IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.18-DB of 2000 Date of Decision: 16.02.2009 Ishwar Chand Appellant Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.H.S.Jaswal, Advocate for the appellant-amicus curiae Mr.S.S.Randhawa, Addl.A.G. Haryana for the respondent-State …. Jasbir Singh, J. On 2.12.1999, the appellant was convicted for commission of an offence punishable under Section 302 IPC and vide order dated 3.12.1999, he was sentenced to undergo imprisonment for life. It was allegation against the appellant that on 25.8.1998, he had committed murder of his wife namely, Birmati and his minor son, namely, Manoj by strangulating them. Criminal Appeal No.18-DB of 2000 2 Process of law was set in motion at the instance of Miya Singh (PW1), father of the deceased, on whose statement (Ex.PA), formal FIR (Ex.PA/1) was recorded on 26.8.1998 at 1.00 AM in police station Sadar Kaithal. The prosecution’s case, as noticed by the trial Court, in paragraph Nos.3 to 6 of its judgment, reads thus:- “3. According to Miya Singh complainant, he is resident of village Bopur, District Sangrur (Punjab) and is agriculturist; he married his daughter Birmati with Ishwar son of Devia, resident of village Guhna (accused) about 11 years ago as per Hindu rites and ceremonies; two sons were born out of wedlock namely Manoj (deceased) six years and Sohna aged 4 years. About 3-4 months before death, Ishwar accused started harassing Birmati and started giving her beating; about 2 ½ months before death, Birmati had visited village Bopur and told the complainant that her husband was to purchase a plot and for that purpose, he used to say her to bring Rs.50,000/- and used to harass her on that count; that Miya Singh told his daughter that he should await till harvesting of paddy crop and that he would give the requisite money after harvesting of paddy crop. 4. It is further averred that Smt.Sunheri, mother of Ishwar accused visited village Bopur and told Miya Singh that he should sent Birmati with her and hence, Birmati was sent Criminal Appeal No.18-DB of 2000 3 to the matrimonial home with her mother-in-law; that however, after few days Shamsher Singh, younger brother of accused visited village Bopur and told Miya Singh that Ishwar accused used to harass Birmati and that he should bring her and hence, Miya Singh accompanied Shamsher to village Guhna and reasoned with Ishwar accused and however, accused assured Miya Singh that he would not give beatings and would not harass Birmati and hence, Miya Singh returned to his village. 5. On 25.8.1998 at about 4.00 P.M. Birbhan son of Risal Singh and Ganesha son of Miya Ram, resident of village Guhna visited the complainant in village Bopur and told him that Ishwar accused committed murder of Birmati and her son Manoj in the tubewell kotha of his fields when she had gone to the fields to serve food at about 12.30 P.M. and that he ran away after killing both of them. 6. It was also averred that his son Balwan and Rajbir son of Sherjang, Goldmith, resident of village Bopur were already sent by him to village Guhna two days ago to enquire about the welfare of Birmati. After hearing news of death of Birmati and Manoj, Miya Singh alongwith Raghbir Singh son of Ishwar resident of village Banarsi. Man Singh son of Nath Ram, Ram Chander son of Malli, resident of village Bopur reached village Guhna and Criminal Appeal No.18-DB of 2000 4 enquired about the occurrence. His son Balwan told him that he and Rajbir alongwith Ishwar were watering paddy fields when at about 12.30 P.M. Birmati along with Manoj had visited the fields to serve food and that however, Ishwar strangulated her with a plastic pipe in the tubewell kotha. He further told him that he along with Rajbir ran towards tubewell Kotha after hearing cries and that however in their sight, he strangulated Manoj Kumar as well with the said plastic pipe. He also found both Birmati and Manoj lying dead in the tubewell kotha. He left Raghbir Singh and Ram Chander with the dead body and proceeded to lodge report with the police.” The statement of Miya Singh was recorded by SI Suresh Chand (PW8). On intimation sent by him, FIR was registered against the appellant. SI Suresh Chand went to the place of occurrence, prepared inquest report regarding dead bodies of Birmati and Manoj and sent both the dead bodies for post-mortem examination. Appellant-accused was arrested on 28.8.1998. On 29.8.1998, he suffered a disclosure statement, in response to which, he got recovered plastic pipe which he used for strangulating his wife and son. The investigating officer got prepared rough site plan of the place of occurrence and also got photographs of that place. He recorded statements of the eye witnesses. On completion of investigation, final report was put in Court for trial. The appellant- accused was charge sheeted on 9.12.1998, to which he Criminal Appeal No.18-DB of 2000 5 pleaded not guilty and claimed trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the appellant-accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him which he denied, pleaded innocence and false implication, however, he led no evidence in defence. Mr.H.S.Jaswal, Advocate appearing for the appellant has vehemently contended that the trial Court was not justified in convicting and sentencing the appellant vide the impugned judgment and order. He argued that the FIR was recoded after a gap of about 12 hours. The intervening period was used to concoct a false story against the appellant. He further argued that presence of so called eye witnesses, namely, Rajbir (PW2) and Balwan Singh (PW3) was not plausible at the spot. If both of them were there, they would have been in a position to save the deceased. He further stated that it was a case of blind murder and the appellant was introduced as an accused, because of strained relations with his in-laws. There was no motive to commit the crime. By making reference to minor contradictions in the statements made by PW2 and PW3, he argued that they were not present at the spot, rather they were introduced later on to strengthen case of the prosecution. He further by stating that the investigation was tainted, prayed that appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charges framed against him. Prayer made has vehemently been opposed by the State counsel. He by taking us through the statements made by the complainant Miya Singh (PW1) and other witnesses, namely, Rajbir (PW2) and Balwan Singh (PW3), Criminal Appeal No.18-DB of 2000 6 stated that the guilt of the appellant-accused was proved on record, as such, the trial Court was justified in convicting him. He has further argued that both the deceased were residing with the appellant, they were found dead in ‘tube-well’ room of the appellant. In such like circumstances, the appellant cannot escape liability simply by saying that he was falsely implicated in the present criminal case. He prayed that appeal having no substance be dismissed. In this case, death is by strangulation. Post-mortem on the dead bodies was conducted by Dr.R.K.Grover (PW10) on 26.8.1998 at 11.15 AM. On the body of Birmati, the witness found “19 x 1.5 cm blackish transverse ligature mark over left side and back of neck just below the thyroid cartilage. Petechial haemmorahages around seen. Ligature mark was slightly depressed and base was dry, hard and parchment like. The subcutaneous tissue was ecchymosed under mark. Thyroid cartilage was fractured. Trachea was compressed and two rings were broken.” Following injuries were also found on the person of Birmati:- 1. A 4.5 x 1.5 cm black abrasion over the left cheek. On dissection brain was found to be congested. Larynax and trachea were compressed and congested with haemorrhage seen inside. Both lungs were congested. Liver, spleen and kidney were congested. Uterus was empty. All other organs were healthy.” Cause of death was asphyxia due to stragulatin which was ante- mortem in nature and sufficient to cause death in ordinary course of nature. Criminal Appeal No.18-DB of 2000 7 Regarding dead body of deceased Manoj, following observations were made by the above said witness:- “found a 14 x 1.5 cm black transverse ligature mark over right side and back of neck, just below the thyroid cartilage. Peticial haemorrhage around was seen. Ligature mark was slightly depressed and base was dry hard and parchment like. The subcutaneous tissue was ecchymosed under mark. Thyroid cartilage was fractured. Trachea was compressed and rings broken.” Following injuries were also noticed on the dead body of Manoj:- “1. A 3 x 2.2 cm black abrasion over the right cheek. On dissection brain was found congested. Trachea and larynx were compressed and blood was seen in the trachea. Both the lungs were congested. Liver, spleen and kidneys were congested. Rest of the organs were healthy.” Cause of death was asphyxia due to strangulation which was ante-mortem in nature and sufficient to cause death. This witness has further stated that black plastic pipe which was shown to him could have been used for strangulation of the deceased by the accused. The witness has specifically denied that if some iron rod falls on neck of Birmati from the roof, ligature mark of the kind, found on her body, can not be possible. This witness has also ruled out death by strangulation by hanging. Miya Singh (PW1) is father-in-law of the appellant. He has specifically stated that the appellant had been teasing the deceased Birmati, to bring money from her Criminal Appeal No.18-DB of 2000 8 parents. Miya Singh (PW1) has further stated that he promised to make payment after cutting his crop and further that he sent his son Balwan Singh and Rajbir, his friend, to persuade the appellant-accused not to harass his daughter. Both the persons named above were present when unfortunate incident has happened. Vivid description of the crime, committed by the appellant was given by Rajbir (PW2) and Balwan Singh (PW3). Both have stated that on 25.8.1998, they were available in the fields owned by the appellant and were helping him in watering the rice crop. Birmati along with Manoj came to serve food to them. Appellant-accused first went to take food. Both the witnesses were busy in doing their work. On hearing cries, they were attracted to a small room near the tube-well and saw the appellant strangulating small child namely Manoj. The appellant escaped from the spot and when both of them reached inside the room, they saw Birmati also lying dead. PW3 has stated that thereafter, he sent somebody to intimate his father Miya Singh (PW1) and after his arrival, FIR was got registered. Taking note of the distance between the village of the appellant-accused and his in-laws and the police station, we feel that recording of FIR was not delayed. Otherwise also, delay in recording FIR will be fatal only if there existed some evidence on record that the intervening period was used to falsely implicate the accused. It has come on record that Sohna son of the deceased is alive and was residing with the appellant-accused. It is most unexpected that in such like situation, father of the deceased Miya Singh (PW1) will leave out the real culprit and instead, get involved his son-in-law (the appellant) in the murder of his daughter and grand son. The facts are such, that we believe the presence of Rajbir (PW2) and Balwan Singh (PW3) at the place of Criminal Appeal No.18-DB of 2000 9 occurrence when incident had happened. On the basis of minor discrepancies in their statements, which are not very material, benefit can not be given to the appellant-accused. The investigating officer has proved on record that plastic pipe used for strangulating the deceased, was got recovered by the appellant from his house. The defence has failed to shatter credibility of the witness, mentioned above. It is an admitted fact on record that both the deceased were living with the appellant-accused. They were found dead in a small room, near tube-well, owned by the appellant. In such like situation, it was for the appellant to show that how death has occurred. To support above said proposition, reliance can be placed on a Division Bench judgment of this Court in Amarjit Singh and others v. State of Punjab, Recent Criminal Reports 1989(1) 18. Above said case was a dowry death case. By taking note of the provisions of Sections 105 and 106 of the Evidence Act, 1872, it was observed as under:- “21. It is well recognized in criminal law of breach of trust that where property is entrusted to another, it is the duty of that other to give the true account of what he did with the property so entrusted to him and his failure to do so raises under Section 105 a presumption that he had criminally misappropriated the property so entrusted to him. We view that the position of a bride cannot be worse. Her welfare and physical protection is also in trust with the people in whose cases she has been put in and if she has been deprived of her life, the person to whom she Criminal Appeal No.18-DB of 2000 10 stood entrusted must necessarily account for as he or she alone is supposed to have a special knowledge about the crime especially when he or she was the last person to be seen together or expected to be together with the deceased.” It was further observed that it was for the husband to prove and explain how did the bride with whom he was last seen together or expected to be together last, turn into a course as that fact would be presumed to be especially within his knowledge. In the present case, the appellant has failed to give any explanation worth the name as to how his wife and son had died. In view of facts mentioned above, no case is made out for interference. Dismissed. (Jasbir Singh) Judge 16.02.2009 (Jora Singh) gk Judge