Crl.A.No.331-DB of 1998 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Crl.A.No.331-DB of 1998 Date of decision:May 16, 2008 Rashpal Singh .....Appellant vs. The State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE JORA SINGH. --- Present: Mrs.Baljeet Kaur Mann, Advocate, for the appellant. Mr.V.K.Jindal, Addl. Advocate General,Punjab, for the respondent. -- J.S.KHEHAR,J. Through the instant appeal the accused/appellant Rashpal Singh has impugned the judgment rendered by the Sessions Judge,Kapurthala in sessions Case No.23 of 1996 decided on 28.4.1998 wherein the accused/appellant Rashpal Singh, has been held guilty of having committed the murder of his wife Parkash Kaur on the intervening night between 2/3.12.2005. The accused/appellant has also impugned the separate order passed on the same day i.e. on 28.4.1998 by the Sessions Judge, Kapurthala, whereby, on account of having been convicted under section 302 of the Indian Penal Code, the accused/appellant Rashpal Singh, has been sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/-. In case of default in payment fine, the accused/appellant Rashpal Singh has been directed to undergo further rigorous imprisonment for a period of one Crl.A.No.331-DB of 1998 2 year. The prosecution version of the incident is based on the complaint made by Ramesh Singh PW4 to ASI Parminder Singh PW7 on 3.12.1995. In his aforesaid complaint Ramesh Singh PW4 asserted that he was a resident of village Baupur and was engaged in agriculture. His sister Parkash Kaur was married to the accused/appellant Rashpal Singh, who was a resident of village Lattianwala. According to Rashpal Singh PW4 his sister Parkash Kaur had four children. As per Ramesh Singh PW4 the accused/appellant Rashpal Singh had gone to Dubai about a year prior to the occurrence and had returned from Dubai, eight days prior to the occurrence. Having learnt about the return of the accused/appellant Rashpal Singh from Dubai the complainant Ramesh Singh PW4 and his mother Piar Kaur PW5 had gone to village Lattianwala to meet their brother-in-law/son- in-law. When they reached the house of accused/appellant Rashpal Singh he complained to Ramesh Singh PW4 and Piar Kaur PW5 that his wife Parkash Kaur was having illicit relations with some boys in the village. He asked them to restrain Parkash Kaur from her aforestated activities. He also threatened, that in case she indulged in the same he would kill her. According to the statement of Ramesh Singh PW4, he as well as his mother Piar Kaur PW5, advised both the accused/appellant Rashpal Singh and Parkash Kaur, and thereafter, returned to their village Baupur. On 2.12.1995, the complainant Ramesh Singh, as well as, his mother Piar Kaur PW5 again went to village Lattianwala, to meet Parkash Kaur at her residence. In the evening after taking meals the accused/appellant Rashpal Singh and his wife Parkash Kaur went to sleep in the room, whereas, the complainant Ramesh Singh PW4 and his mother Piar Kaur PW5 went to Crl.A.No.331-DB of 1998 3 sleep in the courtyard. After midnight at about 1:00 A.M they heard cries of Parkash Kaur from the room. Ramesh Singh PW4 and Piar Kaur PW5 went to the room and knocked at its door, as the same was bolted from inside. Since an electric bulb was on in the room, from the gaps of the door they saw the accused/appellant Rashpal inflicting blows on Parkash Kaur with a big wooden “sotta” (stick). According to Ramesh Singh PW4, he and his mother continued to knock at the door, but the accused/appellant Rashpal Singh did not open the same. After some time, there was silence, whereupon the accused/appellant Rashpal Singh opened the door and ran away with the wooden stick. After entering the room, Ramesh Singh PW4 and Piar Kaur PW5 saw Parkash Kaur lying dead with marks of multiple injuries on her body. In the complaint Ramesh Singh PW4 asserted that the accused/appellant Rashpal Singh had killed his sister Parkash Kaur on account of suspicion that his sister Parkash Kaur was having illicit relations with some boys in the village. Ramesh Singh PW4 stated that he could not muster enough courage to go to the police at night, on account of the fear of the accused/appellant Rashpal Singh. In the morning, he along with Onkar Singh Sarpanch and Natha Singh Ex-Sarpanch of village Lattianwala were proceeding towards the police station to register a complaint when ASI Parminder Singh PW7 met them on the way,and recorded the statement of Ramesh Singh PW4. On the basis of the aforesaid complaint made by Ramesh Singh PW4 to ASI Parminder Singh PW7, First Information Report bearing No.124 was registered at Police Station Sultanpur Lodhi on 3.12.1995 at 8.15 A.M. It would also be pertinent to mention that the distance between the place of occurrence and the police station has been expressed as 11 Crl.A.No.331-DB of 1998 4 kilometers. The special report placed before the Ilaqa magistrate, in furtherance of the aforesaid First Information Report, was signed by the Ilaqa magistrate at 9:15 AM on 3.12.1995. Immediately after recording the statement of Ramesh Singh PW4, ASI Parminder Singh PW7 proceeded to village Lattianwala and went to the the place of occurrence. He prepared the inquest report Exhibit PD in respect of the dead body of Parkash Kaur. He moved an application Exhibit PB for the post mortem examination on the dead body of Parkash Kaur. The dead body of Parkash Kaur was then despatched for post mortem examination through Constable Tarsem Singh PW3. Dr. Prem Parkash PW1 conducted the post mortem examination on the dead body of Parkash Kaur. ASI Parminder Singh PW7 also recorded the statements of the witnesses present at the place of occurrence. He prepared the rough site plan Exhibit PJ. He also searched for the accused but he was not traceable. After the post mortem examination, the clothes removed from the dead body of Parkash Kaur including her “salwar”, “jumphar” and underwear, as well as, her “shawl” were placed in a sealed parcel and taken into possession vide recovery memo Exhibit PK. Thereafter, the aforesaid case property was deposited by ASI Parminder Singh PW7 with the Moharrir Head Constable at the police station for safe custody. On 5.12.1995 Sarpanch Onkar Singh produced the accused/appellant Rashpal Singh. The accused/appellant Rashpal Singh was accordingly arrested. On his interrogation the accused/appellant Rashpal Singh disclosed, that he had kept concealed a “danda” behind an iron box lying in his residence which he had used in the occurrence. The disclosure statement of the accused/appellant Rashpal Singh was recorded as Exhibit PL. The Crl.A.No.331-DB of 1998 5 accused/appellant Rashpal Singh then led the police party and got the aforesaid wooden “danda” Exhibit P1 recovered. The wooden “danda” was taken into possession vide recovery memo Exhibit PL/1. After completion of the investigation and other police formalities, a challan was presented in the Court of Sub Divisional Judicial Magistrate,Sultanpur Lodhi. The Sub Divisional Judicial Magistrate, Sultanpur Lodhi, arrived at the prima facie conclusion that the investigation carried out by the police revealed the commission of a crime under section 302 of the Indian Penal Code at the hands of the accused/appellant Rashpal Singh. Since the offence under section 302 of the Indian penal Code is exclusively triable by the Court of Session, the Sub Divisional Judicial Magistrate,Sultanpur Lodhi, by his order dated 7.3.1996, committed the case for trial to the Court of Session. The Sessions Judge, Kapurthala, by his order dated 27.3.1996 charged the accused/appellant Rashpal Singh, for having committed the murder of Parkash Kaur by intentionally causing her death on the night intervening 2/3.12.1995, under section 302 of the Indian Penal Code. The accused/appellant Rashpal Singh was then confronted with the charge framed against him. He pleaded not guilty, and claimed trial. The prosecution examined, as many as seven witnesses. A brief summary of the statements of the witnesses produced by the prosecution is being narrated hereunder. The prosecution first of all produced Dr.Prem Parkash ,Senior Medical Officer, Civil Hospital, Sultapur Lodhi, as PW1. Dr. Presm Parkash PW1 asserted that he had conducted the post mortem examination on the dead body of Parkash Kaur on 3.12.1995. He further Crl.A.No.331-DB of 1998 6 stated that he had found the following injuries on her person:- “1. Swelling of right arm and fore-arm with multiple contusion. 2. Swelling and contusion of left arm. 3. Contusion in the wile area of left scapula and infra scapular were found. 4. Contusion on right infra scapular region. 5. Contusion 20cmx2cm on left infra scapular region upto left waist. 6. Contusion all over left buttack and upper thigh. 7. Two contused wounds 2cmx,25x.5cm each on upper front of right leg. 8. Two contused wounds 2cmx.25x.25cm on middle front of left leg. On examination of thorax I found left 6th,7th and 8th ribs fractured. Right ribs normal. Left pleural cavity was full of blood. Right Pleural cavity was normal. There was ruptured lower lobe of the left lung.” In the opinion of Dr. Prem Parkash PW1, the injuries on the person of Parkash Kaur were sufficient to cause death in the ordinary course of nature. It was also opined that the cause of death of Parkash Kaur was due to shock caused by haemothorax. The statement of Ajit Singh Matharu was recorded as PW2. Ajit Singh Mtharu PW2 stated that he had prepared the scaled site plan of the place of occurrence on 2.1.1996 Exhibit PE. The statement of Constable Tarsem Singh was recorded as PW3. Constable Tarsem Singh tendered into evidence his affidavit Exhibit PE. A perusal of affidavit Exhibit PE reveals that constable Tarsem Singh PW3 was deputed with the dead body of Parkash Kaur to the Civil Hospital, Sultanpur Lodhi to get the post mortem examination conducted. The statement of complainant Ramesh Singh was recorded as PW4. It would be pertinent to Crl.A.No.331-DB of 1998 7 mention that Ramesh Singh PW4 was the brother of the deceased Parkash Kaur. He had also made the complaint in respect of the occurrence to ASI Parminder Singh PW7 on 3.12.1995. Besides acknowledging that he was an eye witness to the occurrence Ramesh Singh PW4 reiterated the factual position as had been narrated by him on 3.12.1995 to ASI Parminder Singh PW7. The statement of Piar Kaur was recorded as PW5. It would be pertinent to mention that Piar Kaur PW5 was the mother of the deceased Parkash Kaur. She was also allegedly an eye witness to the occurrence. In her statement she re-endorsed the testimony of Ramesh Singh PW4. Constable Gurjit Singh was produced before the trial court as PW6. Constable Gurjit Singh PW6 tendered into evidence his affidavit Exhibit PG. A perusal of his affidavit reveals that he was deputed to deliver the special report in furtherance of the FIR recorded in the instant case to superior officers including the Ilaqa magistrate. The statement of ASI Parminder Singh was recorded as PW7. As already noticed hereinabove, ASI Parminder Singh PW7, conducted the investigation of the case. During the course of his examination, he narrated the details of the investigation carried out by him, relevant particulars whereof have already been narrated hereinabove. After recording the statement of ASI Parminder Singh PW7, the prosecution evidence was closed by order. The statement of the accused/appellant Rashpal Singh was then recorded under section 313 of the Code of Criminal Procedure. In the first instance the accused/appellant Rashpal Singh was confronted with the incriminating evidence available on the record of the trial court. The accused/appellant Rashpal Singh denied the correctness of the aforesaid evidence. In his defence, he inter alia stated as : Crl.A.No.331-DB of 1998 8 “ I am innocent. I have been falsely involved in this case. I had come from Dubai and on the day of occurrence, I had gone to the village of my friend Kirpal Singh in village Jainpur and I was not present at my house as I stayed there for night. Ramesh Singh and Piar Kaur had also not come to my house on that day. I came in the morning on 3.12.95 and came to know about the occurrence and sent the message to my in-laws. Piar Kaur and Ramesh Singh have falsely involved me in this case as they wanted to falsely involved me in this case as they wanted to squeeze money from me as I had come from Dubai. I was taken in the custody by police on 3.12.1995. I had been sending money to my wife from Dubai for her maintenance.” The accused/appellant Rashpal Singh was then afforded an opportunity to lead evidence in his defence. The accused/appellant Rashpal Singh did not choose to lead any evidence in his defence. The defence evidence of the accused/appellant Rashpal Singh was closed after recording his statement. The Sessions Judge,Kapurthala, delivered the judgment in Sessions Case No. 23 of 1996 on 28.4.1998. The accused/appellant Rashpal Singh was held guilty of having committed the murder of his wife Parkash Kaur by intentionally causing her death on the night intervening 2/3.12.1995 at his house at village Lattianwala, as such, he was convicted under section 302 of the Indian Penal code. On the same day i.e. on 28.4.1998, the accused/appellant Rashpal Singh was heard on the question of sentence, whereupon, the Sessions Judge, Kapurthala, by a separate order dated 28.4.1998 sentenced the accused/appellant Rashpal Singh to undergo imprisonment for life and to pay a fine of Rs.5000/- under section 302 of the Indian Penal Code. In case of default in payment of fine, the Crl.A.No.331-DB of 1998 9 accused/appellant Rashpal Singh was ordered to undergo further rigorous imprisonment for a period of one year. A perusal of the prosecution evidence produced before the trial Court and the judgment rendered by the Sessions Judge, Kapurthala, reveals that the trial Court placed reliance on ocular evidence, as well as, expert evidence to record the guilt of the accused/appellant Rashpal Singh. In so far as the ocular evidence is concerned, reliance was placed on the statements of two eye witnesses i.e. the complainant Ramesh Singh PW4 and the mother of the deceased Piar Kaur PW5. In so far as the expert evidence is concerned, reliance was placed on the statement of Dr. Prem Parkash PW1. Reliance was also placed on the disclosure statement Exhibit PL and the consequential recovery memo Exhibit PL/1 whereby at the instance of the accused/appellant Rashpal Singh the investigating officer recovered the wooden “sotta” allegedly used by the accused/appellant Rashpal Singh for inflicting injuries on the person of deceased Parkash Kaur. In order to assail the findings recorded by the trial court and in order to establish that the evidence produced by the prosecution is not creditworthy, learned counsel for the accused/appellant Rashpal Singh has vehemently contended that there is no credible evidence on the record of the case to establish the guilt of the accused/appellant Rashpal Singh in respect of the charges framed against him. Each of the pleas raised by the accused/appellant Rashpal Singh is being dealt with in the succeeding paragraph. The first contention advanced by the learned counsel for the accused/appellant Rashpal Singh is to the effect that the prosecution version Crl.A.No.331-DB of 1998 10 of the incident is highly doubtful. In this behalf, it is submitted that the testimony of Ramesh Singh PW4 and Piar Kaur PW5, clearly and categorically acknowledge that all the four children of the accused/appellant Rashpal Singh and Parkash Kaur were in the same room where the occurrence took place. It is the vehement contention of the learned counsel for the accused/appellant Rashpal Singh that it is extremely unlikely for an individual to have committed the murder of his own wife in the presence of his four children. It is also the contention of the learned counsel for the accused/appellant Rashpal Singh, that Ramesh Singh PW4 and Piar Kaur PW5 were chance witnesses. It is accordingly submitted that there was a remote likelihood of their presence at the time when the occurrence took place. It is also contended that it was extremely unlikely for the accused/appellant Rashpal Singh to have committed the crime when close relations of the deceased were present in the home. It is pointed out by the learned counsel for the accused/appellant Rashpal Singh, that according to the site plan prepared by Ajit Singh PW2 the residential house of the accused/appellant Rashpal Singh comprised of only one room and it was, therefore, very unlikely for Rameshl Singh PW4 and Piar Kaur PW5 to have stayed over night at the house of the accused/appellant Rashpal Singh especially when their own village Baupur is stated to be at a distance of 15/20 kilometers from village Lattianwala (where the house of the accused/appellant Rashpal Singh is located). It is also the vehement contention of the learned counsel for the accused/appellant Rashpal Singh that if all the four children of the accused/appellant Rashpal Singh and Parkash Kaur were there in the room where the occurrence took place, there was no reason for them to have not opened the same, when their father i.e. Crl.A.No.331-DB of 1998 11 the accused/appellant Rashpal Singh was inflicting injuries with a wooden “sotta” on their mother i.e. Parkash Kaur. Last of all, on the same issue, it is the contention of the learned counsel for the accused/appellant Rashpal Singh that the prosecution did not produce in evidence Parkash Singh and Kundan Singh two brothers of the deceased Parkash Kaur despite the fact that their statements were recorded in the inquest proceedings. In this behalf, it is also pointed out that the very fact that the statements of Ramesh Singh PW4 and Piar Kaur PW5 had not been recorded in the inquest report, it is obvious that they were not present at the place of occurrence, and that, they had been introduced by the police only to prove the charge framed against the accused/appellant Rashpal Singh. We have considered the totality of the multiple issues rolled into one canvassed by the learned counsel for the accused/appellant Rashpal Singh while advancing the first contention, as has been noticed in the foregoing paragraph. We find no justification whatsoever for Ramesh Singh PW4 or Piar Kaur PW5 to implicate the accused/appellant Rashpal Singh, as it is not the case of the accused/appellant Rashpal Singh that the relationship between the parties was not amicable. In so far as the presence of Ramesh Singh PW4 and Piar Kaur PW5 at the place of occurrence is concerned, the same in our view is not unnatural in the background of the facts noticed above. In this behalf, it would be pertinent to mention that both Ramesh Singh PW4 and Piar Kaur PW5 asserted that the accused/appellant Rashpal Singh had gone to Dubai about a year prior to the occurrence and had returned from Dubai only eight days prior to the occurrence. In the aforesaid circumstances, it was natural for the family members of Parkash Kaur to greet and congratulate the accused/appellant Crl.A.No.331-DB of 1998 12 Rashpal Singh on his return from Dubai. In the first meeting after his return, the accused/appellant Rashpal Singh is stated to have informed Ramesh Singh PW4 and Piar Kaur PW5, that his wife Parkash Kaur was having illicit relations with some boys in the village. Accordingly, they had advised the accused/appellant Rashpal Singh, as well as, Parkash Kaur in furtherance of the complaint made to them. However, what cannot be overlooked is the fact that, the accused/appellant Rashpal Singh had threatened to kill Parkash Kaur if she continued with the aforesaid behaviour. It is, therefore, natural for the brother of the deceased Ramesh Singh PW4 as well as the mother of the deceased Piar Kaur PW5 to re-visit the house of the accused/appellant Rashpal Singh after a small interval to find out if all was well. Accordingly, we are of the view that the presence of Ramesh Singh PW4 and Piar Kaur PW5 at the residence of the accused/appellant Rashpal Singh in the facts and circumstances of the present case, was quite natural. The fact that they stayed over for the night in spite of the village being 15-20 kilometers from the house of the accused/appellant Rashpal Singh, also shows, that Ramesh Singh PW4 and Piar Kaur PW5 were making efforts for an appropriate rehabilitation of Parkash Kaur in her matrimonial house in the background of the allegations levelled against her by the accused/appellant Rashpal Singh. In so far as the presence of the children of the accused/appellant Rashpal Singh in the very room where the occurrence took place, is concerned, we are of the view that the complainant party did not shy away disclosing the truth of the matter. In fact, by acknowledging that the four children of the accused/appellant Rashpal Singh were present in the same room, the complainant party afforded a safe escape route to the accused/appellant Crl.A.No.331-DB of 1998 13 Rashpal Singh. If the occurrence had not taken place in the presence of the children of the accused/appellant Rashpal Singh he could have easily ventured to produce his own children to depose on the instant issue before the trial Court. He however, did not risk producing his own children before the trial Court for reasons which are apparent and obvious. One cannot lose sight of the fact that the prosecution has to stand on its own facts and accordingly, in our view the non production of the children of the accused/appellant before the trial Court is inconsequential. The aforesaid reasoning has been expressed above only to repudiate the submission advanced at the hands of the appellant. In our considered view, the eye witness account of two witnesses, namely, Ramesh Singh PW4 and Piar Kaur PW5, fully authenticates the prosecution version of the incident. As to why the children of the accused/appellant Rashpal Singh did not open the door whilst the accused/appellant Rashpal Singh was hitting their own mother Parkash Kaur with a wooden “danda”, is not far to fetch. Young children would be dazed by such occurrence and would be too frightened to react on seeing their own father mercilessly beating their own mother. In so far as the non production of Parkash Singh and Kudan Singh as witnesses in the present case is concerned, we are of the view that their statements recorded under section 161 of the Code of Criminal Procedure by the investigating officer wherein they asserted that they had reached the place of occurrence after the occurrence had taken place. It is, therefore, obvious that neither Parkash Singh nor Kundan Singh were eye witnesses to the occurrence. In the aforesaid circumstances, there was hardly any justification to produce Parkash Singh and Kundan Singh as prosecution witnesses, specially when, Ramesh Singh PW4 and Piar Kaur PW5 were eye Crl.A.No.331-DB of 1998 14 witnesses to the occurrence, and had deposed before the trial Court, in respect of the occurrence. For the reasons recorded hereinabove, we find no merit in the first contention advanced by the learned counsel for the accused/appellant Rashpal Singh. The second contention advanced by the learned counsel for the accused/appellant Rashpal Singh was to the effect that the investigating agency has introduced Ramesh Singh PW4 and Piar Kaur PW5, subsequently, although they were not eye witnesses to the occurrence. In this behalf, it is the vehement contention of the learned counsel for the accused/appellant Rashpal Singh, that substantial unexplained delay in the registration of the complaint at the hands of the complainant party, had left enough room to introduce close relations of the deceased in order to substantiate the prosecution version of the incident. In so so far as the instant contention advanced at the hands of the learned counsel for the accused/appellant Rashpal Singh is concerned, it is not a matter of dispute that the occurrence took place at 1:00 A.M on the night intervening 2/3.12.1995. It is also not a matter of dispute that when the occurrence took winter was at its peak. It is apparent that after the occurrence had taken place Ramesh Singh PW4 and Piar Kaur PW5 who were eye witnesses to the occurrence having realised that Parkash Kaur had been killed