Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 422 of 2001 Old Criminal Appeal No. 2281 of 1998 Dated of Decision: 26.04.2010 Kawal Jeet Singh and another …Appellants Versus State of U.P. …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. R.S. Sammal, learned counsel for the appellant no. 1 and Mr. H.C. Pandey, learned counsel for the appellant no. 2. Mr. S.S. Adhikari, learned A.G.A. for the State. Nirmal Yadav, J. This appeal has been preferred by the appellants against the judgment and order dated 25.09.1998 passed by the District & Sessions Judge, Nainital in Sessions Trial No. 432 of 1995 whereby the accused-appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code,1860 (for short I.P.C.) and sentenced them to undergo life imprisonment and fine of Rs. 5000/- each. In default of payment of fine, they have been ordered to further undergo one year of imprisonment. This appears to be a case of honour killing where a brother killed his sister and her paramour in order to save honour of his family. The criminal law was set in motion on the report lodged by constable Dharm Pal Singh on 2nd April 1995. He made an oral report in police chowki Bel Padav, police station Ram Nagar that on 2nd April 1995 he alongwith constable Kishan Ram was going for patrolling on their respective bicycles from Bazpur Road to Chuna Khan Road around 9:00 p.m. and when they reached near Veterinary 2 Hospital-Aara Machine they saw one Maruti Van coming from the opposite side. The said van stopped at a distance of about half a furlong from them, for a while they turned back and sped away towards Bel Padav. Meanwhile both the constables heard the shrieks of a male as well as of a female. When they reached there, they found two persons causing injuries to a boy and a girl with their respective Darant. On receiving the injuries both of them fell on the road. Constable Dharm Pal, the complainant as well as Kishan Ram parked their bicycle and tried to catch hold of assailants. They were successful in apprehending Kawal Jeet Singh accused. However, another accused whom they recognized as Darshan Singh was successful in escaping from the spot alongwith his weapon. Constable Kishan Ram chared Darshan Singh for some distance, however, he could not be apprehended. On inquiry from accused-Kawal Jeet Singh, he disclosed the names of the deceased persons as Jeevan Ram, his servant and Inderjeet Kaur being his sister. He also disclosed that both the deceased were having illicit relation and on the last Tuesday Jeevan Ram had eloped with his sister. The complainant had traced both of them and brought them from Ram Nagar in Maruti Van of one Pappu. They were brought to the place of occurrence and were killed in order to save the honour of the family. Constable Dharam Pal immediately reported the matter in police chowki Bel Padav which was at a distance of 15 kilometers from the place of occurrence, where Chick F.I.R. was entered at 10.25 p.m. The investigation was conducted by Sub Inspector Babu Ram Yadav (PW-3) who reached the spot and prepared site plan of the place of occurrence and place of recovery of pieces of Patal from Darshan Singh accused Ka-20 and Ex. Ka- 21 respectively. He also prepared the Panchnama of the dead bodies of Jeevan Ram and Inderjeet Kaur Ex. Ka-6 and Ka-7 respectively. As per the Panchnama, dead body of Inderjeet 3 Kaur received five injuries and dead body of Jeevan Ram received eight injuries. One handbag containing wearing clothes and other articles of daily use like toothbrush, toothpaste and comb etc. was also recovered, which were taken into possession after preparing the memos. The postmortem on the dead body of Inderjeet Kaur (deceased) was conducted by Dr. G.K. Goyal (PW-4) on 3rd April 1995 at Dr. L.D. Bhatt Hospital, Kashipur. The postmortem report in this respect is Ex. Ka24. The doctor found the following injuries on the person of the deceased: - (i) Incised wound 20 c.m. x 6 c.m. on the right scalp bone deep on the right side of the head, it was 4 c.m. from the right ear and was going backwards. On account of this injury the scalp and temporal bone were fractured and the brain cartilage had come out of the injury. (ii) Incised wound 10 c.m. x 6 c.m. right side of neck, 6 c.m. from right ear muscle deep the blood vessels on the right side of the neck was cut. (iii) Incised wound 8 c.m. x 3 c.m. bone deep on the backside of the right shoulder. (iv) Incised wound 4 c.m. x 2 c.m. muscle deep of left scapular region. (v) Various incised wounds different shape muscle deep on right forearm and above the right elbow. The dead body was of 16 years old girl of average built body. The rigor mortis passed through the hands and reached up to the legs. 4 On internal examination the cartilages of the brain were found to be lacerated. Heart was empty. Abdomen was having 100 m.l. digested food. As per the opinion of the doctor the death was caused on account of ante mortem injuries and excessive blood hemorrhage, which was sufficient to cause death in ordinary course of nature. On the same day, postmortem of Jeevan Ram (deceased) was also conducted around 4:00 p.m. in the same hospital. The dead body was of 21 years old boy of average built body. Rigor mortis had passed through the hands and was present in the legs. Death was about half to one day old. On external examination of the dead body of Jeevan Ram, the following injuries were found:- (i) Incised wound 18 c.m. x 10 c.m. scalp deep on the upper back portion of the head and posterior bone was fractured. (ii) Incised wound 12 c.m. x 4 c.m. bone deep on the backside of the neck. (iii) Incised wound 6 c.m. x 2 c.m. muscle deep left scapular region. (iv) Several incised wounds of different shape, muscle deep in the area of 20 c.m. x 8 c.m. upper portion of the abdominal region. (v) Incised wound 10 c.m. x 4 c.m. bone deep on the left shoulder. (vi) Incised wound on the right hand, the middle ring and small finger of the right hand were totally cut and separated. Adjoining tissues were also separated. (vii) Contusion 6 c.m. x 4 c.m. on the backside of forearm 6 c.m. above the left wrist. 5 (viii) Contusion 4 c.m. x 4 c.m. on the backside of right forearm 2 c.m. above the right wrist. On internal examination the cartilage of the brain was found to be lacerated. Heart was empty. Abdomen was having 200 m.l. semi digested food. As per opinion of the doctor the death was caused on account of ante mortem injuries and excessive blood hemorrhage. The above injuries were sufficient to cause the death of Jeevan Ram (deceased). Accused Darshan Singh was arrested on 6th April 1995 at 12:45 p.m. After interrogation, he got recovered two pieces of Patal, which was used in the crime. The same was taken into possession vide memo Ex. Ka-4 and site plan of the place of recovery (Ex. Ka-21) was also prepared. The Investigating Officer also took into possession some pieces of stones, bloodstained earth and simple earth and also a jacket from Kawal Jeet, which were taken into possession after making them into separate parcels and sealed those articles and sent them for chemical examination to the Forensic Science Laboratory. The report of the Forensic Science Laboratory received in this respect is Ex. Ka-23. On completion of the investigation, the challan was presented and accused-appellants were charge sheeted under Section 302 read with Section 34 of the I.P.C. to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced four witnesses. Constable Dharam Pal (PW-1), the complainant and the eyewitness of the occurrence. Constable Kishan Ram (PW-2) is also the eyewitness of the occurrence. S.I. Babu Ram 6 Yadav (PW-3) is the Investigating Officer and Dr. G.K. Goyal, (PW-4) conducted the postmortem of both the deceased. When examined under Section 313 Cr.P.C. accused Kawal Jeet Singh denied the entire incriminating evidence and stated that he has been falsely implicated after calling him from his house. All the witnesses deposed falsely against him. Accused-Darshan Singh stated that he has been falsely implicated in this case. He has no concern with the deceased. In defence accused-appellants produced Lal Chand (DW-1). We have heard Mr. R.S. Sammal, learned counsel for the appellant no. 1, Mr. H.C. Pathak, learned counsel for the appellant no. 2, Mr. S.S. Adhikari, learned A.G.A. for the State and perused the material available on record. Learned counsel for the appellant-Kawal Jeet Singh argued that there is no independent eyewitness to corroborate the prosecution case. Both Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW-2) are official witnesses. They have falsely implicated by calling appellant-Kawal Jeet Singh from his house. He further argued that though Gurudwara and Aara Machine are situated nearby the place of occurrence and some other families were also living but surprisingly no one was attracted on hearing the noise and shrieks raised by the deceased persons. It appears that the police officials intentionally did not join anyone from the public in the investigation. He further pointed out that the testimony of both Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW- 2) suffers from material discrepancies and contradictions. He further argued that there is nothing on record to show that there was any source of light at the place of occurrence and therefore, it was not possible for the alleged 7 witnesses i.e. Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW-2) to identify the accused-appellants. He pointed out that though the witnesses stated that they had seen the accused in torch light but that torch has not been taken into possession, which could substantiate the statements of both the witnesses that they had identified the accused persons or had seen the occurrence in the torch light. Learned counsel further argued that even the recovery of two pieces of alleged Patal is also doubtful. The recovery has been shown from the bushes, which was accessible to the public. Learned counsel further pointed out that the witnesses had stated that the Patal was recovered from the accused persons whereas in the Forensic Science report (Ex. Ka-23) the word is written as ‘Kanta’ and the witnesses in their statements stated that accused persons were causing injuries to the deceased persons with their respective Darant. As such ,there is discrepancy in the prosecution case as to whether the weapon of offence was Darant, Patal or Kanta. It was also argued by learned counsel that no explanation has been given by the prosecution as to how injury no. 7 and 8, which are contusions, were caused on Jeevan Ram (deceased). These could not be caused with the sharp edged weapon as none of the accused-appellant has been shown or alleged to be armed with blunt weapon. Lastly it was argued that the Investigating Officer did not verify or try to interrogate Pappu, owner of Maruti Van in whose van both the deceased were brought from Ram Nagar. On the other hand learned A.G.A. submitted that the testimony of Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW-2) is quite consistent on all material facts. They categorically stated that they had seen both the accused causing injuries to the deceased persons. Accused-Kawal Jeet Singh alongwith weapon of offence was apprehended at the spot 8 while Darshan Singh was identified by both the witnesses as he was known to them. There is nothing on record to show that both Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW-2) were having any enmity with the accused persons. It is argued that the recovery of weapons and the medical evidence clearly corroborate the ocular testimony of Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW-2). The matter was reported promptly after the occurrence took place. The bloodstained jacket of accused-Kawal Jeet Singh was also taken into possession at the spot. The motive for causing the death also cannot be disbelieved as a bag was recovered near the dead bodies of Jeevan Ram and Inderjeet Kaur wherein some wearing clothes of male and female and some articles of daily use like tooth brush, tooth paste and comb were recovered, which shows that both the deceased were traced and apprehended. However, in order to save the honour of the family, the brother of deceased Inderjeet Kaur sacrificed life of his own sister. The prosecution case mainly rests on the testimony of Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW-2). The witnesses were going for patrolling duty by their bicycle at the relevant time. When they reached near Veterinary Hospital and Aara Machine , they noticed a van coming from the side of Bel Padav and after stopping at a distance of half a furlong from them it turned back and sped away. This created a doubt in the mind of the police officials and they proceeded towards that side. They also heard the shrieks of a male and a female from that side. On reaching the place of occurrence they noticed that accused Kawal Jeet Singh and Darshan Singh were causing injuries with their respective Darant/Patal to a boy and a girl. The learned defence counsel has attacked the testimony of these two witnesses mainly on the ground that the testimony of official witnesses does not find any independent 9 corroboration and also that no person from the nearby place was attracted to the scene of crime on hearing the shrieks of both the deceased. Both the witnesses have been cross- examined at length. They have categorically stated that Aara Machine was closed during those days and they were not aware whether any Sewadar was present in the Gurudwara at that time or not. They have of course stated that there is a Harijan Basti near the Veterinary hospital and house of Jeevan Ram (deceased) was also in the said colony but he was not aware that 40-50 families were living in the said colony. The witnesses have however categorically stated that the said residential colony was quite far away from the place of occurrence. We cannot lose sight of the fact that place of occurrence is a deserted place. There was no residential house in the close vicinity of the scene of crime. There were many bushes. It may also be possible that no person from the public would like to join or involve in such like matter at a late hour of night. Moreover it has come in the evidence that after the van stopped some shrieks were heard and thereafter they saw the accused persons causing injuries to both the deceased and therefore a commotion or the noise of the shrieks may not have remained for a long time and therefore no one from the Gurudwara or from the Veterinary Hospital were attracted to the scene of crime. The learned counsel also urged that the police officials did not call any one from the residential colony to join the investigation. To our mind, the argument is without any force as it was not a case that the police officials had any prior information about the crime. They heard the shrieks while they were patrolling the area and when reached the place of occurrence they saw the accused causing injuries to the deceased persons. Accused-Kawal Jeet Singh was apprehended at the spot alongwith weapon of offence and in these circumstances police officials may not have considered it 10 necessary to call any person to join the investigation. Moreover, they were only two in number and they could not leave the two dead bodies and one apprehended accused at the spot and to go for calling any public person from the locality. We have gone through the testimony of both the witnesses and do not find any material discrepancy or contradiction in their statements, except one or two minor discrepancies. The learned counsel for the appellant pointed out that according to Constable Dharam Pal (PW-1), he was not aware as to whether memos (Ex. Ka-2 and Ka-3) with regard to recovery of jacket and the weapon of offence were prepared in the police station or at the spot. This may be possible on account of lapse of time between the date of occurrence and their deposition in the court. The fact that the witnesses had left the police chowki for patrolling is proved from general diary report no. 16 dated 2nd April 1995. Thus we are of the opinion that the presence of both the witnesses at the scene of crime cannot be doubted. The incident was reported immediately after the occurrence i.e. at about 10:25 p.m. on the statement of Constable Dharam Pal (PW-1). He mentioned all the facts in general diary no. 21 (Ex. Ka-5) and thereafter the investigation was conducted by Sub Inspector Babu Ram Yadav (PW-3). Learned defence counsel pointed out that there was no source of light at the place of occurrence, therefore, it was not possible for both the witnesses to see the occurrence or to identify accused Darshan Singh running away from the spot. This argument is of course without any basis. The witnesses apprehended accused Kawal Jeet Singh from the place of occurrence itself while Darshan Singh was seen by them in torch light. Both of them categorically stated that Darshan Singh was known to them prior to the present occurrence. It is of course true that the said torch has not been taken into 11 possession nor any mention has been made in any of the memo. However, this lapse on the part of the Investigation Officer can only be considered as inadvertent mistake on his part and on this account the testimony of both the witnesses cannot be disbelieved. The argument of learned counsel that Kawal Jeet Singh was summoned from his house and was implicated in the case appears to be quite absurd. How it was possible for the police officials to identify the two unknown deceased persons. There appears to be no identification mark or any other document from which the witnesses would know their identity and therefore, on what basis they would summon accused Kawal Jeet Singh from his house. It appears to be quite natural that Kawal Jeet Singh was apprehended at the spot and he disclosed the identity of the female deceased as his sister Inderjeet Kaur and male as his servant Jeevan Ram. Thereafter, mother of Jeevan Ram was also summoned to identify the dead body of her son. We are not convinced with the argument of learned counsel for the appellant that both the witnesses being police officials their testimony should not be relied. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It may be quite possible that in a given case the court may not base conviction solely on the testimony of complainant who is police official. At the same time it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated by some other independent evidence. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons. The courts are not supposed to disbelieve the testimony of police officials merely because they belonged to police force and thus there can be no 12 rule of law laying down that no conviction can be based on the testimony of police officials even if the court finds such evidence to be reliable and trustworthy. Of course the rule of prudence may require more careful scrutiny of their evidence but if the court is convinced that the deposition made by the police official has a ring of truth conviction can be based on such evidence. The Apex Court in the case of Aher Raja Khima Vs. State of Saurashtra reported in [A.I.R. 1956 S.C. 217] observed as under:- “The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefore. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.” After careful scrutiny, we are of the view that the testimony of Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW-2) is trustworthy, reliable and inspires confidence and therefore, their testimony can form the basis of conviction. Absence of any independent witness to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case. Rather it appears that both the police officials have performed their duties honestly and in acted due course of their duties. Their testimony however, finds support and corroboration from the recovery of bloodstained jacket and the weapon of offence. The report of the chemical examiner shows that both jacket as well as Patal recovered from Kawal Jeet Singh were stained with human blood. The Jacket as well as Patal were taken into possession and were sealed by the Investigating Officer immediately after the occurrence in the police station. 13 The learned counsel as a last resort argued that accused Darshan Singh had no concern with both the deceased. Even the weapon alleged to have been recovered from him was just two iron pieces and such a weapon could cause no injury to anyone. He further stated that even no person from the public was joined at the time of the recovery of the alleged weapon from him. It was also argued that there are serious contradictions with regard to the nature of the weapons. Keeping in view the entire facts, we are not inclined to accept the argument of learned counsel for the appellants. Constable Dharam Pal (PW-1) and Constable Kishan Ram (PW- 2) categorically stated that they had seen accused Kawal Jeet Singh and Darshan Singh causing injuries to both Inderjeet Kaur (deceased) and Jeevan Ram (deceased). It would not be possible for Kawal Jeet Singh to cause so many injuries on the person of two-deceased single-handedly. As regards the recovery of weapon, the Investigating Officer stated that two pieces of Patal were recovered from the bushes, which were up to the height of a waist of the person. According to the witnesses, the accused persons were causing injuries with Darant, whereas in the recovery memo it is mentioned as Patal. According to Constable Kishan Ram (PW-2), Patal and Darant is just one weapon. Some call this weapon as Patal and others call it as Darant. Moreover as discussed above, in view of the cogent and trustworthy eyewitnesses account any discrepancy with regard to nature of weapon in the statements of witnesses would not in any way adversely affect the prosecution case. There is of course difference of opinion with regard to the weapon in the statements of the witnesses. However, there cannot be any dispute with regard to the recovery of Patal from Kawal Jeet Singh which was recovered from him. He was arrested at the 14 spot. In the opinion of the doctor the injuries could be caused by Patal. Patal is a sharp edged weapon. The learned counsel pointed out that on the person of Jeevan Ram eight injuries were found and injury no. 1 to 6 are of course incised wounds and could have been caused by Patal or Darant. However, there is no explanation as to how injury no. 7 and 8, which are contusions, were caused.