Criminal Appeal No. 244-DB of 2007 1 Criminal Appeal No. 521-DB of 2007 THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 244-DB of 2007 Dated of Decision: 21.01.2009 Meena wife of Late Shri Attar Singh, caste Jat, Village Dehkora, Tehsil Bhadurgarh, District Jhajjhar (Haryana). ... Appellant Versus State of Haryana. ...Respondent Criminal Appeal No. 521-DB of 2007 Dated of Decision: 21.01.2009 Mohan son of Jagdish, caste Pandit, resident of Asaudha Siwan. ... Appellant Versus State of Haryana. ....Respondent Criminal Appeal No. 244-DB of 2007 2 Criminal Appeal No. 521-DB of 2007 CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgement should be reported in the Digest? Present: Mr. H.N. Mehtani, Advocate, for the appellant, in Criminal Appeal No. 244-DB of 2007. Mr. C.B. Goel, Advocate, with Mr. Manoj Sharma, Advocate, for the appellant, in Criminal Appeal No. 521-DB of 2007. Mr. H.S. Sran, Additional Advocate General, Haryana, for the respondent – State, in both the appeals. * * * * SHAM SUNDER, J. This judgement shall dispose of Criminal Appeal No. 244- DB of 2007, filed by Meena, wife of Sh. Attar Singh, and Criminal Appeal No. 521-DB of 2007, filed by Mohan, son of Jagdish, accused (now appellants), against the judgement of conviction and the order of sentence, dated 17.02.2007, rendered by the Court of Additional Sessions Judge, Jhajjar, vide which, it convicted them, for the offence Criminal Appeal No. 244-DB of 2007 3 Criminal Appeal No. 521-DB of 2007 punishable under Section 302/34 of the Indian Penal Code, and sentenced them, to undergo imprisonment for life each and to pay a fine of Rs. 2000/- each, in default to undergo rigorous imprisonment for a period of three months each, and further convicted Mohan, accused, for the offence, punishable under Section 25 Arms Act, and sentenced him to undergo rigorous imprisonment for a period of one year, and to pay a fine of Rs. 1000/- in default to undergo rigorous imprisonment for one month. The substantive sentences of Mohan were ordered to run concurrently. 2. Shorn of unnecessary details, the prosecution case proceeded, in the manner, that Attar Singh (now deceased), nephew of Joginder Singh, prosecution witness, was married to Meena, accused, and was having two sons namely Vikas, aged about 14 years, and Parkash, aged about 12 years. Attar Singh, was serving in the Army, as Hawaldar. On 03.04.2004, he retired and came to village Dehkora. Mohan Singh, accused, was practising, as doctor, in the village. He used to treat accused Meena, wife of Attar Singh. During that treatment, he developed illicit relations with Meena Joginder, prosecution witness, came to know about this fact. He raised objection to the continuance of such illicit relations. When he told this fact to Attar Singh, Meena blamed Joginder, prosecution witness, saying that he used to tease her. Accordingly, Joginder, prosecution witness, Criminal Appeal No. 244-DB of 2007 4 Criminal Appeal No. 521-DB of 2007 stopped raising objection, regarding the illicit relations of Meena with Mohan, accused. 3. On 11.04.2004, at about 5.30 PM, Joginder, prosecution witness, heard a noise of “killed killed”. He went to the roof of his house and saw that the hands and legs of Attar Singh, had been tied with scarves (chunnies) and Mohan, accused, was touching the body of Attar Singh, with an electric iron rod. On seeing the aforesaid incident, Joginder, prosecution witness, went there, but both Meena and Mohan, accused, fled from the scene. Joginder, prosecution witness, untied Attar Singh, and after arranging a vehicle, took him to Sampla, in a private clinic, where he was declared dead. Thereafter, the dead-body of Attar Singh, was taken to Civil Hospital, Bahadurgarh. Thereafter, Joginder, prosecution witness, made statement exhibit P1/C, to the Police, on which, endorsement P1, was made. The statement was sent to Police Station, on the basis whereof, First Information Report, P1/A, was registered. 4. Thereafter, Randhir Singh, Assistant Sub Inspector, and Joginder, prosecution witness, went to Civil Hospital, Bahadurgarh, where the inquest report of the dead-body of the deceased was prepared. Post-mortem on the dead-body of Attar Singh, was got conducted. Ajit Singh, Assistant Sub Inspector, posted at Police Post Asaudha, Police Station Bahadurgarh, received a telephonic message Criminal Appeal No. 244-DB of 2007 5 Criminal Appeal No. 521-DB of 2007 and reached the bus-stand, where both the accused were apprehended. From the possession of Meena, accused, one MOTOROLA mobile- phone, one gold chain, one pair of anklet and two gold finger rings were recovered, which were taken into possession, vide memo P7. On 14.04.2004, Mohan, accused, was interrogated, who made a disclosure statement that he had concealed electric rod, used for the commission of murder of Attar Singh and one country-made pistol with one live cartridge, of which, he only knew, and could get the same recovered, by pointing out. In pursuance of the disclosure statement, made by him, he got recovered electric rod P16, pistol P17 and cartridge P18. Sketch of pistol P14, was prepared. Thereafter the pistol, the cartridge and rod, were taken into possession, vide memo exhibit P15. Accused Mohan, also made a disclosure statement, regarding the concealment of scarves (chunnies), which were used, in the crime, and got recovered the same, from a room meant for keeping fodder, which were taken into possession, vide memo P13. Site plan of the place of recovery P29, was prepared. The place of occurrence was demarcated by Mohan, accused. The memo of demarcation P30, was prepared. Meena, accused, also demarcated the place of occurrence and demarcation memo P31, was prepared. Meena, accused, also got recovered two ear rings, while Mohan, accused, got recovered one mobile-phone NOKIA No. 9813064559, P19, which were taken into possession, vide memo Criminal Appeal No. 244-DB of 2007 6 Criminal Appeal No. 521-DB of 2007 exhibit P8. The statements of the witnesses were recorded. The site plan of the place of recovery was prepared. The cause of death of Attar Singh, was due to cardio-respiratory failure, on account of electric shock, which according to the doctor was sufficient, to cause death, in the ordinary course of nature. After the completion of investigation, the accused were challaned. 5. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Section 302 read with Section 34 of the Indian Penal Code, against both the accused, as also, under Section 25 of the Arms Act, against Mohan, accused, was framed, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined Rajbir Singh, Assistant Sub Inspector (PW1), who on receipt of ruqa PA, recorded the First Information Report, P1/A, Jai Chand, Constable (PW2), who prepared the scaled site plan P2, Mukesh Kumar, Constable (PW3), who deposited the viscera of the deceased, handed over to him, by the Moharrir Head Constable, in Pathology Department, Rohtak, and gave the receipt of deposit, to the Moharrir Head Constable, Karan Singh, Head Constable (PW4), who tendered Criminal Appeal No. 244-DB of 2007 7 Criminal Appeal No. 521-DB of 2007 his affidavit P3, Dalbir Singh, Constable (PW5), who was handed-over an envelope of viscera by Karan Singh, Moharrir Head Constable, and he deposited the same, in the Office of Forensic Science Laboratory, Dr. Sunita Tanwar (PW6), who conducted post-mortem examination, on the dead-body of Attar Singh, Rattan Singh, Assistant Sub Inspector, Armourer, Police Line Jhajjar (PW7), who examined pistol P5 and gave his report exhibit P5/A, Joginder (PW8), who claimed that he witnessed the occurrence, and also deposed with regard to the motive, Jagbir Singh (PW9), who deposed that on 11.04.2004, on hearing noise of Joginder, he went inside the house of Attar Singh, and saw Mohan, accused, who pushed him and ran away, whereafter, he alongwith Joginder, prosecution witness, untied the hands and legs of Attar Singh, Kanwar Singh (PW10), who proved P6, sanction order for prosecution of Mohan, accused, for the commission of offence, under Section 25 Arms Act, Mahinder Singh, Constable (PW11), Ajit Singh, Assistant Sub Inspector (PW12), who associated with the Investigating Officer, during the course of investigation, Sikandar Singh, Constable (PW13), who was handed over three envelopes and he delivered the same to the Deputy Superintendent of Police, Superintendent of Police and Illaqa Magistrate, Randhir Singh, Assistant Sub Inspector (PW14), the Investigating Officer, who partly investigated the case and Rajbir Singh, Inspector (PW15), who also partly investigated the case. Criminal Appeal No. 244-DB of 2007 8 Criminal Appeal No. 521-DB of 2007 Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 7. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Meena, accused, in her statement, under Section 313 of the Code of Criminal Procedure, took up the following plea:- “I am innocent and am not the paramour of my co-accused Mohan. There is a long history of unnatural death in the family of my deceased husband Attar Singh. My brother- in-law Bhola Singh, who was the real brother of my husband Attar Singh, died unnaturally and the husband of my nanand Kamla also died unnaturally. PW8 Jogender was cultivating my land 16 killa on batai during the life time of my deceased husband Attar Singh, in order to grab the said land he manipulated the unnatural death of my husband Attar Singh while watering in field and falsely implicate me. My nanand Kamla in order to ruin my life has illegally taken the custody of my children and she had also filed a suit for Succession Act at Bahadurgarh Court. These Jogender Singh, Kamla Devi and one Braham Parkash had hatched a conspiracy to grab the amount of gratuity of my husband Attar Singh and to grab the ancestral property get me falsely implicated.” 8. Mohan, accused, in his statement, under Section 313 of the Code of Criminal Procedure, besides pleading that he was falsely Criminal Appeal No. 244-DB of 2007 9 Criminal Appeal No. 521-DB of 2007 implicated, also took up the following plea:- “I have no illicit relation with my co-accused Meena. There is long history of unnatural death in the family of deceased Attar Singh. The brother-in-law of Meena Bhola Singh, who was the real brother of deceased Attar Singh had died in unnatural death and the husband of deceased sister Kamla had also died unnatural death. PW8 Jogender Singh to whom I refused to give treatment and tablets long time back has involved me falsely and fabricated in the said case. PW8 Jogender had used to cultivate the agricultural land of deceased Attar Singh and in order to grab the land of deceased Attar Singh, Jogender Singh manipulated the unnatural death of deceased Attar Singh, while irrigating the field and falsely implicated me. The sister of deceased Attar Singh Kamla in order to bring the life of accused Meena and her sons, who had also filed a suit for succession at Bahadurgarh Court has hatched a said conspiracy in order to grab the amount of gratuity and other funds of deceased Attar Singh and also to grab the ancestral property of deceased Attar Singh. I used to treat the persons in the village and never involved in any case till date. PW Jagbir had also a quarrel with me about 3 ½ years back and because of this he had appeared as a false and fabricated witness against me.” 9. The accused examined Suraj Mal (DW1), Sh. Hari Parkash (DW2), and Anil Kumar (DW3). Thereafter, they closed the defence evidence. 10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. Criminal Appeal No. 244-DB of 2007 10 Criminal Appeal No. 521-DB of 2007 11. Feeling aggrieved, the instant appeals, were filed by the appellants. 12. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 13. The Counsel for the appellants, submitted that the alleged occurrence, took place, on 11.04.2004, at about 5.30 PM, in the area of village Dehkora, whereas, the First Information Report, was lodged, on 12.04.2004, at 12.20 PM i.e. after 19 hours, though the dead-body of the deceased was taken, in the first instance, to Sampla, and thereafter, to Civil Hospital, Bahadurgarh, at about 6/6.30 P.M., on 11.04.2004, and the Police Station is at a distance of 1 km, from the said hospital. The special report was received by the Judicial Magistrate 1st Class, Bahadurgarh, at 4.00 PM. He further submitted that the delay of about 19 hours, in lodging the First Information Report, remained unexplained. He further submitted that the delay of about 19 hours, in lodging the First Information Report, resulted into concoction of story, false implication of the accused, and introduction of false witnesses. The submission of the Counsel for the appellants, in this regard, appears to be correct. According to Joginder, PW8, Attar Singh, deceased, died at the spot. It was his dead-body, which was taken, in the first instance, to Sampla, and then to Civil Hospital, Bahadurgarh. As soon as, the dead-body of Attar Singh, was taken to Civil Hospital, Criminal Appeal No. 244-DB of 2007 11 Criminal Appeal No. 521-DB of 2007 Bahadurgarh, at which place the Police Station, is also situated, it is not known, as to what prevented said Joginder, PW8, to lodge the First Information Report, immediately thereafter. This clearly goes to show that Joginder, PW8, did not witness the occurrence, but he wanted to concoct the story, in the meanwhile, so as to involve the accused, in the instant case. The First Information Report, is a vital piece of evidence, containing the facts and circumstances, relating to the occurrence. If the first version of the incident is delayed, without any plausible reason, then certainly, a doubt can be entertained that there was something remiss. It is, no doubt, true, that mere unexplained delay, in lodging the First Information Report, in itself, is not sufficient to throw away the case of the prosecution over-board. In that event, the Court is required to scrutinize the evidence of the prosecution witnesses, carefully and cautiously. After careful and cautious scrutiny, if the Court, comes to the conclusion, that the evidence of the prosecution witnesses inspires confidence, then the delay, in lodging the First Information Report, may pale into insignificance. In the instant case, the evidence of the prosecution witnesses, as would be discussed hereinafter, is not cogent, convincing and reliable. In Thulia Kali V. State of Tamil Nadu ( 1972) 3 Supreme Court Cases 393, it was held that the FIR in a criminal case, is an extremely vital and valuable piece of evidence, for the purpose of corroborating the oral evidence, Criminal Appeal No. 244-DB of 2007 12 Criminal Appeal No. 521-DB of 2007 adduced at the trial. The importance of the report, can hardly be over- estimated, from the standpoint of the accused. The object of insisting upon prompt lodging of the report, with the Police, in respect of commission of an offence, is to obtain early information, regarding the circumstances, in which the crime was committed, the names of the actual culprits, and the part played by them, as well as the names of the eye-witnesses, present at the scene of occurrence. Delay in lodging the first information report, quite often results in embellishment, which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account of the prosecution story, as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging the first information report, should be satisfactorily explained. In that case, there was a delay of about 20 hours, in lodging the F.I.R.,though the Police Station was only at a distance of two miles. Hence this circumstance was taken, as the one, to raise considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction. In this view of the matter, the submission of the Counsel for the appellants, being correct, is accepted. 14. It was next submitted by the Counsel for the appellants, that the occurrence did not take place, in the manner, as projected, by the Criminal Appeal No. 244-DB of 2007 13 Criminal Appeal No. 521-DB of 2007 prosecution. They further submitted that Attar Singh, deceased, being an ex-army personnel, was well built aged about 46 years. They further submitted that no evidence was produced by the prosecution, that he was intoxicated and when he became unconscious, he was tied and electric shocks were given to him. They further submitted that Attar Singh, would not have permitted the accused easily to tie him, so as to give him electric shocks, but, on the other hand, would have resisted fiercely, so as to save himself. The submission of the Counsel for the appellants, in this regard, appears to be correct. As stated above, Attar Singh, had retired from army. He was aged about 46 years, at the time of the alleged occurrence. Ex-army personnel of the age of 46 years, could be presumed to be strong enough, with a well built body. He, in the normal circumstances, would not have permitted both the accused to tie him with scarves (chunnies) and give him electric currents. He would have certainly put up resistance, to the utmost, in those circumstances, to save himself. In that even, he would have also caused injuries, on the person of the accused, but there is nothing, on record, that any injury was suffered by the accused, in that alleged process. The story projected by the prosecution, regarding the occurrence, therefore, does not inspire confidence, in the mind of the Court. It appears that the occurrence took place, in some other manner, but with view to falsely implicate the accused, in the instant case, it was projected, in a different Criminal Appeal No. 244-DB of 2007 14 Criminal Appeal No. 521-DB of 2007 manner. The story of the prosecution, therefore, being highly doubtful, the trial Court, was wrong, in placing reliance thereon. 15. It was next submitted by the Counsel for the appellants, that both Joginder and Jagbir, prosecution witnesses, were introduced, later on. They further submitted that they did not allegedly witness the occurrence. According to Joginder, PW8, on hearing cries of “killed killed”, he went to the roof of his house and saw that the accused had tied Attar Singh, with scarves (chunnies), and were giving him electric shocks. He further stated that he immediately went to the house of Attar Singh, when the accused ran away. Exhibit P28, is the site plan of the alleged place of occurrence, which was prepared by the Investigating Officer. Point 'A', has been shown, in the site plan, as the place, where the electric rod for heating the water was fixed. Point 'B', is the place, where the hands of Attar Singh, deceased, were statedly tied and he was being given electric shocks, with the rod aforesaid. Point 'C', is the place, shown in P28, wherefrom, Joginder, PW8, allegedly witnessed the occurrence. The distance between points 'A' and 'B', is 2 karams, whereas, distance between points 'B' and 'C', is 40 karams. It may be stated here, that both points 'A' and 'B', have been shown in a room of the house of Attar Singh. It was, at that place, that Attar Singh, was allegedly given electric shocks with rod aforesaid and died. These points are not in the court-yard of the house of Attar Singh. Criminal Appeal No. 244-DB of 2007 15 Criminal Appeal No. 521-DB of 2007 From point 'C', the alleged occurrence, at points 'A' and 'B', in the room of the house of Attar Singh, could not, by any stretch of imagination, be witnessed. Had the occurrence taken place, in the court-yard or in the open area of the house of Attar Singh, one could say that Joginder, PW8, from the roof of his house, could possibly have witnessed the same. Not only this, if Joginder, PW8, and Jagbir, PW9, reached the spot, and saw Attar Singh, having been tied and electric shocks, being given to him, by the accused, they would not have allowed them (accused), to run away, one of whom was a lady. They could certainly apprehend either both the accused, or one of them. The presence of both Joginder and Jagbir, alleged eye-witnesses, thus, was most improbable and unnatural, at the time of the alleged occurrence. It appears that the death of Attar Singh, took place, somewhere else, in a different manner, but with a view to falsely implicate the accused, both these witnesses were introduced later on. The trial Court, was wrong, in coming to the conclusion, that both these witnesses witnessed the occurrence. The submission of the Counsel for the appellants, carries substance, and the same stands accepted. 16. Not only this, even the motive, set up by the prosecution was not proved, from the evidence, on record. Attar Singh, was admittedly an ex-serviceman. He retired from army service, and then came to his village. According to the prosecution story, in the absence Criminal Appeal No. 244-DB of 2007 16 Criminal Appeal No. 521-DB of 2007 of Attar Singh, the accused developed illicit relations with Meena, his wife, which was even objected to by him (Attar Singh), and due to that reason, his murder was committed. Joginder, PW8, stated that he came to know, about the illicit relations of Meena, with Mohan, accused. He further stated that he told about this to Attar Singh, but he did not take any action, against Mohan, accused. Jagbir, PW9, did not state even a single word, with regard to the motive. Joginder, PW8, did not state, even a single word, as to what was the source of his information, that Meena was having illicit relations, with Mohan, accused. During the course of his cross-examination, Joginder, PW8, stated that after 08.04.2004, Mohan, accused, started living, in the house of Attar Singh (now deceased). Had there been illicit relations between Mohan and Meena, accused, Attar Singh, husband of the latter, would not have allowed him to stay in his house, since 08.04.2004. No husband, would tolerate the illicit alliance of his wife, with another person. Had there been any such illicit relations, between the accused, Attar Singh, would have certainly taken action against them, by approaching the Panchayat or the relatives, of Meena. He could, in that event, even go to the extent of, inflicting injuries, on the person of Mohan and Meena, accused. The mere fact that he allowed Mohan, accused, to live in his house, since 08.04.2004, whereas the alleged occurrence, took place, on 11.04.2004, in itself, could be said to be a strong circumstance, indicating that there Criminal Appeal No. 244-DB of 2007 17 Criminal Appeal No. 521-DB of 2007 were no illicit relations between Meena and Mohan. Such a motive was apparently set up, by Joginder, PW8, just with a view to see the success of the prosecution case. The motive, therefore, was not proved. It is, no doubt, true that there can be an occurrence, without motive. However, when a specific motive, is set up, by the prosecution, and the same is not proved, then certainly it can be said that the case of the prosecution is not free from doubt. 17. Had the dead-body of Attar Singh, been recovered from his house, it would have been said that the onus lay upon Meena, to establish, as to under what circumstances,