Punjab-Haryana High Court
Kela Devi And Another vs The State Of Haryana on 18 December, 2008
Author: S.S.Saron
Bench: S.S.Saron, Sabina
Criminal Appeal No. 42-DB of 2006 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Appeal No.42 -DB of 2006
Date of Decision: December 18, 2008
Kela Devi and another ...........Appellants
Versus
The State of Haryana ......Respondent
Coram: Hon'ble Mr.Justice S.S.Saron
Hon'ble Mrs. Justice Sabina
Present: Mr.Rahul Vats, Advocate,
Mr.Vikram Singh, Advocate and
Mr.John Kumar, Advocate for the appellants
(Kela Devi and Roshan Lal)
Ms. Ritu Punj, Deputy Advocate General,Haryana
for the respondent-State
* * *
S.S.Saron,J.
This appeal has been filed by Kela Devi (appellant No.1) widow of Sukhbir Singh (deceased) and Roshan Lal(appellant No.2), who is stated to be paramour of Kela Devi (appellant No.1). The appeal is against the judgment dated 30.11.2005 and order of sentence dated 2.12.2005 passed by the learned Additional Sessions Judge, Panipat whereby the appellants have been held guilty for the commission of the offences punishable under Sections 120-B and 302 read with Section 120-B of the Indian Penal Code (for short `IPC') and sentenced to undergo imprisonment for life for each of the offences; besides, to pay a fine of Rs.5000/- each Criminal Appeal No. 42-DB of 2006 2 and, in default of payment of fine, the defaulting convict to undergo further rigorous imprisonment for two months. Substantive sentences for the offences under Sections 120-B and 302 read with Section 120-B IPC have been ordered to run concurrently.
The FIR (Exhibit PK) has been registered on the statement (Exhibit PE) of Surinder Kumar (PW2)son of Baru Ram resident of Karnal made before Suresh Kumar ASI, Police Station City Panipat (PW13). Suresh Kumar ASI (PW13) received intimation about the death of Sukhbir Singh and that his dead body was lying in the dead house at the General Hospital, Panipat. The complainant Surinder Kumar (PW2) got his statement recorded to the effect that his brother- Sukhbir Singh (deceased) had been residing at Noorwala, Jasbir Colony, Panipat for the last about 15 years along with his family members after constructing his house. On 27.5.2004, at about 8.00 a.m., Surinder Kumar (complainant) and his father- Baru Ram were present at their house at Karnal. Sanju son of Sukhbir Singh (deceased), the son of brother of the complainant came at their house and informed that the condition of Sukhbir Singh (deceased) was very serious and they should accompany him. Surinder Kumar (PW2) and his father and other persons reached Jasbir Colony (Gita Colony) at the house of Sukhbir Singh (deceased) and found him lying on a cot. A tube containing pesticides meant for protecting the wheat was lying in a glass near him. Marks of injuries were seen around the neck of Sukhbir Singh. A card board exercise book (Exhibit PD) was also recovered from near him, which was in the hand writing of Sukhbir. It was mentioned by Sukhbir Singh (deceased) regarding the illicit relations of his wife-Kela Devi Criminal Appeal No. 42-DB of 2006 3 (appellant No.1) with Roshan Ror (Roshan Lal-appellant No.2), who worked as a driver in Parkash Factory Panipat. Sukhbir Singh had further written that Roshan (appellant No.2) had beaten him on many occasions on his raising protests. Sukhbir was found lying dead. They brought him to the dead house at the hospital. The cause of death of Sukhbir Singh was that his wife-Kela Devi (appellant No.1) and Roshan Lal (appellant No.2). They had troubled the brother of the complainant-Surinder Kumar (PW2) and had harassed him. Due to the said reason, Sukhbir Singh, brother of the complainant-Surinder Kumar (PW2) had taken some poisonous substance or Roshan Lal and Kela Devi (appellants) in connivance with each other had throttled his neck and killed him during the intervening night of 26/27.5.2004. Necessary legal action was requested to be taken against the culprits; besides, post-mortem examination of the dead body was asked to be got conducted. A photocopy of writings written in the exercise book would be submitted and produced before the Police Officer. The statement (Exhibit PE) was recorded by Suresh Kumar, ASI, Police Station City Panipat (PW13) at 2.10 p.m. on 27.5.2004. Suresh Kumar, ASI (PW13) had received information that the death of Sukhbir Singh had occurred and his dead body was lying in the dead house. Suresh Kumar, ASI (PW13) along with Head Constable Rajinder Singh and Constable Satish Kumar reached General Hospital, Panipat for necessary proceedings. Surinder Kumar (PW2) got his statement (Ex PE) recorded from which offence punishable under Section 306/120-B IPC was found to have been committed for the time being. The writing was sent to the Police Station through Satish Kumar, Constable (PW1) for registration of a case (FIR). Its Criminal Appeal No. 42-DB of 2006 4 number was asked to be intimated after registration. The SHO of the Police Station was asked to be sent at the spot. Besides, special report was also asked to be sent. Suresh Kumar, ASI (PW13) was busy in the investigation at the spot. On receipt of the writing, formal FIR (Exhibit PK) was recorded at 2.20 p.m. and special report was sent to the concerned Officer through Constable Amit Kumar. The special report was received by the C.J.M. Panipat on 27.5.2004 at 5.10 P.M. Thereafter, Pirthvi Raj, Sub Inspector, SHO Police Station City Panipat, Incharge Officer of the Police Station recorded police proceedings. As per the aforesaid report, an offence under Sections 306,120-B IPC was found to be made out and the case was registered accordingly and investigation started. ASI Suresh Kumar, Police Station City Panipat (PW13) was directed to take up the investigation. The first information was read over to the complainant/informer who admitted it as correct. The investigation was carried out by Suresh Kumar ASI (PW13). Suresh Kumar, ASI (PW13) along with Surinder Kumar (PW2) reached the dead house where he met Deepak son of Baru Ram and Baru Ram son of Ram Ji Lal. He prepared the inquest report (Exhibit PU) of the dead body of Sukhbir Singh; besides, he recorded the statement of witnesses. Thereafter, Suresh Kumar (PW2) produced a copy (Exhibit PD) (an exercise note book with card board covers) before Suresh Kumar, ASI (PW13). The same was taken in possession vide recovery memo (Exhibit PQ). An application (Exhibit PU/1) was submitted to the doctor for conducting the post mortem on the dead body of Sukhbir. Head Constable Rajender Singh was left at the hospital. Suresh Kumar (PW13) along with Deepak son of Baru Ram and Head Constable Satish Kumar went to the house of Sukhbir Criminal Appeal No. 42-DB of 2006 5 Singh (deceased) at Jasbir Colony Panipat and inspected the spot. Site plan (Exhibit.PU/2) of the place of occurrence was prepared. Thereafter, from the place of occurrence, one steel glass in which there was an empty tube of pesticides were recovered and taken in possession vide recovery memo (Exhibit PC). The recovered glass is Ex P6 and the empty tube is Ex P6/1. The statements of the witnesses were recorded . Inquiries were also made from the neighbours in the locality. Case property was handed over by Suresh Kumar ASI (PW13) to the MHC.
SI Shamsher Singh (PW3) was posted as Additional SHO Panipat on 29.5.2004. On the said day, Head Constable Rajinder Singh produced before him a parcel containing clothes of the deceased, sealed by the doctor, a parcel containing viscera, a docket of papers and sample seal. These four parcels were sealed by the doctor and were taken in custody by SI Shamsher Singh (PW3) and recovery memo (Exhibit PG) was prepared which was witnessed by Head Constable Rajinder Singh. On receipt of the post mortem report (Exhibit PL) by SI Shamsher Singh, Additional SHO Police Station Panipat (PW3), a progress report was prepared and the offence under Section 306 IPC was converted to that under Section 302 read with Section 120-B IPC. As per the post mortem report (Exhibit PL) the cause of death in the opinion of the doctors was asphyxia due to strangulation. It was also mentioned that any other associated cause would be given after the receipt of report from chemical examiner. A memo to this effect (Exhibit PH) was prepared and a special report was sent to the Chief Judicial Magistrate, Panipat. On the same day, Ishwar Singh, (PW12) Sarpanch of village Garhi Garh Sarnai produced Kela Devi (appellant Criminal Appeal No. 42-DB of 2006 6 No.1) and Roshan Lal (appellant No.2) before Shamsher Singh SI (PW3). They were interrogated in the case and arrested vide memos Exhibit PI and Exhibit PI/1. Thereafter, the statement of Ishwar Singh Sarpanch (PW12) was recorded under Section 161 of the Code of Criminal Procedure (CrPC
- for short). Shamsher Singh, SI (PW3) also recorded the statement of Head Constable Rajinder Singh (PW10) and Constable Ranbir Singh under Section 161 CrPC. On the same day, both the accused (appellants) were got medico legally examined vide application (Exhibit PJ). They were produced before the Illaqa Magistrate on 30.5.2004 who remanded them to judicial custody. SI Prithvi Raj Singh recorded formal FIR (Exhibit PK) in the case. After completion of investigation in this case, Shamsher Singh SI (PW3) prepared the charge report (challan), which was filed by the police in terms of Section 173 Cr.P.C. alleging commission of offence punishable under Section 302 read with Section 120-B IPC. The learned Chief Judicial Magistrate, Panipat vide his order dated 31.7.2004 observed that from the report under Section 173 Cr.P.C and the evidence collected by the police, it appeared that the accused (appellants) had committed an offence punishable under Sections 302/120-B IPC. The offence under Section 302 IPC it was observed was exclusively triable by the Court of Session. Therefore, the case was committed to the Court of the learned Sessions Judge, Karnal. The accused was directed to be produced in the said Court on 14.8. 2004. The commitment order was notified to the learned public prosecutor who was present in Court.
The learned Sessions Judge, Karnal on 17.8.2004 entrusted the case to the Court of the learned Additional Sessions Judge Criminal Appeal No. 42-DB of 2006 7 Panipat who vide order dated 25.2.2005 charged the appellants Kela Devi and Roshan Lal, on the allegations that on 26/27.5.2004 in area of Geeta Colony, Panipat, Kela Devi (appellant No.1) entered into criminal conspiracy with accused Roshan Lal (appellant No.2) to eliminate her husband Sukhbir Singh and, thus, they both committed an offence punishable under Section 120-B IPC. Secondly, on the same date, time and place, they both in pursuance of their criminal conspiracy committed the murder of Sukhbir Singh, and thus, they had committed an offence punishable under Section 302 read with Section 120-B IPC. It was directed that both the accused (appellants) be tried. The charge was read over to the appellants and they pleaded not guilty to the charge and claimed trial.
The prosecution, in order to prove its case, examined, as many as, 13 witnesses; besides, tendered documents in evidence including the Forensic Science Laboratory report (Ex.PA) and the Chemical Examiner's report (Ex.PB). The substance of the evidence appearing against the respective appellants was put to them and their statements under Section 313 Cr.P.C was recorded. Kela Devi (appellant No.1) stated that she was innocent and on the day when her husband had died, she was away to Karnal to see her children. Her husband it was stated used to take excessive liquor. She had been falsely implicated in the case at the instance of the complainant so that she may not be able to get her share in the property of Sukhbir her husband. Roshan Lal (appellant No.2) stated that he was innocent and he had no relationship with Kela Devi or the deceased. He even did not know Kela Devi or her husband. He had been falsely involved in this case by the Police. No evidence was led in defence. Criminal Appeal No. 42-DB of 2006 8 The learned Additional Sessions Judge, Panipat, after considering evidence and material on record, held the appellants guilty for having committed the offence under Section 120-B IPC and also under Section 302 read with Section 120-B IPC and they were convicted accordingly. The appellants were sentenced for both the offences to imprisonment for life; besides, to pay a fine of Rs.5000/- each, and in default of payment of fine to undergo further rigorous imprisonment for two months. Both the substantive sentences were ordered to run concurrently.
Aggrieved against the judgment and order of the learned trial Court convicting and sentencing the appellants, they have filed the present appeal.
Learned counsel appearing for the appellants has contended that the present is a case where Sukhbir Singh has committed suicide and it cannot be said that appellants were, in any manner, responsible for his death. It is submitted that merely because Sukhbir Singh (deceased) had maintained a note book in which he had recorded the involvement of the appellant, it cannot be said that the appellants had committed the offence. It is submitted that Sanju son of deceased who went to inform Surinder Kumar complainant (PW2) and Baru Ram his grand father, about his father Sukhbir Singh (deceased) not feeling well, has not been examined. It is also submitted that there is no independent witness to substantiate the allegations; besides, no witness from amongst the neighbours has been examined. It is also stated that Sukhbir Singh (deceased) having consumed aluminum phosphide had committed suicide and the appellants cannot be held liable for his death. Criminal Appeal No. 42-DB of 2006 9
In response, learned Deputy Advocate General, appearing for the State has submitted that the chain of the circumstances in the case are such that it is the accused appellants alone, who can be said to have committed the offences as have been attributed and proved against them. Moreover, it is evident from the diary (Exhibit PD) maintained by Sukhbir Singh (deceased) and the contents as recorded in the said diary (Exhibit PD) that Roshan Lal (appellant No.2) had illicit relations with his wife Kela Devi (appellant No.1). Therefore, it is submitted that the learned trial Court having held on the basis of evidence and material on record that the appellants in conspiracy with each other were responsible for the murder of Sukhbir Singh (deceased), the said findings and conclusions as reached at are liable to be maintained and upheld. It is submitted that the circumstantial evidence taken cummulatively forms a complete chain of evidence from which it can be concluded that within the human probability the crime was committed by the appellants and none else. Particular emphasis has been laid on the deposition of Dr. Dinesh Kumar Kataira (PW4) who has found as many as 16 injures on the person of Sukhbir Singh (deceased) to contend that in view of the injuries, it is indeed a case of murder.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance, gone through the records of the case.
Surinder Kumar (complainant PW2) has appeared in the witness box and reiterated his version as recorded in his statement (Exhibit PE), on the basis of which FIR (Exhibit PK) had been registered. Criminal Appeal No. 42-DB of 2006 10 It is submitted that on 27.5.2004 at about 8.00 a.m, Sanju, his (Surinder Kumar's PW2) nephew came to his residence at Karnal. At that time, they all were present at their house. Sanju informed that his father Sukhbir (deceased) was serious and that he (Surinder Kumar PW2) should accompany him (Sanju) to look after him. Surinder Kumar (PW2) along with his father Baru Ram and with some other persons came to Gita Colony Noorwala, Panipat. The dead body of Sukhbir was lying on a cot. There were marks of injury (bluish injury) around the neck. From there a note book (Exhibit PD) of card board covers containing 100 pages was recovered. By the side of the cot on which the dead body was lying a glass and a tube were also recovered. After that they went to inform the Police. Thereafter, they along with the police party arrived at the place of occurrence. Surinder Kumar (PW2) had seen the 'gata' copy (card board note book) before going to the hospital and when they came back along with police, they handed over that copy to the police. He had seen the copy (note-book) on the Court file which was Exhibit PD. The mode of proof was objected. It was stated by Surinder Kumar (PW2) that the said copy was in the hand writing of his brother as he had seen him writing at the time of functions in the family. Police had recorded his statement (Exhibit PE) which bears his signatures. After the post mortem, the police had handed over the dead body to them which was received by him along with Deepak vide recovery receipt (Exhibit PF). Surinder Kumar complainant (PW2) was cross-examined at length.
Deepak (PW11) was also examined by the prosecution who stated that Sukhbir (since deceased) was his elder brother and the name of Criminal Appeal No. 42-DB of 2006 11 his wife was Kela Devi who was an accused and was present in Court. Sukhbir was residing at Noorwala, Panipat along with his family members for the last 14-15 years. On 27.5.2004 at about 8.00 a.m., Sanju son of Sukhbir (deceased) came to their house and informed that his father Sukhbir was seriously ill. He requested them to look after his father Sukhbir, on which he (Deepak PW11) along with his brother Surinder (PW2) and other family members came to Gita Colony, Panipat. He reiterated the version as deposed by Surinder Kumar (PW2) regarding the dead body of Sukhbir lying on the cot; besides, steel glass and a tube also lying near the cot. The tube was of some pesticides. A `gata copy ' (card board note book) was also there near the dead body. Neck of Sukhbir Singh was having bluish mark all around. On seeing the situation, they all went to the police station. The Police came at the spot and it took all the three articles i.e. `gata copy' (card board note book) glass and tube in its possession. It is further stated by Deepak (PW11) that Roshan (appellant No.2) who was present in Court had illicit relations with his Bhabi, namely, Kela Devi(appellant No.1) and they had advised several times to break (sever) their relations. His brother, since deceased had also tried to bring Kela (appellant No.1) on the right path. But he was threatened to be killed along with his children and his brother was killed by accused Roshan (appellant No.2) and his bhabi (sister-in-law) Kela Devi (appellant No.1) either by strangulation or by administering some poison. Recovery memo (Exhibit PG) bears his signatures in pursuance of which the glass and tube were taken in possession by the police. His statement under section 161 Cr.PC was recorded by the police. The dead body was received Criminal Appeal No. 42-DB of 2006 12 by him vide receipt (Ex.PF) which also bears his signatures. It is stated that his brother had told him that Kela (appellant No.1) was having illicit relations with accused Roshan Lal (appellant No.2). Deepak (PW11) was cross-examined at considerable length. It is stated that Sukhbir (deceased) and his 'Bhabhi' (sister-in-law) Kela Devi (appellant-1) never fought any litigation in any Court of law. No complaint was made to the Police by his brother as well as by them. It is also stated that there is no date in the writing or below the writing that was made in the note book. Besides, the said writing was by one pen. No pen was taken in possession from the place where the aforesaid note book was lying. It is also stated that he had not stated before the police about the fact that his brother Sukhbir Singh (deceased) had consumed some poisonous substance. He had stated before the police that ill-treatment was being meted out to the deceased at the hands of Kela Devi (appellant No.1) and Roshan Lal (appellant No.2) and that is why he might have died. He was confronted with the portion `A to A' of his statement Exhibit DB where it was recorded that Sukhbir Singh his brother had consumed either some poisonous substance or had been done to death by Kela Devi (appellant No.1) and Roshan Lal (appellant No.2) by strangulation.
The learned trial Court in its impugned judgment has observed that it has minutely perused the writing contained in the note book (Exhibit PD). At page No.1 of the said note book, Sukhbir Singh (deceased) made reference about the illicit relationship of Roshan Lal (accused) with his wife Kela Devi. It is also mentioned that whenever he stops Sukhbir from coming to his house, he held out threats to him that he Criminal Appeal No. 42-DB of 2006 13 would kill both his sons and get him put behind bars. At page No.2 of the said note book, it was mentioned that about 8/9 days back Sukhbir was mercilessly beaten up by Roshan Lal (appellant No.2) and the latter also took away Rs.5000/-. At page No.3 of the note book besides reiterating the allegations of illicit relationship between his wife and Roshan Lal, it was written that once he had asked Roshan Lal as to why he had gone to his house where upon Roshan and one more person beat him up and also snatched Rs.500/- . At page 5 of the said note book, a reference has been made about the threat held out by Roshan Lal to Sukhbir. Similar writing about illicit relations between the accused Kela Devi (appellant No.1) and Roshan Lal (appellant No.2) and that of holding out threats to the deceased had been made upto page13 and pages 29 to 31. It was also observed that Surender Kumar (PW2) in his examination in chief had stated on oath that the note book (Exhibit PD) contains the hand writing of deceased Sukhbir and he had identified the same by adding that he had seen his brother Sukhbir (deceased) writing at the time of functions in the family. The contention of the defence counsel that the opinion of the hand writing expert was not obtained by the prosecution, it was observed by the learned trial Court, was devoid of any force because the real brother of deceased had identified the handwriting of his brother in the note book. It was, thus, concluded that from the circumstances i.e. the writing contained in the note book Exhibit PD it was crystal clear that the relations of the deceased were not cordial with his wife Kela Devi (appellant No.1) on account of the extra marital relations of Kela Devi (appellant No.1) with Roshan Lal (appellant-2). The deposition of Ishwar Singh (PW12), witness of the Criminal Appeal No. 42-DB of 2006 14 extra judicial confession was noticed to the effect that he had turned hostile. It was, however, observed that when he had stepped in the witness box, he stated that the accused did not make any extra judicial confession before him about killing Sukhbir Singh by administering poisonous substance in a steel glass. Sukhbir Singh refused to consume the same and thereafter Kela Devi (appellant No.1) strangulated Sukhbir by pressing his leg (sic. neck). However, keeping in view the testimony of the prosecution witness, as referred to and specially the writing contained in the note book Exhibit PD, it was held that the fact that Ishwar Singh (PW12) had turned hostile was of no help to the accused (appellants).
Therefore, it may be noticed that it is primarily on the basis of the notes recorded in the note book (Exhibit PD) that the learned trial court reached at the conclusion that the death of Sukhbir had been caused by the appellants. It may, in fact, be noticed that even though the handwriting in the note book (Exhibit PD) is that of Sukhbir Singh (deceased) as has been identified by his brother Suresh Kumar (PW2). However, Sukhbir Singh (deceased) by merely stating in his note book that his wife Kela Devi (appellant No.1) was having illicit relations with Roshan Lal (appellant No.2), it cannot be said that the appellants had committed his murder. It is in fact required to be also shown that the appellants had indeed committed the murder of Sukhbir Singh. The fact of illicit relations between Kela Devi and Roshan Lal can be said to be a motive for committing the murder of Sukhbir Singh but that by itself cannot be said to be such a circumstance to hold that murder had indeed been committed. The present is a case of circumstantial evidence where the Criminal Appeal No. 42-DB of 2006 15 guilt of an accused is to be established beyond shadow of reasonable doubt. The principles for recording a finding of guilt on the basis of circumstantial evidence have been culled out in a number of decisions by Hon'ble the Supreme Court. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063 it was held as follows:-
"It is now settled law that in case of circumstantial evidence, all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and shout not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they are susceptible of any ration explanation, no conviction can lie."
In Eradu v. State of Hyderabad, AIR 1956 SC 316 it was observed that it is a fundamental principle of criminal jurisprudence that Criminal Appeal No. 42-DB of 2006 16 circumstances evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused. In Earabhadrappa v. State of Karnataka, AIR 1983 SC 446 it was observed that in cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.
Therefore, it is required to be shown by the prosecution that the appellants had indeed committed murder of Sukhbir Singh so as to fasten them with criminal liability of committing the murder. It may be noticed that initially the case (FIR) that was registered was for the offence under Sections 306/120-B IPC by Suresh Kumar ASI (PW13). Suresh Kumar ASI (PW13) while deposing in Court has stated that on 27.5.2004 while he was posted at Police Station City Panipat, he received information that Sukhbir had died in the General Hospital, Panipat. Then he along with Head Constable Rajinder Singh and Contable Satish visited General Hospital Panipat where Surender (PW2) son of Baru Ram met him. Said Surender (PW2) made his statement (Exhibit PE) and he signed the same. Suresh Kumar ASI (PW13) made his endorsement on the ruqa (memo) and sent the same to the Police station through Constable Satish Kumar for registration of FIR on which formal FIR (Exhibit PK) was registered. Criminal Appeal No. 42-DB of 2006 17 During the course of investigation the offence under Section 302 IPC is stated to have been made out. In this regard, Shamsher Singh, SI (PW3) then posted as Additional SHO Police Station City Panipat has deposed that on receipt of post mortem report in this case, he prepared the progress report (Exhibit PH) by which offence under Section 306 IPC was converted into one under Section 302 IPC read with Section 120-B IPC. Thereafter, a special report to this effect was sent to the Chief Judicial Magistrate, Panipat. It is on the basis of the post mortem report, wherein cause of death had been opined, to be asphyxia due to strangulation that the case which was initially registered for the offence under Section 306 IPC was converted to that under Section 302 read with Section 120-B IPC. Dr. Dinesh Kumar Kataria (PW4) had conducted the post mortem examination of the dead body of Sukhbir Singh son of Baru Ram. He noticed, as many as, 16 injuries on his person. In his opinion, the cause of death was asphyxia due to strangulation. The viscera was sent for chemical examination and as per the report dated 15.4.2005 (Exhibit PA) of the Forensic Science Laboratory, Madhuban, Karnal organo phosphorous pesticide was detected in Exhibit-1. Exhibit-1 has been mentioned in the said report as a dirty light brown pant, having some dirty stains at places, a dirty white coloured gent's shirt, a dirty light blue coloured gent's underwear stained with some faecal material and a dark brown coloured `baniyan' (vest) stated to be the clothes of the deceased Sukhbir son of Baru Ram. As per the chemical examination report dated 9.6.2005 (Exhibit PB), the contents of Exhibit Nos. 1 and 2; i.e. one sealed jar said to contain sample of stomach, small and large intestine (Exhibit 1) and Criminal Appeal No. 42-DB of 2006 18 lungs, liver, spleen, kidney and heart (Exhibit 2) gave positive test for aluminum phosphide. Contents of Exhibit No.3 i.e. blood gave positive test for phosphine. Contents of Exhibit No.4 i.e. preservative used gave positive test for saline only. Dr. Dinesh Kumar Kataria (PW4) found as many as 16 injuries on the person of Sukhbir (deceased) which are as follows:-
"1. Multiple small abrasions in an area 5x 4 c.m. on left side of front of neck on lower part.
2. Abrasion 4 x4 c.m. on left side front of neck 4 c.m. lateral to thyroid cartilage.
3. Multiple small abrasions of varying size and shape present over area in front of thyroid cartilage, front of neck in mid line and right lateral aspect of neck in an area of 8 x 8 cm.
4. Abrasion just lateral to lower part of pinna left ear, horizontally placed 4x2 cm.
5. Multiple abrasions of varying size and shape in an area 7 x7 cm over right mid infraclavicular region as well as mid of clavicle.
6. Abrasion 4 x 2.5 cm on left side of back of neck.
7. An abrasion 7 x 1.5 c.m. just above injury no.6.
8. An abrasion 7 x 5 c.m. middle of neck, horizontally placed on left side.
9. Abrasion 5 x5 c.m. on back of neck upper part of left side obliquely placed 1 c.m. below the hair line.
10. Multiple small abrasions in an area 8x8 c.m. over back of left shoulder joint.Criminal Appeal No. 42-DB of 2006 19
11. An abrasion 6 x6 c.m. over left side back of neck upper part.
12. Multiple abrasions of varying size and shape over front as well as back of lower 2/3rd of left forearm.
13. Multiple abrasions over whole of posterior aspect of right forearm.
14. Abrasion 7x6 c.m. over frontal aspect of lower 1/3rd part of right forearm.
15. Multiple small abrasions over whole of dorsum of right hand.
16. On dissection of neck, thyroid cartilage found broken in mid line and cornu of hyoid bone on right side.
Viscera were congested.
In our opinion cause of death in this case is asphyxia due to strangulation. Today I have seen chemical examiner report of Sukhbir son of Baru which is Ex.PB. The report is regarding viscera which I handed over to H.C. Rajinder Singh and as per report Ex.PB the result was as follows.
Contents of exhibit No. 1 and 2 gave positive test for aluminum phosphide.
Contents of exhibit No.3 gave positive test for phosphine. Contents of exhibit No.4 gave positive test for saline only. I have also seen the FSL report Ex.PA today in the court regarding the clothes of the deceased. The result of examination is as follows:-
Organo phosphorous pesticide was detected in exhibit-1. True carbon copy of post mortem report Ex.PL"
Dr Dinesh Kumar Kataria (PW4) was cross examined by the learned defence counsel. It is inter alia stated that all the injuries Criminal Appeal No. 42-DB of 2006 20 were not so simple and they could result in death of a person. It is accepted as correct that rigor mortis was not present. It starts disappearing approximately in 36 hours. It is also stated that possibility of injury-6 being caused on falling on a hard surface cannot be ruled out. Similar was the reply with regard to injuries-10, 13, 14 and 5. It is stated that they could tell approximate duration of the time uptil death and according to him, it was between 24 to 48 hours. It is stated that as contents had been found in the report (Exhibit PL) and the same were sent for chemical analysis, therefore, it can be presumed that the deceased must have consumed something. The consumption can be of food articles also. The injuries which were sustained by the deceased could result in the death of a person but the time within which the death can occur vary from person to person. He could not correctly state whether a person could survive for more than 5 to 6 hours after sustaining such type of injuries. He denied the suggestion that he prepared the post mortem report of Sukhbir Singh as per the wishes of the complainant party as well as the dictates of the Police. Such type of abrasions can be caused if the body of the person falls on a hard surface. It is stated that generally asphyxia can be caused by hanging, throttling, suffocation and drowning also.
A perusal of the above shows that at the time when the post mortem report (Exhibit PL) was given, the doctor had opined the cause of death as asphyxia due to strangulation. However, while deposing before the trial Court on 2.9.2005 Dr. Dinesh Kumar Kataria (PW4) saw the chemical examiner report (Exhibit PB) of Sukhbir in Court only. In pursuance of the said report, the contents of Exhibit Nos. 1 and 2 i.e. one Criminal Appeal No. 42-DB of 2006 21 sealed jar said to contain sample of stomach, small and large intestine (Exhibit P1) and lungs, liver spleen kidney and heart (Exhibit P2) were found positive test for aluminum phosphide; besides contents of Exhibit 3 i.e. blood gave positive test for phosphine. The result of the Forensic Science Laboratory, Haryana, Madhuban, Karnal report (Exhibit PA) was that organo phosphorous pesticide was detected in Exhibit-1. Dr Dinesh Kumar Kataria (PW4) also saw the FSL report (Exhibit PA) on the date of deposing in Court, which was regarding the clothes of the deceased. The report was that Organo Phosphorous pesticide was detected in exhibit-1. Exhibit-1 is mentioned as a 'dirty light brown pant, having some dirty stains at places, a dirty white coloured gent's shirt, a dirty light blue coloured gent's underwear stained with some faecal material and a dark brown coloured 'banyan' (vest), stated to be clothes of the deceased - Sukhbir Singh son of Baru Ram.' Therefore, the initial version that was given by Dr.Dinesh Kumar Kataria (PW4) regarding cause of death as asphyxia due to strangulation is not clearly established. In view of the detection of orango phosphorous pesticide, the cause of death cannot be said to be fully established. The prosecution realising that its case may not stand on account of the fact that the cause of death in the post mortem report (Exhibit PL) had also mentioned that any other associated cause would be given after the receipt of report from the chemical examiner introduced Ishawar Singh PW12 before whom accused (appellants) are stated to have made an extra judicial confession and his statement Exhibit PX was recorded by the police in this regard under Section 161 Cr.P.C In the said statement (Exhibit PX) it is stated by Ishwar Singh that on 28.5.2004 he Criminal Appeal No. 42-DB of 2006 22 was present at his house that Roshan Lal (appellant No.2) and Kela Devi (appellant No.1) came to meet him at his house. Both of them told him the entire facts turn by turn. It is stated that firstly Roshan Lal had told him that he had illicit relations with Kela Devi for the last four years. Sukhbir Singh used to prevent Roshan Lal (appellant No.2) from meeting Kela Devi (appellant No.1). Two-three days earlier they had planned to kill Sukhbir Singh. They served water to him by mixing some poisonous medicine on the pretext of serving water. As per planning on 26.5.2004 at 8/9 p.m. Roshan Lal and Kela Devi went to the house of Sukhbir Singh. Kela Devi had sent her children to Karnal. As per the direction of Roshan Lal, Kela Devi served the poisonous medicine in a steel glass but Sukhbir Singh refused to take the same after taking a sip. Thereafter, Kela Devi at once throttled his neck by placing her thumb on his neck. After that Sukhbir Singh tried to breathe his last. He died on the cot. Ishwar Singh (PW12), however, has not supported the prosecution version while appearing in the witness box. Before the Court, he completely denied making his statement Exhibit PX before the Police. He was got declared hostile and was cross-examined by the learned public prosecutor for the State. However, nothing could be brought out from his deposition. Therefore, the cause of death which was initially given as asphyxia due to strangulation and due to which the charge report (challan) was filed for the offence under Section 302 IPC, is not clear.
The deposition of Dr. Dinesh Kataria (PW-4) regarding the injuries suffered by the deceased is another aspect which requires consideration. Dr. Dinesh Kataria (PW-4) found as many as 16 injuries on Criminal Appeal No. 42-DB of 2006 23 the person of Sukhdev Singh (deceased). All the injuries except injury No.16 are abrasions. In cross-examination it was put to Dr. Dinesh Kataria (PW-4) as to whether the colour of the abrasion changes with the passage of time or not. The doctor replied that he can give the answer after consulting the standard textbook on the point. The court put the question as to what would be his answer on his general observation about the patient which he had seen so far in this regard. It is replied that it generally changes with the passage of time. It is further stated that all the injuries were not so simple. They could result into death of a person. It was accepted as correct by Dr. Dinesh Kataria (PW-4) that rigor mortis was not present and it starts disappearing approximately in 36 hours. It starts from the eyelids. He did not know on what part it disappeared. It is stated that possibility of injury No.6 being caused on falling on hard surface could not be ruled out so was the reply with respect to injuries No.10, 13, 14 and 5. It is also stated that they could tell approximate duration of the time uptil which the death could be caused and to his mind it was 24 to 48 hours. It is also stated as contents have been found out in the report (Exhibit-PL). The same was sent for chemical analysis and, therefore, it can be presumed that the deceased must have consumed something. That consumption can be of food article also. It is also stated that the injuries which were sustained by the deceased could result of the death of a person but the time within which the death can occur varies from person to person. He could not correctly state whether a person can survive more than 5/6 hours after sustaining such type of injuries. It was incorrect to suggest that he prepared a the report in the PMR of Sukhbir Singh as per the wishes of the complainant party as well as Criminal Appeal No. 42-DB of 2006 24 the dictates of the Police. It is further stated that such type of abrasion can be caused if the body of a person is rubbed against hard rough surface. It is also stated that generally asphyxia is caused by hanging, strangulation, throttling, suffocation and drowning also. Therefore, it may be noticed that there is no evidence led on the record to show as to who caused injuries on the person of the deceased Sukhbir Singh. Besides, Dr. Dinesh Kataria (PW-4) has not been able to clearly point out as regards the cause of death. In the post-mortem report (Ex.PL) it is stated that that cause of death was due to asphyxia. After receipt of the Chemical Examiner's report (Ex.PB) and the Forensic Science Laboratory Report (Ex.PA) the opinion of the doctor was not taken and these reports were shown to him at the time of his deposition in Court only. After seeing the FSL reports (Exhibit PA) and Chemical Examiner's report (Exhibit PB) no clear opinion has been given as to whether death was due to asphyxia or due to aluminum phosphide poison. Therefore, the cause of death evidently is unclear. Besides, there is nothing to show that who caused injuries on the person of Sukhbir Singh (deceased). It is not the case of the prosecution that the injuries to the deceased were caused by the appellants.
In the circumstance, the only incriminating piece of evidence is the note book (Exhibit PD) in which also there is only a mention of both the appellants having an affair with each other and Roshan Lal (appellant No.2) had been beating Sukhbir Singh deceased who had recorded the note book Exhibit PD. This by itself in the facts and circumstances is not such a circumstance to hold that they had committed the murder of Sukhbir Singh.
Criminal Appeal No. 42-DB of 2006 25
As such it is a case where there is no eye witness to connect the appellants with the murder of Sukhbir Singh. There is no evidence that the deceased was last seen in the company of the accused and it is not the case of the prosecution that the dead body of Sukhbir Singh (deceased) was recovered at the instance of the accused. There is no evidence that anybody saw the appellants administering poison to Sukhbir Singh (deceased). Even the note book (Exhibit PD) does not give any date as to when it was written and whether it is related to a period which is soon before or at least some time before the death of Sukhbir Singh. Moreover, the writing in Exhibit -PD is proved by Surender Singh (PW2) who is brother of the deceased Sukhbir Singh and, thus, is an interested witness. Deepak (PW11) brother of deceased - Sukhbir Singh was cross-examined at considerable length. It was stated by him that there is no date in the writing or below the writing that was made in the note book. Besides, the said writing was by one pen. No pen was taken in possession from the place where the note book (Exhibit PD) was lying. This raises further doubt regarding the authenticity of the note book (Exhibit PD). In the facts and circumstances it would be unsafe to base a finding of guilt for the offence of murder only on the basis of the note book in which Sukhbir (deceased) had made a mention of the appellants having a relationship between them. Therefore, it is not a case from which a finding of guilt can be drawn unerringly leading only to the conclusion which can be said to be consistent only with the hypothesis of the guilt of the appellants. In the circumstances, the benefit of doubt is liable to be given to the appellants and it would be highly unsafe to record a finding of guilt only on the basis Criminal Appeal No. 42-DB of 2006 26 of a note book which is stated to be in the handwriting of the deceased and in which only a mention is there of an illicit relationship between the appellants amongst themselves.
For the foregoing reasons, the appeal is allowed and the judgment and order of the trial Court are set aside and the accused are acquitted of the charges for which they were charged.
(S.S. Saron) Judge (Sabina) Judge December 18, 2008 arya Criminal Appeal No. 42-DB of 2006 27 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No.42 -DB of 2006 Date of Decision: December 18, 2008 Kela Devi and another ...........Appellants Versus The State of Haryana ......Respondent Coram: Hon'ble Mr.Justice S.S.Saron Hon'ble Mrs. Justice Sabina Present: Mr.Rahul Vats, Advocate, Mr.Vikram Singh, Advocate and Mr.John Kumar, Advocate for the appellants (Kela Devi and Roshan Lal) Ms.Ritu Punj, Deputy Advocate General,Haryana for the respondent-State * * * S.S.Saron,J.
For the reasons recorded, separately, we allow the appeal by giving the benefit of doubt to the appellants. The orders of conviction and sentence passed by the learned trial court are set aside and the accused- appellants are acquitted of the charges for which they were charged. Roshan Lal (appellant No.2) be set at liberty forthwith, if not wanted in any other case. Kela Devi (appellant No.1) is on bail and her bail bonds are discharged.
Surinder Kumar (complainant PW2) has appeared in the witness box and reiterated his version as recorded in his statement (Exhibit PE), on the basis of which FIR (Exhibit PK) has been registered. It is submitted that on 27.5.2004 at about 8.00 A.M., his (Suresh Kumar PW2) Criminal Appeal No. 42-DB of 2006 28 nephew Sanju came to his residence at Karnal. At that time, they all were present at their house. Sanju informed that his father Sukhbir (deceased) was serious and that he (Surinder Kumar PW2) should accompany Sanju to look after him. Surinder Kumar (PW2) along with his father and along with some other persons came to Panipat at Gita Colony Noorwall. The dead body of Sukhbir was lying on a cot. There were marks of injuries (bluish injuries) around the neck. From the note book (Exhibit PD) of card board containing 100 pages was recovered by the side of the cot on which the dead body was lying. A glass and a juge was also recovered. After that they went to the police to inform the police. Thereafter, they along with the police party arrived at the place of occurrence. Surinder Kumar (PW2) had seen the gata copy (note book) before going to the hospital and when they came back along with police for handing over that copy t the police. He had seen the copy on the Court file which was Exhibit PD. The mode of proof was objected. It was stated by Surinder Kumar (PW2) that the said copy was in the hand of his brother as he had seen him writing at the time of function in the family. Police had recorded his statement Exhibit PE which bore his signatures. After the post mortem, the police had handed over the dead body to them which was received by him along with Deepak vide recovery receipt (Exhibit PE). Surinder Kumar (complainant PW2) was cross-examined at length. The statement of Deepak (PW11) was also recorded who stated that Sukhbir (since deceased) was his elder brother and the name of his wife was Kela Devi. On 27.5.2004 at about 8.00 A.M., Sanju son of Sukhbir (deceased) came to the house and informed that his father Sukhbir was seriously ill. He requested them to look after his father Criminal Appeal No. 42-DB of 2006 29 Sukhbir, on which he (Deepak PW11) along with his brother Surinder (PW2) and other family members came to Gita colony, Panipat. He reiterated the version as deposed by Surinder Kumar (PW2) regarding the dead body of Sukhbir lying on the cot; besides, steel glass and a tube was also lying near the cot. The tube was of some pesticides. A gata copy was also there near the dead body. Neck of Sukhbir Singh was having bluish mark all around . On seeing the situation, they went to the police station who came at the spot.
(S.S.Saron) Judge ( Sabina ) Judge December 18, 2008 arya