IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 761-DB of 2004 DATE OF DECISION : 21.04.2010 Dharam Pal .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Ms. Archna Sharma, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. This appeal is arising from an unfortunate incident, wherein the husband (appellant) had murdered his wife on a small issue of not preparing the vegetable in the meal. The appellant was tried by the Court of Additional Sessions Judge, Panipat, for the offence under Section 302 IPC and vide judgment dated 21.8.2004 and the order dated 23.8.2004, he has been convicted and sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- under Section 302 IPC. Against the said judgment and order, the appellant has filed the instant appeal. 2. As per the prosecution version, the appellant along with his wife (Darshna Devi) was residing in village Bijwa, Police Station Israna, Crl. A. No. 761-DB of 2004 -2- District Panipat. Their marriage had taken place 26 years before the alleged occurrence. The couple was having two sons and two daughters. At the time of the occurrence, the younger son Sombir (PW.7) was 11 years old. On the day of the occurrence, he was present in the house. On 19.6.2002, at about 9.00/ 10.00 p.m., his father (appellant) came and asked his mother (deceased) why she had not prepared vegetable in the meal. She replied that she was having no money to purchase the vegetable and that is why she had prepared `Chatni'. Thereupon, a dispute arose between them and his father put all the `Chapatis' before the dogs and pigs. Thereafter, his mother slept on a cot and he along with his father slept on a separate cot. At about 2.00/3.00 a.m., his father (appellant) hit `Mussal' on the head of his mother Darshna Devi (deceased). He tried to raise alarm, but his father threatened him and started beating him. In the morning, he found his mother dead and his father left the house. 3. In the morning, at about 7.00 a.m., one Sher Singh (PW.6), a resident of the village and cousin of the appellant, found Darshna Devi lying dead on the cot. At that time, Sombir (PW.7) was present there. He called the Sarpanch of the village. Information was also sent to the police and to the parents of Darshna Devi. On receiving the information, Ram Singh (PW.9) and Jagdish (PW.11), father and brother of deceased Darshna Devi, and the police came to the village. They were told by Sombir that his father had murdered his mother. Thereupon, on the basis of the statement (Ex.PL), made by Jagdish to SI Dharamvir Singh on 20.6.2002 at 11.15 Crl. A. No. 761-DB of 2004 -3- AM, the formal FIR (Ex.PL/2) was registered against the appellant. 4. On the same day i.e. on 20.6.2002, Dr. Jai Parkash (PW.1) conducted autopsy of the deceased and he found the following two injuries on the dead body : 1. There was blackening of right eye and swelling of both upper and lower eye lids with prominence of right cheek. 2. There was a lacerated wound 2.8 cm x .5 cm temporal region left side was longitudely placed, anterior end of the injury was 6 cms above the root of right pinna. Injury was bone deep. On dissection there was subcutaneous haemotoma in the scalp layers, underlying temporal bone was found broken. On further dissection there was extra-dural as well as subdural haemotoma. All the injuries were ante-mortem in nature. He opined that the cause of death was the injury to vital organ i.e. brain, leading to shock, haemorrhage and death. The injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. He proved the post mortem report (Ex.PA). 5. On 20.7.2002 i.e. after one month of the occurrence, the appellant was arrested. Thereafter, in pursuance of his disclosure statement (Ex.PG), he got recovered the `Mussal' (Ex.P1) from the heap of fire wood lying in kotha of Turi in his village, which was taken into possession vide memo Ex.PJ. On 25.7.2002, Dr. Jai Parkash (PW.1) and Dr. V.P. Gupta gave the opinion (Ex.PC/1) that injury No.2 on the body of the deceased could have been caused by `Mussal' (Ex.P1) recovered at the instance of the appellant. Crl. A. No. 761-DB of 2004 -4- 6. After completion of investigation, challan was filed against the appellant and he was charge sheeted for the offence punishable under Section 302 IPC, to which he did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined 13 witnesses, including PW.1 Dr. Jai Parkash, who conducted the autopsy of the deceased, PW.5 Rajbir Singh ASI, witness of arrest and recovery as well as the spot inspection, PW.6 Sher Singh, cousin of the appellant, who for the first time saw the dead body of the deceased at about 7.00 a.m., on 20.6.2002 and gave information to the Sarpanch of the village, PW.7 Sombir, the sole eye witness of the occurrence, PW.9 Ram Singh, father of the deceased, PW.10 Ashok Kumar, son of the appellant, who deposed that the villagers had told him that his father had killed his mother, PW.11 Jagdish, brother of the deceased, PW.12 SI Jai Pal, the Investigating Officer of the case, who arrested the appellant, and PW.13 SI Dharamvir Singh, who conducted the part investigation in the case. 8. In his statement under Section 313 Cr.P.C., the appellant denied the incriminating evidence appearing against him. He pleaded innocence and false implication in the case. He stated that on the day of occurrence, he was not present in his house and much prior to the occurrence, he had gone to Nangloi (Delhi) on 10.6.2002 for job in the factory, where he lived with his younger brother Rajbir till 19.7.2002. He further stated that his son had deposed under the pressure of Jagdish (PW.11). He took the plea that his wife, who was a patient of epilepsy, died Crl. A. No. 761-DB of 2004 -5- on account of fall from the roof, as told to him by his neighbour Ram Niwas. However, he did not examine any witness. Even in order to prove the plea of alibi,he did not examine his younger brother Rajbir. 9. The trial court, after considering the evidence on record, while relying upon the statements of Sombir (PW.7), Ram Singh (PW.9) and Jagdish (PW.11), coupled with the other evidence, convicted the appellant for the offence under Section 302 for committing the murder of his wife Darshna Devi, and he was sentenced, as indicated above. 10. Ms. Archna Sharma, Advocate, learned counsel for the appellant, vehemently argued that in the present case, the prosecution has failed to prove the alleged offence against the appellant beyond a shadow of reasonable doubt. According to the learned counsel, the testimony of Sombir (PW.7), who is a minor witness, cannot be relied upon to convict the appellant for committing the murder of his wife, because from his deposition in the court, it appears that he had not witnessed the occurrence. Learned counsel argued that according to this witness, after seeing that his father had killed his mother, he did not raise any hue and cry and did not call any body from the neighbourhood, particularly when his father had left the house after causing injuries to his mother. Rather, after the occurrence, he slept and in the morning, he found his mother dead. According to the learned counsel, this conduct of this minor witness seems to be improbable and creates doubt about his witnessing the alleged occurrence. Learned counsel further argued that this witness was very much present in the house. Crl. A. No. 761-DB of 2004 -6- Even many residents of the village had gathered there and the police came on the spot, but the police did not register the case against the appellant and only after arrival of Jagdish (PW.11), brother of the deceased, the FIR (Ex.PL/2) was registered by the police on 20.6.2002 at 11.40 AM, on the basis of his statement (Ex.PL) recorded at 11.15 AM. According to the learned counsel, by taking the benefit of delay in registration of the FIR, the appellant was falsely implicated on the basis of the statement of Sombir (PW.7) minor son of the deceased. Learned counsel argued that possibility of tutoring Sombir by his maternal uncle Jagdish (PW.11) can not be ruled out, therefore, conviction of the appellant solely on the basis of the statements of PW.7 Sombir (minor son), PW.9 Ram Singh and PW.11 Jagdish, father and brother of the deceased, is not safe. Learned counsel further argued that in the instant case, the recovery of `Mussal' (Ex.P1) at the instance of the appellant is highly doubtful. PW.9 Ram Singh, in his statement, has stated that when they visited the spot, the police was present there and the police had shown them the `Mussal', which was used in the crime. Secondly, learned counsel referred to the statement of PW.12 SI Jaipal, the Investigating Officer of the case, who stated that the recovered `Mussal' was having no blood stains. It was also argued that at the time of recovery, no independent witness was associated, though recovery of `Mussal' was effected from a place in the village. Learned counsel further argued that there was no motive for the appellant to commit the murder of his wife. It is highly improbable that on a small issue, like not preparing Crl. A. No. 761-DB of 2004 -7- vegetable in meal, a husband will kill his wife. In the last, learned counsel argued that in the instant case, the appellant is alleged to have given only one blow, that too without any intention to cause death of his wife, therefore, in the instant case, the culpable homicide of deceased Darshna Devi does not amount to murder and the appellant, at the most, can be convicted for the offence under Section 304 IPC, thus the trial court was not justified in convicting the appellant under Section 302 IPC. 11. On the other hand, learned counsel for the respondent-State argued that the prosecution has fully proved its case against the appellant and he has been rightly convicted and sentenced by the trial court under Section 302. 12. We have considered the various submissions made by learned counsel for the parties and have gone through the record of the case. 13. In our opinion, in the instant case, the prosecution has fully established the guilt of the appellant beyond reasonable doubt. From the medical evidence i.e. post mortem report (Ex.PA) and the statement of PW.1 Dr. Jai Parkash, it has been proved that deceased Darshna Devi had died due to the injury received by her on her head, which was sufficient to cause death in the ordinary course of nature. She was found dead lying on a cot in her matrimonial home. Even the death of Darshna Devi due to the head injury has not been disputed by the appellant, as defence was taken by him that the deceased had received the injuries by fall from the roof, as she was patient of epilepsy. On the other hand, it is the case of the prosecution that Crl. A. No. 761-DB of 2004 -8- the injury was caused to the deceased by the appellant by giving a `Mussal' blow on her head at about 3.00 a.m. and the said occurrence was witnessed by Sombir, the minor son of the appellant and the deceased. In support of its case, the prosecution has examined PW.7 Sombir, PW.9 Ram Singh and PW.11 Jagdish, who are minor son, father and brother of the deceased. All these witnesses have fully supported the prosecution case. Learned counsel for the appellant could not point out any contradiction in their statements. The presence of PW.7 Sombir in the house at the time of the alleged occurrence was most natural. Even his presence in the house has been proved by PW.6 Sher Singh, cousin of the appellant. Before recording the statement of Sombir, the trial court fully satisfied itself about the competence of the witness to depose in the case and thereafter, his statement was recorded. Though the fact that after seeing the occurrence, the witness neither raised hue and cry nor called any body from the neighbourhood and slept, apparently seems to be improbable, but in his cross-examination, he has categorically stated that when he tried to raise alarm, his father threatened him and started beating him. If late in the night, after the occurrence, 11 years old child slept, it cannot be looked as improbable to make his deposition as unreliable. In the instant case, we do not find any reason that this child witness will depose against his father only at the instance of his maternal uncle Jagdish (PW.11). Not only this witness has deposed against his father, but PW.10 Ashok Kumar, another son of the appellant, has also deposed in the court that at the time of the alleged Crl. A. No. 761-DB of 2004 -9- occurrence, his father was present in the house and his brother Sombir was also present there. Though Sombir had not told him any thing, but the villagers had told him that his father had killed his mother. If his mother would have died due to fall from roof, then there was no reason for this witness to depose falsely against his father, by stating that the villagers had told him that his father had murdered his wife. Statement of this witness further corroborates the statement of PW.7 Sombir. Statements of PW.9 Ram Singh and PW.11 Jagdish further support the prosecution version. Their statements are fully reliable and trust-worthy. Merely because the police registered the case against the appellant only on the basis of statement of PW.11 Jagdish, who came on the spot lateron at 11 AM, the prosecution case cannot be held to be doubtful or concocted, only on the ground that the police could have registered the case on the basis of the statement of the Sarpanch of the village or the minor witness, namely Sombir. In his statement (Ex.PL) before the police, Jagdish told that after reaching the village, when he enquired from Sombir, who was present in the house, he told that his mother was killed by his father at 3.00 AM, when she was sleeping on the cot. Sombir, while appearing in the court as PW.7, has supported the prosecution version and stated that on the issue of not preparing vegetable in the meal, his mother was killed by his father, while she was sleeping on the cot at 3.00 AM. 14. It is well settled that on the basis of the testimony of a child witness, who is capable to understand the things, conviction can be based, if Crl. A. No. 761-DB of 2004 -10- the court is satisfied that his testimony is reliable. In such cases, the court must be cautious enough, while considering and scrutinizing the testimony of a child witness. The court must satisfy that such witness was not tutored and he/she has given the true account of what he/she had seen. On applying these tests, if the court reaches to the conclusion that testimony of the child witness inspires confidence, then the conviction of an accused can be recorded upon the testimony of such witness. After carefully examining the testimony of PW.7 Sombir (child witness) and the other evidence led by the prosecution, we have come to the conclusion that in the instant case, the version given by Sombir fully inspires confidence, which was quite natural and consistent with the medical evidence. In this case, nothing could be elicited in the evidence of this minor witness, so as to render his version unworthy of placing credence. We also do not find any plausible reason for him to falsely depose against his father. He was 11 years old at the time of the occurrence and was fully competent to understand the things. His presence in the house at the time of the alleged occurrence was most natural. Therefore, in our opinion, the trial court was fully justified while convicting the appellant by relying upon the testimony of this child witness. 15. Even otherwise, in the facts and circumstances of the case, in view of Section 106 of the Indian Evidence Act, 1872, the burden lies upon the husband to explain under what circumstances and in which manner his wife had received injuries on the head, in view of the fact that she was found lying dead on the cot in the matrimonial home, where the presence of Crl. A. No. 761-DB of 2004 -11- the husband at the time of the occurrence has been proved by his two sons, namely Sombir (PW.7) and Ashok Kumar (PW.10). If the husband does not offer any explanation as to the manner in which his wife died or received injuries or if his explanation is found false, then it gives strong circumstance indicating that he has committed the crime. Section 106 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If an offence takes place inside the privacy of a house where the accused has all the opportunity to plan and commit the offence at the time and in the circumstances of his choice, it is extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the court. It is the duty of the court to see that no innocent person is punished. It is equally also duty of the court to see that a guilty person does not escape. Both are the public duties. In the present case, in his statement under Section 313 Cr.P.C., the husband has taken the plea of alibi. He has stated that much prior to the day of occurrence i.e. on 10.6.2002, he had gone to Nangloi (Delhi), where he lived with his younger brother till 19.7.2002. However, in order to establish this plea of alibi, he did not lead any evidence. He did not examine his brother, with whom he claims to have stayed during the said period. Another explanation given by the appellant is that his neighbour Ram Niwas had told him that his wife, who was a patient of epilepsy, died on account of fall from the roof. This explanation also does not seem to be plausible. Firstly, the appellant did not Crl. A. No. 761-DB of 2004 -12- examine Ram Niwas, who allegedly told that his wife had received injury due to fall from the roof. Secondly, this version does not find support from the medical evidence, because as per the post mortem report, there was only one injury on the body of the deceased. If a person falls from the roof of a house, then it will result into multiple injuries. Thirdly, the dead body was not found on the floor, but it was lying on the cot. It is improbable that if a person falls from the roof, then he/she will fall on the cot. Further, the appellant has not produced on record any medical record to show that his wife was a patient of epilepsy and was getting any treatment for the same. Therefore, the explanation, furnished by the appellant, palpably appears to be false. 16. Though PW.9 Ram Singh has stated that when they went at the spot, `Mussal' was shown to them, but recovery of `Mussal' (Ex.P1) cannot be said to be doubtful on that account. Undisputedly, the appellant was arrested on 20.7.2002 and immediately thereafter, in pursuance of his disclosure statement (Ex.PG), the `Mussal' was recovered. The possibility of showing the `Mussal' to the said witness after the recovery can not be ruled out. Further, merely because the `Mussal' was not having blood stains, it cannot be presumed that the said `Mussal' was not used in the crime. Not only Dr. Jai Parkash (PW.1) in his statement has stated that injury No.2 could have been caused by the recovered `Mussal' (Ex.P1), but PW.7 Sombir, the sole eye witness, has categorically stated that his father gave `Mussal' blow on the head of his mother, while she was sleeping, due to Crl. A. No. 761-DB of 2004 -13- which she had died lateron. Therefore, we do not find any infirmity in the evidence of the prosecution with regard to the recovery of `Mussal', which was used in the crime. 17. The argument of learned counsel for the appellant that there was no motive for committing the crime, which creates doubt in the prosecution version, cannot be accepted. It has clearly come in evidence that prior to the alleged occurrence, in the evening, an altercation had taken place between the husband (appellant) and the wife (deceased) on a small issue of not preparing vegetable in meal and thereafter, the husband put all the `Chapatis' before the dogs and pigs. In our opinion, though the said issue was a small issue, but in the case of a person, like the appellant, who was a habitual drunkard, as has come in evidence, the possibility of causing death on that small issue cannot be ruled out. Therefore, in our opinion, the prosecution has fully established the guilt against the appellant. 18. In the last, learned counsel for the appellant argued that in the facts and circumstances of the case, the present case is a case of culpable homicide not amounting to murder, as it falls under Exception 4 of Section 300 IPC. On consideration, we find that this contention of learned counsel is not acceptable. In the instant case, just prior to the alleged occurrence, there was no sudden quarrel between the husband and the wife. The altercation had taken place at about 9.00 p.m., whereas the occurrence had taken place at about 3.00 a.m., after about 6 hours. The appellant gave one `Mussal' blow on the head of the deceased, when she was sleeping on the cot. At that Crl. A. No. 761-DB of 2004 -14- time, there was no fight between them. This clearly indicates that the appellant has caused injury with premeditation. The causing of injuries by the appellant, when the deceased was sleeping on the cot, also amounts to taking of undue advantage of the situation. Therefore, in the instant case, Exception 4 is not attracted at all. On the other hand, case of the appellant squarely falls under Section 300 IPC, 2ndly and 3rdly, as the appellant caused `Mussal' blow to Darshna Devi with the intention of causing such bodily injury as the appellant knew to be likely to cause the death in the ordinary course of nature. Dr. Jai Parkash has categorically stated that the said injury was sufficient to cause death in the ordinary course of nature. Therefore, the present case is a clear case of murder and not a case of culpable homicide not amounting to murder. Thus, the trial court has rightly convicted the appellant for the offence under Section 302 IPC. 19. In view of the above, the impugned judgment of conviction and the order of sentence is upheld and the appeal is, accordingly, dismissed. ( SATISH KUMAR MITTAL ) JUDGE April 21, 2010 ( JORA SINGH ) ndj JUDGE