Crl.A.No.79-DB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.79 of 1999 Date of decision: 18.3.2008 Bhajan Singh and another -----Appellants Vs. State of Haryana -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S.D.ANAND Present: Mrs. B.K.Mann, Advocate for the appellants. Mr. Kulvir Narwal, Addl.A.G.Haryana for the State. JUDGMENT: This appeal has been filed by Bhajan Singh and Sukhwinder Kaur against their conviction under section 302 IPC, for which they have been sentenced to undergo life imprisonment and to pay fine of Rs.2000/- each. Before proceeding further, we may notice that learned counsel for the State made a statement that appellant Bhajan Singh died on 30.9.2000 during pendency of this appeal. He has produced a photo copy of proceedings under section 174 Cr.PC. In view of above, appeal qua Bhajan Singh is dismissed Crl.A.No.79-DB of 1999 2 as abated. We are, thus, dealing with the appeal filed by Sukhwinder Kaur only. Case of the prosecution is that the deceased Sukhraj Kaur went to the Dhani of Bhajan Singh on 16.7.1994 at 7 PM alongwith her son Gurpreet Singh PW10 to offer milk at sacred fire. The appellant was sister of husband of deceased Sukhraj Kaur and accused Bhajan Singh was husband of Sukhwinder Kaur. Accused Bhajan Singh used to perform some religious rituals to take out evil spirits from the devotees. The deceased had gone to the accused for the said purpose. Satpal (acquitted co-accused) was also present having a Takwa (sharp-edged weapon). The deceased kept the bucket of milk near the sacred fire and sat down. Accused Bhajan Singh caught hold of her hair, while Sukhwinder Kaur caught hold of her hands. Bhajan Singh shook the deceased up and down four/five times while holding her hair. Both the accused then put her in a ditch in which sacred fire was burning. Bhajan Singh twisted her neck. The deceased raised alarm. Gurpreet Singh PW10 was frightened and ran away. Satpal accused who also pushed the deceased Gurpreet Singh PW10, remained in his house for the whole night. Next morning, he went to the Village of his maternal uncle Balwant Singh PW8 and informed him about the occurrence. Crl.A.No.79-DB of 1999 3 Balwant Singh PW8 came to the Dhani of Bhajan Singh and saw the dead body of Sukhraj Kaur. Leaving his brother Piara Singh to guard the dead body, he came to the village and informed Hardayal Singh, Ex Sarpanch and then he came to the house of Bhajan Singh. Bhajan Singh and Sukhwinder Kaur begged pardon from them for committing murder in collusion with Satpal. Balwant Singh PW8 went to the Police Station, Bhuna and lodged report Ex.P1 with SI Amar Singh PW12 on 17.7.1994 at 4.30 PM. PW12 made an endorsement for registration of FIR. He went to the Dhani of Bhajan Singh and prepared inquest report and sent the dead body for post mortem. He inspected the site and took steps for investigation. He arrested the accused on 22.7.1994. He recovered Takwa from Satpal accused, one Chhura from Bhajan Singh and clothes of the deceased from Sukhwinder Kaur. After completing investigation, the accused were sent up for trial. The prosecution examined 12 witnesses - PW1 Shamsher Singh, Draftsman who inspected the spot of occurrence, PW2 Ram Kumar, photographer who had taken photographs of place of occurrence; PW3 Constable Virender Singh, PW4 Constable Krishan Chand, PW5 Constable Chandi Ram and HC Crl.A.No.79-DB of 1999 4 Deva Singh are formal witnesses; PW7 Dr. D.L.Bansal conducted post mortem examination, PW8 Balwant Singh to whom the occurrence was narrated immediately by Gurpreet Singh PW10 and who lodged the FIR; PW9 Hardayal Singh, Ex Sarpanch, who had accompanied Balwant Singh; PW10 Gurpreet Singh is the son of the deceased who is an eye witness to the occurrence; PW11 Jasbir Singh had joined investigation as a witness and PW12 SI Amar Singh, Investigating Officer. PW7 Dr. D.L.Bansal conducted post mortem examination on 18.7.1994 at 9 AM and found the following injuries:- “1. There was a superficial burns on the back of the abdomen, lower part of back of chest, extending upto left side hip, mainly antero-lateral lower limbs, slight posteriorly lower limb. Also on right leg antero medical aspect lower ½ and antero posterior of right foot. Peeling of skin at places was present. Burn was present on the posterior aspect of left hand in area of 4x 3 inches, burn present on upper part of chest right side. Five spot of varying size 2 x 1-1/2 inches to 1-1/2 x 1 inches. Burn was present on the neck on anterior side. Burn was also present on the left shoulder in an area of 15 x 10 cms. Red line and erejthemia Crl.A.No.79-DB of 1999 5 was present between healthy and burn area. 2.Swelling 5 x 4 cms placed on the nape of neck posteriorly was present. On dissection, there was huge amount of blood came out, muscles were torn, infiltration of blood underlying tissues were there. Fracture dislocation of 2nd and 3rd cervical vertebrae. Spinal cord meninngins were lacerated. Blood was present in vertabrae column. Blood stained fluid was also seen in the corresponding area. 3.An abrasion on the right side of face 4 x 4 inches middle and upper part. On dissection infiltration of the blood underlying tissues were found. 4.There was swelling 3 x 2 inches below and lateral side on the left eye with an abrasion of 1- 1/2 x 1 inch. On dissection, infiltration of blood underlying tissues were seen.” He gave his opinion that :- “The cause of death in this case in our opinion was cervical spinal injury mentioned above which was ante mortem in nature and was sufficient to cause death in ordinary course of nature.” The accused denied the prosecution allegations. Kaka Singh, son of Mohabat Singh was produced as DW1, who deposed that dead body of the deceased was recovered from the Dhani of Crl.A.No.79-DB of 1999 6 the accused, as reported by accused Bhajan Singh. Clothes of the deceased were changed by the women. Brother of the deceased was informed. The accused were falsely implicated as Bhajan Singh suspected that Balwant Singh had caused the death of Hardayal Singh, husband of Sukhraj Kaur and brother of Sukhwinder Kaur. Sukhwinder Kaur used to suffer fits. The trial court, after considering the evidence, held that the version given by PW10 Gurpreet Singh was truthful and was also corroborated by PW8 Balwant Singh to whom the occurrence was narrated immediately after the same had taken place. We have heard learned counsel for the parties and perused the record. Contention raised by learned counsel for the appellant is that the version given by Gurpreet Singh PW10 was not reliable as he did not report the matter to the police immediately. He went to his house and slept for the night and went to his maternal uncle next day. PW8 Balwant Singh, maternal uncle of Gurpreet Singh also did not inform the police immediately but came to the Dhani of the accused and then went back to his village and informed the Sarpanch and only thereafter he went to inform the police. There was, thus, delay of about 22 hours. PW8 Balwant Singh also stated Crl.A.No.79-DB of 1999 7 that he had moved an application to the police but the said application has not been brought on record in absence of which it should be held that the genesis of the occurrence has been suppressed. It was next submitted that there was no motive as the deceased had gone for treatment of evil spirits to the accused. The accused was closely related to the deceased. The death was accidental. In any case, appellant Sukhwinder Kaur is attributed the role of catching hold of hands of the deceased only to assist Bhajan Singh to give the treatment for removal of evil spirits and not with a view to kill. No doubt, PW10 Gurpreet Singh has also stated that the deceased was forcibly put in a ditch in which sacred fire was burning but this version is not corroborated by medical evidence. According to the doctor, the death took place on account of spinal injury, which was sufficient to cause death in the ordinary course of nature. There were only superficial burns. Since we are not required to examine the reliability of the entire version of the prosecution, Bhajan Singh main accused having died, we will confine our consideration to the role of the appellant Sukhwinder Kaur only. From the version of PW10 Gurpreet Singh, who is an Crl.A.No.79-DB of 1999 8 eye witness, it is clear that the deceased had gone to the accused only for her treatment and the accused did not have any intention to cause her death. There was, thus, no question of any common intention of causing death. Act of Bhajan Singh appellant may be ill-conceived or foolish and whatever be the offence committed by him, in absence of common intention to cause death, the appellant Sukhwinder Kaur cannot be held responsible for causing the death. Version of PW9 Balwant Singh, brother of the deceased who was informed by PW10 Gurpreet Singh immediately after the occurrence and the version of PW9 Hardayal Singh, Ex Sarpanch to whom the occurrence was narrated by Balwant Singh,is also identical to the version given by PW10 Gurpreet Singh. Thus, from the totality of the prosecution evidence, appellant Sukhwinder Kaur cannot be held guilty for the murder of Sukhraj Kaur. In view of above, we allow this appeal, set aside the conviction and sentence of Sukhwinder Kaur and acquit her. (Adarsh Kumar Goel) Judge March 18, 2008 (S.D.Anand) Judge 'gs'