Punjab-Haryana High Court
Mahabir Singh Son Of Suraj Bhan vs State Of Haryana on 11 March, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA NO. D-367-DB of 2008(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA NO.D-367-DB of 2008(O&M)
Decided on:- 11.03.2013.
Mahabir Singh son of Suraj Bhan,
resident of village Kothal Kalan,
Police Station Mohindergarh,
District Mohindergarh.
............Appellant
versus
State of Haryana ............Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present:- Mr. Aftab Singh, Advocate for the appellant.
Mr. H.S.Sran, Addl. Advocate General, Haryana for respondent.
1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the digest? Yes S.P.BANGARH, J Case of the prosecution is that Smt. Ugam daughter of Smt. Chhota (complainant), a resident of village Johalri District Rewari had been married to Mahabir Singh (appellant, herein). However, no child was born out of this wedlock. Because of this reason, complainant started residing with her daughter Smt. Ugam and appellant in village Kothal Kalan, where Smt. Ugam and appellant resided together. On 05.07.2007, appellant entered into his house and asked for meal, whereupon, Smt. Ugam (deceased) CRA NO. D-367-DB of 2008(O&M) 2 replied that meal was lying there and he could take the same. This ired the appellant, who then left the house and came after some time armed with an axe and gave blow, thereof, on the head of Smt. Ugam (deceased). Thereupon, deceased fell down and appellant ran away with the axe. Alarm raised by Smt. Chhota attracted Karan Singh, brother of the appellant to the place of incident. By that time, Smt. Ugam had succumbed to her injuries received at the hands of the appellant herein. Jaipal of that village was apprised about the incident and he informed the police, with whom Smt. Chhota made her aforementioned statement Ex.PG, that was read over and explained to Smt. Chhota and latter, after admitting the genuineness and correctness, thereof, thumb marked the same.
Later, Satyaveer Singh, SI recorded this statement Ex.PG, sent the same to the police station for registration of the FIR after making his endorsement Ex.PG/1, thereon, where formal FIR Ex.PG/2 was recorded. Satyaveer Singh, SI, prepared inquest report Ex.PH on the corpse of Smt. Ugam and sent the same to the mortuary for autopsy. He lifted the blood stained earth from the spot, put the same into a box and made parcel, thereof, that was sealed by him with his seal which was seized vide recovery memo Ex.PA. He also prepared rough site plan of the place of occurrence Ex.PI. On return to police station, he deposited the sealed parcel of blood stained earth with MHC of the police station in an intact condition. After autopsy on the corpse of Smt. Ugam, sealed parcel of the clothes of the deceased, that was handed over by the doctor to Randhir Singh, HC, was delivered by the latter to Satyaveer Singh, SI (PW11) and the latter seized that parcel vide memo Ex.PD. Corpse was handed over to the relatives of the deceased vide receipt Ex.PJ. On 07.07.2007, Satyaveer Singh, SI arrested the appellant near village Nangal Sarohi, interrogated him and during interrogation, appellant suffered disclosure statement Ex.PK to the CRA NO. D-367-DB of 2008(O&M) 3 effect that axe used by him in the crime has been kept concealed by him in the bath room of his house and could get the same recovered.
Pursuant to the disclosure statement Ex.PK, appellant led the police party to the place of concealment and got recovered axe, whose sketch Ex.PL was prepared by Satyaveer Singh, SI PW11. Later, axe was sealed into a parcel, that was seized vide recovery memo Ex.PM by Satyaveer Singh, SI, who also prepared site plan of the place of recovery of axe Ex.PN. He also moved application Ex.PO before the medical officer to seek his opinion and the latter gave his opinion vide Ex.PO/1.
Blood stained axe and the clothes of the deceased were sent to Forensic Science Laboratory, Madhuban and the latter vide reports Ex.PP and Ex.PP/1 opined that the lady shirt and salwar were stained with human blood, while it was opined for blood stained earth, chunni and mala that material disintegrated. It was also opined that the traces of blood on axe were too small for serological analysis.
After completion of investigation, the Station House Officer of police station Mohindergarh, instituted police report under Section 173 of the Code of Criminal Procedure (Cr.P.C for short) before the learned Illaqa Magistrate to the effect that it appeared that the appellant had committed an offence punishable under Section 302 of the Indian Penal Code (IPC for short).
On presentation of police report, copies of documents, as required under section 207 Cr.P.C were supplied to the appellant and the case was committed to the learned Court of Session on 14.08.2007, where charge under Section 302 IPC was framed against the appellant on 26.09.2007, to the effect that on 05.07.2007 at 02:30 p.m, in the area of village Kothal Kalan (police station Mohindergarh) he (appellant) committed the murder of his wife Smt. Ugam, resident of village Kothal Kalan by CRA NO. D-367-DB of 2008(O&M) 4 intentionally causing her death. Appellant pleaded not guilty to the charge and claimed trial.
At the trial, prosecution examined PW1 Rama Nand, who deposed that he had identified the corpse of Smt. Ugam at the time of inquest proceedings.
PW2 Jaipal deposed that some residents of the locality had informed him being the husband of a member panchayat, about the death of Smt. Ugam wife of Mahabir Singh on 05.07.2007 and he informed the police. He also deposed that the police came at the spot on the same day and lifted blood stained earth in his presence from the spot and put that into a parcel, that was sealed and seized vide memo Ex.PA.
PW3 Mahesh Kumar, Head Constable deposed that on 18.07.2007, he visited the place of incident in village Kothal Kalan and prepared scaled site plan Ex.PB with correct marginal notes on the demarcation of Smt. Chhota.
PW4 Satyawan, Head Constable deposed that on 05.07.2007, he was entrusted with special reports of this case by the MHC, which he handed over to the Illaqa Magistrate and senior police officers on the same day. PW4 tendered in evidence his affidavit Ex.PC to the effect that he had deposited the case property (sealed in parcels) with Forensic Science Laboratory in an intact condition.
PW5 Yudhvir, Cosntable deposed that on 06.07.2007, he had gone to CHC, Mohindergarh, where autopsy on the corpse of Smt. Ugam had been conducted. He further deposed that medical officer had handed over to him sealed parcel of clothes of the deceased alongwith sample seal and he handed over those to Station House Officer and latter, in this regard, prepared memo Ex.PD.
PW6 Raj Singh, Photographer deposed that on 05.07.2007, he CRA NO. D-367-DB of 2008(O&M) 5 had gone to village Kothal Kalan and took photographs of the corpse of Smt. Ugam at the instance of the police. He proved photographs Ex.P1 to Ex.P4 and negatives, thereof, Ex.P5 to Ex.P8.
PW7 Dr.Kanwar Singh, Medical Officer, CHC, Mohindergarh deposed that he conducted autopsy on the corpse of Smt. Ugam on 06.07.2007 and found the following injuries, thereon:-
1. Lacerated wound size 4 cms x .5 cm on left eye brow;
2. Sharp wound size 10 cms x 3 cms on the left occipital region;
3. Fracture of the left parietal bone and
4. Fracture of the left occipital bone.
PW7 further deposed that the cause of death, in his opinion, was due to hemorrhage and shock, due to head injury, which was ante-mortem in nature and sufficient to cause death in the routine course of life. PW7 also deposed that probable time between injury and death was immediate and between death and postmortem examination was within 6 to 36 hours. He also deposed that after autopsy, he delivered the belongings of the deceased alongwith relevant papers to the police officials. He also proved the copy of autopsy report Ex.PE.
PW8 Ashok Kumar, MHC tendered his affidavit Ex.PF in evidence to the effect that on 05.07.2007, Satyaveer Singh, SI had deposited with him in the malkhana a sealed parcel of blood stained earth with sample seal and again a sealed parcel of clothes was deposited on 06.07.2007 with sample seal and on 07.07.2007, again a sealed parcel of axe and sample seal with him and he sent those parcels to Forensic Science Laboratory, Madhuban through Satyawan, Head Constable in an intact condition.
PW9 Krishan Kumar, ASI deposed that on 05.07.2007, he recorded FIR Ex.PG/2, on the receipt of statement of Smt. Chhota (Ex.PG) with endorsement Ex.PG/1, thereon, made by Satyaveer Singh, SI. CRA NO. D-367-DB of 2008(O&M) 6
PW10 Smt.Chota deposed that her daughter was married with appellant, resident of village Kothal Kalan and used to live with them. She further deposed that occurrence, which took place during her stay in the house of the appellant, had taken place about noon time. She was sitting inside the house, whereas, Smt. Ugam was also sitting in the chowk of the house under the chappar. She further deposed that the appellant came from outside, raised lalkara and attacked Smt. Ugam with axe resulting into her death and she was pushed aside by the appellant. She further deposed that the appellant later ran away and she raised alarm, which attracted brother of the appellant. She also deposed that Smt. Ugam succumbed to the injuries at that time and police was informed. She further deposed that the police recorded her statement Ex.PG.
PW11 Satyaveer Singh, SI conducted investigation and deposed on the lines of investigation carried out by him, which has been reproduced in the earlier parts of this judgment, which need not be reproduced here again.
After the closure of the prosecution evidence, appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of prosecution, pleaded innocence and false implication in the case.
Appellant was called upon to enter in defence, but he closed the same without examining any witness in defence.
After hearing both the sides, as also, after perusal of evidence, learned trial Court vide impugned judgment of conviction, convicted the appellant for commission of offence punishable under Section 302 IPC and vide impugned order of sentence, sentenced him to undergo imprisonment for life and to pay a fine of ` 5,000/- and in default, thereof, to further undergo rigorous imprisonment for six months.
Aggrieved, thereagainst, appellant, who was accused before the CRA NO. D-367-DB of 2008(O&M) 7 learned trial Court, has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of the charge framed against him for commission of offence punishable under Section 302 IPC.
Learned counsel for the appellant contended that the respondent before the learned trial Court failed to produce the alleged witness Karan Singh, brother of the appellant, who was attracted at the place of incident, on alarm being raised by the complainant Smt. Chhota. He also contended that adverse inference must be drawn against the respondent and the learned trial Court fell in grave error in convicting and sentencing the appellant for commission of offence punishable under Section 302 IPC. He also contended that Smt. Chhota (PW10) is the sole eye witness and she being interested in the success of the case, was wrongly believed by the learned trial Court and on the contrary, due to her evidence being not corroborated by any other evidence should have been repelled. He also contended that as per the testimony of Smt. Chota PW10, only one injury with axe was given by the appellant to the deceased, while as per autopsy report Ex.PE, there were more than one injury and that belies the ocular version given by PW10 Smt. Chota.
Learned counsel for the appellant also contended that there was no motive on the part of the appellant to kill his own wife and he has been falsely implicated. He also contended that the use of axe in the occurrence has not been proved and the learned trial Court wrongly held that the axe was used in commission of murder of Smt. Ugam by the appellant.
Learned counsel for the appellant also contended that even if it is proved that deceased was killed by the appellant, it was a case of sudden provocation and, therefore, appellant could only be held guilty of commission of offence punishable under Section 304-I IPC. He contended that it was noon time, when the appellant retired from work, the food was not served to CRA NO. D-367-DB of 2008(O&M) 8 him by the deceased who, on the contrary, asked him to take food himself and that caused provocation to him to kill the deceased.
On the contrary, learned Additional Advocate General for the respondent contended that the learned trial Court rightly relied upon the testimony of PW10 Smt. Chhota that has been corroborated by the medical evidence of PW7 Dr.Kanwar Singh and, thus, the impugned judgment and order should not be interfered with by this Court.
We have given our thoughtful consideration to the contentions raised on behalf of both the sides, as also, we have perused the record of learned trial court.
One thing is very much certain that the unnatural death of Smt. Ugam (deceased) took place in her own house in the presence of her mother Smt. Chhota (PW10). There is nothing on the record that Smt. Chhota (PW10) is her killer. Unnatural death of Smt. Ugam had taken place in her house, as also, of appellant and, therefore, it was for the latter to explain as to how his wife turned into a corpse. His own brother was attracted to the place of incident, on alarm being raised by PW10. It is no doubt true that he has not been examined as a prosecution witness by the respondent before the learned trial Court, yet that can have no bearing on the case of the prosecution, as he did not see the deceased being killed by the appellant. Even, the appellant could examine him in his own defence, but he has not been examined. So, the non examination of the brother of the appellant in this case cannot have any bearing on the case of the prosecution, so far as, the killing of deceased by the appellant is concerned.
PW10 Smt. Chhota is the mother of the deceased and mother-in- law of the appellant. It is not the case of the appellant that she never resided in his house. In the absence of such defence evidence, it follows that she was natural witness of occurrence and she saw the occurrence, wherein, CRA NO. D-367-DB of 2008(O&M) 9 deceased was killed by the appellant with an axe. The incident had not taken place inside a closed room, because of which PW10 Smt. Chhota did not have an opportunity to see the occurrence. Indeed, the occurrence had taken place before the eyes of PW10 Smt. Chhota and that is why, she raised alarm and attracted people from the neighbourhood. Even, Karan Singh, brother of the appellant, had emerged on the scene of crime, but he was given up as having been won over by the appellant. As already held, his non examination cannot lead to the falsification of the prosecution version, especially when he was not brought to the witness box by the appellant to testify that he is not killer of his wife Smt. Ugam.
PW10 was subjected to searching cross examination by the learned counsel for the appellant before the learned trial Court, but the long cross examination failed to elicit anything worth the name, which could possibly cause any dent in her testimony. No motive can be ascribed to her to testify falsely in this case. The axe was not found lying at the place of incident which, on the contrary, was concealed by the appellant in the bath room. There is nothing on the record that PW10 had seen the appellant concealing the axe used in killing the deceased in the bath room. The recovery of axe during investigation at the instance of the appellant from the bath room of his house could be held to be false, if it has come on the record that PW10 Smt. Chhota saw the appellant concealing the axe in the bath room.
It is no doubt true, that the axe was not found stained with blood by Forensic Science Laboratory, Madhuban, but that cannot create any doubt in the prosecution version as this evidence of Forensic Science Laboratory was to be used for purpose of corroboration. That apart, the traces of blood on the axe were not suffice for serological examination, as opined by Forensic Science Laboratory in reports Ex.PP and Ex.PP/1. Therefore, these CRA NO. D-367-DB of 2008(O&M) 10 reports cannot make the case of the prosecution doubtful.
According to PW7 Dr. Kanwar Singh, there were four injuries on the corpse of the deceased. According to him, injury no.2 was on the back side of the head of the deceased, which was a sharp incised wound. Injury no.1 might have occurred due to fall of the deceased on the ground and injuries nos.3 and 4 were inter-connected with injury no.2. So, this evidence indicates that only one blow of axe was given on the head of the deceased and this medical evidence of PW7 Dr. Kanwar Singh, corroborates the ocular evidence of PW10 Smt. Chhota. There is, thus, no variation in the ocular and medical evidence, so far as, the injuries on the person of the deceased are concerned.
In this manner, it follows that the death of Smt. Ugam was caused by appellant (her husband) on 05.07.2007 at 02:30 p.m in her own house located in the area of village Kothal Kalan, Police Station Mohindergarh,District Mohindergarh.
Now it is to be seen as to whether the case falls within the ambit of Section 302 IPC or not.
Learned counsel for the appellant rightly contended that the latter even if killed the deceased intentionally, the case shall not be covered within the ambit of Section 302 IPC. Occurrence took place on 05.07.2007 when the weather was hot, humid and sultry. Appellant had retired from his manual work. He may be expecting that food be served to him by the deceased herself. Even, when the weather was hot, humid and sultry, the appellant expected that water be served to him by his wife (deceased). Neither food nor water was served by the deceased to the appellant. On the contrary, deceased asked the appellant to go to room and take meal himself. She was not busy in some other domestic chore. If she would have been busy in some other domestic chore and being occupied, therein, she was not able to serve CRA NO. D-367-DB of 2008(O&M) 11 food to the appellant, if then she was attacked and killed, then the case would have fallen under the ambit of Section 302 IPC.
We find that non serving of food by the deceased personally to the appellant caused provocation to the latter, thereunder, he picked up an axe and killed the deceased. We, therefore, find that it is a case of culpable homicide not amounting to murder and falls within exception 1 of Section 300 IPC, which reads as follows:-
"Culpable homicide is not murder if the offender whilst deprived of the power of control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
xxx Explanation- whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."
As per judgment passed by the Hon'ble Allahbad High Court in the case of Mansa Ram v. State, 1975(1) Crl. L.J 1772, an accused person claiming the benefit of Exception of Section 300 IPC (ibid) must prove (1) that he received provocation, (2) which was grave and, (3) sudden, (4) that he was deprived of power of control (5) while still in that state of mind before he cooled down caused the death of the person, who provoked him. In Mahmood v. State, AIR 1961 Allahbad 538, it was held by the Hon'ble Allahbad High Court that the Explanation at the end of the Exception is very important for it enjoins that the question whether provocation was grave and sudden enough to prevent the offence from being murder should not be treated as a question of law, but one of fact and decided like any other question of fact.
It follows, therefore, that each case must be considered according to its own facts and the Court must decide the particular CRA NO. D-367-DB of 2008(O&M) 12 circumstances of that case whether the provocation was grave and sudden, enough to permit an indulgent view of the crime committed by the accused. What a reasonable man i.e a normal person will do in certain circumstances depends upon the cultural, social and emotional background of the society to which the accused belongs. However, the court must consider the reaction not of the normal man in the abstract but the normal man whose impulses are conditioned by the same environment as the accused as laid down in Mansa Ram's case (supra).
We have examined the circumstances, wherein, appellant in the case in hand caused axe blow to his wife. There is no gain saying about the fact that entire incident took place suddenly. There was no previous quarrel between the deceased and the appellant. Smt. Chhota (PW10) simply deposed that deceased spoke to the appellant to take meal by going inside the room. This could not be swallowed by the appellant, as already held, he wanted that food be served to him by the appellant herself. He had returned from work, therefore, was tired, weather was also sultry, hot and humid. In this hot, humid and sultry weather, appellant expected a courtesy of serving meal to him by his deceased wife, apart from offering him water because of weather condition. Why deceased did not serve meal to the appellant is beyond our comprehension.
The deceased, thus, herself elicited this provocation. As held in the case of Nanawati v. State of Maharashtra, AIR 1962 Supreme Court Cases 605, mere words and gestures may under certain circumstances cause grave and sudden provocation to an accused, so as to, bring his act within the first Exception to Section 300, Indian Penal Code. If mere words or gestures can cause provocation, there can be no manner of doubt that its possibility will be all the more, if filthy abuses are hurled. In the instant case, there was no quarrel, but there was only gesture. In the instant case, CRA NO. D-367-DB of 2008(O&M) 13 incident happened suddenly. Appellant craved food being served to him personally, that was not served by the deceased herself who, on the contrary, asked the appellant to take meal by going in the room. That was sufficient sudden provocation having been caused by the deceased to the appellant, whereunder he killed his deceased wife, which is enough for purposes of enabling him (appellant) to get benefit of exception 1 to Section 300 IPC and that is accorded. The case of the appellant thus, falls within the ambit of Section 304-I IPC.
Resultantly, the appeal is allowed partly; the conviction of the appellant Mahabir Singh under Section 302 IPC and sentence of imprisonment for life and to a pay fine of ` 5,000/- and in default, thereof, to further undergo rigorous imprisonment for six months are set aside. Instead, he is convicted for commission of offence punishable under Section 304-I IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ` 5,000/- and in default, thereof, to further undergo imprisonment for six months. Period already undergone by the appellant in jail during investigation, trial and pendency of this appeal shall be set off against the substantive sentence.
(S.P.BANGARH) (S.S.SARON)
JUDGE JUDGE
11.03.2013
mamta