CRIMINAL APPEAL NO. 279-DB OF 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: March 26, 2009 Parties Name Udayvir Singh ...APPELLANT. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. Jagjit Singh Bedi, Advocate, with Mr. I.P.Singh, Advocate, for the appellant. Mr. S.S.Randhawa, Addl. A.G., Haryana; JASBIR SINGH, J. JUDGMENT Vide judgment and order dated May 1, 2000, appellant – accused Udayvir was convicted for commission of an offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5,000/- with a default clause. It was allegation against him that on June 12, 1999, he had committed murder of his wife Smt. Shanti Devi. Case of the prosecution, as noticed by the trial Court in paras No. 2 to 4 of the impugned judgment, reads thus: “2. Briefly stated the facts are that Smt. Vidya and Smt. Shanti (now deceased) were the sisters of PW2 Hari Singh and PW3 CRIMINAL APPEAL NO. 279-DB OF 2000 -2- Gaddar Singh. In fact in all they were three brothers and three sisters. Smt. Vidya and Smt. Shanti were married in village Chhainsa. Smt. Vidya was married with Mangal son of Hari Ram while Shanti Devi was married with Udaybir accused about 25 years ago. She had given birth to three sons and one daughter from the lions of accused. Her daughter was already married. Her major son was employed in the Army while her two other sons were minors. 3. On 11.06.99 PW2 Hari Singh alongwith his brother PW3 Gaddar Singh had gone to village Chhainsa from their village Bhaindoli to see their sisters. First of all, they went to see Smt. Shanti. In their presence, a quarrel took place between Smt. Shanti and the accused but they pacified them and after taking tea, at about 8.00/9.00 pm they left for the house of Smt. Vidyawati where they took dinner and slept for the night. 4. On 12.6.99 at about 6.45 am they again went to the house of Smt. Shanti. Smt. Shanti and Udaybir accused again started quarreling in their presence. They tried to pacify them but Udaybir did not accede to their request. He picked up a Phawra (Kassi) and gave ¾ Phawra blows from reverse side on her head. Smt. Shanti succumbed to her injuries at once.” It is further case of the prosecution that after death of Smt. Shanti Devi , PW1 and PW2 rushed to their native village as the atmosphere in village Chhainsa was hostile to them. They came back along with other CRIMINAL APPEAL NO. 279-DB OF 2000 -3- respectables from their village. PW2 Hari Singh made a complaint Ex. PC for registration of the case, upon which FIR Ex. PC/2 was recorded against the appellant on June 12, 1999, at 12.15 PM. The Investigating Officer - SI Jarnail Singh (PW4) went to the spot, prepared inquest report of the dead body Ex. PB and sent it for post-mortem examination. Dr. S.K.Manocha (PW1) conducted autopsy on the dead body of Smt. Shanti Devi on June 12, 1999, at about 5.30 PM and found the following injury: “1. An incised wound of 2 cm x 1 cm over the right side of nose in upper part. Whole of the right face was badly crushed. Parietal bone, temporal bone and occipital bones were fractured into multiple pieces. Right ear was badly torn and the lower portion of the right ear was seen. Brain matter was coming out of the wound. Clotted blood was seen on the neck, nose and on the left side of face.” This witness further stated that cause of death was head injury resulting injury to the brain (vital organ), which was ante mortem in nature and was sufficient to cause death in the ordinary course of life. The Investigating Officer -SI Jarnail Singh (PW4) got prepared rough site plan (Ex. P1) with correct marginal notes. He also arrested the accused. On completion of investigation, final report was put in Court for trial. The appellant – accused was charge-sheeted to which he pleaded not guilty and claimed trial. The prosecution produced four witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was CRIMINAL APPEAL NO. 279-DB OF 2000 -4- put to him, which he denied, claimed innocence and false implication. However, the appellant – accused admitted that Shanti Devi was his wife, married to him about 25 years ago and she had given birth to 3 sons and 1 daughter from his lions. Appellant also led evidence in defence, in which he tried to state that Shanti Devi had received injury by fall of an electric motor upon her from a rack lying in his house. The trial Court on appraisal of evidence, as led by both the parties, came to the conclusion that the prosecution was successful in bringing home guilt of the appellant – accused. Accordingly, he was convicted and sentenced, as mentioned in earlier part of this order. Hence this appeal. Counsel for the appellant has vehemently contended that conduct of the alleged eye witnesses Hari Singh (PW2) and Gadar Singh (PW3) was not rational. Both were chance witnesses. The occurrence was stated to have taken place at 7 AM on June 12, 1999. As per case of the prosecution, both had seen the appellant – accused causing injuries to the deceased. If that was so, there was no occasion for them to rush back to their village and report the matter to the police at 12.15 PM. Counsel argued that their conduct was most unnatural which indicates that they were not present at the spot. In the alternative, counsel for the appellant argued that marriage of the deceased with the appellant had taken place about 25 years ago. Out of the wed-lock, four children had taken birth. Relations between both of them were cordial and there was no previous instance of using violence by the appellant against the deceased. He contended that it might be a sudden altercation and under provocation, the appellant might have caused injuries to the deceased with Phawra (Kassi) which was not weapon of offence. The doctor found only one injury on the person of the CRIMINAL APPEAL NO. 279-DB OF 2000 -5- deceased. Under those circumstances, it was argued, that at the maximum, case would fall under the provisions of Section 304 IPC and not Section 302 IPC. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant accused be acquitted of the charges framed against him. Prayer made by counsel for the appellant has vehemently been opposed by the State counsel. By making reference to the sequence of events and the injuries caused by the appellant to the deceased, he argued that she was killed with a purpose and it was not sudden and provocative blow given by the appellant on head of the deceased. He prayed that the appeal having no substance be dismissed. We have heard counsel for the parties. We are not inclined to accept argument raised by counsel for the appellant that presence of PW2 and PW3 was not proved on record. Both these witnesses have clearly deposed the facts and circumstances, under which assault was committed by the appellant – accused upon the deceased. Both have clearly stated that in their presence, husband and wife started quarrelling. They tried to pacify them but the appellant – accused did not agree and gave 3 - 4 Phawra blows from its reverse side on the head of their sister. On receipt of injury, Smt. Shanti died in their presence. Merely because both of them, instead of going to the police, rushed to their village is no ground to discard their testimony. In Court, witnesses have deposed that atmosphere in the village, where occurrence had taken place, was hostile to them. Out of fear they rushed to their village and came back in the presence of respectables and then lodged a report with the police. Death has occurred in a house owned by the appellant – accused. Defence CRIMINAL APPEAL NO. 279-DB OF 2000 -6- version that injury was caused due to fall of an electric motor upon the deceased from a rack is absolutely not acceptable. Appellant – accused has not disputed his presence at the spot. He has failed to explain as to how death has occurred. Under these circumstances, the prosecution version appears to be more probable. Faced with the situation, counsel for the appellant, in the alternative, argued that there was no motive to cause injury and no previous history of assault by the appellant to the deceased. It might be a sudden flare up between the couple, which resulted into unfortunate incident. He prayed that under the circumstances, the case would fall under the provisions of Section 304 Part II IPC and not Section 302 IPC. To support his contention, he placed reliance upon a judgment of Single Bench of this Court in Surinder Singh v. State of Punjab, 2008(4) RCR (Criminal) 426, a judgment of the Hon'ble Supreme Court in Vadla Chandraiah v. State of Andhra Pradesh, 2007 (1) R.C.R. (Criminal) 523, and a Division Bench judgment of this Court in Hari Lal v. State of Punjab, 2007(3) RCR (Criminal) 432. After looking at the evidence on record, we are inclined to agree with the alternative argument raised by counsel for the appellant. It is not in dispute that marriage between the appellant – accused and the deceased had taken place about 25 years ago. Out of this wed-lock, four children had taken birth and are settled in life. There is no previous history of assault by the appellant to the deceased. No motive has been advanced by the prosecution to commit murder by the appellant of the deceased. Weapon used was not a regular weapon of offence. Rather it was a house- hold article to collect cow-dungs etc. It was used from its reverse side and CRIMINAL APPEAL NO. 279-DB OF 2000 -7- that too in the presence of two brothers of the deceased. It appears that there might be some sudden flare up between the couple. It has also come on record that husband and wife started quarreling with each other, despite intervention by PW2 and PW3, the matter could not be pacified and in the meantime appellant – accused caused injury to the deceased. By taking note of the ratio of the judgments, referred to in earlier part of this judgment and facts of this case, we conclude that the offence committed by the appellant would fall under the provisions of Section 304 Part II and not Section 302 IPC. In view of above, we partly allow this appeal, set aside conviction and sentence of the appellant – accused under Section 302 IPC and hold him guilty for commission of an offence under Section 304 Part II IPC and sentence him to undergo rigorous imprisonment for a period of seven years. Fine imposed by the trial Court with default clause is upheld. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE March 26, 2009. DKC