IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 985-DB of 2007 DATE OF DECISION : 12.05.2011 Tarsem Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT Crl. A. No. 712-DB of 2010 DATE OF DECISION : 12.05.2011 Kuldeep Kaur .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. T.S. Sangha, Senior Advocate, with Mr. J.S. Lally and Mr. Narinder Singh, Advocates, for the appellants (in Crl. A. No. 985-DB of 2007) Mr. Ashish Kumar Gupta, Advocate, (amicus curiae), for the appellant (in Crl. A. No. 712-DB of 2010) Mr. Surinder S. Dhaliwal, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeal No. 985-DB of 2007, filed by Tarsem Singh (hereinafter referred to as `A-1') and his younger brother Gurjit Singh (hereinafter referred to as `A-2'); and Criminal Appeal No. 712-DB of 2010, filed by Kuldeep Kaur (hereinafter referred to Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -2- as `A-3') wife of A-2, against their conviction and sentence. 2. The appellants along with Sukhdev Singh and one Jugraj Singh, who are father and cousin brother, respectively, of A-1 and A-2, were tried by the court of Additional Sessions Judge, Bathinda under Sections 302 read with Section 34, 304-B and 201 IPC, for committing the murder of Karamjit Kaur (wife of A-1), subjecting her to cruelty and harassment in relation to demand of dowry, resulting in her death due to bodily injuries within seven years of her marriage with A-1, and throwing her dead body in the bore of the latrine in their house with intention to screen themselves from legal punishment. Case of the prosecution 3. The prosecution version, which is based upon the statement (Ex.PA) of Gurmail Kaur (PW.1), mother of the deceased, recorded by Devinder Kumar Attri (PW.6) SI/SHO of Police Station Raman on 4.7.2004 at 8.00 AM near Bus Stand, Rampura, is that deceased Karamjit Kaur was married to A-1 for about five years. In the marriage, though sufficient dowry was given, yet after the marriage, Karamjit Kaur was being harassed by her husband (A-1), brother-in-law (A-2) and father-in-law Sukhdev Singh. All of them were raising demand for bringing a scooter from her parents. On that account, all the family members started maltreating and beating her. Thereupon, the complainant and her husband through the mediator and the respectable persons of the village visited the in-laws house of the deceased and requested the accused not to harass their daughter on account of Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -3- demand of scooter, as they are very poor persons and cannot give the scooter. After making humble requests, the complainant and her husband returned to their village. It is the further case of the prosecution that marriage of A-2 and A-3 was performed one year prior to the occurrence, and A-3 had also started torturing the victim, after associating with the other family members. One day before the occurrence, i.e. on 3.7.2004, a message was received from the victim that her in-laws family members were making preparation to kill her. On receiving the said message, at about 5.00 PM, the complainant went to the house of her daughter Karamjit Kaur. The gate of the house was closed. The complainant peeped through the chinks of the gate and saw that A-1, A-2, A-3 and Sukhdev Singh (father-in-law of Karamjit Kaur) were giving beatings to Karamjit Kaur (deceased) in the court yard. The complainant further stated that within her view, A-3 gave two axe blows on the head of Karamjit Kaur and after some time, she died. Having been frightened, the complainant returned to her village, where she narrated the whole story to her husband Karnail Singh (PW.4), but since by that time, it was dark, they decided to inform the police in the next morning. In the morning, she along with her husband, Darshan Pal Singh (PW.2) Sarpanch of the village and other respectable persons of the village proceeded to Police Station and in the way, near Bus Stand, Rampura, the police met them, and statement of complainant Gurmail Kaur was recorded at 7.00 AM, on the basis of which formal FIR (Ex.PW4/B) was registered at 7.10 AM. Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -4- 4. After recording the statement (Ex.PA) of complainant Gurmail Kaur, SI/SHO Devinder Kumar Attri (PW.6) along with the complainant and the police party went to the house of the accused. At that time, A-1 and A-3 were present in the house. On their interrogation, they suffered disclosure statements (Ex.PB and Ex.PD) to the effect that they along with A-2 and accused Sukhdev Singh concealed the dead body of Karamjit Kaur in the bore of the latrine in their house. Gurtej Singh Photographer (PW.5) and Subhash Chander Khatak, Tehsildar, Rampura Phul (PW.3) were called at the spot. Thereafter, A-1 and A-3 got recovered the dead body from the bore of the latrine in their house, which was taken into possession vide memo (Ex.PC), in the presence of Darshan Pal Singh Sarpanch (PW.2), ASI Balwinder Singh and Tehsildar Subhash Chander Khatak (PW.3). The photographs (MO1 to MO7) and the video movie cassettee (MO15) of the proceedings of recovery of dead body were got prepared from Gurtej Singh Photographer (PW.5). The dead body was identified by Karnail Singh (PW.4) as that of his daughter Karamjit Kaur. A-1 and A-3 were arrested and on their personal search, nothing was recovered. The inquest report (Ex.PJ) was prepared and the dead body was sent to Civil Hospital, Rampura, for post mortem examination. But, the doctor at Civil Hospital, Rampura, referred the dead body to GGS Medical College & Hospital, for post mortem examination. 5. On the same day i.e. on 4.7.2004, at 6.00 PM, Dr. S.S. Sandhu (PW.9), Senior Lecturer in the department of Forensic Medicine, GGS Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -5- Medical College & Hospital, Faridkot, conducted autopsy on the dead body of the deceased. The body was swollen and was foul smelling. Rigor mortis was absent in neck muscles and upper limbs, but partially present in lower limbs. Mud was sticked all over the body. There was peeling of skin at places. The dead body was in early stage of putrefaction. Features of face were blotted. During the post mortem examination, the doctor found one incised wound measuring 1 x 1 cm on left side of head above left ear, and one lacerated wound measuring 7 x 3 cms on left side of head above the left ear. On dissection of skull, clotted blood was found present on left parietal bone under the scalp. On removing the clotted blood, there was cut fracture present on the left parietal bone corresponding injury No.1. Comminuted fracture of skull of left parietal bone corresponding to injury No.2 was also found. Four fractured small pieces of left parietal bone lying separately from rest of the bone were also found. There was laceration of brain and its membrane. All the injuries were ante mortem in nature. In the opinion of the doctor, the cause of death was due to laceration of brain and its membrane, as a result of injuries No.1 and 2, which were sufficient to cause death in ordinary course of nature. According to the doctor, the probable time that elapsed between injuries and death was immediate and between death and post mortem was within about one to two days. The post mortem report of the deceased is Ex.PW9/A and the pictorial diagram, showing the seats of injuries is Ex.PW9/B. 6. On 5.7.2004, one Bachittar Singh produced A-2 before SI/SHO Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -6- Devinder Kumar Attri. He was arrested and nothing was recovered from his personal search. On the same day, A-3 suffered disclosure statement (Ex.PM) and got recovered axe (Ex.P3), which was kept concealed by her in a heap of husk in the room of her house, and the same was taken into possession vide memo (Ex.PO) in the presence of Sukhdev Singh Panch and Lady Constable-II Amarjit Kaur. 7. On 13.7.2004, Jeet Singh, Ex Sarpanch, produced accused Sukhdev Singh before SI/SHO Devinder Kumar Attri, who was arrested and nothing was recovered from his personal search. 8. After completion of investigation, on 4.8.2004, the police filed challan against A-1, A-2, A-3 and accused Sukhdev Singh. 9. On 23.9.2004, Sardul Singh (PW.8), Ex-Sarpanch of village Jeond, made statement (Ex.PU) before SI/SHO Devinder Kumar that in the morning of that day, accused Jugraj Singh came to his house in village Jeond and made extra judicial confession before him to the effect that on 3.7.2004, accused Sukhdev Singh, his two sons (A-1 and A-2) and daughter-in-law (A-3) had committed the murder of Karamjit Kaur and he had also participated in commission of the said crime, as he along with other accused also gave beatings to Karamjit Kaur. He further sated that when the accused were committing the murder of Karamjit Kaur, the house was bolted from inside and in the meanwhile, the complainant came in the street. When she was peeping from the holes of the door, he had hidden himself in one of the rooms of the house, therefore, she could not see him and that is Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -7- why, his name was not mentioned by her in her statement made before the police. He further stated that he had participated in the murder, because he had illicit relations with A-3 and the deceased was creating hurdle in their love affair. Thereafter, on the same day, accused Jugraj Singh was arrested and nothing was recovered from his personal search. 10. On the basis of the said piece of evidence, on 4.10.2004, supplementary challan was filed against accused Jugraj Singh. 11. On 2.11.2004, A-3 was charge sheeted for the offences under Sections 302, 304-B and 201 IPC, whereas the remaining four accused were charge sheeted for the offences under Sections 302 read with Section 34, 304-B and 201 IPC. All the five accused did not plead guilty to the charges framed against them and claimed trial. Prosecution evidence 12. In support of its case, the prosecution examined nine witnesses. 13. PW.1 Gurmail Kaur (complainant), who is mother of deceased Karamjit Kaur, fully supported the prosecution case. 14. PW.2 Darshan Pal Singh, Sarpanch of the village of the complainant, who accompanied the complainant to the village of the accused, and was witness to the disclosure statements, suffered by A-1 and A-3, as well as the recovery of the dead body by them, also fully supported the prosecution case. 15. PW.3 Subhash Chander Khatak, Tehsildar, Rampura Phul, in whose presence the dead body was recovered from the bore of the latrine in Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -8- the house of the accused, supported the case of the prosecution regarding the recovery of the dead body, at the instance of A-1 and A-3. 16. PW.4 Karnail Singh is father of the deceased, who identified the dead body. 17. PW.5 Gurtej Singh, Photographer, proved the photographs (MO1 to MO7), negatives (MO8 to MO14) and the video movie cassettee (MO15) of the proceedings of recovery of dead body of Karamjit Kaur at the instance of A-1 and A-3. 18. PW.6 SI Devinder Kumar Attri, the Investigating Officer of the case, proved all the documents prepared by him during investigation. 19. PW.7 Jaswinder Kaur, the married sister of A-1 and A-2, stated that she had heard A-3 and accused Jugraj Singh conspiring by proclaiming that they were in love with each other and Karamjit Kaur was a hurdle in their love affair. She further stated that A-3 and accused Jugraj Singh were proclaiming that Karamjit Kaur had to be removed and later on, they killed her. 20. PW8. Sardul Singh, Ex-Sarpanch of village Jeond, before whom accused Jugraj Singh made extra judicial confession, did not support the prosecution case regarding the extra judicial confession and he was declared hostile. 21. PW.9 Dr. S.S. Sandhu, who conducted post mortem examination on the dead body of deceased Karamjit Kaur, proved her Post Mortem Report (Ex.PW9/A) and the pictorial diagram showing the seats of Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -9- injuries (Ex.PW9/B). Statements of the appellants under Section 313 Cr.P.C. 22. In their statements under Section 313 Cr.P.C., A-1, A-2, accused Sukhdev Singh and Jugraj Singh denied the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. According to them, accused Sukhdev Singh was employed as Points Man at Tapa Railway Station and was residing there with one lady, namely Chhinder Kaur, due to which he was not on speaking terms with his sons A-1 and A-2 or their families. A-1 and A-2 stated that they used to go for labour daily in the morning and return back home in the evening. A-3 (wife of A-2) had illicit relations with accused Jugraj Singh and since Karamjit Kaur had seen them in a compromising position, they hatched a conspiracy and killed her. Accused Jugraj Singh stated that he has been falsely implicated after a long time, just to save the accused. 23. So far as A-3 is concerned, in her statement under Section 313 Cr.P.C., she confessed her guilt, while stating that on 2.7.2004, in the after- noon, Karamjit Kaur had seen her and accused Jugraj Singh in a compromising position, due to which they got frightened and worked out a plan to kill Karamjit Kaur. She further stated that accused Jugraj Singh picked up an axe from her house and gave two blows from the blunt side on the head of Karamjit Kaur, due to which she died on the spot. Thereafter, she along with accused Jugraj Singh threw the dead body in a newly built bore hole of latrine by lifting the slab from the hole. She further stated that Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -10- the complainant has lodged false FIR against all the accused. According to her, during investigation also, she had confessed her guilt. Defence evidence 24. In defence, A-3 herself appeared as DW.1, making almost a similar statement, as was stated by her in her statement under Section 313 Cr.P.C. 25. DW.2 Amarjit Singh, Station Superintendent, Railway Station, Rampura Phul, proved that accused Sukhdev Singh was present on duty at Railway Station, Tapa, from 1.7.2004 to 3.7.2004 and he was residing with Chhinder Kaur in the allotted Railway Quarter. Findings of the trial court 26. After hearing learned counsel for the parties and considering the evidence, available on record, the trial court, vide judgment dated 29.9.2007, arrived at a conclusion that the version given by PW.2 Darshan Pal Singh regarding the cruel treatment of deceased Karamjit Kaur by her in-laws is hear-say; PW.4 Karnail Singh (father of the deceased) did not utter even a single word regarding the cruel treatment given to his deceased daughter by her in-laws. Holding that the marriage between A-1 and Karamjit Kaur might have taken place at least more than 8 years prior to the death of Karamjit Kaur, the trial court acquitted all the accused for the offence under Section 304-B IPC. The trial court disbelieved the presence of PW.1 Gurmail Kaur (complainant) at the time of the occurrence and discarded her testimony. Further holding that accused Sukhdev Singh was Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -11- not residing with A-1 and A-2 and was not present at the place of occurrence, it acquitted Sukhdev Singh of all the charges levelled against him. Regarding accused Jugraj Singh, the trial court, after coming to the conclusion that PW.8 Sardul Singh, before whom he alleged to have made extra judicial confession, did not support the prosecution version at all and the confession of A-3 to the effect that she along with accused Jugraj Singh committed the murder of Karamjit Kaur is not reliable and trust-worthy, has acquitted him of all the charges. On the basis of the recovery of dead body at the instance of A-1 and A-3 and the axe from A-3, A-1 and A-3 have been convicted under Sections 302/34 and 201 IPC. Regarding A-2, the trial court has held that he conspired with A-1 and A-3 in throwing the dead body of Karamjit Kaur in the bore of the latrine in their house with intention to screen himself from legal punishment, and therefore, he has been convicted under Section 201 IPC. Further, the trial court held that though A- 2 was not arrested at the spot, but since he was residing in the same house, he was supposed to know about the incident, particularly when his wife (A- 3) was involved in the crime as principal offender. On these reasonings, A-2 has also been convicted under Section 302/34 IPC. 27. Vide order dated 3.10.2007, all the three appellants have been sentenced to undergo imprisonment for life and to pay a fine of ` 5,000/- each, in default to undergo further rigorous imprisonment for six months under Section 302/34 IPC; and to undergo rigorous imprisonment for five years and to pay a fine of ` 2,000/- each, in default to under further rigorous Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -12- imprisonment for three months under Section 201 IPC. 28. Initially, A-1 and A-2 filed Criminal Appeal No. 985-DB of 2007 against their conviction and sentence. Subsequently, A-3 filed Criminal Appeal No. 712-DB of 2010 through jail. However, no appeal has been filed, either by the State of Punjab or by the complainant, against the acquittal of accused Sukhdev Singh and Jugraj Singh. Arguments of learned counsel for the appellants 29. Shri T.S.Sangha, learned Senior Advocate, appearing on behalf of A-1 and A-2, argued that in the present case, the trial court has committed grave illegality in convicting A-1 and A-2 for the alleged offences, simply relying upon their disclosure statements and recovery of the dead body effected thereon, and also raising presumption under Section 106 of the Indian Evidence Act, but at the same time totally ignoring the confession made by A-3, wherein she has categorically confessed that she along with Jugraj Singh had committed the alleged offence. Learned counsel argued that after disbelieving the prosecution version, as put forth by PW.1 Gurmail Kaur, the trial court has acquitted all the accused for the offence under Section 304-B IPC. He further argued that the trial court has also disbelieved the presence of PW.1 Gurmail Kaur at the time of the alleged occurrence and held that her statement of having witnessed the occurrence of murder of Karamjit Kaur is highly un-natural and unbelievable. Learned counsel argued that the trial court has committed grave illegality by convicting both the appellants on the basis of the Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -13- circumstantial evidence, which in the present case are not sufficient to convict a person, totally ignoring the confession made by A-3. Learned counsel argued that the confession made by A-3, in which she implicated herself and Jugraj Singh as offenders is admissible in evidence and the trial court has erred in law by holding that the version given by A-3, while appearing as DW.1, is un-natural and unbelievable, ignoring the said confession. Learned counsel argued that the trial court, while coming to the said conclusion, has not properly appreciated the evidence on record, particularly the testimony of PW.7 Jaswinder Kaur. According to the learned counsel, keeping in view the confession made by A-3, which is admissible and reliable piece of evidence and according to which the alleged offence was committed by A-3 and Jugraj Singh and not by A-1 and A-2, conviction of A-1 and A-2 is liable to be set aside. Finally, learned counsel argued that in the case of A-2, there is no evidence that he was a party to any conspiracy. There is also no evidence that he had taken any part in committing the murder of Karamjit Kaur or he was having any knowledge about her murder. According to the learned counsel, there is also no evidence that A-2 was having knowledge of concealing the dead body. When the police party visited the house of the appellants, A-2 was also not present there. He was arrested two days after the occurrence and nothing incriminating was recovered from him. In view of these facts, learned counsel argued that at least A-2 deserves the benefit of doubt. 30. Shri Ashish Kumar Gupta, Advocate, amicus curiae, appearing Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -14- on behalf of A-3, argued on the line of the confession made by A-3, and prayed for a lenient view. Arguments of learned State counsel 31. On the other hand, learned Additional Advocate General, Haryana, argued that in the facts and circumstances of the case and in view of the evidence led by the prosecution, the trial court was fully justified in convicting the appellants, as there was sufficient circumstantial evidence available against them. Regarding the confession made by A-3, learned counsel for the respondent-State argued that the trial court, while recording detailed reasons, after appreciating the evidence in its right prospective, has not relied upon the confession made by A-3, holding the same to be untruthful, unreliable and an after-thought, in order to save her husband and other family members. He has fully supported the judgment of the trial court and according to him, A-2 has also been rightly convicted. Discussion 32. In the present case, two versions regarding the committing of murder of Karamjit Kaur have been put forth by the prosecution through evidence. One version was given by PW.1 Gurmail Kaur, mother of the deceased. According to this witness, on 3.7.2004 at about 5.00 PM, her daughter Karamjit Kaur was murdered by four accused, namely A-1, A-2, A-3 and Sukhdev Singh. She herself had seen the said occurrence. According to her, the motive for the crime was that she and her husband failed to fulfill the demand of scooter, raised by the aforesaid accused, after Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -15- the marriage of Karamjit Kaur. The second version which was quite contrary to the first one was given by A-3. According to her, she was having illicit relations with Jugraj Singh, the real cousin of her husband. On 2.7.2004, Karamjit Kaur had seen them in a compromising position, due to which they got frightened. Thereupon, Jugraj Singh took an axe from her house and gave two blows on the head of Karamjit Kaur, due to which she died on the spot. Thereafter, she along with Jugraj Singh threw the dead body in the newly built bore hole of latrine. 33. The first version is supported by PW.1 Gurmail Kaur and partly by PW.2 Darshan Pal Singh with regard to harassment of the deceased by the accused on account of demand of dowry. The testimony of PW.1 Gurmail Kaur has been totally disbelieved by the trial court for various reasons, recorded in the judgment. The eye witness account given by this witness with regard to committing the murder of her daughter Karamjit Kaur has been held to be highly un-natural and unbelievable. Even her presence at the time of the alleged murder has been held to be highly doubtful. On analysing the evidence, led by the prosecution, and going through the reasons recorded by the trial court, we are of the view that the trial court has rightly held the testimony of PW.1 Gurmail Kaur as unreliable, untrustworthy and doubtful. Except the testimony of PW.1 Gurmail Kaur, there is no other eye witness account available on record. In that situation, the trial court has rightly analysed the other circumstantial evidence, available on record, to reach to the