IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Criminal Appeal No. 325-DB of 2000 Dated of Decision:- April 21, 2009 Jamna ....APPELLANT VERSUS State of Punjab ....RESPONDENT 2) Criminal Appeal No. 370-DB of 2000 Salig Ram ....APPELLANT VERSUS State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Sh. R.K.Gupta, Advocate for the appellant (In Crl.Appeal No.325-DB of 2000). Sh. Rajiv Vij, Advocate for the appellant (In Crl.Appeal No.370-DB of 2000). Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. 2 Criminal Appeal No. 325-DB of 2000 and Criminal Appeal No. 370-DB of 2000 We will be deciding Crl.Appeal No.325-DB of 2000 and Crl.Appeal No.370-DB of 2000 by a common judgment/order, as they arise out of the same order. The learned Sessions Judge, Jalandhar vide his judgment dated 24.1.2000 convicted Jamna wd/o Sarup Ram under Section 302 of the Indian Peanl Code and convicted Salig Ram son of Karam Chand under Sections 302/120-B IPC and sentenced both of them to undergo R.I. for life. They were directed to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo R.I. three months. The case of the prosecution is unfolded by the statement Ex.PF of Hari Ram given to SI Harpal Singh at Police Post Maqsoodan. Hari Ram stated, that he is a resident of Raipur Rasulpur and does labour work. He has his house in front of Dr. Ambedkar Chowk. The son of his uncle, namely Sarup Ram was residing in the neighbouring street. Hari Ram had two sons. 4-5 days before the occurrence, Sarup Ram had told Hari Ram, that his wife Jamna had developed illicit relations with Salig Ram son of Karam Chand. A few days earlier, he saw his wife in a compromising position with Salig Ram in his house. Hari Ram tried to persuade Jamna not to get into this relationship, but he was not successful. On 10.10.1998 at 10.00 p.m., Hari Ram was present at Dr. Ambedkar Chowk, he heard a noise from the house of Sarup Ram. He went to the house of his cousin. The outer door of the house was lying open. When he entered the house, he saw Jamna giving injuries to Sarup Ram her husband 3 Criminal Appeal No. 325-DB of 2000 and Criminal Appeal No. 370-DB of 2000 on the testicles. Sarup Singh’s son Amandeep was also there. Injuries were so severe that Sarup Ram died in front of him. On the basis of this statement, FIR Ex.PF/2 was registered on 11.10.1998 at 3.50 a.m. The prosecution to prove its case brought into the witness box, Dr. Sanjiv Babuta PW1, HC Satvinder Singh PW2, Constable Dial Singh PW3, Dalip Singh Draftsman PW4, Hari Ram PW5, Amandeep Kumar PW6, Mohinder Lal PW7, Pritam Chand PW8, Amrik Singh PW9, HC Kabul Singh PW10 and Harpal Singh Inspector PW11. Learned counsel for appellant Jamna, Sh. R.K.Gupta, Advocate has argued, that a definite stand has been taken by appellant Jamna, whereby she stated, that she was provoked to injure the deceased, as he wanted to have unnatural sex with her. Appellant Jamna has not to prove her case in a fool proof way, but in her statement under Section 313 Cr.P.C., a second version is before the Court, which has got to be taken into consideration. Occurrence in fact had taken place the way appellant Jamna has stated in her statement. Statement of Hari Ram PW5 is full of contradictions. At 10 p.m. in the night, he has stated that he was standing all alone in the Ambedkar Chowk. When he heard shouts, he went to the house of deceased Sarup Ram and saw the occurrence taking place. No other person from the locality came to the rescue of deceased Sarup Ram, apart from Hari Ram PW5. Hari Ram’s version is not a truthful version; in fact he was not present, when the occurrence took place. His house is at a quite distance from the house of the deceased. The best witnesses would have been the 4 Criminal Appeal No. 325-DB of 2000 and Criminal Appeal No. 370-DB of 2000 neighbours, who would have intervened and come to the rescue of the deceased, but none has been examined by the Investigating Officer Harpal Singh Inspector PW11. The other eye witness Amandeep Kumar PW6 is the son of the deceased. He is deposing under duress and after being persuaded to do so by Hari Ram PW5. The conspiracy theory as propounded by Amrik Singh PW9 and the extra judicial confession made before Pritam Chand PW8 are not believable. There was no need for the appellant to make the extra judicial confession before Pritam Chand PW8, who could not have helped him in any way. The conspiracy theory as propounded by Amrik Singh PW9 has a number of loop-holes. Learned counsel for the State has argued, that the testimony of Amandeep Kumar PW6 is cogent and convincing and is truthful. At 10.00 p.m. in the night, it is natural for Amandeep Kumar PW6 to be at home. Amandeep Kumar PW6 has deposed against his own mother, since she is the one who committed the murder of his father Sarup Ram. There is no delay in lodging of FIR Ex.PF/2, which came into existence on 11.10.1998 at 3.50 a.m. Hari Ram PW5 is the cousin of the deceased. He has no axe to grind against the appellants. He resides nearby and saw the occurrence. Amrik Singh PW9 is an independent witness. He is a witness to the conspiracy being hatched by both appellants Jamna and Salig Ram to commit the murder of Sarup Ram, as both appellants Jamna and Salig Ram were having illicit relations. 5 Criminal Appeal No. 325-DB of 2000 and Criminal Appeal No. 370-DB of 2000 The extra judicial confession made before Pritam Chand PW8 is convincing and cogent. Appellant Jamna needed help. She knew Pritam Chand PW8 and therefore she went to him. Shri Rajiv Vij, Advocate, learned counsel for appellant Salig Ram has adopted the arguments put forward by Sh. R.K.Gupta, Advocate. We have heard the learned counsel for the parties and perused the record with their assistance. The manner of death of deceased is not disputed by both the appellants and the prosecution as stated by both the eye witnesses i.e. Hari Ram PW5 and Amandeep Kumar PW6. Appellant Jamna in her statement under Section 313 Cr.P.C. has stated as under: - “ I am innocent. On the day of occurrence my husband wanted sexual intercourse with me at about 10.30 p.m. but I was having menstrual period and was bleeding and thereafter he wanted to commit sodomy forcibly with me which I resisted and as a result to save myself from being sodomised, the testicles of the deceased were pulled by me accidently, to save myself and during that process my bangles were also broken. My husband was about 55 years of age and he was not stopping on my request to spare me. I had no other alternative as my husband was under the influence of liquor at that time and my son Amandeep Kumar was sleeping in another building close to my residential room and later on I woke my son and narrated the occurrence to him and other neighbours. Hari Ram PW was not present at the spot. I informed the police of the said incidence. No witness had seen the occurrence. I had no relations with Salig Ram. The prosecution witnesses have been tutored by my in laws due to enmity”. 6 Criminal Appeal No. 325-DB of 2000 and Criminal Appeal No. 370-DB of 2000 The post-mortem report shows the following injuries on the person of the deceased: - “1. 12cm lacerated wound on the undersurface of scrotum with clotted blood. Left testis were hanging out side the scrotum while the right testis was exposed. 2. Another lacerated wound measuring 3 cm x 1 cm on the scrotum just above injury No.1. Wound was skin deep. 3. Lacerated wound situated at the root of penis on right side measuring 5 cm x 2 cm skin deep. 4. Lacerated wound situated at the root of the penis on left side. Skin deep measuring 2.5 cm x 1 cm with clotted blood”. Both Hari Ram PW5 and Amandeep Kumar PW6 and in FIR Ex.PF/2 it has been stated, that appellant Jamna caught hold of the testicles of the deceased and injured them so severely that Sarup Ram died. From the statements of Hari Ram PW5, Amandeep Kumar PW6, Dr. Sanjiv Babuta PW1 and the statement of appellant Jamna under Section 313 Cr.P.C., it is clear that Sarup Ram died due to injuries inflicted on his testicles by appellant Jamna. Amandeep Kumar PW6 is a natural witness. At 10.00 p.m. in the night, a young boy is supposed to be in his house. He has corroborated the version put forward by Hari Ram PW5. Amandeep Kumar PW6 would not have falsely deposed against his own mother, if she had not committed the murder. Hari Ram PW5 also would not have deposed against his own Bhabhi i.e. appellant Jamna, if she had not committed the murder of Sarup Ram. 7 Criminal Appeal No. 325-DB of 2000 and Criminal Appeal No. 370-DB of 2000 Now coming to the statement of appellant Jamna under Section 313 Cr.P.C. This statement seems to be truthful. Appellant Jamna on that day was sexually harassed by Sarup Ram. She in a fit of anger committed the murder of her husband Sarup Ram by giving injuries on his testicles. The conspiracy theory as propounded by Amrik Singh PW9 is believable to this extent that Salig Ram appellant wanted Sarup Ram out of his way. But for repetition sake, on the day of occurrence a quarrel erupted in a sudden way, where deceased Sarup Ram became aggressive and appellant Jamna committed his murder in the heat of the moment. The extra judicial confession has been made before a respectable person i.e. Pritam Chand PW8, who could help the appellants. Pritam Chand PW8 is a Property Dealer. Appellant Salig Ram was his wife’s brother. Since appellant Salig Ram and Pritam Chand PW8 are closely related, both appellants Jamna and Salig Ram went to Pritam Chand PW8, so that he could help them out. Taking the case in totality, it seems that at the heat of the moment after a quarrel erupted, appellant Jamna committed the murder of Sarup Ram her husband. She was in contact with appellant Salig Ram, but on the day of occurrence there does not seem to be any meeting of minds of appellants Jamna and Salig Ram to commit the murder of Sarup Ram. Appellant Jamna exceeded her right of private defence. Conviction of both appellants Jamna wd/o of Sarup Ram and Salig Ram son of Karam Chand is modified from Section 302 IPC to Section 304 Part II IPC. Both the appellants are sentenced to undergo six years R.I. If the appellants have not undergone their sentence, they are 8 Criminal Appeal No. 325-DB of 2000 and Criminal Appeal No. 370-DB of 2000 directed to surrender before the Chief Judicial Magistrate, Jalandhar, to undergo the remaining part of their sentence. No fine is imposed on the appellants. With the above modification in conviction and sentence, appeal is dismissed. (MEHTAB S.GILL) JUDGE (DAYA CHAUDHARY) April 21, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO