On 1.9.2000 at 1.30 PM, Dr. Naresh Kumar (PW.1) conducted post mortem examination on the dead body of Samittra Devi. He found the following three injuries on the body of the deceased : 1. Lacerated wound 6 cm x 1.20 cm bone deep present on the right side of forehead oblique in direction. It was starting 2.5 cms above the medial end of right eye brow, 2 cms from the midline and was extending upwards and medially upto the midline. On dissection, clotted blood was present between scalp and skull around the wound. 2. Lacerated wound 5 cms x 1 cm, muscle deep present on the dorsum of left foot, 3 cms anterior to the left ankle joint. Wound margins and deeper tissues were not showing any blood stains. 3. Deformity and unnatural movements of left leg in its upper one third present. On dissection, there was fracture of both bones of the leg. There was no clot or staining of tissues around the fracture site. According to him, injury No.1 was ante-mortem in nature and injuries No.2 and 3 were post-mortem in nature. The probable time between death and post mortem was between 18 to 48 hours. Vide his opinion (Ex.PC), the Doctor opined that the exact cause of death could not be ascertained, but possibility of death due to drowning could not be ruled out, as the body was in the state of decomposition. In his cross-examination, he has opined that Crl. A. No. 102-DB of 2002 -4- injury No.1 on the dead body could be possible by striking against rough and hard surface. The Post Mortem Report of the deceased has been proved on record as Ex.PA. 5. On 1.9.2000, the appellant was arrested. On 5.9.2000, during interrogation, in pursuance of his disclosure statement (Ex.PO), the appellant got recovered a scooter bearing registration No. PB-08-6952, allegedly being driven by the appellant at the time of the incident, and a pair of chappals of the deceased from the room of his house, which were taken into possession vide recovery memo (Ex.PQ). Rough site plan (Ex.PR) of the place of recovery of the scooter was prepared. 6. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offence under Section 302 IPC, to which he did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined 9 witnesses, out of whom only PW.1 Dr. Naresh Kumar, PW.2 Sohan Lal, PW.7 Balwinder Singh, PW.8 Gowardhan Singh and PW.9 ASI Resham Singh are the material witnesses and the remaining witnesses, examined by the prosecution, are formal in nature. 8. PW.1 Dr. Naresh Kumar, who conducted post-mortem examination on the dead body of the deceased, has proved the Post Mortem Report (Ex.PA) and his opinion (Ex.PC) regarding the cause of death in this case. 9. PW.2 Sohan Lal is the complainant in this case, who has Crl. A. No. 102-DB of 2002 -5- reiterated his entire version, as was stated by him to the police in his initial statement (Ex.PF) and supplementary statement (Ex.DA). 10. PW.7 Balwinder Singh and PW.8 Gowardhan Singh are the alleged eye witnesses, who have stated that they had seen the occurrence and in their presence, the appellant gave beatings to his wife and thereafter, pushed her into the canal. 11. PW.9 ASI Resham Singh is the Investigating Officer of the case. He has also fully supported the case of the prosecution and proved all the material documents. 12. 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 took the defence that Rattan Chand, brother of deceased Samittra Devi was involved in a case of abduction of a girl. To defend the said case, the appellant and his wife Samittra Devi borrowed ` 10,000/- from his maternal uncle Puran Singh. When the said amount was not re-paid, on 30.8.2000, Puran Singh came to their house and demanded the money. Then Samittra Devi had an altercation with him. Thereafter, she asked the appellant to accompany her to her parents house, so that the amount of ` 10,000/- can be taken from them and paid to Puran Singh. Then he along with his wife went on scooter to his in-laws house. In the way, when they reached near the canal bridge, Samittra Devi asked the appellant to stop the scooter on the pretext of going for urinating. He stopped the scooter. She went aside and all of a sudden, she jumped into the canal. Crl. A. No. 102-DB of 2002 -6- He also jumped into the canal to save her, but she was washed away in fast current of water. He was saved by Mohinder Singh of village Bambowal and was taken out of the canal. He stated that his wife had not cordial relations with Hem Raj and his wife. He further stated that he never met Balwinder Singh and Gowardhan Singh nor they had even seen him earlier to the occurrence. The appellant further stated that his wife Samittra Devi used to remain under depression and tension because of her inability to give birth to a child. He also stated that earlier, in the marriage function of Dildar Singh, brother of Samittra Devi, a quarrel arose between her and her brother. After attending the marriage, when they were returning on scooter, Samittra Devi was very much tense and was under depression. When they reached near village Muradpur, she jumped from the running scooter and fell down on the road side. In that incident, her arm was dislocated and she was wounded. 13. In defence, the appellant examined 8 witnesses. 14. DW.1 Mohinder Singh supported the defence taken by the appellant and stated that on the day of occurrence, he was going on his cycle, whereas the appellant and his wife Samittra Devi were going on a scooter. In the way, the appellant stopped the scooter and his wife went towards bushes at a distance of 5/7 yards from the canal bank. After coming out of the bushes, she jumped into the canal and to save her, the appellant also jumped into the canal, but he could not catch hold of her. She was washed away in the water. He pulled out the appellant from the canal water Crl. A. No. 102-DB of 2002 -7- with the help of a rope. Then he went to his village and informed Tilak Raj, Sarpanch of the village, regarding the incident. 15. DW.2 Puran Singh, maternal uncle of the appellant, has also supported the defence of the appellant and stated that about three months prior to the death of Samittra Devi, she and her husband (appellant) had come to him and borrowed ` 10,000/- from him, saying that the said amount was needed to her brother, who was involved in a criminal case. He further stated that on the day of occurrence, he went to the house of the appellant to demand money. The appellant and his wife Samittra Devi told him that they would return the money by the evening. But at 5 PM on the same day, when he was present in his village, he came to know that Samittra Devi had died. 16. DW.3 N.K. Bakhshi, DSP, Mukerian has deposed regarding the complaint made by Thoru Ram, father of the appellant, which was marked to SHO, Mukerian. 17. DW.4 Tilak Raj, Sarpanch of village Bambowal, supported the statement of DW.1 Mohinder Singh. 18. DW.5 Thoru Ram, father of the appellant, supported the defence taken by the appellant and has proved the application/complaint dated 14.10.2000 (Ex.DD), made to SSP, Hoshiarpur. In that complaint, the defence version taken by the appellant was narrated with a prayer that proper and fair investigation be conducted in the case. 19. DW.6 Ajay Singh, SI/SHO, Police Station Tanda has stated that the complaint (Ex.DD) was marked to him, and he submitted his report Crl. A. No. 102-DB of 2002 -8- (Ex.DE), which indicates that since the police had already filed the challan, therefore, no further action was taken on the said complaint. 20. DW.7 Harvinder Singh HC proved DDRs No. 26 and 27 dated 31.8.2000 as Ex.DF and Ex.DG. 21. DW.8 Sukhwinder Singh, DSP, Dasuya, has proved his report (Ex.DF) dated 29.11.2000. 22. The trial court, after considering the evidence led by the prosecution and while placing reliance on the testimonies of both the eye witnesses and while coming to the conclusion that the defence version is improbable, convicted and sentenced the appellant, as indicated above. Hence, this appeal. 23. While assailing the impugned judgment, learned counsel for the appellant argued that the learned trial court has committed grave illegality while relying upon the testimonies of the alleged two eye witnesses, namely PW.7 Balwinder Singh and PW.8 Gowardhan Singh. According to the learned counsel, these two witnesses were neither present at the spot at the time of occurrence nor they had seen any occurrence. The complainant, in connivance with the police, by taking the benefit of delay in lodging the FIR, got their statements recorded subsequently. Learned counsel argued that both these witnesses allegedly informed about the occurrence to the brothers of the deceased, namely Hem Raj and Sohan Lal (the complainant), at 5 PM on the same day, but when after about 24 hours, at 5.45 PM on the next day, the complainant made his initial statement to the police, their Crl. A. No. 102-DB of 2002 -9- names were not mentioned in the statement. Learned counsel further argued that at the time of the preparing of inquest proceedings by the police, both the witnesses were present, but at that time also, neither any reference about them was made in the inquest proceedings nor in the statement of Hem Raj, which was recorded by the police at that time. According to the learned counsel, these facts clearly indicate that both the witnesses had not seen the occurrence and they are the planted witnesses. Learned counsel further argued that the version given by both the witnesses is highly improbable and the same is not in conformity with the medical evidence available on record. He argued that names of these two witnesses for the first time came in the supplementary statement of the complainant, alleged to have been recorded on the same day, but PW.9 ASI Resham Singh, the Investigating Officer of the case, who recorded the supplementary statement, did not indicate the time of recording the supplementary statement. According to the learned counsel, this fact further strengthens his argument that both the alleged eye witnesses were not present on the spot and their testimonies are wholly unreliable and untrustworthy. Learned counsel further argued that statement of the complainant is also unreliable, because the prosecution has not explained that when this witness came to know about the alleged murder of his sister at 5 PM on 30.8.2000, then why he had not informed the police about the same. According to the learned counsel, this conduct of the complainant is highly improbable. Therefore, testimony of such kind of witness cannot be relied upon for convicting the appellant for the offence of Crl. A. No. 102-DB of 2002 -10- murder. While referring to the evidence, particularly the statement of the Investigating Officer, learned counsel argued that the police received information about the dead body lying in the canal at 11 AM on 31.8.2000, from an employee of Power House, Mukerian, and thereafter, they went at the spot, but the said witness was not examined by the prosecution. According to the learned counsel, thereafter, the police came on the spot, pulled out the dead body from the canal, recorded the statement of the complainant and thereafter, with due deliberations and consultations, the case was registered after a long delay. Therefore, the entire prosecution version is doubtful. Learned counsel further argued that the defence version taken by the appellant is not an after-thought. In the very beginning of the investigation, father of the appellant had made a complaint (Ex.DD) to SSP, Hoshiarpur, disclosing the defence version, which has been taken in this case. But the defence version was not investigated on the pretext that the police had already filed the challan in the case. Learned counsel argued that the appellant has examined various witnesses, who clearly prove his defence version. According to the learned counsel, the trial court has committed grave illegality, while not relying upon the defence version, which is most reasonable and probable. Therefore, according to learned counsel, the judgment of the trial court is not sustainable in the eyes of law. 24. On the other hand, learned Additional Advocate General, Punjab, while supporting the reasoning recorded by the trial court, submitted that the prosecution has fully established its case against the Crl. A. No. 102-DB of 2002 -11- appellant and he has been rightly convicted and sentenced for the offence under Section 302 IPC. 25. We have considered the submissions made by learned counsel for the parties and have gone through the record of the case. 26. As per the Post Mortem Report (Ex.PA), which has been proved by PW.1 Dr. Naresh Kumar, one lacerated wound 6 cm x 1.20 cm bone deep (injury No.1) was found on the right side of forehead. This was the only injury, which was ante-mortem in nature. (The other two injuries on the body of the deceased were found to be post-mortem in nature). It is neither the case of the prosecution nor Dr. Naresh Kumar has opined that deceased Samittra Devi had died due to the said injury. Though Dr. Naresh Kumar (PW.1) has not given any clear opinion about the cause of death of deceased Samittra Devi, but he has categorically stated that possibility of the death due to drowning could not be ruled out. In the cross-examination, PW.1 Dr. Naresh Kumar has admitted that injury No.1 on the body of deceased Samittra Devi could be possible by striking against rough and hard surface. Thus, in our opinion, the prosecution has not clearly proved that in the present case, the death of Samittra Devi was homicidal. It may be suicidal. 27. The case of the prosecution is based upon the statement of PW.7 Balwinder Singh and PW.8 Gowardhan Singh, who allegedly had seen the occurrence. Both these witnesses belong to village Passi Karora, which is the adjoining village of the village of the complainant. According Crl. A. No. 102-DB of 2002 -12- to them, on 30.8.2000 at about 4 PM, when they were going towards Mukerian Musahibpur, via the Patri of the canal on scooter, they saw that one woman and one man were quarreling on the northern side of the canal. They stopped their scooter and recognized that the man was Roshan Lal (accused-appellant herein) and the woman was his wife Samittra Devi (deceased). They saw that Roshan Lal hit Samittra Devi with some object on her head and pushed her in the canal. They raised alarm, but Roshan Lal after starting the scooter ran away from the spot. They could not save Samittra Devi, as they did not know swimming. Thereafter, they went to village Ghagwal and informed Roshan Lal (complainant) and his brother Hem Raj about the occurrence. After that, they went to their village and on the next day, they came to the canal, from where dead body of Samittra Devi was recovered. They have admitted in their statements that the police reached the spot after their reaching the spot, and in their presence, statement of the complainant was recorded by the police and the inquest proceedings were completed. 28. Now the questions arising for consideration in this case are (i) whether these two alleged eye witnesses were present at the spot at the time of the alleged occurrence? (ii) whether they had actually seen the occurrence? And (iii) whether their statements are reliable and trust-worthy or not? It is well established that while assessing evidence of eye witnesses, the Court must adhere to two principles : (1) whether in the circumstances of a case, it was possible for eye witnesses to be present at the scene; and Crl. A. No. 102-DB of 2002 -13- (2) whether there was any thing inherently improbable and unreliable in their version. 29. In the present case, the FIR (Ex.PF/2) was registered not on the basis of the statements of the aforesaid two witnesses, who were allegedly very much present at the spot, but it was registered on the statement (Ex.PF) of Sohan Lal (PW.2), to whom both the aforesaid eye witnesses narrated the occurrence on 30.8.2000 itself at about 5 PM. The statement (Ex.PF) of Sohan Lal (PW.2) was recorded by the police on 31.8.2000 at 5.45 PM. Surprisingly, in the said statement, the complainant did not mention names of the aforesaid two eye witnesses. He only stated that the appellant, after giving beatings to Samittra Devi, pushed her into the canal. He did not state that both the aforesaid eye witnesses told him about the said fact. Undisputedly, Sohan Lal is not the eye witness. He himself had not seen the occurrence. He was told about the occurrence by the aforesaid two witnesses. But it has not been explained by the prosecution as to why the complainant in his statement (Ex.PF) to the police did not mention names of those eye witnesses, who had allegedly seen the occurrence. It appears that to fill up this lacunae, subsequently on the same day, the prosecution recorded the alleged supplementary statement (Ex.DA) of the complainant. However, the time of recording the said statement has not been mentioned. ASI Resham Singh, the Investigating Officer of the case, while appearing in the witness box as PW.9, has also not given any time of recording of the said supplementary statement. He has only stated that on the same day, Crl. A. No. 102-DB of 2002 -14- supplementary statement of the complainant was recorded. From the inquest report (Ex.PE), it appears that the said supplementary statement was recorded, after the completion of the inquest proceedings, as in the inquest report, there is no reference of the aforesaid two eye witnesses. It is pertinent to mention here that at the time of preparing the inquest report (Ex.PE), statements of Bishambar Dass (Sarpanch of village Gugwal) and Hem Raj (brother of the deceased) were also recorded, but they also did not mention the names of the alleged eye witnesses. PW.9 ASI Resham Singh, the Investigating Officer of the case, in his cross-examination, has also admitted that names of Balwinder Singh and Gowardhan Singh, the alleged eye witnesses, do not find mention in the inquest proceedings. He further admitted that at the time of recording of the inquest proceedings, both the aforesaid eye witnesses were present, but he has not explained as to why their statements were not recorded by him, during the inquest proceedings. 30. Secondly, as per the testimonies of both the alleged eye witnesses, namely PW.7 Balwinder Singh and PW.8 Gowardhan Singh, immediately after the occurrence on 30.8.2000 at about 5 PM, they had informed about the occurrence to complainant Sohan Lal and his brother Hem Raj. Complainant Sohan Lal (PW.2), in his statement in the court, stated that on receiving the information, he along with Bishambar Dass, Sarpanch of the village, went to the canal in search of the body of his sister. He has further admitted that Bishambar Dass, Hem Raj and both the eye witnesses were present at the time of the recovery of the dead body on Crl. A. No. 102-DB of 2002 -15- 31.8.2000. Therefore, it does not stand to reason that during the inquest proceedings, when the police recorded the statements of Bishambar Dass and Hem Raj, then why the names of two eye witnesses did not find mention in the inquest proceedings. This fact is creating doubt about the presence of the alleged two eye witnesses at the time of the occurrence. 31. Thirdly, the conduct of complainant Sohan Lal (PW.2) and the alleged two eye witnesses is highly improbable. When on 30.8.2000 at about 5 PM, Sohan Lal (PW.2) was informed by the alleged eye witnesses about the causing of death of his sister Samittra Devi by her husband, then it has not been explained as to why the matter was not reported to the police on the same day. Complainant Sohan Lal, his brother Hem Raj and Bishambar Dass, Sarpanch of the village, had spent time in searching the dead body, but they did not inform the police about the committing of murder by the accused. 32. Fourthly, Balwinder Singh, while appearing in the witness box as PW.7, stated that accused Roshan Lal hit Samittra Devi (deceased) with some object on her head and thereafter, pushed her in the canal. He has not stated that with what object, the accused had hit Samittra Devi on the head. Actually, this witness had made this improvement in the