IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.197-DB of 1998 Date of decision: 17.01.2008 Zora Singh. -----Appellant. Vs. State of Punjab. -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S. D. ANAND Present: Mr. R.K. Singla, Advocate for the appellant. Mr. Rajesh Bhardwaj, DAG, Punjab. ----- Adarsh Kumar Goel, J. The appellant is aggrieved by his conviction under Section 302 IPC, for which he stands sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500/-, in default, to undergo further rigorous imprisonment for six months. Case of the prosecution is that Surjit Kaur, deceased contracted ‘kareva’ marriage with Som Nath after the death of her husband 7-8 years back. Zora Singh accused was son of the deceased from her previous husband. PW-2 Brij Lal, brother of Som Nath, husband of the deceased, who is the only Criminal Appeal No.197-DB of 1998 eyewitness of the occurrence, had also developed relations with the deceased Surjit Kaur. Som Nath, husband of the deceased, was a T.B. patient. Zora Singh had come to the house of the deceased and stayed with her for 5-6 days preceding the date of occurrence. He had a quarrel with his mother on account of rumours about her character in the village. On 25.6.1996, Brij Lal (PW-2) stayed with the deceased in the night. In the morning, he went to Gidderbaha to draw his salary from the Home Guard office. When he returned back at 10.30 A.M., he heard raula (noise) of the deceased. Outer door of the house was bolted from inside. He saw from the small boundary wall that the deceased was lying on the ground and the accused was pulling the string tied around the neck of the deceased. The deceased was trying to free herself and was raising alarm “Na Maro Na Maro”. The accused ran away after leaving behind the string on the spot. Brij Lal (PW-2) went near the deceased and found her dead. The accused caused her death on account of his being taunted in the village on account of bad character of the deceased. Brij Lal went to lodge report with the police and his statement was recorded by ASI Malkiat Singh (PW-4) at 12-30 PM on 26.6.1996. ASI Malkiat Singh completed investigation and sent up the accused for trial. The post- mortem examination was conducted by Dr. S.K. Raj Kumar (PW-1) who found following injuries on the deceased:- “1. A lacerated wound on the thumb side of index finger measuring 2 cm x 1 cm of right hand. 2. An incised wound 1 cm x ½ cm on right side of abdomen situated laterally and 10 cm away from 2 Criminal Appeal No.197-DB of 1998 umbilicus which on dissection was traced and found that the underlying small intestines was punctured and abdominal cavity was full of blood. 3. Incised 2 cm x ½ cm on right side of abdomen situated 5 cm below injury No.2 towards midline which on tracing led to abdominal cavity and large intestines was found punctured as abdominal cavity was full of blood. 4. An incised wound ½ cm x ½ cm on the right side of abdomen situated laterally and below injury no.2 and the injury was traceable only upto the external oblique muscles.” According to the doctor, cause of death was due to pressure around the neck, which was ante mortem in nature and sufficient to cause death in the normal course of nature. The prosecution examined PW-1 Dr. S.K. Raj Kumar, Emergency Medical Officer, Civil Hospital, Bathinda, who conducted post-mortem examination on the dead body of deceased, PW-2 Brij Lal, eyewitness to the occurrence with whom the deceased was living though married to his brother Som Nath, PW- 3 HC Gurcharan Singh, PW-4 ASI Malkiat Singh, Investigating Officer, PW-5 HC Kashmir Chand, to prove that eyewitness did not attended his duty on the date of occurrence, PW-6 Joginder Lal Gupta, Company Commander, Punjab Home Guards, to prove that on the relevant date Brij Lal came to his office to collect the salary and PW-7 Constable Amar Singh. 3 Criminal Appeal No.197-DB of 1998 The trial Court after considering the evidence on record held the case of the prosecution to be proved beyond reasonable doubt and convicted and sentenced the appellant. The substance of reasons given by the trial Court is as under:- (i) Solitary statement of Brij Lal (PW-2) was reliable on the touchstone of the judgment of the Hon’ble Supreme Court in Vadivelu Thevar v. The State of Madras AIR 1957 SC 614. (ii) Mere fact that in cross-examination Brij Lal did not support the prosecution version is of no effect as he was won over. After his examination-in-chief, his examination was deferred on the request of defence counsel and thus he was declared hostile by taking the plea that his signatures were taken by the police on blank papers; (iii) There was no delay in recording the FIR. (iv) In supplementary statement of Brij Lal, the accused was attributed injury by knife which was duly recovered from the accused. We have heard learned counsel for the parties and perused the record. Learned counsel for the appellant submitted that injuries found at the time of post-mortem examination cannot be explained and are inconsistent with the ocular account. Brij Lal had gone to Gidderbaha in the morning and could not have returned by 10-30 A.M. 4 Criminal Appeal No.197-DB of 1998 It was admitted by PW-5 HC Kashmir Singh that office timings were from 10-00 A.M. If after taking salary from Gidderwaha the witness was to return to Bathinda, he could not have reached by 10-30 A.M. in the manner alleged. PW-6 Joginder Lal Gupta stated that on 26.6.1996 Brij Lal (PW-2) collected the cheque of his salary. We find that presence of PW-2 Brij Lal at the place of occurrence is not free from doubt. He could not have missed the blood coming out on account of injuries by knife of which no mention had been made by him even though he claims to have gone near the deadbody and claims to have seen the accused. He also did not mention about the knife with the accused. He had gone to collect pension in the morning and collected the same at 10-00 A.M. and thereafter, at 10-30 A.M., which is the time given by him, his presence at the place of occurrence was doubtful. He was declared hostile and did not support the case of the prosecution in cross-examination. There is no other evidence about culpability of the appellant. In view of above, we have no option but to allow the appeal and set-aside the conviction and sentence of the appellant. The investigating agency failed to collect sufficient and reliable evidence. Accordingly, this appeal is allowed. Conviction and sentence of the appellant is set-aside. The appeal is disposed of. ( ADARSH KUMAR GOEL ) JUDGE 5 Criminal Appeal No.197-DB of 1998 January 17, 2008 ( S. D. ANAND ) ashwani JUDGE 6