Punjab-Haryana High Court
Baldev Singh vs State Of Punjab on 15 November, 2011
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
CRA No.933-DB of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.933-DB of 2006
Date of decision:15.11.2011
Baldev Singh ..... Appellant
Versus
State of Punjab ..... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Praveen Bhadu, Advocate for the appellant.
Ms.Manjari Nehru Kaul, Addl.A.G., Punjab for the State.
*****
RAJIVE BHALLA, J.
The appellant prays for setting aside judgment dated 13.10.2006, passed by the sessions Judge, Ropar, convicting him under Section 302 of the IPC and sentencing him to undergo imprisonment for life for the murders of his minor sons Hardev Singh @ Happy, aged 11 years and Lakhwinder Singh @ Goly, aged 6 years. The appellant also challenges order dated 14.10.2006, sentencing him to life imprisonment for each murder (to run concurrently) and to pay a fine of Rs.500/- for each murder and in case of default of payment of fine, to undergo rigorous imprisonment for a further period of two months.
Surmukh Singh, PW-7 son of Kashmira Singh, resident of village Raipur Khurd, PS Sohana, District Ropar, PW7, recorded a statement, before PW9 SI Randeep Singh, IO, Ex.EM, on 15.08.2002 at 01:10 PM, at Bus Stand, Sohana, that on 14.08.2002 at about 6 PM, CRA No.933-DB of 2006 -2- he was going to the fields he saw Baldev Singh alongwith his two sons Hardev Singh @ Happy and Lakhwinder Singh @ Goly catching fish from the village pond. He over-heard Baldev Singh threatening his sons that if they fail to catch enough fish for dinner, he would kill them. When he returned from his fields, Paramjit Singh, PW8 brother- in-law of Baldev Singh, resident of House No.1467, Phase-I, Ram Darbar arrived at his house. Paramjit Singh told him that Baldev has brought both his sons from Chandigarh and as is very angry he may cause some harm to them. Surmukh Singh assured Paramjit Singh that they would go to Baldev Singh's house at night. They had dinner and both of them went to the chobara of Baldev Singh at about 11:30/12 PM. The door of the room was closed from inside but a light was on. They peeped through a gap in the door and saw Baldev Singh putting a sutli rasi (rope) around the neck of his younger son and strangulating him. Baldev Singh, then warned his elder son not to inform anyone. His elder son replied that he would inform his maternal grand father. Baldev Singh took out a "chhura" (daggar), lying underneath the pillow, and gave a chhura blow to the left side of the neck of his son, who fell on the bed. Baldev Singh kept the "Chhura" on the bed and inspected his younger son who had already died. He removed the "rasi" from the neck of his younger son put it around the neck of his elder son and pulled it to strangulate him. Baldev Singh stated that he has sent them to God and removed an obstacle in the way of his second CRA No.933-DB of 2006 -3- marriage. The motive for this occurrence is that Baldev Singh wanted to remarry after the death of his first wife. Surmukh Singh and Paramjit Singh left Baldev Singh's house as they feared that if Baldev Singh comes out of the room he would kill them and returned to Surmukh Singh's house. Paramjit Singh left to inform the maternal grand parents of the children living in Chandigarh and paternal grand parents living in Ambala, whereas Surmukh Singh decided to discuss the matter with the panchayat of the village. After consultation of the panchayat with the villagers, he reported the matter to the police.
FIR No.136 dated 15.05.2002 was registered under Section 302 of IPC, at Police Station Sohana on the basis of this statement. SI Randeep Singh proceeded to the place of occurrence, with Surmukh Singh and a police party. Constables Balwinder Singh and Jaipal Singh were sent to bring Inder Verma, photographer, PW6. The IO inspected the place of occurrence and prepared separate inquest reports Ex.PC relating to Hardev Singh @ Happy (deceased) and Ex.PF relating to Lakhwinder Singh @ Goly (deceased). A rough site plan Ex.PU depicting the place of occurrence was also prepared. The police recovered a double bed mattress, a sheet, a pillow and two pieces of parna, all blood stained which were taken into possession vide memo Ex.PT and sealed with the seal "RS". A request for postmortem of the deceased, Ex.PB, was forwarded to Civil Hospital, Mohali, alongwith the dead-bodies through, HC Jaipal. The appellant was arrested on the CRA No.933-DB of 2006 -4- same day vide arrest memo Ex.PY. Upon interrogation, the appellant allegedly made a disclosure statement Ex.PM admitting that he had concealed the daggar with which he had murdered his elder son under the table cloth on which the TV set is placed. The appellant is also alleged to have suffered another disclosure statement Ex.PO that the sutli (rope) with which he strangulated his younger son is concealed under the cupboard and he could get it recovered. The appellant thereafter got the dagger Ex.P15 recovered by way of disclosure statement Ex.PO and the rope Ex.P16 by recovery memo Ex.PS. The postmortem examinations were conducted by PW1 Dr.Ajay Pal Singh, Medical Officer, Civil Hospital, Mohali. The postmortem reports are Ex.PA and Ex.PD. Doctor Ajay Pal Singh has opined that the cause of death of both children is strangulation. However, as the postmortem report relating to Hardev Singh revealed an incised wound 2' x 1' on the left side of the neck, the IO forwarded a request to the doctor to opine whether this injury could be caused by a dagger. The doctor opined, vide Ex.PB, that this injury could be caused by a knife. The place of occurrence was photographed by Inder Verma, photographer, PW6 and site plan prepared. Upon receipt of report of the chemical examiner and on completion of investigation, a report was presented before the Judicial Magistrate Ist Class, who committed the matter to the Court of Sessions.
The learned Sessions Judge, found a prima facie case against CRA No.933-DB of 2006 -5- the appellant and framed a charge under Section 302 of the IPC. The appellant pleaded not guilty and claimed trial.
In order to prove its case against the appellant, the prosecution has examined Dr.Ajay Pal Singh, Medical Officer as PW- 1, who deposed that both children died due to strangulation and the injury on the neck of Hardev Singh could be caused by a knife, PW2 is HC Bahadur Singh, PW3 is Gian Chand, HC Jaipal appeared as PW4, HC Jarnail Singh as PW5, Inder Verma, photographer as PW6, Surmukh Singh, complainant as PW7, Paramjit Singh as PW8 and SI Ramandeep Singh as PW9. In addition to the oral testimony, the prosecution has adduced documents namely; Ex.PA, postmortem report of Hardev Singh @ Happy, Ex.PA/1 outlines of human body, Ex.PB application for conducting postmortem of dead body of Hardev Singh, Ex.PC inquest report of deceased Hardev Singh, Ex.PD postmortem report of Lakhwinder Singh @ Goly, Ex.PD/1 outlines of human body, Ex.PE application for conducting postmortem of dead body of Lakhwinder Singh, Ex.PF inquest report of deceased Lakhwinder Singh @ Goly, Ex.PG affidavit of Bahadur Singh, HC No.186/R posted at Special Branch, Mohali, Ex.PH scaled site plan, Ex.PJ affidavit of HC Jaipal, Ex.PK affidavit of Head Munshi Jarnail Singh, Ex.PL FSL report, Ex.PL possession memo of negatives and photographs, Ex.PM statement of Surmukh Singh, Ex.PN and Ex.PO disclosure statements of the appellant under Section 27 of the Indian CRA No.933-DB of 2006 -6- Evidence Act, Ex.PQ possession memo of blood stained daggar, Ex.PR sketch of recovered daggar, Ex.PS recovery memo of blood stained sutli (rope), Ex.PT possession of two blood stained mattresses of a double bed, one blood stained pillow, one blood stained bed sheet of a double bed and one blood stained parna in two pieces, Ex.PU is rough site plan of the place of occurrence, Ex.PV is the arrest memo of appellant, Ex.PV/1 personal search memo of the appellant, Ex.PW site plan of recovery, Ex.PX application of the appellant made before Judicial Magistrate, Kharar, regarding action to be taken against his uncle's daughter-in-law Kirna.
Upon conclusion of prosecution evidence, the trial court put the incriminating circumstances, to the appellant under Section 313 of the Cr.P.C. The appellant denied the allegations, pleaded his innocence and stated that his children have been murdered by some unknown person and he has been falsely implicated by Surmukh Singh and Paramjit Singh as they are inimical towards him. The appellant produced HC Gurmail Singh as DW1.
After considering the evidence adduced by the prosecution and the appellant, the learned Sessions Judge, Ropar, held the appellant guilty of the murder of his two minor sons and consequently convicted him under Section 302 of the IPC. The appellant was thereafter heard on the quantum of sentence and sentenced as detailed in the opening paragraph of the judgment.
CRA No.933-DB of 2006 -7-
Counsel for the appellant submits that the appellant has been falsely implicated by Surmukh Singh, PW7 and Paramjit Singh, PW8, of a heinous crime namely the murder of his two minor sons. The so called eye witnesses of the occurrence Surmukh Singh, PW7 and Paramjit Singh, PW8 are procured witnesses. Their presence at the time of occurrence at midnight is highly improbable. The eye witnesses' strange conduct in visiting the appellant's house at 12:30 at night, running away after seeing the appellant murdering his two sons without raising any alarm or informing anyone, much less the police is rather surprising and establishes that Surmukh Singh and Paramjit Singh are procured witnesses. Witnesses of the ghastly murder of two children would not return quietly to their homes and inform the police only on the next day. It is further submitted that apart from the strange conduct of these eye witnesses, Paramjit Singh, PW8 is the brother of the appellant's deceased wife. The motive to falsely implicate the appellant has come out in the cross-examination of Paramjit Singh when he deposed that his sister was murdered by the appellant but no report was made to the police as the matter was compromised by the Panchayat. It is further submitted that delay of almost 12 hours in lodging the FIR is fatal as no explanation much less any cogent explanation is forthcoming. The deposition of eye witnesses is discrepant on material particulars. The eye witnesses have admitted that they signed the alleged disclosure statements without knowledge of their contents. The CRA No.933-DB of 2006 -8- false implication of the appellant is therefore, established by the false disclosure statements. PW6 Inder Verma, photographer has deposed that the rope and the dagger were already lying in the room, thereby falsifying the disclosure statement and the recoveries. The story set up by the prosecution that the appellant killed his children as he wanted to re-marry is false as Surmukh Singh has himself deposed that the appellant had already contracted a second marriage. It is further submitted that as the learned Sessions Judge, has commented adversely upon the disclosure statement and the recovery of the rope and daggar, the appellant should be acquitted. The crude attempt by the prosecution to foist the recovery of the rope and the daggar upon the appellant clearly establishes that the prosecution has not come out with the true story. It is further submitted that discrepancies in the statements of PW7 Surmukh Singh and PW8 Paramjit Singh with regard to the time when Paramjit Singh came to the house of Surmukh Singh, and the time when dead bodies were shifted from the place of occurrence, for postmortem, clearly establish that these witnesses have been asked to depose falsely against the appellant merely because the dead bodies were found in the appellant's house. It is argued that in the absence of any evidence to link the appellant with this ghastly crime, the appellant should be acquitted.
Counsel for the State of Punjab submits that the oral depositions of PW7 Surmukh Singh and PW8 Paramjit Singh, leave no CRA No.933-DB of 2006 -9- manner of doubt that the appellant murdered his children. The motive namely to get rid of these children to contract a second marriage has been clearly established. The discrepancies in the statements of PW7 and PW8 are immaterial as they do not cast any doubt upon the statements of eye witnesses. The fact that recovery and disclosure statements have been doubted, makes no difference as the dead-bodies were found from the appellant's bed room thereby requiring the appellant to explain the manner of death in accordance with Section 106 of the Indian Evidence Act, 1872. It is further argued that delay in lodging the FIR has been satisfactorily explained by the eye witnesses. The argument that the motive is not fully established, is irrelevant as the actual motive is always locked in the mind of an accused.
We have heard counsel for the parties, perused the record and the impugned judgment.
The appellant has been convicted and sentenced for murder of his two minor sons. The prosecution evidence is based upon the testimonies of PW7 Surmukh Singh and PW8 Paramjit Singh, eye witnesses, the recovery of dead bodies from the appellant's bed room, the recovery of the weapons of offence, a rope and a daggar and medical evidence. The motive, though not fully established, is an attempt by the appellant to get rid of the children as they were an impediment in his second marriage. The appellant's wife passed away about four years before the occurrence, leaving behind two children CRA No.933-DB of 2006 -10- Hardev Singh, and Lakhwinder Singh. As per the deposition of PW8 Paramjit Singh, brother of the appellant's deceased wife, the appellant brought the children to his village, a day before the fateful night, from his in-laws house in Ram Darbar, Chandigarh. Paramjit Singh has deposed that he was worried about the safety of the children as the appellant was angry when he took away the children. Apprehending danger to their lives, he came to village Raipur Khurd on 14.07.2011. He informed Surmukh Singh, PW7 about his apprehension. PW7 and PW8 have deposed that they decided to visit the appellant's house at night. On the night of 14.07.2002 at about 11:30/12 PM, they went to the appellant's room on the first floor and peeped into his room. As per their depositions, they saw the appellant strangulating his younger son Lakhwinder Singh @ Goly and thereafter threatening his elder son Hardev Singh not to disclose anything to anyone. Hardev Singh (deceased) replied that he will reveal this fact to his grand parents upon which the appellant took out a daggar and stabbed Hardev Singh in the neck. The appellant thereafter removed the rope from the neck of Lakhwinder Singh and strangulated Hardev Singh. There may be minor contradictions in their depositions but they do not vary on material particulars. The above facts, are in essence, the sum and substance of the allegations, levelled against the appellant. The detailed cross-examination of the eye witnesses has failed to shake their credibility. The dead-bodies were admittedly recovered from the bed CRA No.933-DB of 2006 -11- room of the appellant. The blood stained mattress, blood stained sheet etc. were sent for chemical analyses and revealed human blood. The rope and daggar taken into possession have also tested positive for human blood. The doctor has opined that death was the result of strangulation and the injury on Hardev Singh's neck was inflicted with a knife.
The dead bodies were recovered from a room inside the appellant's house alongwith sheet, pillows and mattress all blood stained. The appellant has, however, raised a defence that the children were murdered by some unknown persons but has not proferred any further explanation or lead any evidence.
The arguments, addressed by counsel for the appellant can be broadly placed into the following categories: -
a. delay in lodging the FIR;
b. the eye witnesses are procured and their conduct is unnatural; c. the false disclosure and recovery statements;
d. the absence of proof of any clear motive;
e. the failure of the trial court to deal with the appellant's defence; f. that the children were murdered by some unknown person.
The delay in lodging of an FIR may raise an inference that facts have been tailored to suit a preconceived notion of suspicion or to falsely implicate an accused and therefore, require the prosecution to CRA No.933-DB of 2006 -12- satisfactorily explain the delay. Delay by itself, if suitably explained, is insufficient to discard prosecution evidence, if otherwise proved, in accordance with law. Surmukh Singh, PW7 and Paramjit Singh, PW8 witnessed the murder of Hardev Singh and Lakhwinder Singh, minor sons of the appellant, at about 11:30/12 PM on the intervening night of 14/15.08.2002. The FIR was recorded at 01:10 PM on 15.08.2002 after a delay of about 10 hours. Surmukh Singh has deposed that after witnessing the ghastly murders, he returned to his house as he wanted to consult the panchayat whereas Paramjit Singh has deposed that he left for Ram Darbar, Chandigarh, to inform the maternal grand parents of the deceased children. Surmukh Singh has deposed that he informed the sarpanch about the incident and thereafter informed the police. The explanation may not be entirely satisfactory, but human conduct is fickle. While reacting to a given situation two persons may and often do react differently, as one may rush to a police station immediately whereas another may be so shocked as to ponder over the occurrence and may take time in lodging a report, with the police. To hold that the prosecution case should be thrown out as Surmukh Singh and Parmajit Singh did not immediately proceed to the police station to lodge a report, would in the facts of the present case, be a travesity of justice. The delay in lodging an FIR has to be read in the context of the facts of a case, the environment in which the incident has occurred, the social milieu of the parties, the nature of the occurrence etc. The eye CRA No.933-DB of 2006 -13- witnesses are a neighbour and the maternal uncle of the deceased children. The FIR was lodged by Surmukh Singh, a neighbour. His explanation for the delay that he wanted to inform the panchayat, is, in our considered opinion, sufficient, in the facts and circumstances of the case, to explain the delay in lodging the FIR.
The un-natural conduct of the eye witnesses in not raising any alarm when the appellant was murdering his children, their return to Surmukh Singh's house and Paramjit Singh's return to Ram Darbar, Chandigarh, to inform the grand parents is a ground strenuously urged by counsel for the appellant. Admittedly, the eye witnesses, while or after witnessing the occurrence, did not raise any alarm, did not inform anyone till 01:10 PM i.e. the time of registration of FIR on 15.08.2002. Though human behaviour is judged on the fulcrum of rationality but as people react differently to the same set of circumstances, the true test, in such a situation, is to consider whether the witnesses have deposed truthfully without embellishing their deposition with falsehood and exaggeration. However, we cannot set down any hard and fast rule, as to what is believable conduct and what is not. The eye witnesses PW7 and PW8 have deposed that they did not raise an alarm, or enter the house as they were afraid that the appellant would kill them as he was carrying a knife. After witnessing this ghastly crime, the eye witnesses were apparently stunned into silence and were petrified at what they had just seen. In an ideal situation, a court would expect eye witnesses CRA No.933-DB of 2006 -14- to intervene, make an attempt to save the children or at least apprehend the appellant before he could commit the crime. But as human conduct and human actions do not follow a predictable course, we do not lay a great degree of stress on the failure of eye witnesses to raise an alarm, intervene in the matter to save children and make an attempt to apprehend the appellant. A fact that persuades us to believe the testimonies of eye-witnesses is that after deposing as to the particulars of the murders they have honestly admitted, during cross-examination, that they signed disclosure statements, made by the appellant, without knowledge of their contents. If the eye witnesses were procured witnesses, they could have easily deposed that they were aware of the contents of disclosure statements. Another fact that persuades us to hold as above is that even as per the appellant his children were murdered by an unknown person and their dead bodies were lying in his room. The appellant made no attempt to inform the panchayat, any other person or the police. The conduct of the accused must also be adjudged on the principles that he seeks to invoke against the eye witnesses. We are, therefore, satisfied that delay in lodging the FIR and failure of the eye witnesses to raise an alarm or intervene when the appellant was murdering his children, is insufficient, in the peculiar facts and circumstances of the present case, to cast any doubt upon the testimonies of PW7 and PW8.
The next argument that as the trial court has cast a doubt upon CRA No.933-DB of 2006 -15- the disclosure statement and the recovery of the daggar and the rope, in the manner suggested by the prosecution, the entire evidence is tainted, must be rejected, in its entirety. It is true that the prosecution has effected recovery of the daggar and the rope pursuant to a disclosure statement made by the appellant. It is also true that PW6 Inder Verma, photographer, has deposed that the rope and the daggar were lying in the room. It is also correct that PW7 and PW8 have deposed that they were not aware of the contents of the disclosure statements when they signed them. As held by the learned trial Court the daggar and rope must have been recovered from the room but the investigating officer in his enthusiasm to establish a water light case, prepared a disclosure statement and a recovery memo. We are satisfied, that the recoveries were not effected pursuant to the disclosure statement and the recovery memo but from the bedroom. The deposition of Inder Verma, PW6, photographer, that the daggar and the rope were lying in the room, clearly establishes these facts. A defective investigation, by an over zealous investigating officer would not discredit prosecution evidence in its entirety particularly when the dead-bodies are recovered from the appellant's house and the murder is witnessed by eye witnesses. The discrepancies in the statements of the eye witnesses with respect to the time when PW8 Paramjit Singh came to the house or the time when the dead bodies were sent for postmortem etc., in our considered opinion, are insignificant and therefore, do not entitle the appellant to any CRA No.933-DB of 2006 -16- benefit.
The question that remains for adjudication is whether there is sufficient evidence on record, to establish that the appellant committed the murder of his two minor sons on the night intervening of 14/15.08.2002. In order to prove its case, the prosecution has examined eye witnesses, PW7 Surmukh Singh and PW8 Paramjit Singh, who have deposed in unison about the facts constituting the act of murder. We have already held that the appellant has failed to discredit the deposition of these witnesses and, therefore, find no reason whether in fact or in law to hold that their depositions are in any manner, procured or untrusworthy.
The case against the appellant can be examined from another angle. The dead bodies were recovered from the appellant's bed room. Section 106 of the Indian Evidence Act, 1872 provides that where facts are within the special knowledge of a person the onus to prove these facts lies upon such a person. The deceased children were admittedly in the custody of the appellant and were last seen with him after he brought them from their maternal grand parents' house, in Ram Darbar, Chandigarh. The appellant's defence is that his children were murdered, in his house, by some unknown person. Even if we discard the deposition of eye witnesses, Section 106 of Indian Evidence Act, 1872, would require the appellant to explain as to in what manner the two minor children died in his house. The appellant has not led any CRA No.933-DB of 2006 -17- evidence to discharge this onus. The deceased children were in the custody of the appellant. The dead-bodies were admittedly lying in the appellant's bed room. The appellant has addressed an application DW1, in an attempt to discredit the entry of sending the recovered material to the forensic science laboratory. We are unable to discern any such error in the register containing this entry as would discredit prosecution evidence. In the absence of any evidence, by the appellant to discharge this onus, we have no option but to hold that the appellant is guilty of committing murder of his two minor sons and has, therefore, been rightly convicted and sentenced by the trial court.
In view of what has been stated hereinabove, the appeal is dismissed.
[RAJIVE BHALLA]
JUDGE
15.11.2011 [ NARESH KUMAR SANGHI ]
shamsher JUDGE
CRA No.933-DB of 2006 -18-