CRIMINAL APPEAL NO. 511-DB OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: May 06, 2009 Parties Name Suman ...APPELLANT. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. J.S. Bedi, Advocate, for the appellant. Mr. S.S.Randhawa, Addl. A.G., Haryana, for the respondent. JASBIR SINGH, J. JUDGMENT By filing this appeal, the appellant (Suman wife of Mahabir Singh) has laid challenge to the judgment dated May 9, 2007, vide which she was convicted for commission of an offence punishable under Section 302 read with Section 34 IPC. She has also laid challenge to the order dated May 12, 2007, vide which she was sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- with a default clause, for committing the above said offence. It was allegation against her that she along with Hawa Singh son of Tek Ram and Ravi Datt alias Balu son of Ganga Dutt had committed CRIMINAL APPEAL NO. 511-DB OF 2007 -2- murder of her husband Mahabir Singh in the intervening night of 21st /22nd February , 2001. The trial Court in para No. 1 of the impugned judgment has noted brief facts of the prosecution case as under: “xxx xxx That the present case was registered on the statement of one Takdir Singh, complainant son of Basti Ram, resident of village Chhudani stating therein that he has three brothers and were doing the job of cultivation of land in the village. His eldest brother Ram Kishan and youngest brother Jai Bhagwan had expired, while he and his third brother Mahabir were residing in the village in their separate houses. On 21.2.2001, Mahabir and his son Anoop, aged about 8 years had gone in the marriage party of Bijender son of Narain Singh of village Bindroli and returned to village Chhudani, at about 10.00 P.M. In the morning on 22.2.2001, at about 10 A.M. when Takdir Singh was present at his house, Suman wife of Mahabir came to him and told that her husband Mahabir has not come present. So they started searching for him, but he was not found available. They searched him in the house as well as in the cattle shed, but to no effect. When they were searching for him, in the meantime Ravi alias Ballu and Suman wife of Mahabir told him that a dead body of Mahabir is lying on the roof of the house tied in a Palli with his bedding. So they went on the roof and found the dead body in the Palli. There were bluish mark on the neck of the dead body and some bleeding was there in the bedding. Some persons of the village also came there and CRIMINAL APPEAL NO. 511-DB OF 2007 -3- complainant suspected that the murder of Mahabir was committed by his wife with the help of some other persons and the dead body was tied in a Palli and thrown on the roof. He also suspected that Suman was of loose character.” It has also come on record that Takdir Singh (PW2) brother of the deceased, after leaving Kartar Singh and Pehlad Singh near the dead body, went to inform the police. His statement Ex. PB was recorded by Inspector Bhim Singh (PW14), on the basis of which formal FIR Ex. PB/2 was recorded in Police Station Sadar Bahadurgarh at 2.05 PM on February 22, 2001. Special report reached the Magistrate concerned at 4.05 PM on that very day. The dead body along with bedding tied in a jute sheet was recovered from the roof of house of the appellant. Investigating Officer prepared inquest report of the dead body and sent the same for post-mortem examination, which was conducted by Dr. K.K.Jakhar (PW1) on February 23, 2001, at 10 AM. Appellant was arrested on February 22, 2001. Her disclosure statement was recorded, wherein she stated that she with the help of her co-accused had committed murder of her husband. Hawa Singh co- accused was arrested on February 23, 2001. He also made a disclosure statement similar to the statement made by the appellant, on the basis of which weapon of offence , i.e., knife was recovered on February 26, 2001. Co-accused Ravi Datt was arrested on February 23, 2001. On his disclosure statement, weapon of offence, i.e., knife was recovered on that very day. The Investigating Officer summoned the Photographer and got photographs of the dead body and other articles found lying nearby. Clothes, in which dead body was wrapped, clothes worn by the appellant – accused and the CRIMINAL APPEAL NO. 511-DB OF 2007 -4- weapon of offence were sent to the Forensic Science Laboratory for examination. On completion of investigation, final report was put in Court for trial. The appellant along with her co-accused were charge-sheeted , to which they pleaded not guilty and claimed trial. It is necessary to mention here that during trial, appellant – accused Suman was granted bail. She did not turn up in Court on February 4, 2003. Despite issuance of summons and non-bailable warrants, she failed to appear before the trial Court. On June 4, 2003, she was summoned to appear in Court through warrant of proclamation. She did not appear. She was declared a proclaimed offender on August 11, 2003. Thereafter, the trial continued against her co-accused namely, Hawa Singh and Ravi Datt alias Ballu. Vide judgment dated February 26, 2004, they were convicted for commission of offence under Section 302/34 IPC and were sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- with a default clause. They came to this Court by filing Criminal Appeal No. 287-DB of 2004 and Criminal Appeal No. 295-DB of 2004 respectively. Both these appeals were dismissed by a common judgment passed by a Division Bench of this Court on May 8, 2006. As per information supplied at the bar, S.L.P. (Criminal) 1942 of 2007, filed by above named accused was also dismissed by the Hon'ble Supreme Court on March 30, 2007. The prosecution to prove its case produced fourteen witnesses and also brought on record documentary evidence. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to her. She denied the same, claimed innocence and false implication. However, she led no evidence in defence. The trial Court on appraisal of CRIMINAL APPEAL NO. 511-DB OF 2007 -5- evidence found her guilty and accordingly convicted and sentenced her as mentioned in earlier part of this order. Hence this appeal. In this case, it is interesting to note that Takdir Singh (PW2), real brother of the deceased, who stood by his statement in the previous trial against co-accused of the appellant, took a somersault in this case and resiled from his statement made to the police. He was declared hostile and was cross-examined by the Public Prosecutor. Similarly, Pehlad Singh (PW5) had also turned hostile and refused to support case of the prosecution. It is also worth-while to mention here that statement made by Takdir Singh in the previous trial and judgment, passed by the trial Court, were brought on record in this case as Mark X and Ex. PS respectively. PW11 Yashwanti who is daughter of sister of the deceased, stood the test of cross-examination, failed to melt under pressure, stood by her testimony made to the police and during the previous trial. Counsel for the appellant has vehemently contended that it was a case of no evidence against the appellant accused. Material prosecution witnesses have failed to support its case. Prosecution has failed to prove any motive on the part of the appellant to commit the alleged crime. There exists no direct evidence against the appellant and further no recovery was effected at her instance. He has further argued that statement made by Yashwanti (PW11) was not trust-worthy. This witness has failed to establish her presence at the spot. Counsel further argued that trial Court has wrongly relied upon the provisions of Section 106 of the Indian Evidence Act to convict the accused. He has further stated that the statement made by PW2 Takdir Singh in the previous trial was wrongly relied upon by the trial Court to convict the appellant – accused. He prayed CRIMINAL APPEAL NO. 511-DB OF 2007 -6- that the appeal be allowed, judgment of conviction and sentence be set aside and the appellant be acquitted of the charges framed against her. Prayer of counsel for the appellant has vehemently been opposed by the State counsel. He has argued that even if this Court ignores testimony of PW2 Takdir Singh, judgment and order, passed by the trial Court, cannot be disturbed. He has placed reliance upon statement made by Yashwanti (PW11) and the attending circumstances to show that the impugned judgment and order were perfectly justified. He has made reference to the recovery of the dead body from roof of the house of the appellant, bedding and the jute sheet. He has further brought to our notice that nobody would like to sleep on roof, of the house in the month of February and further that there was no staircase through which one can reach on the roof top of the house. By making reference to ligature marks, which were found during post-mortem examination, he argued that after murder, the dead body was pulled up to the roof, with an idea to dispose it of lateron. By showing us the photograph and report made by the Forensic Science Laboratory, he argued that the guilt of the appellant accused was established on record. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, we are not inclined to interfere in the impugned judgment and order at the instance of the appellant. Admittedly, dead body was recovered from roof of the house of the deceased and the appellant. In FIR Ex. PB/2 dated February 22, 2001, appellant along with Hawa Singh and Ravi Datt alias Ballu were named as accused. It was allegation against the appellant that she was of CRIMINAL APPEAL NO. 511-DB OF 2007 -7- loose character and had committed murder of her husband in connivance with above named two persons. During trial, she was declared a proclaimed offender. Trial continued against other two and they were convicted and sentenced vide judgment dated February 26, 2004. Their appeals were dismissed by this Court on May 8, 2006. They also failed in the Hon'ble Supreme Court. A Division Bench of this Court when passing a common judgment in Criminal Appeal No. 287-DB of 2004 has noted the following facts: “After hearing the arguments of the learned counsel for the parties and perusing the records, learned trial Court held that there was motive, as well as opportunity for the accused to commit the crime. In that regard, reliance was placed upon the statements of Takdir PW12 and Jaiwanti PW13. Learned trial Court did not place any reliance upon the two disclosure statements Ex. PC and Ex. PM made by Hawa Singh and Suman accused, respectively, as they were in the form of confession and, thus, not admissible in evidence. Injuries on both the hands and right foot of Mahabir were found to be indicative of the victim offering resistance at the time when he was given injuries. It was not possible for a lady accused alone to over-power him. Some persons were needed to catch hold of his hands for facilitating further blows. Furthermore, there was no stair-case in the house, which could be used for taking the dead body on to the roof. A lone lady could not take the dead body to the roof, rather it was pulled with the help of a rope. The job of pulling could be done by two persons. Finally, it CRIMINAL APPEAL NO. 511-DB OF 2007 -8- was held that both Suman and Ravi accused told the complainant about the presence of the dead body on the roof of house, so as to dispel the suspicion, which could arise against them, though in the morning an attempt was made by Suman to create an impression that her husband was missing from the house. The pieces of the bangles found at the place of occurrence were found to be similar to the bangles taken into possession from Suman-accused. These circumstances were found to be fully established, which were consistent only with the hypothesis of the guilt of the accused persons.” In the present case, PW2 Takdir Singh, when appeared in Court, took a somersault and failed to support case of the prosecution. He was declared hostile. He has stated that the dead body was recovered from roof of the adjoining house of Ram Kishan. He has further stated that in the FIR, he has not named anyone and he never affixed his thumb-impression on any paper before the police. He further said that nothing was recovered from the appellant. Similarly, Pehlad Singh (PW5) had also turned hostile. However, he has categorically admitted that dead body was recovered from roof of the house of the appellant. This witness has further admitted that recovery memos parcels were prepared in his presence and he signed those documents. He further admitted that he made a statement to the police, which is Ex. PK on record. Similarly, photographer PW8 Roshan Lal has stated that when he took the photographs, dead body was lying on roof of the house. To the same effect is the statement made by Investigating Officer Bhim Singh (PW14). CRIMINAL APPEAL NO. 511-DB OF 2007 -9- It has come on record that in house of the appellant, she, her husband, their son and Yashwanti (PW11) were residing. No staircase is available in the house. Even temporary ladder was not found there. Photographs Ex. P1 to P4 show the existence of dead body on roof of the house. Rope, with which it was pulled up there is also visible in the photographs. Not only this PW11 Yashwanti has categorically stated that at the time of occurrence, she was residing in the house of the deceased (her maternal uncle). She was studying in Vth class. On February 21, 2001, at about 10.30 PM, Ravi alias Ballu and Hawa Singh came to their house. She was present in a room along with the appellant. She has further said that appellant – accused Suman, at their arrival, asked her to go to other room and sleep there. She has further stated that above named persons earlier also used to visit the appellant. During cross-examination nothing material was elicited from this witness. At the time of occurrence, she was a child of 12 years only. Real brother of the deceased PW2 Takdir Singh and other relations have resiled. However, this child stood rigor of the cross- examination and deposed whatever she saw at the time of occurrence. On the dead body, post-mortem examination was conducted by Dr. K.K. Jakhar (PW1). He had noticed a contusion mark on left side of the neck 4 x 4 cm just above clavical. On dissection, above said contusion was found post-mortem in nature. He also detected following injuries on the person of the deceased: “1. Incised wound 5 x 2 cm over the lateral border of the sternum obliquely placed in the sixth intercostal space in the anterior wall of chest on the right side. On dissection wound track is present from skin upto right ventricle of heart. Blood is CRIMINAL APPEAL NO. 511-DB OF 2007 -10- present in the anterior media sternum. 2. An incised wound 5 x 3 cm on the right side placed in infra mammry region in the 5th intercostal space. On dissection the track of wound is to the pleural cavity and there was breach in pleura of about 1 cm. About 300 cc. Of unclotted blood present in the right pleural cavity. 3. An incised wound 2 x 1 cm present in the mid axillary line on right side in the 9th intercostal space only skin deep. 4. Incised wound 6 x 4 cm in epigastric region 1 cm lateral to the midline on right side through which omentum and part of stomach bulging out. On dissection wound is extended to the liver anteriorly on the left obe small breach of about 1 cm x 5 cm was present in the liver. Rest of the viscera found normal except small quantity of blood in paritoneal cavity. 5. An incised wound of about 6 x 3 cm vertically placed in the inguinal region on the right side about 1 cm lateral to the mid inguinal point. Skin and superficial fascia were involved only. 6. Incised wound on left thumb index finger, middle finger over proximan phalanx only skin deep on palmar aspect. 7. Incised wound on right thumb-I.F, M.F and R.F. And little finger over proximan phalanx only skin deep. 8. Incised wound on right foot over 5th metatarsal region measuring about 2 x 1 cm underlying muscle tendon visible. All the injuries on the body described were ante mortem in nature except contusion on neck.” CRIMINAL APPEAL NO. 511-DB OF 2007 -11- As per opinion of the doctor, cause of death was perforation of heart leading to haemorrhage, shock and death. All the injuries were ante- mortem in nature except injury on the neck and were sufficient to cause death in the normal course of nature. He has categorically denied a suggestion that it was a case of suicide by way of hanging. As per report of the Forensic Science Laboratory, human blood was found on the Salvar of the appellant. Human blood was also found on bed-sheet, blanket, gadda, razai, rope and clothes of the deceased. Some broken bangles were also detected near the dead body, which were found to be similar to the bangles put on by the appellant – accused. It appears that after conviction of Hawa Singh and Ravi Datt, PW2 Takdir Singh and PW5 Pehlad, who are closely related to the appellant accused, had compromised the matter with her for reasons best known to them and went to the extent of deposing falsely, contrary to their statement made by them before the trial Court in the previous trial against the co-accused. Certified copy of the statement made by Takdir Singh in the previous trial was brought on record. No objection was raised to the same. No doubt, on the basis of that statement alone, finding cannot be given against the appellant. However, that can be used as a corroborative piece of evidence being a public document. Judgment passed against Hawa Singh and Ravi Datt was also brought on record in the previous trial without any objection, it may not be directly relevant but it can be used as a corroborative piece of evidence in this case. In view of facts and circumstances of the case, mentioned above, the prosecution was successful in proving and indicating towards guilt of the appellant – accused. CRIMINAL APPEAL NO. 511-DB OF 2007 -12- Under circumstances, mentioned above, trial Court was justified in taking help from Section 106 of the Evidence Act, 1872, to fasten liability upon the appellant accused. The appellant was last seen with the deceased and her co-accused (whose conviction has become final upto the Hon'ble Supreme Court ) in her house (house of the deceased also) on the fateful night, dead body was recovered from roof of the house wrapped in a jute sheet along with bedding clothes. There was no staircase available in the house. Body was pulled to the roof with the help of a rope. The appellant has failed to establish on record, though agitated, that she was not available in the house on that day. Under these circumstances, it was she who was to explain the circumstances under which death had taken place. A Division Bench of this Court in Amarjit Singh and others v. State of Punjab, 1989(1) R.C.R. 18, has opined that in a family house, if death has occurred, it was for other members to explain the circumstances under which incident had taken place. Their lordships of the Supreme Court in Raj Kumar Prasad Tamarkar v. State of Bihar and another, (2007)10 SCC 433, by taking note of a fact that the death had occurred in a bedroom, where husband and wife were alone, when husband failed to give any explanation for the same, it was held a circumstance against him. To the same effect is the ratio of the judgment in Duyaneshwar v. State of Maharashtra, (2007) 10 SCC 445, in which their Lordships of the Hon'ble Supreme Court observed as under: “10. It has not been disputed before us that the deceased was murdered in her matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was a possibility of an outsider to CRIMINAL APPEAL NO. 511-DB OF 2007 -13- commit the said offence. One of the circumstances which is relevant is that when the couple was last seen in a premises to which an outsider may not have any access, it is for the husband to explain the ground foir unnatural death of his wife. In Raj Kumar Prasad Tamarkkar v. State of Bihar, this Court held:(SCC p. 440, paras 22-23). “22. The conspectus of the events which had been noticed by the learned Sessions Judge as also by the High Court categorically goes to show that at the time when the occurrence took place, the deceased and the respondent only were in the bedroom and the terrace connecting the same. There was no other person. The cause of death of the deceased Usha Devi i.e. By a gunshot injury is not disputed. The fact that the terrace and the bedroom are adjoining each other is not in dispute. 23. The autopsy report shows that 'a blackening and charring' existed so far as Injury (i) is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance. Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore, cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. The place of injury is also important. The lacerated wound was found over glabella (middle of forehead). It goes a long way to show that the same must have been done by a person who wanted to kill the CRIMINAL APPEAL NO. 511-DB OF 2007 -14- deceased from a short distance. There was, thus, a remote possibility of causation of such type of injury by any other person, who was not on the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same.” A Division Bench of this Court in Amarjit Singh's case (supra), by taking note of the provisions of Section 106 of the Evidence Act, opined that where husband and wife were last seen together in their house in each other's company, thereafter wife found dead, it was for the husband to state the circumstances leading to death of his wife. In this case, besides the appellant, accusation was against two other accused. They were convicted and sentenced, which have been affirmed upto the Hon'ble Supreme Court. During their trial, the appellant – accused absented from the proceedings and was declared a proclaimed offender. After her arrest, during trial, she took up a defence that she was