IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.85-DB of 2008 Date of Decision: 09.11.2009 Jailo @ Kailo Appellant Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.A.S.Sullar, Advocate for the appellants in Criminal Appeal No.85-DB of 2008 and Criminal Appeal No.447-DB of 2006 Mr.P.S.Brar and Mr.R.S.Dhaliwal, Advocates for the appellants in Criminal Appeal No.763-DB of 2006 and Criminal Appeal No.932-DB of 2006 Mr.Ajay Kumar Gupta, Additional Advocate General, Haryana for the respondent …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.447-DB of 2006 titled as Bhola Ram v. State of Haryana, Criminal Appeal No.763-DB of 2006 titled as Ram Singh @ Rama v. State of Haryana, Criminal Appeal No.932-DB of 2006 titled as Gurmail Singh @ Gaili v. State of Haryana and Criminal Appeal No.85-DB of 2008 titled as Jailo @ Kailo v. State of Haryana, arising out of the same judgment and order. For facility of reference, facts are being taken from Criminal Appeal No.85-DB of 2008 Jailo @ Kailo v. State of Haryana. Criminal Appeal No.85-DB of 2008 It was allegation against the appellant that she, in connivance with Bhola Ram, Ram Singh and Gurmail Singh, had committed murder of her husband Mahinder Singh on the intervening night of 4/5th April 2003. It was further accusation against them that they had caused injuries to Raju and Bablu, both sons of the deceased and appellant in this appeal. The appellant has filed this appeal against judgment dated 26.4.2006, vide which, all the above named were convicted for commission of offences punishable under Sections 302/34 IPC and 307/34 IPC and vide order dated 29.4.2006, they were sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- each for commission of an offence punishable under Section 302/34 IPC with a default clause. They were further sentenced to undergo RI for a period of ten years and to pay a fine of Rs.5,000/- each for commission of an offence punishable under Section 307/34 IPC with a default clause. ` It is case of the prosecution that on 5.4.2003, SI Punjab Singh (PW23) received a wireless message that there was a talk of the town that a man and two children had fallen into a well in the area of village Haripura. Above named witness, alongwith ASI Dilbagh Singh and other police officials, reached at the well, situated in the fields of Gian Singh, in the area of village Haripura. He came to know that two children namely Raju (PW14) and Bablu (PW15) were taken out of the well, in an injured condition and they had already been shifted to Civil Hospital, Sirsa for treatment. The dead body of Mahinder Singh was lying in the well. No close relative of the deceased was available at the spot. The body was taken out from the well by one Sewa Singh (PW17). SI Punjab Singh summoned a photographer, got the dead body and place of occurrence photographed 2 Criminal Appeal No.85-DB of 2008 through Pawan Kumar (PW6). In the meantime, Chhinder Ram (PW13), brother of the deceased reached at the spot, who made a statement (Ex.PN), on the basis of which, formal FIR (Ex.PB) was recorded against the appellant and others at 10.35 pm on 5.4.2003. Statement made by Chhinder Ram (PW13) reads thus:- “That the complainant Chhinder Ram is a labourer and resident of village Haripura. They were five brothers namely Mahinder Singh (since deceased), Kalu Ram, the complainant himself, Jagsir Singh and Kulwant Singh. Mahinder Singh and Kalu Ram are separate in mess and residence. The remaining three brothers are joint in mess and residence. Mahinder Singh (since deceased) has three sons namely Raju aged 10/11 years, Bablu aged 8/9 years and Sonu aged 5 years. Yesterday on 4.4.2003 in the evening Sonu son of Mahinder Singh was playing at the house of the complainant and at about 8.30 P.M. the complainant went to the house of his brother Mahinder Singh to drop Sonu. He did not find his brother Mahinder Singh and sister-in-law Jailo alias Kailo wife of Mahinder Singh and Raju and Bablu there. He brought Sonu with him at his house. In the morning at about 8.30 A.M. the complainant with Sonu again went to the house of his brother Mahinder Singh to drop Sonu where his sister-in-law Jailo accused told him that his brother Mahinder Singh and injured Raju and Bablu are not at home since night. Thereupon the complainant with his brother Jagsir Singh and Kulwant Singh started for search of Mahinder Singh and their nephews Raju and Bablu in the fields of village Haripura and nearby villages. Kalu 3 Criminal Appeal No.85-DB of 2008 Ram, the brother of the complainant had gone to village Mammar. The complainant went there. The complainant with his brother Kalu Ram was standing at the bus stand of village Mammar to return home where they heard that a man and two children have fallen into a well in the area of village Haripura. When the complainant with his brother Kalu Ram reached at village Haripura and they came to know that their nephews Raju and Bablu were taken out of the well of Gian Singh son of Gurdial Singh, Jat Sikh, resident of village Haripura and Bablu told them that his mother Jailo and accused Bhola Ram etc. had hand in their killing. Thereafter he became unconscious. Both the injured were shifted to the Civil Hospital, Sirsa. The dead body of Mahinder Singh was smeared with blood. He suspects the hand of Jailo wife of Mahinder Singh, accused Bhola Ram, Ram Singh alias Rama and Gurmel Singh alias Gaili in murder of his brother Mahinder Singh and causing injuries on the person of injured Raju and Bablu. The motive was that the accused Jailo had illicit relations with accused Bhola Ram. He is the son of the maternal uncle of the complainant. They had illicit relations for the last 5/6 years. Even before yesterday on 3.4.2003 the deceased Mahinder Singh apprehended both accused Jailo and Bhola Ram in compromising position near a canal and when the deceased objected, both the accused Jailo and Bhola Ram told the deceased Mahinder Singh that if he tried to prevent them from meeting, he will be eliminated. They had also convened several Panchayat to persuade the accused Jailo and 4 Criminal Appeal No.85-DB of 2008 Bhola Ram, to discontinue their illicity relations but to no effect. The remaining accused namely Ram Singh alias Rama and Gurmel Singh alias Gaili used to help both of them in the panchayats.” The investigating officer prepared inquest report on the dead body and sent it for post-mortem examination, which was conducted by Dr.Santosh Bishnoi (PW9) on 6.4.2003 at 10.00 am. Following injuries were found on person of the deceased:- “1. An incised wound 4 x 2 ½ cm x bone deep on left side of fore-head obliquely placed 3 cms above the eye brow, direction was left to right, clotted blood was present in the wound. 2. An incised wound 4 x 1 ½ cms bone deep horizontally placed in mid of fore-head, 4 cms above the bridge of nose, directions was right to left. Clotted blood was present. 3. An incised wound 4 x ½ cms bone deep over right side of fore-head obliquely placed, 3 cms above the right eye brow, direction was left to right. Clotted blood was present. 4. An incised wound 1 cm x ½ cm over right side of fore-head, one cm. parallel and above injury no.3. Clotted blood was present. 5. An incised wound 3 cm x 1 cm bone deep on left side of chin, transversely placed. Clotted blood was present. 6. An incised wound 6 cm x 2 cms over right occipito parietal region with anterior posterior direction was present. Underlying bone cut was present and clotted blood was present over the wound. 5 Criminal Appeal No.85-DB of 2008 7. An abraided contusion 6 cms x 4 cms over left side of chest, 3 cms away from the left mid line. 8. An abraided contusion 7 cms x 4 cms over left side of abdomen. 9. Abraided contusion measuring 35 cms x 35 cms over back in thoraco-lumber region. 10.Multiple abraided contusion on both popliteal of different sizes and shapes.” On dissection of injury No.6, the bone cut was found extended anteriorily upto frontal region. On opening the skul, subdural hemotoma was found present. The stomach was found containing gases and was full of semi digested food material. Cause of death was declared due to asphyxia and head injury. Injuries were ante mortem in nature and were sufficient to cause death in an ordinary course. Further investigation in the case was handed over to SI Hawa Singh (PW21). He arrested the appellant Jailo and co-accused Bhola Ram on 15.4.2003. On interrogation, they suffered disclosure statements, which led to recovery of weapon of offence i.e. gandasi. Co-accused Gurmail Singh @ Gaili and Ram Singh @ Rama were arrested on 23.4.2003. In the meantime, SI Punjab Singh (PW23) recorded statement of Bablu (PW15) on 10.4.2003 and statement of Raju (PW14) was recorded on 15.4.2003. The investigating officer also took into possession blood stained earth etc. and on completing all formalities final report was put in Court for trial. The appellant and co-accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced 23 witnesses and also brought on record documentary evidence to prove its case. 6 Criminal Appeal No.85-DB of 2008 On conclusion of prosecution’s evidence, statements of the appellant and co-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them which they denied, claimed innocence and false implication. Appellant Jailo took up a specific stand that Chhinder Ram (PW13) (brother of the deceased) had tutored Raju (PW14) and Bablu (PW15) against her because he had an evil eye against her. She denied relationship with Bhola Ram accused, as alleged by the prosecution. She further stated that deceased Mahinder Singh and PWs Raju and Bablu had received injuries at the hands of some unknown persons at night. Similarly, Bhola Singh co-accused has taken a stand that he had opposed Mohna Ram (father of the deceased) in Panchayat elections. At the time of elections, a quarrel had taken place with the complainant Chhinder Pal (PW13) and on account of that he and other co-accused have been falsely implicated in this case. To the same effect are the statements made by Ram Singh @ Rama and Gurmail Singh @ Gaili, the co-accused. The appellant and her co-accused also led evidence in defence. The trial Court on appraisal of evidence, as led by both the parties, found the appellant and her co-accused guilty. Accordingly, they were convicted and sentenced as found mentioned in earlier part of this order. Hence, this appeal. Mr.A.S.Sullar, Advocate, who has put in appearance on behalf of the appellant and her co-accused Bhola Ram, has vehemently argued that the prosecution has miserably failed to establish its case against the appellant and others. He argued that FIR is delayed, nobody had seen the alleged murder of Mahinder Singh, Raju (PW14) and Bablu (PW15) were introduced later on, with a view to falsely implicate the appellant and 7 Criminal Appeal No.85-DB of 2008 others. By making reference to the statements made by Rohtash(PW3) a Patwari, he argued that the dry well was 45 feet deep and an electric motor was fitted therein, had the PW14 and PW15 been pushed in it, their bodies would have been crushed, however, as per medical opinion, they received only simple injuries. He further argued that the investigating officer had not recorded statements of alleged injured witnesses in a prompt manner, rather process was delayed to introduce a tutored version against the appellant and others. He further argued that PW14 and PW15 were of the tender age and before their examination in Court, provisions of Section 118 of the Indian Evidence Act, 1872 were not complied with. By indicating several minor discrepancies in the statements of the prosecution witnesses, regarding when the police reached at the spot and at what time the injured were sent to the hospital, he argued that the prosecution story is full of holes and on account of that, it deserves rejection. He further argued that there is no evidence on record to establish that there was an illicit relation between appellant Jailo and co-accused Bhola Ram. Motive, to commit crime, is missing in this case. He prayed that appeals be allowed and the appellant and co-accused be set free. Mr.P.S.Brar, Advocate, who has put in appearance on behalf of the appellant-accused in Criminal Appeal No.763-DB of 2006 titled as Ram Singh @ Rama v. State of Haryana and Criminal Appeal No.932-DB of 2006 titled as Gurmail Singh @ Gaili v. State of Haryana, has argued that Ram Singh @ Rama and Gurmail Singh @ Gaili do not have any motive whatsoever to commit the crime. They were wrongly implicated by Chhinder Pal (PW13) to settle score with them on account of election rivalry/dispute. He has further argued that no weapon of offence was recovered from the above named appellants. He also tried to impress upon 8 Criminal Appeal No.85-DB of 2008 us that had the injuries were caused by all the three male accused, their intensity would have been much more on the body of the injured witnesses than the one which was noticed by the doctors in this case. He prayed that appeals be allowed, impugned judgment and order be set aside and these appellants –accused be also acquitted of the charges framed against them. State counsel has vehemently opposed the prayer made. By making reference to the statements made by the prosecution witnesses, he argued that the trial Court was justified in convicting and sentencing the appellants-accused in this case. He argued that the eye witness account has been given by PW14 and PW15, the injured witnesses. In view of that the prosecution story cannot be doubted. Jailo the appellant in this case had illicit relations with Bhola Ram accused and with a view to clear her way, she got killed her husband, with the help of other accused. May be with a view to further screen the crime, she also made an attempt to murder her children through her co-accused. He stated that on the basis of minor contradictions here and there, in the statements of the prosecution witnesses, no relief can be given to the appellant and her co-accused. After hearing counsel for the parties, we are satisfied that so far as Jailo @ Kailo wife of the deceased appellant in Criminal Appeal No.85- DB of 2008 and Bhola Ram appellant in Criminal Appeal No.447-DB of 2006 are concerned, their participation in crime is proved on record. For others i.e. Ram Singh @ Rama appellant in Criminal Appeal No.763-DB of 2006 and Gurmail Singh @ Gaili appellant in Criminal Appeal No.932-DB of 2006, the prosecution has failed to establish their guilt for reasons to be recorded in later part of the judgment. As per case of the prosecution, process of investigation started when SI Punjab Singh (PW23) received a wireless message that a man and 9 Criminal Appeal No.85-DB of 2008 two male children had fallen in a dry well in village Haripura. He along with others, went to the spot. By that time, injured children had already been removed to the hospital for treatment. He got removed body of the deceased from the well and sent it for post-mortem examination. Dr. Santosh Bishnoi (PW9) found as many as 9 injuries on person of the deceased. It is true, that none has seen the occurrence, in which Mahinder Singh was killed, however, facts and circumstances are such that needle of suspicion clearly indicates towards the appellant Jailo and her friend Bhola Ram in this case. Chhinder Pal (PW13) has categorically stated that Jailo had illicit relations with Bhola Ram. Many times, they were caught in compromising position by the deceased and at that time deceased was threatened by Bhola Ram with dire consequences. Chhinder Pal has further deposed that when in the evening of 4th April 2003, he went to house of the deceased, to drop his 3rd son, none was available in the house. As to how PW14 and PW15 sons of the deceased reached at the place of occurrence, has vividly been described by them. Both have stated that in the evening of 4th April 2003, appellant and their father had gone out to collect fire wood. She came back alone and told that their father was angry, sitting on a well, let he be pacified and brought to the house. They accompanied the appellant and when they reached near the well, they saw Bhola Ram and other two co-accused standing there. Then Jailo asked her co-accused to kill them and throw them in the well. Accordingly, it was done. These witnesses have stated that many injuries were caused to them by all the three co-accused of appellant with Datar. PW14 and PW15 were medico-legally examined by Dr.V.K.Mahipal (PW16) on 5.3.2003 at 3.30 pm. The witness found following injuries on the person of Raju (PW14):- 10 Criminal Appeal No.85-DB of 2008 “1. A lacerated wound 8 cm curved on lateral right askpect of occipital region of skull. Fresh bleeding was present and it was bone deed. X-ray was advised. 2. 15 cm x 6 cm flap of skin alongwith sub cutaneous tissue with incised margin, separated above bone on left lateral aspect of below left knee joint. X-ray was advised. Fresh bleeding was present on the cleaning.” Following injuries were found on the person of Bablu (PW15) by the above named witness:- “1. An incised wound through and through right lateral side of lower lip. Clotted blood was present. Bleeding from left ear in clotted form was present. X-ray skull was advised. 2. An incised wound of inverted prizm shape of 6 cm x 4 cm. flap hanging bone deep clotted blood was present, X-ray was advised. 3. An incised wound of 4 cm x .5 cm on medial aspect of right arm in its middle fascia deep X-ray was advised. 4. An incised wound of 8 cm. x 4 cm. in medial aspect of left arm mussle deep. X-ray was advised.” After getting report of Dr.Ashok Gupta (PW4), a Radiologist, all the injuries were declared simple in nature. Despite lengthy cross-examination, the defence has failed to shatter testimonies of PW14 and PW15. They have given vivid description, as to under what circumstances, injuries were caused to them and they were pushed in the well, where they saw dead body of their father. Except indicating minor discrepancies in the statements made by the investigating 11 Criminal Appeal No.85-DB of 2008 officer and the witnesses, the defence counsel has failed to show any misreading of evidence, on the basis of which, benefit of doubt can be given to the appellant Jailo and her co-accused Bhola Ram. The trial Court has clearly stated that before examining PW15, in Court, questions were put to him and the Court was satisfied that the child was in a position to understand the case. If that is so, this Court feels that there is sufficient compliance with the provisions of Section 118 of the Indian Evidence Act, 1872. Merely because statements of PW14 and PW15 were recorded with some delay, their testimonies cannot be rejected so far as appellant Jailo and Bhola Ram –co-accused are concerned. In such like situation, there may be chance of exaggeration and increase in the number of accused, which, we will discuss in later part of this judgment. It is unbelievable that two minor sons will depose against mother until and unless they are convinced that she has committed murder of their father. Contention of counsel for the appellants, that they were tutored, is unbelievable. Their father was murdered and if mother also sent inside the jail, there will be nobody to look after them. In such like situation, a child will depose against the mother only when he/she is convinced regarding mother’s guilt and not otherwise. The same has happened in this case. It has come in the statement made by Dr.C.P.Dhadhich (PW5) that initially both PW14 and PW15 were found unfit to make the statement. Thereafter, when they were fit, their statements were recorded by the investigating officer. Reading of whole evidence on record gives an impression that there was some relationship between Jailo appellant and Bhola Ram co-accused. With a view to clear their way, they murdered Mahinder Singh and then made an attempt to kill PW14 and PW15 also. 12 Criminal Appeal No.85-DB of 2008 Now, the Court will discuss participation of Ram Singh @ Rama appellant in Criminal Appeal No.763-DB of 2006 and Gurmail Singh @ Gaili appellant in Criminal Appeal No.932-DB of 2006 in the present crime. It is apparent from the records that PW14 and PW15 both received simple injuries at their person. Dry well, in which, they were pushed, was 45 feet in depth. An electric motor was fitted therein. In such a situation, they may have suffered some injuries when they had fallen in the well. Had the injuries been caused to them by three male accused, as alleged, the injuries would have been much more, as compared to the one received by them. This Court is convinced that Bhola Ram accused and Jailo accused alone may have caused injuries to PW14 and PW15. This fact is further authenticated that after arrest, no weapon of offence was recovered from Ram Singh and Gurmail Singh accused. Weapon of offence was recovered only from Bhola Ram accused and none else. Ram Singh @ Rama accused has taken the following stand in his statement recorded under Section 313 Cr.P.C.:- “I am innocent. In fact Mohna Ram, the father of the complainant Chhinder Ram had contested the election of Member of Panchayat in village Haripura against Sher Singh son of Boor Singh and Sher Singh won of the election. I alongwith my co-accused Gurmail Singh alias Gaili and our family members had refused to cast vote in the Panchayat elecvtion in favour of Mohna Ram, the father of the complainant and rather we supported Sher Singh in the Panchayat election. The complainant also quarreled with me and my co-accused Gurmel Singh during the days of election and he also threatened to reach a lesson to us at the relevant 13 Criminal Appeal No.85-DB of 2008 time and due to this reason my name and that of my co-accused Gurmail Singh have been added later on in the statements of injured Raju and Bablu after a period of more than two months with due deliberations and consultations to falsely implicate me in the case. I or my co-accused Gurmail Singh never supported accused Bhola Ram for his alleged illicit relations with accused Jailo alias Kailo wife of deceased Mahender Singh and the version of illicit relations and convening of Panchayat has been concocted just to falsely implicate me and my co-accused in the case and to create motive. We did not cause the murder of deceased Mahender Singh nor we caused any injury to PWs Raju and Bablu and also did not throw them into the well and false story has been concocted. The recovery has also been planted by the police to falsely implicate us in the case. I and my co-accused have been falsely implicated in the case by the police in connivance with the complainant party.” To the same effect is the statement made by his co-accused Gurmail Singh. This fact that the relations between the parties were strained, was even admitted by Chhinder Pal (PW13). In his cross- examination, he has deposed as under:- “It is correct that my father Mohna Ram contested the election of Member Panchayat. In those elections, Hukma Ram PW and Sher Singh were also candidates. It