Crl. Appeal No.43-DB of 2004 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.43-DB of 2004 Date of Decision: 25.03.2008 Shanker Kumar ....Appellants. Versus State of Punjab ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. S.S. Rana, Advocate for the appellant. Mr. S.S. Bhinder, A.G., Punjab for the respondent. ... J.S. Khehar, J. The instant appeal has been filed by the accused/appellant Shanker Kumar against the order passed by the Sessions Judge, Ludhiana in Sessions Case No.13 of 2000, decided on 10.10.2003. By the impugned judgement, the accused/appellant Shanker Kumar has been held guilty of having committed the murder of Bimla Devi, under Section 302 of the Indian Penal Code. By a separate order of the same day i.e. 10.10.2003, the accused/appellant Shanker Kumar was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment Crl. Appeal No.43-DB of 2004 2 for six months. The prosecution version of the incident emerges from the statement made by the complainant Bhagwan Singh PW2, to ASI Rajinder Singh PW9, on 16.1.2000 at 10.15 PM. In his complaint, the complainant Bhagwan Singh PW2 asserted that he was residing in House No.327, Street No.2, Mohalla Nanakpuri in Ludhiana, as a tenant in one room. He also asserted that he had four children, out of whom, three were daughters and one was a son. His eldest daughter Bimla Devi, aged 13 years, was also residing with him in the room. For his livelihood, the complainant Bhagwan Singh PW2 claims that he had a “rehri” of “golgappas”. His eldest daughter, Bimla Devi used to prepare the “golgappas” with the other members of the family in the room taken by him on rent. According to the complainant, in another room in front of the room under his tenancy, the accused/appellant Shanker Kumar was living as a tenant. The aforesaid Shanker Kumar was a resident of village Podanpur, Police Station Digar Wing, district Kishanganj in Bihar. It was alleged in the complaint that the accused/appellant Shanker Kumar used to glare at his daughter Bimla Devi with an evil eye. He was informed about this by his daughter on many occasions. Accordingly, the complainant Bhagwan Singh PW2 had stopped the accused/appellant Shanker Kumar from glaring at his daughter. Whereupon, the accused/appellant Shanker Kumar asked the complainant Bhagwan Singh PW2 to marry his daughter Bimla Devi to him. The accused/appellant Shanker Kumar also allegedly threatened the complainant Bhagwan Singh PW2 that if he did not marry Bimla Devi to him, he would not allow her to marry any one else, and that, he would kill her. The complainant Bhagwan Singh PW2 also alleged in the complaint that he Crl. Appeal No.43-DB of 2004 3 refused to marry his daughter Bimla Devi to the accused/appellant Shanker Kumar by telling him that he would perform her marriage in his own brotherhood. On 16.1.2000, at about 8.30 PM, while the complainant Bhagwan Singh PW2 and his wife Pushpa Devi PW4 and his daughter Bimla Devi were working in the room under their tenancy, the accused/appellant Shanker Kumar entered the same with a knife in his hand. He told us that he would teach a lesson to us for not marrying Bimla Devi to him. Whereupon, he inflicted injuries with the knife held by him in his hand, on the left side of the stomach of Bimla Devi. Bimla Devi fell down on the ground. Whereupon, other occupants of the room raised an alarm. According to the complainant Bhagwan Singh PW2, he tried to catch the accused/appellant Shanker Kumar, and in fact, had grappled with him, yet the accused/appellant Shanker Kumar ran away towards the railway line alongwith the knife. Thereafter, the complainant Bhagwan Singh PW2 and his wife Pushpa Devi PW4 alongwith other residents, took Bimla Devi in a private vehicle for treatment to the Guru Teg Bahadur Hospital, Ludhiana, where she was declared dead. The dead body of Bimla Devi was then brought back to the room, whereafter the complainant Bhagwan Singh PW2 proceeded to the police station for lodging a complaint. ASI Rajinder Singh PW9, having recorded the statement of the complainant Bhagwan Singh PW2, accompanied him to his tenement. ASI Rajinder Singh PW9 inspected the place of occurrence and prepared the site plan with marginal notes. He also inspected the dead body of Bimla Devi and prepared the inquest report Ex.PC which was attested by the complainant Bhagwan Singh PW2 and Mohinder Singh. The dead body of Bimla Devi was then sent to the ESI Dispensary, Ajitwal Kalan for Crl. Appeal No.43-DB of 2004 4 postmortem examination. Sealed parcels were prepared of the clothes of the deceased Bimla Devi and taken into possession vide recovery memo Ex.PF. On 17.1.2000, ASI Rajinder Singh PW9 arrested the accused/appellant Shanker Kumar from near a “dhaba” outside the Railway Station at Ludhiana. The shirt and blood stained “paint” were taken into possession vide recovery memo Ex.PH. On the very day of his arrest i.e. on 17.1.2000, ASI Rajinder Singh PW9 interrogated the accused/appellant Shanker Kumar. He made a disclosure statement Ex.PJ, revealing that he had concealed the knife used in the occurrence by wrapping the same in a glaze paper by the side of the railway track near Manohar Nagar. The disclosure statement Ex.PJ was witnessed by Hakam Singh and Dalip Singh. Whereupon, the accused/appellant Shanker Kumar led the police party and got the knife recovered on 18.1.2000, on the basis whereof recovery memo Ex.P7/A was prepared. The knife recovered was sent to the Finger Prints Bureau, Phillaur. The Finger Prints Bureau, Phillaur vide its report Ex.PZ/2 recorded that the same had the finger prints of the accused/appellant Shanker Kumar. Thereafter, having completed the remaining investigation and other police formalities, a challan was presented in the Court of the Judicial Magistrate Ist Class, Ludhiana on 15.3.2000. By an order dated 8.4.2000, the Judicial Magistrate Ist Class, Ludhiana, concluded that a prima-facie case under Section 302 of the Indian Penal Code was made out against the accused/appellant. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, by his order dated 8.4.2000 committed the case for trial to the Court of Session. On 25.4.2000, the Sessions Judge, Ludhiana charged the Crl. Appeal No.43-DB of 2004 5 accused/appellant Shanker Kumar of having intentionally committed the murder of Bimla Devi, and thereby, for the offence punishable under Section 302 of the Indian Penal Code. The accused was then confronted with the charge levelled against him. He pleaded not guilty and claimed trial. During the course of trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarised hereunder. The prosecution first of all, examined Dr. Gurcharan Singh, Medical Officer, ESI Dispensary, Ajitwal Kalan, as PW1. Dr. Gurcharan Singh PW1 testified that he had conducted the postmortem examination on the dead body of Bimla Devi on 17.1.2000. According to the postmortem report submitted by Dr. Gurcharan Singh PW1, the body of Bimla Devi had the following injuries:- “1. Stab wound 1" x 1/2" on left hypochondrial area 3” above and left to amblicus, horizontally placed omentom was coming out. 2. Incised wound 1/2" x 1/3" on lateral aspect and middle third of left arm. 3. Incised wound 3/4" x 1/3" on dorsal aspect and upper part third of left fore arm. On exploration of the injury No.1,wound going obliquely piercing through skin, muscle, omentum and piercing the stomach and inferior surface of right lobe of liver. Abdominal cavity was full of blood. Other organs were healthy.” Dr. Gurcharan Singh PW1 also opined, that the cause of death of Bimla Devi was due to haemorrhage and shock, as a result of injuries to her vital organs. He also opined, that the injuries on the body of the deceased were Crl. Appeal No.43-DB of 2004 6 sufficient in the ordinary course of nature to cause death. Additionally, he opined that all the injuries on the person of Bimla Devi were ante-mortem in nature. The statement of the complainant Bhagwan Singh was recorded as PW2. It would be pertinent to mention, that the complainant Bhagwan Singh PW2 is the father of the deceased Bimla Devi. In his statement, while appearing as PW2, he reiterated the factual position, as had been narrated by him when he had made a complaint to the police in respect of the occurrence under reference on 16.1.2000. It would be pertinent to mention, that Bhagwan Singh PW2 was an eye witness to the occurrence. Constable Bant Singh was produced by the prosecution as PW3. He tendered into evidence his affidavit Ex.PW3/A. A perusal of his affidavit reveals that he had delivered the special report to the Ilaqa Magistrate at 11.40 PM on 16.1.2000. The statement of Pushpa Devi was recorded as PW4. It would be pertinent to mention, that Pushpa Devi PW4 is the mother of the deceased Bimla Devi. She supported the testimony of Bhagwan Singh PW2 on all material points. The statement of Constable Mahesh Kumar was recorded as PW5. He tendered into evidence his affidavit Ex.PW5/A. A perusal of his affidavit reveals that he was handed over sealed parcels containing the blood stained knife recovered at the instance of the accused/appellant Shanker Kumar and had sent the same to the Finger Prints Bureau, Phillaur on 25.1.2000. He had also taken a sealed parcel of clothes of Bimla Devi handed over to him by Head Constable Karam Singh PW6 on 29.1.2000 and delivered the same to the Finger Prints Bureau, Phillaur on the same date. He got prepared a docket from the office of Senior Superintendent of Police, Ludhiana and thereafter, deposited the said parcel containing the clothes of Bimla Devi in the office of the Chemical Crl. Appeal No.43-DB of 2004 7 Examiner, Patiala. The prosecution then produced Head Constable Karam Singh as PW6, who tendered into evidence his affidavit Ex.PW/6. A perusal of his affidavit reveals that he had taken various samples handed over to him and had deposited the same in the Malkhana. The statement of Surinder Singh, Finger Print Expert, was recorded as PW7. He asserted that he had accompanied ASI Hakam Singh PW10 to a spot near Dhuri railway crossing, close to Mohala Manohar Nagar, Ludhiana, and on the pointing out of the accused/appellant Shanker Kumar, a knife wrapped in a glaze paper lying in the bushes, was recovered. He deposed that he had examined the aforesaid knife which, besides having blood marks, also had finger print impressions. On his asking, the knife was put into a sealed parcel and sent to the Finger Prints Bureau, Phillaur for analysis. SI Surinder Singh PW7 witnessed the recovery memo Ex.PW7/A. The statement of Mehanga Singh was recorded as PW8. He deposed that he had taken the finger print impressions of the accused/appellant Shanker Kumar, and that, the same were attested by the Judicial Magistrate Ist Class, Ludhiana. The statement of Rajinder Singh was recorded as PW9. He affirmed that he had recorded the statement of the complainant Bhagwan Singh PW2 on 16.1.2000. He also affirmed the investigation carried out by him, details whereof have been noticed hereinabove. The statement of Hakam Singh was recorded as PW10. The accused/appellant Shanker Kumar was arrested in his presence out side the Railway Station, Ludhiana on 17.1.2000. On the interrogation at the hands of ASI Rajinder Singh PW9, the accused/appellant Shanker Kumar had made his disclosure statement pertaining to the knife used by him in the occurrence. The disclosure statement Ex.PJ was witnessed by ASI Hakam Singh PW10, and Crl. Appeal No.43-DB of 2004 8 thereafter, when the knife was recovered after the police party had been led to the spot where it was hidden, recovery memo Ex.P7/A was prepared, which was witnessed by ASI Hakam Singh PW10 and SI Surinder Singh PW7. The statement of the Special Judicial Magistrate, CBI, Patiala was recorded as PW11. He affirmed that while he was posted as Judicial Magistrate Ist Class, Ludhiana, the accused/appellant Shanker Kumar had been produced before him and his finger print impressions were taken in his presence. Having recorded the statement of Shri Jaspinder Singh, Special Judicial Magistrate, CBI, Patiala PW11, the prosecution evidence was closed by order. The statement of the accused/appellant Shanker Kumar was recorded under Section 313 of the Code of Criminal Procedure, on 30.7.2003. During the course of recording his aforesaid statement, the incriminating evidence appearing on the record, was put to him. He denied the same and asserted that he was innocent, and that, a false case had been made out against him. He also stated that all the witnesses had deposed falsely. He denied that he had an evil eye on the deceased Bimla Devi, and that, he desired to marry her. He stated that the entire prosecution version was a fabricated story. He denied having committed the murder of Bimla Devi. He also stated that he was already married and had two children. The accused/appellant Shanker Kumar was then afforded an opportunity to lead evidence in his defence. He made a statement on 10.10.2003, that he did not desire to lead any evidence in his defence. The defence evidence of the accused/appellant Shanker Kumar was, accordingly, closed by order. The Sessions Judge, Ludhiana delivered the judgement in Crl. Appeal No.43-DB of 2004 9 Sessions Case No.13 of 2000, on 10.10.2003. The accused/appellant Shanker Kumar was held guilty of having intentionally committed the murder of Bimla Devi, and as such, was convicted under Section 302 of the Indian Penal Code. After having heard the accused/appellant Shanker Kumar on the question of sentence, the Sessions Judge, Ludhiana, by a separate order passed on the same day i.e. on 10.10.2003 sentenced the accused/appellant Shanker Kumar to undergo imprisonment for life and to pay a fine of Rs.10,000/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for six months. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Sessions Judge, Ludhiana reveal that while convicting the accused/appellant Shanker Kumar, reliance was placed on the ocular evidence of two eye witnesses, namely, the complainant Bhagwan Singh PW2 and Pushpa Devi PW4. Besides the aforesaid, the trial Court relied upon the disclosure statement made by the accused/appellant Shanker Kumar on 17.1.2000, indicating the place where he had hidden the knife used by him in the occurrence. Reliance was also placed on the recovery memo at the time of the recovery of the knife at the instance of the accused/appellant Shanker Kumar, which had blood stains and had also finger print impressions. Reliance was also placed on the report of the Finger Prints Bureau, Phillaur Ex.Z/2, revealing that the knife recovered at the instance of the accused/appellant Shanker Kumar bore the finger print impressions of Shanker Kumar. Shri S.S. Rana, Advocate for the accused/appellant Shanker Kumar, first of all, vehemently contended that the postmortem report, coupled with the statement made by the complainant Bhagwan Singh PW2, Crl. Appeal No.43-DB of 2004 10 lead to the clear conclusion that as a matter of fact, Bhagwan Singh PW2 has been introduced as a witness only to implicate the accused/appellant Shanker Kumar. In this behalf, it is pointed out that the report of the postmortem examination (extracted hereinabove) reveals three injuries on the person of the deceased Bimla Devi, whereas, according to the complaint made by the complainant Bhagwan Singh PW2 to the police on 16.1.2000 i.e. on the very day of the occurrence, he had stated that the accused/appellant Shanker Kumar had caused one knife injury on the person of the deceased Bimla Devi. It is, therefore, the vehement contention of the learned counsel for the accused/appellant that the entire prosecution story has been fabricated and concocted. We have perused the statement of the complainant Bhagwan Singh PW2, which he recorded on 16.1.2000. Its perusal does not reveal his having asserted that only “one” knife injury was inflicted by the accused/appellant Shanker Kumar on his daughter Bimla Devi. It is, therefore apparent, that the instant submission has been made at the hands of the learned counsel for the accused/appellant under some misconception. In view of the fact that it was no where stated by the complainant Bhagwan Singh PW2, either in his original complaint dated 16.1.2000 or in his statement on oath before the trial Court that the accused/appellant Shanker Kumar had inflicted “one” knife blow to his daughter Bimla Devi, it is not possible for us to accept the first contention of the learned counsel for the accused/appellant. The second contention of the learned counsel for the accused/appellant is that the evidence produced by the prosecution should be viewed with suspicion. In this behalf, it is pointed out that the guilt of the accused/appellant Shanker Kumar is sought to be substantiated at the Crl. Appeal No.43-DB of 2004 11 behest of two witnesses, namely, the complainant Bhagwan Singh PW2 and Pushpa Devi PW4. It is pointed out that both the witnesses are blood relations of the deceased Bimla Devi, inasmuch as, the former is her father and the latter is her mother. It is also pointed out that there were a large number of people living in the same house where the occurrence took place and an independent witness should have been joined by the prosecution so as to establish the guilt of the accused/appellant Shanker Kumar. Non- association of an independent witness at the hands of the prosecution, according to the learned counsel for the accused/appellant, vitiates the very veracity of the prosecution case. We have considered the second submission advanced by the learned counsel for the accused/appellant, and find no merit therein. It would be pertinent to mention, that the alleged occurrence took place on 16.1.2000 i.e. the time when winter is at its peak. The occurrence is stated to have taken place at 8.30 PM i.e. the time when people are confined to their own houses and rooms. The occurrence under reference is stated to have taken place in the room, which the complainant Bhagwan Singh PW2 had taken on rent, wherein his entire family was living. Since the occurrence itself had taken place in the room, the occupants of the room alone could have witnessed the same. In fact, the complainant Bhagwan Singh PW2 and Pushpa Devi PW4 are eye witnesses to the crime. In the aforesaid view of the matter, there could hardly be any justification for producing an independent witness. In any case, it would be impossible to procure independent witnesses since the occurrence had taken place in the room where the family of the deceased Bimla Devi resided. In view of the above, we find no merit in the second contention of the learned counsel for Crl. Appeal No.43-DB of 2004 12 the accused/appellant. Learned counsel for the accused/appellant then invited our attention to the cross-examination of Bhagwan Singh PW2, wherefrom he made a reference to the suggestion made to him to the effect that the deceased Bimla Devi and the accused/appellant Shanker Kumar had illicit relationship, and also, to the suggestion that it was the deceased Bimla Devi who used to press her father (the complainant Bhagwan Singh PW2), to marry her to the accused/appellant Shanker Kumar, as a consequence of which Bhagwan Singh PW2, had committed the murder of his daughter Bimla Devi. It is the vehement contention of the learned counsel for the accused/appellant that the suggestion put to the father of the deceased Bimla Devi, namely, the complainant Bhagwan Singh PW2 reveals the actual position how Bimla Devi came to be murdered. It is not possible for us to accept the aforesaid contention of the learned counsel for the accused/appellant. There is no material on the record of the case to substantiate the basis on which the aforesaid suggestions were put to the complainant Bhagwan Singh PW2. It is not possible for us to accept, as a matter of proof, the suggestion put to the complainant Bhagwan Singh PW2 during the course of his cross- examination. It is, therefore, not possible for us to accept the third contention advanced by the learned counsel for the accused/appellant. The last contention advanced at the hands of the learned counsel for the accused/appellant was that the prosecution version depicting the motive at the hands of the accused/appellant Shanker Kumar in having committed the murder of Bimla Devi, is wholly misconceived. In this behalf, learned counsel for the accused/appellant has invited the Court's Crl. Appeal No.43-DB of 2004 13 attention to the fact that the accused/appellant Shanker Kumar is married and has two children. It is, therefore, submitted that there can be no question that the accused/appellant Shanker Kumar had insisted upon the father of the deceased Bimla Devi, namely, Bhagwan Singh PW2, to give the hand of Bimla Devi to him in marriage. It is not possible for us to accept the aforesaid contention of the learned counsel for the accused/appellant as it is not possible to accept the submission made by the accused/appellant Shanker Kumar under Section 313 of the Code of Criminal Procedure, as proof sufficient to substantiate his marriage. In fact, there is no authentic material on the record to substantiate that the accused/appellant Shanker Kumar was married, and further that, he had two children from his marriage. Be that as it may, in our view the suggestion put to the parents of the deceased Bimla Devi, who appeared as witnesses in the case, to the effect that the accused/appellant Shanker Kumar and the deceased Bimla Devi had illicit relationship, shows the veracity of the factual position expressed by Bhagwan Singh PW2 and Pushpa Devi PW4. Besides the submissions noticed hereinabove, no other contention was advanced at the hands of the learned counsel for the accused/appellant. We have also independently examined the evidence produced by the prosecution to substantiate the charge levelled against the accused/appellant Shanker Kumar. It is apparent from a perusal of the statements of the complainant Bhagwan Singh PW2 and Pushpa Devi PW4 that they themselves saw the accused/appellant Shanker Kumar inflicting injuries on the person of Bimla Devi with a knife. Injuries on the person of Crl. Appeal No.43-DB of 2004 14 Bimla Devi, which were reflected in the postmortem report prepared by Dr. Gurcharan Singh PW1 reveal that the said injuries were sufficient in the ordinary course of nature to cause death. He has also deposed that the injuries under reference were ante-mortem in nature. The injuries on the person of the deceased Bimla Devi recorded in the postmortem report reveal that out of the three injuries, one was described as a stab wound, whereas, the remaining two were described as incised wounds. It is, therefore, evident that all the injuries suffered by the deceased Bimla Devi could have been inflicted with a knife as has been alleged by the two eye witnesses to the occurrence. Besides the evidence referred to hereinabove, it would also be pertinent to mention, that the knife used in the occurrence came to be recovered as a consequence of the disclosure statement made by the accused/appellant Shanker Kumar. The aforesaid knife recovered, was found to be smeared with blood and also had finger print impressions. The report from the Finger Prints Bureau, Phillaur reveals that the knife recovered at the instance of the accused/appellant Shanker Kumar bore his finger prints. The finger prints of Shanker Kumar which came to be matched with the finger prints on the knife recovered at the instance of Shanker Kumar, were taken by the prosecution in the presence of Shri Jaspinder Singh, Special Judicial Magistrate, CBI, Patiala PW11, while he was posted as the Judicial Magistrate Ist Class, Ludhiana. Keeping in mind the aforesaid evidence on the record of the case, we are of the view that the trial Court was fully