Murder Reference No.3 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ... Decided on : 30.5.2008 The State of Punjab ... Prosecutor VERSUS Sushil Kumar @ Lucky ... Respondent CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH HON'BLE MR.JUSTICE A.N.JINDAL Present: Ms.Gurveen H.Singh, Additional Advocate General, for the State of Punjab. Mr.N.K.Banka, Advocate, for the accused- appellant. UMA NATH SINGH, J. This judgment shall also dispose of connected Criminal Appeal No.447-DB of 2007 as both these matters arise out of impugned judgment dated 13/17.4.2007 passed by Learned Additional Sessions Judge, Jalandhar, in Sessions Case No.70 of 2006 holding accused–appellant Sushil Kumar @ Lucky, guilty of offence under Section 302 IPC on three counts for committing murder of his wife Pooja, son Jatin (6 years), and daughter Sofia (4 years), and sentencing him to death while recording acquittal of charge under Section 309 IPC which was found not proved. It appears from prosecution case that on 4.3.2005, Councillor of Basti Danishmandan, namely Ram Lal, gave telephonic information to police about this occurrence. Pursuant thereto, Sub Inspector Onkar Singh with other police personnel reached the scene of occurrence, where complainant Sukhdev Kumar (PW2), brother of deceased Pooja, gave a Murder Reference No.3 of 2007 2 statement to the effect that he is working in a football making factory. His younger sister Pooja @ Ashma was married to accused Sushil Kumar about seven years ago. She was blessed with two children: a son, namely Jatin @ Babu, aged six years, and a daughter, named Sofia, of four years. Deceased Pooja had been residing in New Rasila Nagar in a rented accommodation of one Pawan Kumar, with her husband Sushil Kumar and children. Accused Sushil Kumar was earlier working in shop of one Babbu of Kishanpura, but for the last about 7-8 months, he was staying unemployed. He used to borrow money from others to meet his daily needs. Two days prior to this incident on 2.3.2005 at about 1.30 p.m., the complainant had come to see his sister, when he had noticed a minor scuffle between his sister and brother-in-law, which, however, had been settled with his intervention, and he had also advised them to live amicably. On 4.3.2005 at 6.30 a.m., the complainant received a telephone call from his brother-in-law, accused Sushil Kumar, informing him that he is admitted in a hospital and the complainant should go to his house to see his sister Pooja and her children who were alone in the house and he should enter the house by climbing its wall. When the complainant enquired as to whether there was any unpleasantness between husband and wife, then he was told to see after entering the house. Complainant Sukhdev Kumar rushed to the house of his sister and saw that his sister Pooja, her son Jatin, and daughter Sofia were lying dead on bed and they had been strangulated to death with a plastic rope, which was also lying there on bed. Both the hands of son Jatin were tied and there were incised wounds on left hand of Pooja. At about 6.45 a.m, the complainant received another telephone call from the accused and when he asked the accused as to what has he done and also told him to return Murder Reference No.3 of 2007 3 home, the accused immediately disconnected the phone. Later on, the complainant came to know that the accused had consumed `Sulphas tablets' and then got himself admitted in Civil Hospital. Complainant Sukhdev Kumar was confident in his statement that his brother-in-law (sister's husband), the accused, killed his wife Pooja, son Jatin, and daughter Sofia by strangulating their necks and then he himself consumed sulphas tablets due to hardships of poverty. Police Sub Inspector Onkar Singh made his endorsement (Ex.PD/1) on the statement (Ex.PD) and sent it to Police Station, on the basis of which, a formal First Information Report (Ex.PD/2) was recorded. He conducted inquest proceedings of dead bodies and, thereafter, removed them to Civil Hospital, Jalandhar, for post mortem examination. Dr.S.K.Sharma (PW1) conducted post mortem on dead body of Pooja, wife of accused Sushil Kumar, and noticed the following injuries (as reproduced from Doctor's evidence): “1. Incised wound 2 cm x 0.75 cm at the level of left interior auxiliary line, and line was joining to left nipple going deep into the chest cavity. Clotted blood was present. 2. Incised wound 2 cm x 0.5 cm lateral to left nipple, obliquely placed, going deep in the chest cavity. 3. Incised wound 2 cm x 0.5 cm on the left side of chest, 4 cm away from injury No.2, and below from it, going deep into the chest cavity. Clotted blood was present. 4. Incised wound 3 cm x 1 cm on the wrist in its lateral part, bone deep, underlying structure and vessels were found cut. Clotted blood was present. Murder Reference No.3 of 2007 4 5. Incised wound 3 cm x 1 cm on the back of left hand in the middle, bone deep. Clotted blood was present. 6. Multiple abrasions of different sizes and shapes on the right side of the neck. 7. An abrasion 1.1/2 x ½ cm on the dorsal aspect, index finger, right hand. On dissection and exploration, it was found that chest cavity was full of blood, great vessels and left lung showed cut. Rest of the organs were found healthy. In my opinion, the cause of death in this case was due to shock and haemorrhage due to the injuries described above, which were sufficient to cause death in an ordinary course of nature. All the injuries were ante- mortem in nature. Ex.PA is the carbon copy of the original which I brought today in the Court and it bears my signatures.....” On the same day i.e. 4.3.2005, Dr.S.K.Sharma (PW1) also conducted post mortem on dead body of Jatin @ Babbu, son of the accused, and noticed that length of the body was 109 cm. Rigor mortis and post mortem staining were present. Clotted blood from nostrils was present. Injuries as noticed by Dr.Sharma on dead body are reproduced from his evidence as: “An incised wound 2 cm x 0.75 cm on the chest, 2 cm medial to the left nipple going deep into the chest cavity. On dissection and further exploration it was found that underlying structure was out. Chest cavity was full of blood. Left lung was cut. Pleura and heart were found cut. All other organs were healthy. In my opinion, the cause of death in this case is shock and Murder Reference No.3 of 2007 5 haemorrhage due to injuries described, which were sufficient to cause death in an ordinary course of nature. All injuries were ante-mortem in nature. Ex.PB is the carbon copy of the postmortem report....” Besides dead bodies of wife and son, Dr. Sharma (PW1) also conducted postmortem on dead body of Sofia daughter of the accused, that he found to be moderately built. Rigor mortis and post mortem staining were present. Dr.Sharma (PW1) stated in his evidence about the injuries as noticed by him on dead body of Sofia which are reproduced hereunder: “1. An incised wound 2 cm x 0.75 cm below the left clavicle area in the middle clavicular lines going deep into the chest cavity. 2. An incised wound 2 cm x 0.75 cm and 3 cm, below the injury No.1. 3. Incised wound 2 cm x 0.75 cm and 3 cm below and medial to the injury No.2 going deep into the chest cavity. 4. Incised wound 2 cm x 0.75 x 2½ cm from the mid-line below the left nipple going deep into the chest cavity. 5. Incised wound 2 cm x 0.75 cm and 3 cm below and lateral to the injury No.4 going deep into the chest cavity. 6. Incised wound 1 cm x 0.5 cm and 4 cm lateral to the injury No.5 going deep into chest cavity. On dissection and exploration, chest cavity was full of blood, cuts were present on the heart, left lung, pleura and great vessels. Rest of the organs were healthy. In my opinion, the cause of death in this case was due to shock and Murder Reference No.3 of 2007 6 hemorrhage, due to injuries described above, which were sufficient to cause death in an ordinary course of nature. All injuries were ante mortem. The probable time elapsed between injury and death within few minutes and between death and postmortem within 24 hours...... Ex.PC is the carbon copy of the original which I brought today in the Court and it is of my hand and bears my signatures.......” Investigating Officer SI Onkar Singh took into possession blood stained bed sheet and pillows vide recovery memo (Ex.PH) after reducing them into a parcel and sealing them with his seal bearing impression of letters `OS'. Plastic rope used for strangulation of the deceased was also taken into possession by the police vide separate recovery memo (Ex.PV). During course of investigation, statements of witnesses were recorded, a rough site plan of scene of occurrence with correct marginal notes prepared, and the accused was arrested on 7.3.2005. During interrogation, the accused suffered a disclosure statement (Ex.PE) and pursuant thereto, a blood stained knife (chhura) (Ex.P5) used in committing offence was taken into possession vide a separate recovery memo (Ex.PF). On completion of investigation, a challan was laid against the accused. Trial Court, accordingly, framed charges under Section 302 IPC against the accused for murder of his wife Smt.Pooja, son master Jatin, and daughter Sofia, and also under Section 309 IPC for attempt to commit suicide. However, charge under Section 302 IPC on one count for three murder was later amended to three separate charges under Section 302 IPC vide order dated 8.3.2007. When charges were read over to the accused, he pleaded not guilty and Murder Reference No.3 of 2007 7 claimed trial. Heard learned counsel for parties and perused rival evidence on record. Learned counsel for the appellant submitted that looking to contradictions appearing in statements of Raj Kumar (PW3) and SI Onkar Singh, Investigating Officer, (PW11) as to who had given information about occurrence to police, and also as to time of inquest, credibility of prosecution case becomes doubtful. Learned counsel for the appellant also submitted that prosecution case does not inspire confidence in absence of link evidence to suggest that a phone call was made by the accused on mobile number mentioned by complainant in his evidence. According to learned counsel for the appellant, in statement under Section 161 Cr.P.C., the complainant stated that he received a phone call on his mobile, whereas, his mother Pushpa (PW5) has said that said call was received on mobile number of Kamlesh Baba of dera known as `Darbar', where they were residing. Learned counsel for the appellant also submitted that in cross- examinations, witness Satpal (PW4) has resiled from his statement in examination-in-chief and also from statement before police. Learned counsel for the appellant emphasized that investigation of this case is defective, inasmuch as, from cross-examinations of Investigating Officer Onkar Singh (PW11), it is obvious that he did not make any enquiry about continuance of employment of the accused with Babbu Electronics till date of incident. PW11 also did not make any investigation into the fact that the accused had been visiting Amritsar in connection with his employment. This is also a submission of learned counsel for the appellant that it was necessary for a fair investigation of the case to have an enquiry as to Murder Reference No.3 of 2007 8 whether in the night of occurrence, the accused had visited Amritsar and brought any article for his employer's business. He further submitted that there is no evidence to connect weapon of offence with the accused and recovery of weapon is not duly proved. This, rather, appears to be a case of planting of weapon and according to him, when IO visited the scene of occurrence, he should have searched that bed where dead bodies were lying, as its size was only 6 x 6 feet. He contended that during investigation, no finger prints were lifted from scene of occurrence to connect the accused with offence. He further submitted that witness Raj Kumar (PW3) is a stamped witness, hence, his testimony does not inspire confidence. Raj Kumar (PW3) has stated that landlord (not examined) of premises of the accused, which is scene of occurrence, had since informed this witness and other villagers also, it was quite probable that out of them, somebody would have carried the accused to hospital, where he opened his eyes and till then he was unconscious. Learned counsel for the appellant submitted that in a case of circumstantial evidence, motive becomes relevant but in instant case, prosecution has done nothing to establish motive behind occurrence by leading credible evidence. Though prosecution has tried to set up two theories of motive behind this occurrence namely (a) illicit relationship of deceased Pooja with son of earlier landlord Badri, and (b) hardships of poverty, but no such evidence was adduced to prove either. In respect of circumstantial evidence, learned counsel for the appellant placed reliance on a judgment of Hon'ble the Apex Court reported in 2004(2) Apex Court Judgments 442 (SC) (State of Madhya Pradesh versus Sanjay Rai). In that judgment, Hon'ble the Apex Court has accepted the State appeal against acquittal. Murder Reference No.3 of 2007 9 On the other hand, learned Additional Advocate General appearing for the respondent–State of Punjab while answering first contention that there are contradictions in statements of Raj Kumar (PW3) and SI Onkar Singh (PW11) submitted that prosecution evidence does not suffer from any such infirmity, inasmuch as in cross-examinations of Raj Kumar (PW3) in last paragraph, it is clearly mentioned that landlord of the house of accused, being scene of occurrence, gave information about incident to him after visiting his house. Landlord also gave this information to other residents of locality including one Ram Lal, Councilor of that area, who though did not appear in witness box, but as per testimony of SI Onkar Singh (PW11), informed him about this incident. SI Onkar Singh has clearly stated in his evidence that he visited scene of occurrence on receiving a phone call from said Ram Lal informing him about the occurrence. In inquest report, time of discovery of dead bodies is mentioned as 7.00 O'clock and time of admission of the accused in hospital was mentioned 6.55 a.m. Thus, presence of accused on scene of occurrence was quite probable and police lost no time in reaching the spot of incident, having learnt about the occurrence. Learned State counsel in reply to second contention as to on whose mobile number, phone calls of the accused were received, referred to answers given by the complainant (PW2) in his cross-examinations as: “.......I received phone on mobile of Mandirwala, but I do not have my own mobile. The number of said mobile was 9872561620. I have not got recorded the said mobile number in my statement made to the police. I do not know as to whether the accused made a call from the landline or mobile.........” Thus, there is no ambiguity that the complainant had received telephone call on mobile Murder Reference No.3 of 2007 10 number of one Mandirwala (owner of some temple). Regarding change of stand by witness Satpal (PW4) in his cross-examinations, learned State counsel referred to first cross-examinations of this witness where he has supported the prosecution case in toto, and it is only when this witness was recalled on an application made on behalf of the appellant that he tried to resile from his earlier statement, in further cross-examinations on 2.4.2007 conducted after a gap of one year and seven months. Still, in cross- examinations by Public Prosecutor with permission of Court, he has supported the prosecution case. As regards argument that the police failed to investigate as to whether the accused was unemployed having quit his employment in one electronic shop known as `Babbu Electronics', learned State counsel submitted that no such investigation was necessary for it had already come to notice of I.O. vide statement of complainant Sukhdev Kumar (PW2) that the accused was unemployed for the last 7-8 months. Moreover, owner of Babbu Electronics was cited as a defence witness but was given up later by the accused. Concerning recovery of weapon of offence, learned counsel for the State submitted that weapon of offence, chhura, was not lying naked and as per disclosure statement (Ex.PE), it was found underneath some clothes lying in back side of bed, which was not readily accessible to other people and, obviously, it could not have attracted the attention of I.O. Accused had taken the house on rent and he alone could have knowledge about places where he had kept various articles including weapon of offence. This is also her submission that technical defects, like the ones highlighted by learned counsel for the appellant, cannot be a ground to reject quality evidence placed on record by the prosecution. Murder Reference No.3 of 2007 11 In regard to absence of evidence of finger prints, learned counsel for the State argued that as FSL report (Ex.PW) on record shows that on all incriminating articles including chhura which were sent to laboratory for chemical examination, human blood was found present, therefore, recovery of weapon of offence cannot be discarded only for that reason. Learned counsel for the State contended that defence plea on behalf of the appellant that he was carried to hospital by some body while he was unconscious has also not been proved by leading any evidence in support. Even erstwhile employer of the accused was given up by him later during trial for reason better known to him. Leaned State counsel argued that all the circumstances, thus, stand individually and conclusively proved by prosecution in terms of evidence on record and they also form a complete chain of proved circumstances. Moreover, if the accused was to set up a plea of alibi that he was away to Amritsar on fateful night, he should have led evidence in that direction. Learned State counsel placed reliance on three judgments of Hon'ble the Apex Court namely: (i) 2007(4) RCR (Crl.) 45 (Sukhram versus State of Maharashtra) to derive support in regard to her argument that the circumstances set out herein-above in her submissions form a complete chain of circumstantial evidence; ( ii ) 2007(4) RCR (Crl.) 967 (Amarsingh Munnasingh Suryawanshi versus State of Maharashtra) apropos her submission regarding criminal liability of a husband to explain as to how his wife died inside his house when he was present, and ( iii ) 2007(4) RCR (Crl.) 129 (Kulesh Mondal versus State of West Bengal) regarding distinction between material discrepancies and normal discrepancies. According to learned State counsel, prosecution case does not suffer from any material discrepancies. Murder Reference No.3 of 2007 12 On due consideration of rival submissions and evidence on record led by both parties, we are of the considered view that impugned judgment recording conviction of the accused for committing murder of his wife Pooja, son Jatin, and daughter Sofia, does not call for interference. So far as testimonies of witnesses are concerned, we notice that prosecution has examined as many as eleven witnesses during trial of this case. They are: Dr.S.K.Sharma (PW1), complainant Sukhdev Kumar (PW2), Raj Kumar (PW3), Sat Pal (PW4), Mrs.Pushpa (PW5), Dalip Singh, Draftsman (PW6), Mohrrir Head Constable Jasbir Singh (PW7), Constable Resham Lal (PW8), Constable Amarjit Kumar (PW9), Dr.Kamaljit Singh Bawa, Medical Specialist (PW10) and Investigating Officer, Sub Inspector Onkar Singh (PW11). But defence has produced only one namely Dharam Pal (DW1), maternal uncle of the accused. We have dealt with medical evidence threadbare herein above, hence, it need not be discussed again. Regarding complainant Sukhdev Kumar (PW2), brother of deceased Pooja, he is the star prosecution witness. He has stated in his testimony that on 4.3.2005 at about 6.30 a.m., he received a telephone call from accused Sushil Kumar asking him to go to his house to see his sister Pooja and her children, who were alone, and also told him to enter his house by climbing its wall. Accused Sushil Kumar informed the complainant that he was calling from civil hospital, and when the complainant asked him as to whether he had any differences at home, then he snapped the connection. Thereafter, Sukhdev Kumar visited his sister's house where he saw that its door was open and three dead bodies of his sister, nephew and niece were lying on bed. Hands of his nephew Jatin were tied behind his back and there was an injury mark on left wrist of his Murder Reference No.3 of 2007 13 sister Pooja. A rope of size 2 ¼ /3 feet in shape of Fansi Ka Fanda (tie with circle) was lying there. He again received a call from the accused at 6.45 am, after a gap of 15 minutes, who made certain enquiries from him. When the complainant told him that three dead bodies were lying on bed, the accused again snapped the phone connection. In his cross-examinations, this witness has stated that he had received phone call on mobile No. 9872561620 of one Mandirwala. He has further stated in his cross- examinations that he was living in a place known as `Guga Peer Mandir' and from there, house of his sister was just 8-10 minutes walk. In his cross- examinations, he has also stated that the accused was not working with Babbu Electronics for the past about 7-8 months prior to occurrence. This witness deposed that he also learnt on the day of incident at about 7/7.15 a.m. that the accused having consumed sulphas was admitted in civil hospital. But, he was unaware of reasons for such conduct of the accused. Thus, from testimony of this witness, it appears that he had received a phone call from the accused at 6.30 a.m. on 4.3.2005. During course of conversation with the accused, when he asked some pointed questions, the accused avoided to answer and disconnected the phone. Accused Sushil Kumar was fully conscious and in complete control of senses at that time, and instead of himself rushing to his house, he asked this witness to go inside his house to see his sister Pooja, and her children, who were alone in the house. After about 15 minutes, the accused again called up on mobile and talked to this witness to ask as to what he had seen. When the complainant (PW2) said that three dead bodies were lying, the accused immediately snapped the phone connection. This witness has categorically mentioned that he was staying in a temple with his mother just at a distance Murder Reference No.3 of 2007 14 of 10-15 minutes walk from the house of accused. Thus, his presence on spot when the police had reached and recorded his statement was not improbable. He also clarified that he received phone calls of the accused on mobile set of owner of temple. His statement appears to be truthful and his presence on spot absolutely natural. Raj Kumar (PW3) received information about murder of wife and two children of the accused from his landlord. He had known the accused from before. He has stated to have gone to scene of occurrence and given information to the police. Within half an hour, SI Karamjit Singh with a police party reached there. Accused Sushil Kumar was not present at the scene of occurrence. Three dead bodies were seen lying in bed room of premises in possession of the accused. Dead bodies of Jatin and Sofia, son and daughter of the accused, were noticed lying with dead body of Pooja, wife of the accused. Clothes of dead bodies were stained with blood. Nothing was recovered in his presence on that day. Thereafter, on 8.3.2005, he went to police station at about 5.00 p.m. Accused was interrogated in his presence by SI Onkar Singh. Accused Sushil Kumar