IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 522-DB of 2001 DATE OF DECISION : 27.01.2010 Sheetal @ Mintu and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT Crl. A. No. 463-DB of 2001 DATE OF DECISION : 27.01.2010 Kamlesh .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Rahul Rathore, Advocate, for the appellants. (in Crl. A. No. 522-DB of 2001) Ms. Deipa Singh, Advocate (amicus curiae), for the appellant. (in Crl. A. No. 463-DB of 2001) Mr. S.S. Randhawa, Addl. A.G., Haryana, for the respondent-State. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Crl. Appeal No. 463-DB of Crl. A. No. 522-DB of 2001 -2- 2001, filed by appellant Kamlesh through jail, and Crl. Appeal No. 522-DB of 2001, filed by appellants Sheetal alias Mintu and Kamlesh through their counsel. 2. Appellants Kamlesh and Sheetal alias Mintu are mother and son. Appellant Sheetal was tried for the charge under Section 302 IPC and his mother Kamlesh was tried for the charge under Section 302 read with Section 34 IPC, in case FIR No. 240 dated 11.5.2000 under Section 302/34 IPC, registered at Police Station Sadar Karnal, for committing the murder of Sultan Singh alias Billu son of complainant Chatra Ram. The learned trial court, vide its judgment dated 13.8.2001, convicted accused Sheetal under Section 302 IPC, whereas accused Kamlesh has been convicted under Section 302 with the aid of Section 34 IPC. Vide order of sentence dated 14.8.2001, both the appellants have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for one month each. 3. Against the aforesaid judgment and order, these two appeals have been filed. Both the appellants are on bail. 4. As per the case of the prosecution, the appellants and the deceased were residing in the same Mohalla. They were neighbourers. The alleged occurrence had taken place on 11.5.2000 at about 4.30 PM in the common street in front of the house of the deceased. The FIR (Ex.PF) was registered at 9.05 PM on the same day, on the basis of the statement (Ex.PA) made by Chatra Ram (PW.1) to Vikas Kumar Arora (PW.9), the Crl. A. No. 522-DB of 2001 -3- then SHO, Police Station Sadar, Karnal, at 8.50 PM in the Civil Hospital, Karnal. 5. In his statement (Ex.PA), Chatra Ram stated that Sultan Singh (since deceased) was his married son having two children. They were living together in a joint family. Appellant Sheetal used to visit his house frequently. For that reason, his son Sultan Singh had a doubt upon the character of his wife Bala. On the day of occurrence at about 4.00 PM, he along with his son Sultan Singh and his wife Bala were sitting in their house, when appellant Sheetal came there. His son Sultan Singh objected on his coming and asked him that why he used to come to their house. On this, they started quarreling and came in the street. He also came out in the street. Then appellant Kamlesh, mother of appellant Sheetal, also came from her house, while saying that why Sultan Singh was levelling false allegations against her son. Saying so, she caught hold of Sultan Singh and appellant Sheetal took out a knife from his dub and inflicted a knife blow on the right side of stomach of Sultan Singh. He also inflicted a second knife blow on the back of Sultan Singh. Thereupon, Sultan Singh raised noise “Maar Dia – Maar Dia”. Then their neighbourers Karma (PW.2) son of Sadhu Ram and Bimla wife of Inderjit Singh came on the spot. On seeing them, appellant Sheetal ran away from the spot with knife. The complainant Chatra Ram further stated that he along with his daughter-in-law Bala took his son Sultan Singh to the Civil Hospital, but in the way he died and was declared dead by the Doctor in the Hospital. He stated that he, Karma and Bimla have Crl. A. No. 522-DB of 2001 -4- witnessed the occurrence. 6. In this case, no blood stained earth was lifted from the spot. Only the rough site plan (Ex.PM) of the place of occurrence was prepared by the police. Special report was delivered to the Ilaqa Magistrate on 12.5.2000 at 12.30 AM by HC Mohinder Singh (PW.5). 7. On 12.5.2000 at 12.20 PM, the autopsy on the body of deceased Sultan Singh was conducted by Dr. Y.K. Sethi (PW.7) and Dr. Kuldeep Singh (PW.8). They found the following injuries on the body of the deceased : 1. Stab punctured wound : 4 cms x 1 cm x 12 cms deep, placed on the right side of the chest in lower 1/3rd obliquely placed 13 cms lateral and downwards to the right nipple. On dissection underneath muscle soft tissue and right lobe of liver found cut and abdominal cavity was full of blood. 2. Stab wound 1 cm x 0.5 cm x 1 cm deep placed on the lower 1/3rd of back 4 cm lateral to mid-line on left side of chest under the muscles found cut. In their opinion, the cause of death in this case was due to shock and haemorrhage, as a result of the aforesaid two injuries, which were ante- mortem in nature and sufficient to cause death in the ordinary course of nature. The post mortem report of the deceased is Ex.PH. Both the Doctors, while appearing in the witness box, have stated that the possibility of causing the aforesaid injuries by knife (Ex.P5) cannot be ruled out. Crl. A. No. 522-DB of 2001 -5- 8. The accused were arrested on 12.5.2000 and on the same day, appellant Sheetal made disclosure statement (Ex.PB) that he had kept concealed the knife, after washing with water and covered with a polythene envelope, in the eastern side in the way which leads to his colony under the Railway Line which is towards Southern side. In pursuance of the said disclosure statement, appellant Sheetal got recovered the knife (Ex.P5), which was taken into possession by the police vide recovery memo (Ex.PC) in the presence of Karma (PW.2) and Om Parkash. 9. After completion of investigation, the challan was filed against the accused and charges were framed, to which the accused did not plead guilty and claimed trial. 10. In support of its case, the prosecution examined 10 witnesses. 11. PW.7 Dr. Y.K. Sethi and PW.8 Dr. Kuldeep Singh proved the post mortem report of the deceased as Ex.PH. In the cross-examination, PW.7 Dr. Y.K. Sethi, on the suggestion put by the defence, stated that if a person is caught by another person and later on he dies, then there will be no sign of struggle on the parts of the body caught hold of, but if one has continuously holding from the back tightly, then injury No.2 possibly can not be caused to him. PW.8 Dr. Kuldeep Singh has proved the opinion (Ex.PK) given by him on 16.5.2000 to the effect that the possibility of causing of the injuries on the body of the deceased by the knife (Ex.P5) cannot be ruled out. During the cross-examination, a court question was put to this witness that if a person is caught hold by another person from behind Crl. A. No. 522-DB of 2001 -6- with full force having his arms on the stomach, whether injuries to the person caught hold by another person from the opposite direction and without causing the injuries to the other person as in the present, are possible. In reply to this question, the witness replied that injury No.1 in such a situation is possible, but injury No.2 is not possible. However, in the struggle and change of posture, these injuries may be caused. 12. Out of the four eye witnesses, namely, Chatra Ram complainant, Bali wife of the deceased, Karma and Bimla, the prosecution examined only Chatra Ram and Karma as PW.1 and PW.2, respectively. 13. PW.1 Chatra Ram, in his statement before the Court, supported the prosecution version. However, in his statement, he has stated that when appellant Sheetal and the deceased were quarreling, appellant Kamlesh came from her house and asked as to why Sultan Singh is levelling false allegations against her son Sheetal. Then she caught hold of Sultan Singh from behind and appellant Sheetal took out a knife from his pant and inflicted two knife blows on the deceased. In his cross-examination, this witness also stated that they took the injured in a rickshaw first to the Police Station and then, on the asking of the police officials, they took the injured to the Hospital. PW.2 Karma also supported the prosecution version, but he states that when he heard the noise “Maar Dia – Maar Dia” in the street, then he came from his house to the spot and saw that appellant Sheetal inflicted two knife blows to the deceased. This witness has also proved the recovery of knife at the instance of appellant Sheetal on the basis of his Crl. A. No. 522-DB of 2001 -7- disclosure statement. In the cross-examination, this witness has admitted that when the quarrel was going on between the appellants and the deceased, about 50 persons came present on the spot. 14. PW.3 Constable Chhattar Singh, PW.4 ASI Rajpal, PW.5 HC Mohinder Singh and PW.6 Prem Kumar, Draftsman, are the formal witnesses. PW.9 Vikas Arora, IPS, ASP Kalka, is the Investigating Officer in the case. 15. In their statements under Section 313 Cr.P.C., both the appellants denied all the allegations appearing against them in the evidence led by the prosecution. They pleaded innocence and false implication and took the plea that complainant Chatra Ram and his son Sultan Singh deceased used to suspect that the wife of Sultan Singh had illicit relations with appellant Sheetal. Due to this reason, both of them on various occasions assaulted the appellants. On 11.5.2000 at about 5.30 PM, appellant Sheetal had come from Panipat after attending his duties and when he entered into the room of his house, where appellant Kamlesh and her younger son Pawan were present, then complainant Chatra Ram having a knife in his hand along with his son Sultan Singh came there and immediately they raised a Lalkara to teach a lesson to appellant Sheetal for having extra marital relations with Bala, wife of Sultan Singh. Sultan Singh started inflicting fist and leg blows to appellant Sheetal and then Chatra Ram tried to inflict a knife blow on the person of appellant Sheetal, who immediately shifted from that place and pushed Sultan Singh towards Crl. A. No. 522-DB of 2001 -8- Chatra Ram, with the result Chatra Ram caused the knife blow on the person of his son Sultan Singh. In this manner, the incident had taken place and appellant Sheetal did not cause any injury to deceased Sultan Singh However, in their defence, the appellants did not lead any evidence. 16. The trial court, after considering the rival contentions of learned counsel for the parties, while relying upon the evidence led by the prosecution and disbelieving the defence taken by the appellants, convicted and sentenced the appellants, as stated in the second para of this judgment. 17. We have heard the arguments of learned counsel for the parties. 18. Learned counsel for the appellants argued that as per the prosecution version, the incident had taken place at about 4.30 PM on 11.5.2000, whereas the FIR was registered at 9.05 PM and the special report was received by the Ilaqa Magistrate at 12.30 AM (in the night) on the same day. By taking the benefit of this delay, the police in connivance with the complainant concocted a false story of catching hold of the deceased from behind by appellant Kamlesh and inflicting of two knife blow injuries by appellant Sheetal to the deceased. He argued that the manner of the occurrence, as given by the appellants in their defence, is more probable, in comparison to the prosecution version. Learned counsel further argued that as per the prosecution, in this case four persons, namely the complainant Chatra Ram, Bala wife of the deceased, Karma and one Bimla had witnessed the alleged occurrence. Out of these four witnesses, Bala, who was the material witness and was the root cause of the alleged occurrence, Crl. A. No. 522-DB of 2001 -9- has not been examined for the reasons best known to the prosecution. Bimla, the alleged independent witness, has been given up by the prosecution being won over by the appellant. So far as the other independent witness Karma is concerned, he has been examined as PW.2, but his statement is contradictory to the stand taken by the complainant Chatra Ram (PW.1). Therefore, the statements of these two witnesses are not trust-worthy and reliable. Learned counsel further argued that PW.2 Karma has categorically admitted that on hearing the noise from the house of the complainant and the deceased, near about 50 persons gathered at the spot, but the prosecution has not examined any one of them. Thus, the testimony of the complainant has not been corroborated by any independent witness. Learned counsel further submitted that allegation of the prosecution against appellant Kamlesh that she caught hold the deceased from behind and then appellant Sheetal caused two knife blow injuries to the deceased is highly improbable and has not been corroborated by the medical evidence. Dr. Kuldeep Singh (PW.8) on a court question, during his cross-examination, specifically stated that if a person is caught hold by another person from behind with full force, injury No.2 to the person caught hold, without causing injury to the other person, is not possible. Learned counsel contended that if appellant Kamlesh had caught hold the deceased from behind, then injury No.2 on the body of the deceased was not possible. This clearly indicates that in this case, appellant Kamlesh did not participate in the alleged occurrence, as stated by the complainant, and she has been Crl. A. No. 522-DB of 2001 -10- falsely implicated. Therefore, appellant Kamlesh is entitled for benefit of doubt. 19. On the other hand, learned counsel for the State argued that the prosecution by leading reliable and trust-worthy evidence has proved the guilt against both the appellants beyond a reasonable doubt and their conviction, as recorded by the learned trial court, is fully justified. 20. From the medical evidence i.e. the Post Mortem Report (Ex.PH) and the statements of Dr. Y.K. Sethi (PW.7) as well as Dr. Kuldeep Singh (PW.8), the prosecution has established the homicidal death of Sultan Singh. In the opinion of these two Doctors, the cause of death was due to shock and haemorrhage, as a result of two injuries received by the deceased, which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. Both the Doctors, in their testimony before the Court, have also stated that possibility of causing two injuries by the knife (Ex.P5) cannot be ruled out. 21. Now, the question arising for consideration is that who has inflicted two injuries to Sultan Singh, which resulted into his death, and with what intention and motive those injuries were caused. According to the prosecution, those two injuries were caused by appellant Sheetal alias Mintu to the deceased at about 4.30 PM on 11.5.2000, in the street, in front of the house of the appellants and the said occurrence was witnessed by complainant Chatra Ram (PW.1), Bala wife of the deceased, Karma (PW.2) and one Bimla. Though as per the statement of PW.2 Karma, when the Crl. A. No. 522-DB of 2001 -11- quarrel was going on between appellants and the deceased, near about 50 persons came on the spot, but the prosecution has examined only two eye witnesses i.e. PW.1 complainant Chatra Ram and PW.2 Karma. Smt. Bala wife of the deceased, who was the bone of contention of the dispute between the appellants and the deceased, has not been examined for the reasons best known to the prosecution. The other independent eye witness, namely Bimla, was not examined on the ground that she was won over by the accused. According to PW.1 Chatra Ram and PW.2 Karma, appellant Kamlesh caught hold the deceased from behind and appellant Sheetal inflicted two knife blows to him, one in the abdomen and second on his back. 22. As per the statement of PW.2 Karma, at the time of the occurrence, he along with Bimla was sitting in his house, which is adjoining the house of the deceased. When he heard the noise “Maar Dia – Maar Dia” in the street, then he came out in the street and saw that appellant Kamlesh was catching hold of Sultan Singh from behind and appellant Sheetal gave two knife blows to him, one in the stomach and the other on his back. In our opinion, the statements of PW.1 Chatra Ram and PW.2 Karma, to the effect that appellant Kamlesh caught hold of Sultan Singh from behind, are not corroborated by the medical evidence. If Kamlesh had caught hold the deceased from behind, then it was not possible for appellant Sheetal to inflict the second injury on his back. PW.8 Dr. Kuldeep Singh, in his statement before the Court, has specifically stated that if a person is caught Crl. A. No. 522-DB of 2001 -12- hold by another person from behind with full force having his arms on the stomach, causing of injury No.2 in that situation is not possible. Normally, the medical evidence is hardly conclusive, because it is primarily evidence of opinion and not of fact. But if the medical evidence is in conflict with the statements of the eye witnesses, it gets better of their testimony and discredits the eye witnesses. This contradiction assumes greater importance where it is difficult to believe the eye witnesses unreservedly. Where the eye witnesses are interested witnesses, it is extremely unsafe to act upon their testimony, which is contradicted by the medical evidence. 23. Keeping in view the fact that PW.1 Chatra Ram, the complainant, is the highly interested witness and PW.2 Karma is his immediate neighbour and in view of the fact that two other eye witnesses, namely Bala wife of the deceased and Bimla, have not been examined by the prosecution, we have carefully scrutinized the statements of PW.1 Chatra Ram and PW.2 Karma, as well as the defence taken by the appellants, in order to separate the chaff from the grain. It is well settled that where the court accepts the story of the prosecution in respect of the crime in essential particulars, that is to say, the manner in, and the circumstances under, which the offence was committed and also that some of the persons, alleged to have taken part in it, had actually been participants in the crime, the Court should endeavour to find out which of them were the actual participants and should not throw out the case merely because the prosecution party had embellished the actual occurrence by making false Crl. A. No. 522-DB of 2001 -13- embroideries to it and there are discrepancies in the evidence of PWs. The doctrine of separating the grain from the chaff applies to such a situation. In the present case, the causing of injuries to the deceased by knife is not disputed, but the manner and the circumstances, under which the injuries were caused has been differently pleaded by the prosecution and the accused. In order to know whether both the appellants or one of them had actually participated in the crime, we have carefully scrutinized the statements of the two eye witnesses, examined by the prosecution, and the attending circumstances. In our opinion, the prosecution has partly embellished the actual occurrence by falsely attributing the role of catching hold of the deceased to appellant Kamlesh. The medical evidence is directly in conflict with the ocular evidence with regard to the catching hold of the deceased from back. The prosecution case to the effect that appellant Kamlesh caught hold Sultan Singh from behind and then appellant Sheetal inflicted two knife blows to him appears to be doubtful. To that extent, the version given by these two witnesses is not convincing and credible. The defence taken by the appellants about the causing of injuries to the deceased by the complainant himself is also not probable and utterly unworthy of credence. In our opinion, it has been sufficiently proved beyond doubt that appellant Sheetal has inflicted two knife blows to the deceased, which resulted into his death, but the version of the prosecution that those injuries were caused to the deceased, when he was being caught hold by appellant Kamlesh, is not reliable. In our opinion, the prosecution by taking the Crl. A. No. 522-DB of 2001 -14- benefit of delay in lodging the FIR has implicated the mother of Sheetal, the main accused, by attributing her the role of catching hold of the deceased. 24. We do not find any force in the contention of learned counsel for the appellants that appellant Sheetal is also entitled for benefit of doubt, because the prosecution has not led sufficient evidence to establish the alleged motive for causing the injuries. In his statement under Section 313 Cr.P.C., appellant Sheetal himself has admitted that the complainant and his son Sultan Singh (since deceased) used to suspect that the wife of Sultan Singh was having illicit relations with him and due to this reason, both of them had assaulted him on many occasions. Thus, the motive as well as causing of two knife blows by appellant Sheetal to the deceased have been established. To that extent, the testimonies of PW.1 Chatra Ram and PW.2 Karma, the eye witnesses in this case, inspire confidence and are in consistent with the medical evidence, but the version of the prosecution that those injuries were caused, when appellant Kamlesh had caught hold the deceased from back is not only contrary tot he medical evidence, but the statements of both the eye witnesses to that extent does not inspire confidence. Thus, we are of the opinion that appellant Kamlesh is entitled for benefit of doubt. 25. In the last, learned counsel for the appellants argued that in the facts and circumstances of this case, the homicidal death alleged to have been caused by appellant Sheetal does not amount to murder punishable under Section 302 IPC, as in the sudden occurrence, appellant Sheetal has Crl. A. No. 522-DB of 2001 -15- caused two injuries to the deceased without any intention to cause his death, therefore, at the most, appellant Sheetal could be punished under Section 304 Part I IPC. After thoughtful consideration of the submission made by learned counsel for the appellants, we do not find any force in the same. An accused can be punished under Section 304 Part I IPC, in case culpable homicide does not amount to murder. But in the facts and circumstances of this case, in our opinion, the culpable homicide clearly falls under the definition of murder, as defined in clause Secondly and Thirdly of Section 300 IPC. Appellant Sheetal had intentionally caused injuries to the deceased with the knowledge that such injuries would be likely to cause his death. Injury No.1 on the person of the deceased, inflicted by appellant Sheetal, was sufficient to cause death in the ordinary course of nature. In our opinion, the case of appellant Sheetal does not fall under any of the exceptions, provided under Section 300 IPC. Therefore, in our view, he cannot be punished under Section 304 Part I IPC and the learned trial court has rightly convicted and punished him under Section 302 IPC, for committing the murder of Sultan Singh. 26. In view of the above, we are of the opinion that the prosecution has miserably failed to prove its case against appellant Kamlesh beyond shadow of reasonable doubt.