Punjab-Haryana High Court
Salim Masih Son Of Dara Masih vs State Of Punjab on 21 May, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-138-DB of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA NO.D-138-DB of 2012
Salim Masih son of Dara Masih, resident of village Kala Afgahana, Tehsil
Batala, District Gurdaspur.
.....................Appellant
Versus
State of Punjab .......................Respondent
AND MURDER REFERENCE NO.2 OF 2012 DECIDED ON : 21.05.2013 State of Punjab .......................Prosecutor Versus Salim Masih son of Dara Masih, resident of village Kala Afgahana, Tehsil Batala, District Gurdaspur.
........................Convict/Respondent CORAM HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present:- Mr. J.S.Chahal, Advocate for appellant in CRA No. D-138-DB of 2012 and for Convict/respondent in Murder Reference No. 2 of 2012. Mr. PPS Thethi, Additional Advocate General, Punjab for State of Punjab.
CRA NO.D-138-DB of 2012 2S.P.BANGARH, J Criminal appeal i.e CRA No.D-138-DB of 2012, titled Salim Masih versus State of Punjab and Murder Reference No. 2 of 2012, titled State of Punjab versus Salim Masih arise from the common impugned judgment and order. These are, therefore, being decided by this common judgment.
Case of the prosecution is that on the intervening night of 15/16.05.2009, Navraj Singh complainant went to the house of Gurbax Singh, located in the area of village Kala Afghana for some personal work and after having a conversation, both Navraj Singh, complainant and Gurbax Singh were going in the street of the village. They heard the shrieks from the house of the deceased (name kept secret). Thereupon, both entered in that house, where an electric bulb was on at about 11:30 p.m. They both found Salim Masih appellant trying to commit rape on deceased and the latter was resisting the former. It is alleged that Salim Masih appellant picked up a brick lying, nearby, and gave its two blows on the forehead of the deceased. When Navraj Singh, complainant and Gurbax Singh raised alarm, appellant ran away. Deceased was removed to Civil Hospital, Batala, where she succumbed to her injuries received in the incident on the morning of 16.05.2009. Aforementioned statement Ex.PW2/A of Navraj Singh, complainant was recorded by Harbhajan Singh, SI, whereon, latter put his endorsement Ex.PE/1 and sent the same to police station, where formal FIR Ex.PA/2 was recorded. Later, Harbhajan Singh, SI inspected the place of occurrence and prepared rough site plan Ex.PB, thereof, He found a blood stained brick and salwar lying there, whose separate parcels were prepared, that were seized vide memo Ex.PC.
Harbhajan Singh, SI later went to the civil hospital, Batala, where the corpse of the deceased was lying. He prepared inquest CRA NO.D-138-DB of 2012 3 report Ex.PW4/A, thereon, and sent the same to the mortuary along with application Ex.PE containing request for conducting autopsy. Clothes of the deceased were produced by Jaswant Singh, HC before Harbhajan Singh, SI, who prepared parcel, thereof, and seized that vide memo Ex.PF. He also arrested appellant on 18.05.2009.
After completion of investigation, Station House Officer of Police station Fatehgarh Churian 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 Salim Masih committed offences punishable under Sections 376, 452 and 302 IPC.
On presentation of police report, copies of documents as required under Section 207 Cr.P.C were furnished to the appellant by the learned Illaqa Magistrate, who later committed this case to the Court of Session, where charge under Sections 452, 376 and 302 of the Indian Penal Code ('IPC' for short) was framed against the appellant, whereto, the latter pleaded not guilty and claimed trial. Consequently prosecution evidence was summoned.
At the trial, prosecution examined Dr.Harbhajan Singh as PW1, who tendered his affidavit Ex.PW1/A adjuring, therein, that on 16.05.2009, at 04:00 p.m, he conducted autopsy on the corpse of deceased wife of late Inderjit Singh, 45 years female, resident of village Kala Afghana under police station Fatehgarh Churian. Corpse was brought by Jaswant Singh, HC No. 2542 and Daljeet Singh, C No. 1727 that was identified by Baldev Singh son of Mahinder Singh, resident of village Kala Khana and Jasbir Singh son of Kartar Singh. Symptoms observed before death were as per hospital record. As per information furnished by the police, the death was due to brick. Length of the corpse was 4'8/9". Corpse of thin and lean female wearing mehandi colour kameez and white payjama with off white chunni. Rigor CRA NO.D-138-DB of 2012 4 mortis were present on all limbs. Staining was present on dependent part in supine position and eyes and mouth were semi open.
As per affidavit Ex.PW1/A, Dr.Harbhajan Singh PW1 recorded the following injuries on the person of deceased:
1. A sutured wound 4 cm x linear with 5 sutures on the left side of the forehead just away from the eye brow, oblique in direction. On dissection, underlying frontal bone was broken into pieces. There was presence of collection of blood of 30 cc size pressing on the brain matter;
2. A sutured wound 4.5 cm x linear oblique in direction on the right side of the forehead above the right eye brow. On dissection underlying frontal bond was fractured and there was present sub dural haematoma of 2 cm size pressing on brain matter;
3. A sutured wound 2 cm x linear near the right eye. Wound was muscle deep, clotted blood was present;
4. There was presence of blue contusions on both eyes. On dissection, the blood was seeping in the eye muscles;
5. 1.5 cm x linear L.W on the right maxillary eminence wound was muscle deep;
6. Reddish blue abrasion on the lateral aspect of right breast.
According to the affidavit Ex.P1/A of Dr.Harbhajan Singh, stomach of the deceased was healthy and contained 150cc of semi digested food particles and rest of the viscera was healthy. Uterus was healthy and non gravid. Vaginal swabs were taken by the medical officer, while conducting the MLR . PW1 Dr.Harbhajan Singh, in his affidavit ibid, opined that cause of death, in this case was shock and haemorrhage as a result of head injury (injuries nos. 1 and 2), which were ante mortem in nature and head injury was sufficient to cause death in an ordinary course of nature. PW1 handed CRA NO.D-138-DB of 2012 5 over to the police, the reconstituted corpse with its wearings, carbon copy of the autopsy report and police papers in original duly signed by him from page 1 to 30 alongwith photocopy of the bed head ticket. According to PW1, probable time that elapsed between injury and death was about six to seven hours and between death and post mortem examination was within 12 hours.
PW2 Navraj Singh, complainant deposed that deceased was the daughter-in-law of Gurdial Kaur, who was his mother's sister. He further deposed that deceased used to reside at village Kala Afghana and on the intervening night of 15/16.05.2009, he went to the house of Gurbax Singh, Lumberdar and when he came back at 11:30 p.m, he heard the shrieks from the house of deceased and thereupon, he ran towards that house, where electric bulb was blowing and there was sufficient light and in that light, he saw appellant Salim Masih, present in the court, committing rape upon the deceased, who resisted it and after that, Salim Masih appellant gave two blows of brick on her head, which was resisted by the latter and then they raised hue and cry and on this, Salim Masih appellant ran away from the spot. He further deposed that deceased was lying there full of blood and they arranged the conveyance and shifted her to civil hospital, Batala, where she succumbed to her injuries on the morning of next day. He further deposed that when he was coming back from the hospital to his village, Harbhajan Singh, SI met him at bus stand Kala Afghana and he made his statement Ex.PW2/A before him, that was read over and explained to him and he signed the same in token of its correctness.
PW3 Gurbax Singh deposed that on the intervening night of 15/16.05.2009, Navraj Singh of his village came to him to discuss the household matter and he went out of his house to see him off in the street at about 11:30 p.m, where they heard the shrieks coming from the house of the deceased and after hearing the same, they went there. PW3 further deposed CRA NO.D-138-DB of 2012 6 that an electric bulb was blowing and Salim Masih appellant present in the Court had got deceased lie on the ground to commit sexual intercourse with her, that was resisted by the deceased and Salim appellant picked up a brick and gave two blows, thereof, on her head, who then fell on he ground full of blood and there was hue and cry and many people gathered there. He further deposed that the appellant ran away from the spot and deceased was taken to civil hospital, Batala, where she succumbed to her injuries on the next day and he made statement to the police.
PW4 Jasbir Singh deposed that deceased was his sister and on 16.05.2009, he identified her corpse and signed inquest report Ex.PW4/A and made statement Ex.PW4/B to the police that was read over to him and he signed the same after admitting its correctness.
PW5 Sukhwinder Singh, PHC tendered in evidence, his affidavit Ex.PW5/A. PW6 Dr.Sudesh Kumar tendered in evidence, his affidavit Ex.PW6/A adjuring, therein, that on 16.05.2009, he was posted as Medical Officer, civil hospital, Batala and on that day at about 01:15 a.m, he medico legally examined deceased and found the following injuries:-
1. 4 cms x 1 cm lacerated wound obliquely placed was present on left side of fore head, bone deep above and outside the left eyes. Clotted blood was present, underlying bone was fractured;
2. 2 cms x 1 cm lacerated wound bone deep on right side of fore head in the anterior hair line. Underlying bone was fractured. Clotted blood was present;
3. Reddish contusion and diffuse swelling of both eyes;
4. 2 cms x 2 cms reddish abrasion on extensor aspect of right fore-arm 5 cms above the wrist joint;
5. 1.5 cms x 0.5 cm lacerated wound on the outer end of right eye brow. CRA NO.D-138-DB of 2012 7
Clotted blood was present;
6. 1 cm x 0.5 cm lacerated wound on the maxillary eminence of right side of face and
7. patient was without salwar and naked. Advised gyane opinion. PW6 further deposed that injuries nos. 1 to 7 were blunt in nature and probable duration of injuries was within six hours. He also adjured that injuries nos. 1 to 3 were kept for x-ray examination while injury no.7 was referred for gynecological opinion and injuries nos. 4,5 and 6 were declared simple in nature. He also adjured in his affidavit Ex.PW6/A that on receipt of x-ray report, injuries nos. 1 to 3 were declared simple in nature. Gynecological opinion for rape was taken from Dr.Tajinder Kaur Tung and Dr.Rajinder Kaur and as suggested by Dr.Tajinder Kaur Tung, swabs were sent to the chemical examiner to Punjab Government, Kharar for chemical examination for presence of semen and spermatozoa, through Constable Daljit Singh, No. 1727 on 16.05.2009, whose report has not been received so far. PW6 proved the copy of MLR Ex.PW6/B and bed head ticket Ex.PW6/C. PW7 Dr.Ashwani Kumar also tendered in evidence his affidavit Ex.PW7/A adjuring, therein, that on 20.05.2009, he was posted at CHC, Fatehgarh Churian, District Gurdaspur and examined Salim Masih at about 11/12:15 p.m and found the following injuries on his person:
1. A lacerated wound 2.5 cms x 0.6 cm present, on the lateral side of terminal part of little finger of (L) hand. The wound contained infected blood and debris. No swelling was present. The wound tender, on examination of genitals, small pubic hair about 6-7 mm long and black in colour present. No matting of hair found. Size of penis normal, frenulm normal, smegma present around the coronal sulcus. PW7 further deposed that no blood stains were found, testis were normal, CRA NO.D-138-DB of 2012 8 some stains were present in front and back of underwear( underwear sent for examination to state forensic expert);
PW7 further deposed that the injury was declared simple and caused due to blunt weapon. The duration of injury was declared to be caused within a weak and in his opinion, after examination of the person, there was nothing to suggest that he was incapable of performing sexual intercourse. PW7 also proved the copy of the MLR Ex.PW7/B, as also, brought the original record with him. PW7 further deposed that till date, he has not received the report from State Forensic Expert regarding examination of stains on the underwear of the person.
PW8 Inderjit Singh, SI deposed that on 25.05.2009, he was posted as SHO, police station, Fatehgarh Churian and investigation of this case was entrusted to him on that day and during investigation on 17.06.2009, Kamaljit Singh, MHC sent blood stained brick, blood stained earth contained in a plastic box and clothes of the deceased converted into parcel alongwith one salwar in a separate parcel to Forensic Science Laboratory through Sukhwinder Singh, HC in an intact condition and he recorded the statements of the witnesses and on completion of investigation, he prepared the challan.
PW9 Harbhajan Singh, Inspector deposed that on 16.05.2009, he was posted as Incharge, police post Kala Afghana and on that day, he alongwith other police officials was present at bus stand, where Navraj Singh met him and made his statement Ex.PW2/A, that was read over to him and he signed the same in token of its correctness and he (PW9) made his endorsement Ex.PA/1, thereon, and sent the same to police station, where formal FIR Ex.PA/2 was registered. He further deposed that later he went to the spot and prepared site plan Ex.PE with correct marginal notes. He also deposed that a blood stained brick and a salwar were lying at the spot, that CRA NO.D-138-DB of 2012 9 were made into separate parcels, which were sealed by him with his seal bearing impression 'HS' and seized vide memo Ex.PC. He also deposed that he lifted the blood stained earth and prepared its parcel, that was seized vide memo Ex.PD. Parcels of brick Ex.P1, of salwar Ex.P2 and of earth Ex.P3 were produced during his deposition. He further deposed that he went to the hospital, where corpse of the deceased was lying in the mortuary and he prepared an inquest report, thereon, Ex.PW4/A and sent the same for autopsy by moving an application Ex.PE. He further deposed that he arrested the appellant on 18.05.2009. He also deposed that clothes of deceased were produced before him by Jaswant Singh, HC, that were seized vide memo Ex.PF after preparing a parcel, thereof.
After tendering in evidence, report of Forensic Science Laboratory Ex.PG, prosecution evidence was closed.
After the closure of he prosecution evidence, appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of prosecution, pleaded innocence and false implication in this case.
He made his own version that he had been working with Navraj Singh, complainant as a farm labourer and latter had not given him salary that he used to demand time and again and due to this, there was an altercation with Navraj Singh, who threatened him that, whenever, he will get an opportunity, he will teach him a lesson. He further stated that brother of Navraj Singh namely Prabhjot Singh remained sarpanch of the village for many years and active supporter of Shri Nirmal Singh, Speaker of Punjab (Ruling party) and with the help of the latter, he has been implicated falsely in this case by them.
Appellant was called upon to enter in defence, but he closed the same without examining any witness in defence.
After hearing both the sides, learned trial Court vide CRA NO.D-138-DB of 2012 10 impugned judgment of conviction, convicted the appellant for commission of offences punishable under Sections 302 IPC, 452 IPC and 376 IPC read with Section 511 IPC and vide impugned order of sentence, sentenced him to death for commission of offence punishable under Section 302 IPC. Fine was not imposed in view of the order dated 13.05.1999 of the Hon'ble Apex Court, passed in Ajaib Singh vs. State of Punjab Crl. Appeal No. 601 of 1999, arising out of SLP (Crl.) No. 289 of 1999.
Learned trial Court sent murder reference No.2 of 2012 for confirmation of death sentence awarded to the appellant, while latter filed Criminal Appeal No. D-138-DB of 2012 with prayer for acceptance, thereof and for his acquittal of offences, for which he has been convicted and sentenced.
Learned Additional Advocate General Punjab contended that since case of the prosecution falls within the category of rarest of rare cases, the learned trial Court rightly imposed death sentence upon the appellant that may be up held and affirmed by acceptance of Murder Reference no.2 of 2012.
He also contended that no motive can be ascribed to PW2 and PW3 to depose falsely and the learned trial Court rightly believed their testimonies for holding the appellant guilty of commission of offences punishable under Sections 376 IPC read with section 511 IPC and 452 IPC. He also contended that the ocular evidence has been duly corroborated by the medical evidence of PW1 and PW6. He also contended that there is no variation in the ocular and medical evidence in the case and, therefore, there is no illegality or impropriety in the impugned judgment of conviction.
On the other hand, learned counsel for the appellant contended that although, the police post is in the village itself where the alleged incident took place, even so, the incident was reported to the police CRA NO.D-138-DB of 2012 11 after 11 hours and due to this delay, possibility of false implication of the appellant cannot be ruled out. He also contended that there was no medical evidence regarding rape and the learned trial Court acquitted the appellant of charge under section 376 IPC, but wrongly convicted him for commission of offence punishable under Section 376 IPC read with Section 511 IPC. He also contended that PW2 has animus towards the appellant and, therefore, his testimony has been wrongly relied upon by the learned trial Court. He also contended that the deceased herself was abnormal who did not know how to wear clothes and her salwar was not opened by the appellant, that was opened by the deceased herself. He also contended that the deceased was living alone, separate from her children and, therefore, possibility cannot be ruled out that some unknown persons inflicted injuries on her and the appellant has been falsely implicated in the case due to animosity with Navraj Singh, complainant.
We have heard the contentions raised on behalf of the learned counsel for the parties and given our thoughtful consideration, thereto.
PW2 in candid words deposed before the learned trial Court that he and PW3 Gurbax Singh saw appellant inflicting two blows of brick on the head of the deceased. Sequelly, the blood started percolating from the wounds and immediately after the occurrence, she was in he pool of the blood. It is no doubt true that PW2 deposed hat he saw appellant committing rape upon he deceased, but that testimony was not relied upon by the learned trial Court. Simply on the basis of this evidence, that has not been believed by the learned trial Court, the entire testimony of this witness PW2 could not be repelled, as principle of falsus uno and falsus omnibus is not applicable in India. If this principle would have been applicable in India, only in that event, the entire testimony of PW2 could be repelled by the CRA NO.D-138-DB of 2012 12 learned trial Court, therefore, the latter committed no illegality or impropriety by accepting the evidence of PW2 on the point that he saw appellant inflicting two blows of brick on the head of the deceased, who later succumbed, thereto, in the civil hospital, Batala, where she was admitted for treatment after the incident.
PW3 Gurbax Singh also happened to be present at the time of incident alongwith PW2. He also deposed before the learned trial Court that he and PW2 saw the appellant taking brick and giving its two blows on the head of the deceased and later he ran away. However, this witness deposed that the appellant had lied deceased on the ground to commit sexual intercourse. The learned trial Court also concluded that the sexual intercourse upon he deceased had not taken place and it was only an attempt on the part of the appellant to do so, as the deceased at the time of incident was not wearing salwar and that was opened by the appellant in order to commit rape upon her.
The deceaed had every right to resist the rape and her resistance to the appellant to do this illegal act against her body was fully justified and provocation caused by the deceased to the appellant by showing resistance in commission of rape upon her could not mitigate the liability of the appellant, so as to bring his case within the mischief of Section 304 IPC. Appellant knew fully well that his act would cause the death of the deceased. He caused injuries on the forehead of the deceased that is vital on the part of human body. PW2 and PW3 happened to be present at the time of incident. Their presence at the time of incident does not become doubtful in any manner. They were 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 that could possibly cause any dent in their testimony. Therefore, no motive can be ascribed to PW2 CRA NO.D-138-DB of 2012 13 and PW3 to depose falsely in this case.
It is no doubt true that PW2 and PW3 unanimously deposed that an electric bulb was blowing at the place of incident and they spotted the appellant causing two brick blows on the forehead of the deceased in the light of that electric bulb. Learned counsel for the appellant contended that in the site plan Ex.PB PW9 Harbhajan Singh, SI did not show the electric bulb. This error on the part of PW9 cannot make the case of the prosecution doubtful especially when nothing has come on the record that the electric connection has not been installed at the place, where the incident took place. Therefore, simply on the basis of omission on the part of PW9 in not showing the electric bulb in the site plan Ex.PB, the entire version of the prosecution cannot be repelled.
Medical evidence of PW6 indicates that the injuries on the person of the deceased were caused with blunt weapon. Manifestly, the brick is a blunt weapon. So, the injuries that were present on the body of the deceased were caused only with a blunt weapon like brick. The deceased was without salwar and naked at the time, when she was admitted in hospital at Batala. Learned counsel for the appellant contended that the deceased herself was abnormal and, therefore, she herself opened the salwar. There is no evidence on the record to suggest that deceased was suffering from any mental disorder or at the time of occurrence, she had mental abnormality. If his would have been so, PW6 would have mentioned so in his medico legal examination report of the deceased. Therefore, it was the appellant who had opened her salwar with an attempt to commit rape upon her that was not committed as the deceased resisted it and in the meantime, PW2 and PW3 also came at the spot and on seeing them, appellant ran away.
There were two injuries on the head of the deceased as can be seen from the testimony of PW1 Dr.Harbhajan Singh. Even, as per CRA NO.D-138-DB of 2012 14 the testimonies of PW1 and PW6, there were two injuries on the right side of the forehead of deceased. These injuries have been explained by PW2 and PW3 by candidly testifying that two brick blows were given by the appellant upon he deceased on her head. So, there is no contradiction between the ocular evidence of PW2 and PW3 and the medical evidence of PW1 and PW6. It is no doubt true that PW2 and PW3 deposed that the injuries were caused on the head of the deceased while PW2 and PW6 described the seat of injuries on the left and right side of the forehead of the deceased above the eye brow. There is not much gap between forehead and head, therefore, those witnesses described injuries on the head in stead of forehead. So, there is hardly any contradiction on the point of the seat of injuries on the person of deceased and other injuries were sequel to these two brick blows.
As per the testimony of Dr.Ashwani Kumar, PW7 the appellant was capable of performing sexual intercourse. It is the case of the appellant that PW2 was inimical towards him as he was not paying his wages for the work done by him on the agricultural farm of PW2. It is his case that when he demanded wages time and again, an altercation took place and PW2 threatened him that he would teach him a lesson. So, it is his case that PW2 is the supporter of Sh.Nirmal Singh, Speaker of Punjab Vidhan Sabha and with his help, the instant case has been foisted upon him.
It may be mentioned that the appellant led no evidence in support of the version given by him in his statement under Section 313 Cr.P.C. For want of any evidence, this version must be repelled as PW2 could not anticipate that the death of the deceased would be caused by the appellant. If he intended to implicate him falsely, he could implicate him falsely in some other case prior to the incident. So, this version is perfunctory in nature that has not been corroborated by any other evidence. Therefore, for want of any evidence, the defence version given by the appellant in his CRA NO.D-138-DB of 2012 15 examination under Section 313 Cr.P.C cannot be upheld and that must be repelled.
Learned trial Court rightly concluded that witnesses examined in this case are independent and dis-interested and they had no reason to depose falsely against the appellant. Therefore, their testimonies inspire confidence. The incident took place on 15.05.2009 at 11:00 / 11:30 p.m. Injured was medico-legally examined by PW6 at 01:15 a.m on 16.05.2009 and she expired on the same day at 07:50 a.m, as can be seen from the bed head ticket Ex.PW6/C. Navraj Singh PW2 reported the matter to the police and his statement was recorded and completed at 10:25 a.m. Thus, the incident was reported to the police at the earliest possible and the witnesses had no opportunity to make any improvement in the version that has been given by them to the police.
It is no doubt true that here is delay of 11 hours in reporting the matter to the police, yet it can be safely held that the incident took place during odd hours of the night; deceased had to be removed to the hospital. The witnesses were concerned about the safety and well being of the deceased. When the deceased succumbed to her injuries received in this incident, pronto thereafter, the incident was reported to the police. Therefore, delay in lodging the FIR in any manner cannot be held to be fatal to the prosecution case.
PW6 in her deposition clarified that vaginal swabs were taken by Dr.Tajinder Kaur Tung, that were sent to the office of the chemical examiner. The report of the latter was not brought on the record, manifestly due to the reason that no semen of spermatozoa might have been found, thereon. So, the learned trial Court rightly concluded that the deceased was not raped, who on the contrary,was attempted to be raped and she was found without salwar by PW6, when she was medico-legally examined. Even, CRA NO.D-138-DB of 2012 16 PW9 found blood stained salwar of the deceased at the place of incident.
In these circumstances, learned trial Court rightly concluded that appellant had attempted to commit rape upon the deceased after intruding into her house and when he was met with resistance, he gave two blows of brick on her forehead who later succumbed to these injuries in civil hospital, Batala. Learned trial Court, thus, vide impugned judgment of conviction rightly convicted the appellant for commission of offences punishable under Sections 452 IPC, 376 IPC read with Section 511 IPC and 302 IPC, that is, hereby, upheld and affirmed.
Learned State counsel contended that the learned trial Court rightly sentenced the appellant to death, as case falls within the category of rarest of rare cases. On the other hand, learned counsel for the appellant rightly contended that when the learned trial Court came to the conclusion that the appellant had only attempted to commit rape upon the deceased, the case of the prosecution should not have been categorized, as a case in the category of rarest of rare cases, in our view, rightly. This case could fall in the category of rarest of rare cases only, if the deceased would have been raped and then done to death. Therefore, the imposition of death sentence upon the appellant vide impugned order of sentence is a harsh punishment, that must be set aside by declining the Murder Reference No. 2 of 2012 made by the learned trial Court for confirmation of imposition of death sentence upon the appellant. The reference is, therefore, declined and the minimum sentence prescribed under Section 302 IPC shall be condign punishment in this case.
So, the sentence of death imposed upon the appellant for commission of offence punishable under Section 302 IPC by the learned trial Court vide impugned order of sentence is converted to sentence of imprisonment for life. Therefore, the appellant is now sentenced to undergo CRA NO.D-138-DB of 2012 17 imprisonment for life for commission of murder of deceased punishable under Section 302 IPC.
Resultantly, Murder Reference No. 2 of 2012, titled State of Punjab vs. Salim Masih is declined, as also, the Criminal Appeal No. D-138-DB of 2012 is dismissed with modification in the impugned order of sentence as indicated above. It may be reiterated that the appellant shall now undergo imprisonment for life for commission of offence punishable under Section 302 IPC. Period already undergone in jail during investigation, trial and pendency of the appeal shall be deducted from the substantive sentence.
(S.S.SARON) (S.P.BANGARH) JUDGE JUDGE 21.05.2013 mamta
1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or? Yes
3. Whether the judgment should be reported in the digest? Yes