IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 693-DB of 2001 DATE OF DECISION : 24.09.2010 Dharampal .... APPELLANT Versus State of Haryana ..... RESPONDENT Crl. A. No. 20-DB of 2002 DATE OF DECISION : 24.09.2010 Janno @ Janaki Devi .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. B.S. Saroha, Advocate, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeal No. 693-DB of 2001, filed by accused Dharampal (paramour of accused Janno @ Janaki Devi) and Criminal Appeal No. 20-DB of 2002, filed by accused Janno @ Janaki Devi (wife of the deceased). Both the appellants were tried by the Crl. A. No. 693-DB of 2001 -2- Court of Sessions Judge, Hisar, for the offence under Section 302 read with Section 34 IPC for committing the murder of Maru Ram alias Om Parkash. Vide judgment dated 5.11.2001 and order dated 7.11.2001, passed by the court of Additional Sessions Judge, Fatehabad, both the appellants have been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 5,000/-, in default to undergo rigorous imprisonment for a period of one year each, under Section 302 read with Section 34 IPC. 2. As per the prosecution version, complainant Rattan Lal (PW.4) and deceased Maru Ram @ Om Parkash were real brothers. They were residents of village Jandwala Sotar, which was 12 Kms. away from Fatehabad. Complainant Rattan Lal was carrying agriculture work in the village and his younger brother Maru Ram @ Om Parkash was used to go to Rajasthan to work as a labourer and was occasionally coming to the village, where his wife Janno Janaki Devi (appellant in the second appeal) along with her children was residing separately. According to the prosecution version, she was having illicit relations with Dharampal (appellant in the first appeal), who was resident of the same village. Maru Ram and other family members alleged to have many times asked Janno @ Janaki Devi to stop the illicit relations with Dharampal, but she did not desist and continued her affairs with Dharampal. It is further the case of the prosecution that 4/5 days prior to the occurrence, which took place in the night of 15.2.1999, Maru Ram @ Om Parkash (deceased) came to the village and was living with his family. On the day of occurrence, at about Crl. A. No. 693-DB of 2001 -3- 10.30 PM, when complainant Rattan Lal was irrigating his fields, his son Sultan (PW.5) along with his friend Nimbu Ram came to the fields and informed the complainant that when they were passing in front of the house of Maru Ram, they heard the voice of altercation from the house of Maru Ram and on their going towards the house, they found that the house was bolted from inside. They further disclosed that when they asked to open the door, it was not opened. On getting this information, the complainant, while leaving Sultan and Nimbu Ram in the fields, came to the house of his brother Maru Ram. On reaching there, he asked Maru Ram and his wife to open the door. On getting no response for opening the door, he gave push to the door, upon which the shutter was got opened. He saw that in the room, appellant Dharampal had made Maru Ram to fell down on the ground and he while sitting on his chest was pressing his throat, whereas appellant Janno @ Janaki Devi wife of Maru Ram was pulling the rope, which was tied around the neck of Maru Ram. On seeing the complainant, appellant Dharampal slipped away from the room by scaling over the wall and appellant Janno @ Janaki Devi was still pulling Maru Ram with the rope and she took him to the courtyard of the house. Thereafter, she also slipped away from the spot. In the meanwhile, Sultan and Nimbu Ram also came from the fields at the spot. When all of them checked Maru Ram, they found that he had died. It is further case of the prosecution that both the appellants with common intention had committed murder of Maru Ram, who used to desist appellant Janno @ Janaki Devi from carrying illicit relations with Crl. A. No. 693-DB of 2001 -4- appellant Dharampal. Therefore, both the appellants in order to remove the obstacle in their way of carrying illicit relations have committed the murder of Maru Ram. In the next morning on 16.2.1999, complainant Rattan Lal, while leaving his son and Chowkidar at the spot, went to Police Station Sadar Fatehabad and reported the matter at 8.20 AM, where Balbir Singh, Inspector, SHO recorded his statement and registered the FIR (Ex.P9) at 9.20 AM. Special report of the FIR was sent, which was received by the Ilaqa Magistrate at 9.30 AM. Thereafter, the police reached the spot, prepared the inquest report (Ex.P13). The rope, which was tied around the neck of deceased Maru Ram, was removed and taken into possession vide recovery memo (Ex.P10). The dead body was sent to Civil Hospital, Fatehabad, for post mortem examination. Both the appellants were arrested on the same day from the village itself. 3. On the same day i.e. on 16.2.1999 at 2.10 PM, Dr. Rajinder Singh conducted post mortem examination on the dead body of Maru Ram and found the following injuries on his person : 1. There was a ligature mark, horizontal, below the thyroid completely encircling the neck and measuring 35 cm x 1.5 cm. Margins were ecchymosed and base of mark was pale and parchment like. 2. There was one more ligature mark just above the first one measuring 35 cm x 1.5 cm and encircling the neck. Its margins were ecchymosed and base was pale and parchment like. 3. There was an abrasion with clotted blood on left side Crl. A. No. 693-DB of 2001 -5- chest, lower part on lateral and posterior aspect measuring 8 inches x 4 inches. Infiltration of blood was present in subcutaneous tissues. 4. There was an abrasion 7 inches x 3 inches on left gluteal area with clotted blood. On dissection, infliltration of blood was present in subcutaneous tissues. On dissection of ligatures, infiltration of blood was present in underlying subcutaneous tissues and muscles. Thyroid cartilage, tracheal rings were fractured. Tracia and larynx were congested. Dried blood was present at both nostrils. Small amount of feacel matter was present at anal opening. Stomach contained semi-digested food material. In the opinion of the doctor, the cause of death was due to asphyxia as a result of strangulation, which was ante mortem in nature and was sufficient to cause death in the ordinary course of nature. 4. After completion of investigation, the challan was filed against the appellants and they were charge sheeted for the offence under Section 302 read with Section 34 IPC, to which they did not plead guilty and claimed trial. 5. In support of its case, the prosecution examined 8 witnesses, out of whom PW.4 Rattan Lal (complainant), PW.5 Sultan, PW.7 Dr. Rajinder Singh and PW.8 Balbir Singh Inspector, are the material witnesses. 6. PW.4 Rattan Lal complainant, reiterated his entire version, as stated by him to the police in his initial statement, which formed the basis of the FIR (Ex.P9) and he has fully supported the case of the prosecution, on Crl. A. No. 693-DB of 2001 -6- each and every aspect of the case. 7. PW.5 Sultan, who is son of complainant Rattan Lal, has fully supported the case of the prosecution, regarding hearing of noise of altercation from inside the house of his uncle Maru Ram (deceased), informing his father Rattan Lal, noticing the dead body of Maru Ram in his house, a rope being tied around his neck, and the rope being taken into possession by the police. 8. PW.7 Dr. Rajinder Singh, who conducted the post mortem examination on the dead body of deceased Maru Ram, has proved the Post Mortem Report of the deceased as Ex.P12. 9. PW.8 Balbir Singh, Inspector, the Investigating Officer of this case, has proved all the material documents, prepared by him, and the arrest of the appellants. He has fully supported the case of the prosecution. 10. In their statements under Section 313 Cr.P.C., both the appellants denied all the allegations appearing against them in the prosecution evidence. They simply pleaded innocence and false implication in the case. However, they did not lead any evidence in defence. 11. The trial court, while relying upon the strong motive for the appellants to commit the crime, the medical evidence, recovery of the rope, and statement of the complainant, being duly supported by his son, convicted and sentenced the appellants, as indicated above. 12. We have heard the arguments of learned counsel for the parties and have gone through the trial court record. Crl. A. No. 693-DB of 2001 -7- 13. Learned counsel for the appellants contends that as per the prosecution version, the occurrence was witnessed by complainant Rattan Lal on 15.2.1999 at about 10.30 PM, but the matter was reported by him to the police on the next day at 8.20 AM. According to him, this delay of about 10 hours has not been explained by the prosecution and this long delay has been used by the prosecution to concoct a false version, after due consultation and deliberations. Learned counsel further submits that the passing of PW.5 Sultan from in front of the house of deceased Maru Ram in the night is not trust-worthy and reliable. He had not seen the occurrence. His statement has also not been corroborated, because Nimbu Ram, the only independent witness, who is alleged to be accompanying him (PW.5 Sultan), at the time when on hearing the noise of altercation, they knocked the door of the house of deceased Maru Ram, has not been examined by the prosecution. Learned counsel further argued that there are material contradictions in the testimony of PW.4 Rattan Lal and the medical evidence. According to PW.4 Rattan Lal, after his arrival at the spot, appellant Janno @ Janaki Devi dragged Maru Ram from the room to the courtyard, but in the Post Mortem Report (Ex.P12), no dragging injury has been described on the body of deceased Maru Ram. He further contends that this material contradiction coupled with the other contradictions with regard to scaling over the wall and bolting of the door establish that PW.4 Rattan Lal had not witnessed the occurrence, as he was not present at the time of the alleged occurrence. According to the learned counsel, it is a case of Crl. A. No. 693-DB of 2001 -8- blind murder, in which by taking the benefit of delay in lodging the FIR, the police has concocted the version and falsely implicated the appellants, only on the basis of suspicion. Learned counsel further submits that there is no evidence regarding the illicit relations between both the appellants and thus, the motive to commit the alleged crime has also not been proved by the prosecution. 14. On the other hand, learned counsel for the respondent-State argued that it is an admitted fact that the Police Station is at a distance of about 12 Kms. from the place of occurrence. In view of this fact, the delay in lodging the FIR has been satisfactorily explained by the complainant, who has stated that he had not gone to the police station in the night as there was no conveyance with him. He has also stated that he had tried to arrange conveyance from the residents of the village, but he could not get any conveyance. He further submits that presence of PW.5 Sultan along with his friend Nimbu Ram at the time of occurrence in the village itself is natural, who informed complainant Rattan Lal (PW.4) and it has been proved on record that the occurrence was witnessed by Rattan Lal, which is duly corroborated by the medical evidence. Thus, it has been proved beyond reasonable doubt that both the appellants, who were having illicit relations, in furtherance of their common intention have strangulated Maru Ram in his house and murdered him. Therefore, according to the learned counsel, the trial court has rightly convicted and sentenced them on the basis of the evidence and the documents, available on record. Crl. A. No. 693-DB of 2001 -9- 15. After considering the various submissions made by learned counsel for the parties and carefully going through the evidence available on the record, we do not find any merit in the appeals, filed by the appellants. 16. From the medical evidence i.e. the Post Mortem Report (Ex.P12) as well as the statement of PW.7 Dr. Rajinder Singh, it has been established on record that Maru Ram had died due to asphyxia as a result of strangulation. Two ligature marks, horizontal, below the thyroid, completely encircling the neck and two abrasions on the chest and the left gluteal area on the body of the deceased were found. Though a suggestion was put to PW.4 Rattan Lal that Maru Ram had died due to hanging, but the medical evidence, available on the record, clearly over-rules the possibility of hanging. It is a clear case of strangulation. 17. Now, the question arising for consideration is that who has strangulated the deceased in his house in the night time. As per the prosecution version, in the night of 15.02.1999, Sultan (PW.5) and his friend Nimbu Ram were passing in front of the house of the deceased and they heard the voice of altercation coming from inside the house of the deceased. At that time, they found that door of the house was bolted from inside. Even on their asking, the door was not opened. Then at about 10.30 PM, Sultan accompanied by Nimbu Ram went to his father Rattan Lal in the fields and informed the matter to him. Then Rattan Lal PW.4 came to the house of the deceased, tried to get the door opened and on getting no Crl. A. No. 693-DB of 2001 -10- response for opening the door, when he gave push to the door, the shutter was got opened. Then he saw that appellant Dharampal, while sitting on the chest of Maru Ram, was pressing his throat, whereas appellant Janno @ Janaki Devi was pulling the rope, which was tied around the neck of the deceased. Thereafter, both the appellants slipped away from the spot. Both these witnesses, namely Sultan (PW.5) and Rattan Lal (PW.4) have supported the prosecution version. 18. During the course of arguments, learned counsel for the appellants raised doubt regarding the presence of Sultan (PW.5) and his father Rattan Lal (PW.4) at the time of the occurrence. According to him, they had not seen the occurrence at all and the police, after taking the benefit of unexplained delay in lodging the FIR, has falsely implicated both the appellants on mere suspicion. On a careful examination of the testimony of both these witnesses, we do not find any substance in this argument. In our opinion, testimony of both these witnesses are trust-worthy and reliable. While assessing the evidence of the eye witness, normally the Court is to adhere to two principles i.e. (i) whether in the circumstances of a case, it was possible for the eye witness to be present at the scene; and (ii) whether there was anything inherently improbable or unreliable in his conduct. Applying these two tests to the facts and circumstances of the case, we do not find any doubt regarding the presence of PW.4 Rattan Lal and PW.5 Sultan at the alleged time of the occurrence, or any improbability in their conduct. Admittedly, both the witnesses were residing in the same village. It Crl. A. No. 693-DB of 2001 -11- is not abnormal that in the month of December, Rattan Lal had gone to the fields to irrigate the fields, when his son Sultan informed him about the voice of altercation being coming from the house of the deceased and not opening the door. It was the normal conduct of Rattan Lal to come to the house of the deceased, who was his real brother, and to look what was the matter. Thus, the presence of Sultan and his father Rattan Lal at the time of the alleged occurrence cannot be said to be doubtful. 19. Though there is a delay in lodging the FIR, but the complainant Rattan Lal (PW.4) in his statement before the Court has explained that it was a winter season and due to non-availability of a vehicle, he could not report the matter to the police at night. In his cross-examination, he has categorically stated that he had contacted three or four persons of the village for taking their tractor/motor-cycle for going to the Police Station, but at that time, their vehicles were not available. Therefore, in the morning, he went to Police Station Fatehabad, which was more than 12 Kms. from the village. Thus, the delay in lodging the FIR has been satisfactorily explained by the complainant, therefore, no adverse inference in this regard can be drawn against the prosecution. 20. Learned counsel for the appellants, while referring to the statement of PW.4 Rattan Lal, argued that as per his statement accused Janno @ Janaki Devi dragged his brother Maru Ram in the courtyard from the room by pulling him from the rope. This part of the statement of PW.4 Rattan Lal is not corroborated by the medical evidence, as during the post Crl. A. No. 693-DB of 2001 -12- mortem examination, no dragging mark was found on the body of the deceased. We have seen the photographs of the place of occurrence. The dead boy tied with a rope was lying in the courtyard, which was a kacha courtyard of mud and not a pacca one. Because of the mud in the courtyard, the dragging mark might not have appeared on the body. Once we have come to the conclusion that PW.4 Rattan Lal was very much present at the time of the occurrence, whose his testimony is found to be reliable and trust- worthy, then on account of this contradiction in the medical evidence and the oral testimony, the version given by the eye witnesses cannot be discarded. Similarly, learned counsel for the appellants has pointed out minor contradictions in the statements of Sultan (PW.5) and Rattan Lal (PW.4) with regard to entering of Rattan Lal in the house of the deceased by scaling over the wall, when there was a gate, which was open, as stated by Sultan. In our opinion, on the basis of such minor contradictions in the statements of these two witnesses, testimony of Rattan Lal, an eye witness of the occurrence, cannot be discarded. 21. The most important aspect of this case is that the death of Maru Ram had taken place during the night time in his residential house, where he was residing with his wife and children. At that time, accused Janno @ Janaki Devi was present in the house. It is not her defence that she was not present in the house at that time. She along with accused Dharampal was arrested on the same day from the village itself, but in her statement under Section 313 Cr.P.C., she has not given any explanation as to how her Crl. A. No. 693-DB of 2001 -13- husband has died in the house due to strangulation. Once the prosecution has proved the allegations against the accused by examining PW.4 Rattan Lal and PW.5 Sultan as well as the medical evidence proving the death of the deceased due to strangulation, the prosecution evidence cannot be ignored, unless she proves some other facts, especially within her knowledge which would render the evidence of the prosecution nugatory. In the present case, accused Janno @ Janaki Devi did not give any explanation as to how her husband died due to strangulation in the house during the night time. The mere denial of the prosecution case coupled with the absence of any explanation can be said to be inconsistent with the innocence of the accused but consistent with the hypothesis that appellant Janno @ Janaki Devi is one of the accused in the commission of murder of her husband. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 Supreme Court Cases 681, while examining the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused, in light of the provisions of Section 106 of the Indian Evidence Act, 1872, where the burden of proof of certain facts, which are within the personal knowledge of the accused lies on him, the Hon'ble Supreme Court has held as under : “Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a Crl. A. No. 693-DB of 2001 -14- comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” 22. Further, in the present case, both the accused had strong motive to commit the murder of Maru Ram, as they wanted to remove the obstacle in their illicit relations. Rattan Lal (PW.4) has categorically stated that both the accused had illicit relations with each other. Accused Janno @ Janaki Devi was asked by her husband and the family members to stop the illicit relations with accused Dharampal, but she did not desist and continued her affairs with him. From the testimony of Rattan Lal (PW.4), motive of the crime has been duly established. We do not find any reason on the part of Rattan Lal (PW.4) to falsely depose against the appellants. The deceased was a poor person. He had to remain out of his house continuously for days to earn his livelihood. By taking the benefit of his absence, the accused were indulging in illicit relations. Thus, in our opinion, the prosecution has fully established the alleged motive of the crime. 23. In view of the above, we do not find any illegality in the conviction of the appellants by the trial court. Accordingly, the impugned judgment of conviction as well as the order of sentence is upheld and the appeals stand dismissed. Crl. A. No. 693-DB of 2001 -15- 24. Since the appellants are on bail, therefore, their bail bonds stand cancelled and they are directed to surrender themselves before the jail authorities immediately for completing remainder of their sentence, failing which the concerned authority shall proceed against them in accordance with law. ( SATISH KUMAR MITTAL ) JUDGE September 24, 2010 ( JITENDRA CHAUHAN ) ndj JUDGE