Himachal Pradesh High Court
Harjinder Singh @ Goldi vs State Of Himachal Pradesh on 8 April, 2005
Equivalent citations: II(2005)DMC478
Author: K.C. Sood
Bench: Lokeshwar Singh Panta, K.C. Sood
JUDGMENT K.C. Sood, J.
1. This appeal is directed against the judgment recorded by learned Sessions Judge, Chamba Division, Chamba dated September 21, 2002 whereby the appellant Harjinder Singh, hereinafter referred to as "the accused", has been convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer simple imprisonment for life and fine of Rs. 10,000/-. In case of default in the payment of fine, the accused is to suffer further simple imprisonment for one year.
The prosecution case:
2. Shivdeep Kaur (hereinafter referred to as the "deceased"), daughter of Buta Singh was married to Harjinder Singh @ Goldi (hereinafter referred to as the "accused") in the year 1999. Accused was not gainfully employed. At the relevant time, deceased was living in her matrimonial home in Canadian Colony, Khairi in the District of Chamba with her in-laws. Accused used to quarrel with his wife. Her parental house was also in Canadian Colony at Khairi but accused would not permit his wife to go to her parental house. On June 25, 2000, deceased wanted to go to her parental house. The accused resisted. Arguments ensued. The accused picked up a sharp-edged instrument and hit it on the head of Shivdeep Kaur which resulted in her death.
3. Buta Singh, father of deceased was informed by Babu Ram Driver P.W. 20 about the incident. Buta Singh along with his wife went to the hospital and found his daughter dead. The report was lodged with the police. The case was investigated by Inspector Kishan Chand who took the photographs of the crime scene. The dead body was sent for post-mortem after holding necessary inquest and completing other formalities. The accused absconded. He was ultimately arrested on the same evening near village Kandai. At the instance of the accused, weapon of offence was recovered and taken into possession.
4. Dr. Manju Mittal (P.W. 8) who conducted the post-mortem on the dead body of deceased found the following injuries on her person:
1. CLW about 3" bone deep extending from left parietal to right parietal, bone was fractured.
2. CLW about 3" x 1" right parietal bone. Bone was fractured.
3. CLW about 1/2" x 1" right frontal bone.
4. Two bruises 2" x 1" and 1" x 1" size over middle of chest.
Cradium and spinal cord.
1. Fracture of left parietal bone, right parietal bone and right frontal bone. Laceration of corresponding meanings and injury to brain.
Thorax:
Wall ribs and cartilages were normal. Pleurae, Larynx and trachea, right lung, left lung were congested. Pericardium was congested, heart and large vessels were empty.
Abdomen:
Walls, peritoneum and mouth, harynx and oesophagus were omal:
Stomach and its contents: Undigested and sime-digested
food present
Small intenstines and their contents: Filled with intestinal contents and
gages.
Large intestines and their contents: Filled with intestinal contents and
gages.
Liver, spleen, kidney : Normal.
Bladder : Normal.
Organs of generation external
and internal: Normal.
Muscles, Bones and Joints :
As described above."
5. Doctor Manju Mittal opined that the death was caused due to head injury which fractured the left and right parietal bones and right frontal bone. She is of the opinion that the injuries sustained by the deceased could be caused by the iron rod, the weapon of offence.
6. It may be noticed at the outset that the case of the prosecution entirely rests on circumstantial evidence. The circumstances on which the prosecution rely are:
(a) Strained relations between the accused and his deceased wife and quarrel between them on the date of occurrence;
(b) Accused had raised demand for a motor cycle and T.V. which was not met; (c) Accused was alone with the deceased in his house at the relevant time; (d) Conduct of the accused immediately after the occurrence; (e) Recovery of weapon of offence pursuant to the disclosure statement made by the accused; (f) Blood stains on the clothes of the accused when arrested and his false explanation for such stains.
7. We are not unmindful that when a conviction is sought, particularly for an offence so heinous as murder, on the basis of circumstantial evidence, then prosecution must prove those circumstances with cogent and unimpeachable evidence. Conviction, no doubt, can be based solely on circumstantial evidence provided the prosecution establishes the circumstances from which the inference of guilt is sought to be drawn. Such circumstances, if established, should be consistent only with the hypothesis of the guilt of the accused. Circumstantial evidence has to be of conclusive nature and tendency to exclude any hypothesis except the guilt of the accused. The chain of circumstances should be so complete to exclude any possibility of innocence of the accused.
8. The following conditions, as observed by the Apex Court in Sharad Bidhichand Sarda v. State of Maharashtra, AIR 1984 S.C. 116, must be fulfilled before a case against an accused based on circumstantial evidence, can be said to be established--
(a) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must and should' and not 'may be' established;
(b) the facts so established should be consistent only with the hypothesis of the guilt of accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(c) the circumstances should be of a conclusive nature and tendency;
(d) they should exclude every possible hypothesis except the one to be proved; and
(e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
9. We may now examine the evidence on record whether or not the circumstances relied upon are established. If established, whether these circumstances are consistent with the guilt of the accused and are of convulsive nature and tendency:
(a) Strained relations between the accused and his deceased wife and quarrel between them on the date of occurrence--
It is admitted position before us that the deceased wife was married to the accused about one year prior to the incident. There is also no dispute that relations between them were far from cordial. They used to quarrel regularly with each other. It is the evidence of Buta Singh, father of the deceased that accused used to give beatings to his deceased daughter. Saravjit Kaur (P.W. 3), mother-in-law of the deceased denies the suggestion in her cross-examination that on the fateful morning, the deceased was insisting to go to her parental house but accused resisted. She was confronted with her statement under Section 161 of the Code of Criminal Procedure (Exhibit P.D.) wherein it is recorded that deceased Shivdeep Kaur said to her husband the 'accused' that she wanted to go to her parental house and when she got ready to go, accused refused permission and insisted that she will not go.
Thereafter, she and her daughter suggested that both of them should go together in the evening but husband did not agree even to this Suggestion. The reason for this somersault is not far to seek. Accused is son of this witness. Evident as it is, she is trying to save her son. In any event, the evidence read as a whole clearly suggests that relations between the accused and his wife were far from cordial and some quarrel or argument had ensued between them on the morning of the date of occurrence.
(b) Accused had raised demand for motor cycle and T.V.--
There is no evidence to conclude that accused raised any demand for motor cycle and T.V. which was no; met. It is true that Buta Singh, father of deceased, speaks about the demand for T.V. and motor cycle in his cross-examination but in his statement under Section 154 of the Code of Criminal Procedure (Exhibit-PB) he has not said a word about it. What he says in his statement is that his daughter Shivdeep Kaur and son-in-law Harjinder had been quarrelling with each other for the last about one month. This circumstance is not prove.
(c) The accused was alone with the deceased in the house at the relevant time--
12. It is the evidence of Smt. Sarabjit Kaur (P.W. 3), mother-in-law of the deceased, that she along with her daughter Gurjinder left her house to the house of one Pala. At that time, deceased was alone in the house as her son left earlier. In cross-examination, she candidly admits that when she left the house, deceased and her husband were quarrelling. In her own words--
"...both the accused and the deceased were quarrelling. It is correct that thereafter I along with my daughter went to the house of one Pala."
It is true that in the later part of her cross-examination, she back tracked to say that accused left the house before she and her daughter went to meet Gurdeep Kaur but this is again to cover up her son, the accused. Gurjinder Kaur (P.W. 4) sister of the accused states that she and her mother left the house to meet Gurdeep Kaur after accused has left the house. There is no other evidence to suggest that accused was alone in the house with the deceased. This circumstances, in our view, is not established beyond doubt.
(d) Conduct of the accused immediately after the occurrence.
It is the case of the prosecution that the conduct of the accused immediately after the occurrence was unnatural. He instead of informing the police or calling the doctor, was indifferent. He neither informed the police nor took any steps to take his wife to the hospital. He did not visit the hospital where his wife was taken in an ambulance. It is the evidence of Saravjit Kaur (P.W. 3), mother of the accused, that the deceased was taken to the Hospital by her and her daughter and the accused did not accompany them in the ambulance and he did not even come to the hospital. In her own words--
"It is correct to suggest that I and my daughter took the deceased to hospital in an ambulance but my son Harjinder Singh did not accompany us in the Ambulance. It is correct that my son did not come to the hospital even. It is correct that Buta Singh and his wife came to the Hospital but the accused even then did not turn up to the Hospital."
The accused, it is not disputed, was in the house when the deceased was taken to the hospital. Saravjit Kaur very clearly states that accused had come to the house before the arrival of the ambulance. According to her 'accused' asked her as to what had happened on which she told him that she did not know how the deceased sustained head injury. Similarly, the testimony of Gurjinder Kaur (P.W. 4), sister of the accused is that she and her mother took the deceased to the hospital and while accused was coming to the hospital, he was arrested by the police. Vinod Kumar (P.W. 7) lives next door to the house of the accused. It is his evidence that at about 10.45 a.m., Gurjinder Kumar, sister of the accused came to his house for making a telephone call. He told her that his telephone was out of order. On his asking as to why she wanted to make a call, she informed him that something had happened to the deceased. It is his testimony that when he was standing in the courtyard of his house, he saw mother and sister of the accused taking the deceased in the ambulance. At that time, accused was standing at some distance. According to him, "the accused did not accompany his deceased wife in the ambulance and remained standing there". This part of the testimony is not disputed in the cross-examination. Bihari Lal (P.W. 12) was the driver of the ambulance in which deceased was taken to the hospital. It is his evidence that on the fateful day, he was directed to bring a patient from the residence of the accused. He went to the quarter where deceased was lying with a wound on her head and blood was oozing. The mother-in-law and sister-in-law ('Nanad') of said patient were also present. He asked them as to what had happened but both of them kept quiet and evaded the question regarding injuries on the person of the deceased. It is his evidence that the injured was put in the ambulance by her mother-in-law and sister-in-law. Accused in the mean while, came there. The clothes of the accused were stained with fresh blood.
It thus is conclusively established that accused, though present on the spot, did not accompany his injured wife to the hospital. It would only have been natural for any husband, if he is innocent, to inform the police, take the injured wife to the hospital but accused neither informed the police nor sent far ambulance nor made any effort to take the wife immediately to the hospital. He did not even visit the hospital or speak to the doctors about the health of his deceased wife. The circumstances is conclusive in nature and tendency unerringly pointing towards the guilt of the accused.
(e) Recovery of weapon of offence pursuant to the disclosure statement made by the accused.
It is the case of the prosecution that the weapon of offence, an iron rod, with which accused inflicted injuries on the head of his deceased wife Shivdeep Kaur was discovered on the disclosure statement made by the accused. It is the evidence of Inspector Kishan Chand (P.W. 21) the Investigating Officer that the accused was arrested on the late evening of June 25, 2000. One June 27, 2000, the accused was interrogated and he made a disclosure statement in the presence of Rattan Chand and Bhim Ram that the iron rod has been kept concealed by him in the house of his father and he alone has the knowledge about it and get the same recovered. His statement was recorded in terms of Memorandum "Exhibit PF" and was signed by the witnesses. The iron rod Exhibit P3 was recovered from the house of the father of the accused. This rod was stained with blood. The rod was sealed in a sealed parcel and subsequently sent to the Chemical Examiner.
Rattan Chand (P.W. 6) was ward member of the Gram Panchayat, Sanelu at the relevant time. It is his evidence that he and Bhim Ram were joined in the investigation of this case on June 27, 2000. Bhim Ram is Up-Pradhan of this Panchayat. According to Rattan Chand, the accused was interrogated in his presence. On interrogation, accused disclosed that he killed his wife with an iron rod and that he had kept the iron rod in his house and can get the same recovered. The statement so recorded is "Exhibit PF". Now ignoring the testimony of this witness that the accused confessed to the killing of his wife, the remaining part of his testimony clearly shows that the disclosure statement, in terms of Exhibit PF was made by the accused to the effect that he had concealed the iron rod in the house of his father, the fact of which is known to him along and he could get the same recovered. This statement is signed by two witnesses Rattan Chand and Bhim Ram apart from the accused.
It is the further evidence of this witness that after the recording of this statement, accused took them to his house and got the iron rod recovered which was concealed behind wooden planks. The said iron rod was stained with blood and was sealed by the Investigating Officer on the spot. In cross-examination, he tells us that he was called by a constable informing him that he was to be a witness to the interrogation of the accused and the Inspector has called him as he was a ward member and he is not sure whether he had come to the Police Station for his personal work. He reiterates in cross-examination that the iron rod was got recovered from underneath the heap of wooden planks in a room.
This evidence on record establishes that iron rod Exhibit P3 was recovered pursuant to the statement made by the accused under Section 27 of the Evidence Act.
The next question which arises for consideration is whether or not this rod Exhibit-P3 is the weapon of offence. Dr. Manju Mittal (P.W. 8), who conducted the post-mortem, clearly states that the injury found on the head of the deceased could be caused by iron rod Exhibit P3. She has not been cross-examined on this aspect of the case. Now this rod, which was stained with blood, was sealed on the spot and was sent to the Chemical Examiner. The Chemical Examiner in his report Exhibit PT records that parcel No. 2 sealed with three Seals of 'H' contained an iron rod. The rod was round from one end and pressed (sharp edged) from the other. This rod was subjected to test for blood and its group and it was found that the rod had human blood stains of Group "A". By the same report, the Chemical Examiner found that the sample of blood, which was taken into possession by, the Investigating Officer from the scene of crime, as also the blood on the clothes of the deceased was human blood of Group 'A'. In other words, both the 'rod' Ext. P3, the weapon of offence and the clothes of the deceased had stains of human blood stains "Group-A". This clearly shows that the road "Exhibit P3" is the weapon of offence recovered at the instance of the accused.
This apart, Saravjit Kaur (P.W. 3), mother of the accused, very candidly admits in her cross-examination that the rod in question belong to them and was used for agriculture purpose in the kitchen garden. She also does not dispute that this rod (Exhibit P3) had some blood on it though she maintains that the rod was lying on the floor near the dead body of the deceased. So a similar effect, is the statement of Gurjinder Kaur (P.W. 4), sister of the accused. The conclusion is inescapable that rod Exhibit P3 is the weapon of offence recovered at the instance of the accused and is an important link in the chain of circumstantial evidence which unerringly implicates the accused with the death of his wife Shivdeep Kaur.
(f) Blood stains on the clothes of accused when arrested and his false explanation for such stains--
The clothes of the accused worn by him on the day of occurrence were taken into possession by the police on June 27, 2000, vide memo Exhibit PH. These clothes were handed over by him to the Investigating Officer from his house when he was taken there for the recovery of weapon of offence. Rattan Chand, witness to the recovery and the Investigating Officer Inspector Kishan Chand unambiguously state that accused produced his shirt Ext. P13, Pyjama Ext. P14 which had blood stains. Pyjama and shirt were taken into possession by memo Ext. PH. It is the evidence of Rattan Chand (P.W. 6) that accused produced a Kameej and Pyjama which were stained with blood. The same were taken into possession and sealed in a separate parcel with seal 'H'. Both these witnesses have not been cross-examined on this aspect of the case. Even accused in his statement under Section 313 of the Code of Criminal Procedure does not deny that clothes worn by him were taken into possession by the Police which had blood stains. The report of the Chemical Examiner "Ex. PT" shows that both the shirt and Pyjama worn by the accused on the date of occurrence had blood stains of Group A which is also blood group of the deceased. The accused when confronted with this, gave a false explanation saying that though his clothes were stained with blood but it happened when he put his wife in ambulance in injured condition and the blood oozed from her wound on his clothes. In answer to question No. 23, his explanation is--
Q. 23. It has further come in evidence against you that you produced your torn and blood stained shirt Ext. P13 and Pyjama Ext. P14 before the police which was taken into possession vide memo Ex. PH after sealing the same with the same seal 'H', and the seal after use was handed over to witness Bhim Ram. What have you to say.
Ans. It is incorrect. The police took into possession my clothes which were stained with blood. This happened when I put my wife in the ambulance in injured condition and blood was oozing from her person."
We have already observed and noticed that it was mother and sister of the accused who put the deceased in ambulance and accused only stood by at some distance. He did not even touch his deceased wife. He did not even visit the hospital. The explanation given by the accused is absolutely false. The circumstance is fully established and unerringly points towards the guilt of the accused.
10. The Supreme Court in State of Tamil Nadu v. Rajendran, , observed that in case of circumstantial evidence when an incriminating question is put to the accused and the accused either offers no explanation or offers an explanation which is found to be untrue, then no explanation or false explanation becomes an additional link in the chain of circumstances to make the chain complete.
11. In the present case, the cumulative effect of the circumstances (a), (b), (e) and (f), which are proved beyond any reasonable doubt exclude any hypothesis with the innocence of the accused. The circumstances discussed above clearly prove that it was the accused and none other who killed his wife by inflicting injury with iron rod "Exhibit P-3" on her head. These circumstances taken together unerringly points towards the guilt of the accused and negatives his innocence. The circumstances, as established, complete the chain to prove that it was the accused and accused alone who in all human probability killed his wife Shivdeep Kaur. The circumstances are conclusive in nature and consistent only with the guilt of the accused.
12. We notice that learned Sessions Judge without looking to the provisions Of Section 302 of the Penal Code has sentenced the accused to simple imprisonment for life and fine of Rupees 10,000/-. Section 302 of the Panel Code provides for the punishment for murder. It reads:
"302. Punishment for murder--Whoever commits murder shall be punished with death or imprisonment for life, and shall also liable to fine".
13. A reading of the above provision shows that accused who is found guilty for murder shall be punished with death or imprisonment for life and also fine. It does not say imprisonment for either description and, therefore, the punishment which a murderer must suffer is imprisonment for life and not simple imprisonment for life.
14. It is true that sentence of life imprisonment has not been defined either in the Indian Penal Code or the Code of Criminal Procedure. It is no where provided that life convict has to undergo rigorous imprisonment or simple imprisonment. The Apex Court in Nasib Singh v. State of Punjab and Ors., , held that the nature of punishment required to be suffered under a sentence of "imprisonment of life" is rigorous imprisonment. This view was reiterated by the Apex Court in Sat Pal v. State of Haryana and Anr., .
15. It was not given to the learned Sessions Judge to have awarded simple imprisonment for life for an offence punishable under Section 302 of the Indian Penal Code.
16. In result, appeal against conviction fails and is dismissed. The conviction of the accused for an offence under Section 302 of the Indian Penal Code is upheld though for reasons other than given by learned Sessions Judge. The sentence imposed is modified. The accused is sentenced to suffer imprisonment for life and to pay a fine of Rupees 5,000/-. In case of default in the payment of fine, accused shall suffer imprisonment for two years.
17. Before parting, we notice with anguish that the learned Sessions Judge has based the impugned judgment without application of mind and without analysing the evidence on record be merely saying that the witnesses are not partisan, are trustworthy and that testimony of father of the deceased is corroborated by Dharam Singh who informed the father of the deceased that his daughter is admitted in the hospital. Learned Sessions Judge has not considered a single circumstance appearing against the accused. Learned Sessions Judge observed:
"...No positive, cogent and reliable evidence has been adduced by the accused as to why he got recovered the weapon of attack i.e., iron rod Ex. P-3 clotted with blood from the wooden planks."
18. Learned Sessions Judge will do well to remember that it is not for the accused to lead positive, cogent and reliable evidence to prove his innocence. In fact, reading of the judgment does not make any sense.