Punjab-Haryana High Court
Pardeep Kumar vs State Of Punjab on 10 December, 2014
Crl. Appeal No.D-7-DB-2003 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No.D-7-DB-2003
Date of decision : 10.12.2014
Pardeep Kumar .....Appellant(s)
Versus
State of Punjab ....Respondent(s)
CORAM : HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MR. JUSTICE DARSHAN SINGH
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Amarinder Preet Singh, Advocate for the appellant
(Legal Aid counsel).
Mr. Arshvinder Singh, Additional Advocate General,
Punjab for the respondent.
****
DARSHAN SINGH, J.
1. The present appeal has been preferred against the judgment dated 12.9.2002 passed by the then learned Sessions Judge, Ludhiana vide which appellant-Pardeep Kumar was held guilty and convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short 'the IPC') and the order of sentence of the even date vide which the appellant has been sentenced to undergo rigourous imprisonment for life and to pay a fine of ` 2000/- under Section 302 read with Section 34 IPC PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 2 and in default of payment of fine to further undergo rigourous imprisonment for the period of four months.
2. As per the prosecution story, PW-5 Ashok Kumar, complainant, the brother of the deceased, made his statement Ex.PF/1 stating therein that his brother Kamal Kumar (deceased) was working on orchestra. Pooja alias Richa (co-accused) was also working in the group of his brother Kamal Kumar. She was a dancer. Appellant-Pardeep Kumar was a fast friend of his brother Kamal Kumar. That on 15.10.1998 in the evening, his brother Kamal Kumar and appellant-Pardeep @ Raju had gone to New Prem Nagar, Haibowal Kalan , Ludhiana, to the house of Pooja @ Richa. They did not return till late in the evening. At about 10 PM, complainant Pardeep Kumar reached New Prem Nagar, Haibowal Kalan, Ludhiana at the house of Pooja to know about his brother. In the house, Kamal Kumar and Pardeep Kumar-appellant appeared under influence of liquor. Appellant-Pardeep Kumar and Pooja were engaged in altercation with his brother Kamal Kumar. He tried to give counselling to them but it was of no effect. He came out of the house getting angry. After about 15-20 minutes, he again went back to that house along with PW-7 Jagmohan Singh. Then appellant-Pardeep Kumar slipped hurriedly from the house of Pooja. Pooja was also in hurry to leave the house. Both of them were frightened at that time. He and Jagmohan Singh went inside the adjoining room of the kitchen and saw that his brother Kamal Kumar was hanging from the ceiling fan. He was strangulated with half of the bedsheet and was dead. He further stated that Kamal Kumar was murdered by Pardeep PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 3 Kumar @ Raju, the present appellant and Pooja in connivance with each other. The cause of the grudge was that Pardeep Kumar used to visit Pooja in the absence of his brother. His brother did not like it and was opposing his visit. His statement Ex.PF was recorded by PW-8 Head Constable Gurinderjit Singh on the basis of which the FIR Ex.PF/2 was registered and the investigation was started.
3. The Investigating Officer accompanying with complainant- Ashok Kumar reached the place of occurrence and inspected the same. He prepared the site plan of the place of occurrence. Copy thereof is Ex.PW-8/B. He carried out the inquest proceedings and prepared the inquest report and dispatched the dead body for the post-mortem examination. He took into possession a bedsheet from the place of occurrence which was kept in sealed parcel and was taken into possession vide memo Ex.PD. He also recovered one bottle containing liquor and cardboard box from the place of occurrence and were taken into possession vide memo Ex.PE. The clothes removed from the dead body after the post-mortem examination were kept into sealed parcel and were taken into possession vide memo Ex.PF. The accused appellant was arrested and on completion of the investigation, report under Section 173 Cr.P.C was presented before the trial Court.
4. The case was committed to the Court of Sessions for trial by the learned Magistrate vide order dated 8.4.2000.
5. The accused appellant was charge-sheeted for the offence punishable under Section 302/34 IPC vide order dated 2.5.2000 to which he pleaded not guilty and claimed trial. PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 4
6. In order to substantiate its case, prosecution examined as many as eight witnesses.
7. When examined under Section 313 Cr.P.C., the appellant pleaded that he is innocent. Deceased was his friend. For the last two days before his death, he was insisting and asking Pooja, who was working with them in the orchestra, for marriage but she was not agreeing for the same. The deceased was drinking heavily in frustration. Due to frustration in love and Pooja not responding to his love, Kamal Kumar had committed suicide after she left for Bombay.
8. The appellant did not lead any evidence in defence.
9. On appreciating the evidence on record and the contentions raised by the learned counsel for the parties, the appellant was held guilty and convicted for the offence punishable under Section 302 read with Section 34 IPC and was awarded the sentence as mentioned in the upper part of the judgment.
10. Aggrieved with the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred.
11. We have heard Mr. Amarinder Preet Singh, learned counsel for the appellant and Mr.Arshvinder Singh, learned Additional Advocate General for the State of Punjab and have carefully examined the record of the case.
12. Learned counsel for the appellant contended that PW-7 Jagmohan Singh, an important witness of the prosecution, has not supported the prosecution case. He contended that the appellant has been falsely implicated. In fact, the deceased was in love with Pooja and was insisting to marry her but she was not responding. He was PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 5 heavily drunkard for the last two days and committed suicide. He further contended that in the inquest report Ex.PC, the cause of death has mentioned as hanging and no article was found lying near the dead body. The last seen theory projected by the prosecution on the basis of the statement of PW-5 Ashok Kumar, is not established in view of a clear cut admission in his cross examination that the appellant and deceased Kamal Kumar had not left their office in his presence.
13. He further contended that the deceased was having robust health as stated by PW-5, so there was no possibility that he can be throttled by the present appellant and his co-accused.
14. He further contended that PW-1 Dr. Manjit Singh has admitted that the injuries found on the neck of the deceased were possible if a person who wants to hang himself and later on changed his mind and wants to remove the ligature. So, these injuries cannot be attributed to the accused. Thus, it pleaded that there is no legal evidence for the conviction of the appellant.
15. On the other hand, the learned Additional Advocate General contended that the accused was last seen in the company of the deceased. Firstly, when he and the deceased left the office of the brother of the deceased and started for the house of the co-accused Pooja and secondly, in the house of Pooja where the occurrence took place. The appellant and Pooja were seen leaving the house hurriedly after the commission of the offence and they were in frightened condition. The medical evidence shows that it was not a case of suicide rather it is a case of throttling as the injuries have PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 6 been found on the neck of the deceased. The dead body has been found in the house of Pooja where the present appellant was also present but he has come forward with a wrong explanation of suicide. Thus, he contended that the aforesaid circumstances clearly establish the guilt of the appellant.
16. We have duly considered the aforesaid contentions. There is no direct evidence to the commission of the offence and the case of the prosecution is based on circumstantial evidence. In Sharad Birdhi Chand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116 the five golden principles which have been stated to constitute the panchsheel of the proof of the case based on circumstantial evidence are:
1. The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved.
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion PUSHPINDER SAINI consistent with the innocence of the accused and must 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 7 show that in all human probability the act must have been done by the accused."
17. In the instant case, there are various incriminating circumstances against the accused relied upon by the prosecution which can be detailed as below:
1. Last seen evidence and presumption under Section 106 of the Indian Evidence Act.
2. Quarrelling with the deceased by the appellant and his co-accused.
3. Medical evidence.
4. Recovery of dead body from the house:
5. Motive
18. 1. Last seen evidence and presumption under Section 106 of the Indian Evidence Act and; 2. Quarrelling with the deceased by the appellant and his co-accused:-
PW-5 Ashok Kumar, complainant, the brother of the deceased, has stated that on 15.10.1998, in the evening, his brother Kamal Kumar (deceased) and the accused left the office of his brother situated in the Clock Tower Chowk, Ludhiana. They both had gone together to the house of Pooja @ Richa. He waited for his brother till 9:30 PM. Then he went to the house of Pooja @ Richa to find out about his brother Kamal Kumar at about 10 PM. He found his brother Kamal Kumar, accused Pardeep Kumar and Pooja @ Richa present there. They all were engaged in altercation and appeared to be under the influence of liquor. No doubt in the cross examination he has stated that his brother Kamal Kumar and accused had not left PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 8 the office of his brother in his presence. Learned counsel for the appellant has pleaded that in view of this admission of PW-5, the last seen theory is not established but even if this plea of learned counsel for the appellant is accepted PW-5 has further categorically stated that when his brother did not return late in the evening he waited him till 9:30 PM and thereafter, he went to the house of co- accused Pooja to know about his brother and he found deceased Kamal Kumar present in that house along with present appellant and co-accused Pooja, this version of the complainant could not be shattered in the cross examination. The same is also corroborated from the statement of PW-7 Jagmohan Singh as PW-5 Ashok Kumar had informed him about the dispute going on between the accused and deceased and he had also accompanied him to that house where his dead body was found. Thus, from the aforesaid evidence, it is established that the deceased was last seen in the company of the accused appellant and his companion in the house where co-accused Pooja was living.
19. Once the last seen theory is established, the burden shifts upon the accused to explain under what circumstances deceased Kamal Kumar met with death.
20. From the statement of PW-5, it further comes out that when he reached the house where co-accused Pooja was residing, he found that deceased Kamal Kumar, accused Pardeep Kumar and Pooja were present there and they were engaged in altercation and appeared to be under the influence of liquor. This version of PW-5 is also corroborated by PW-7 Jagmohan Singh. PW-5 has stated that PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 9 he tried to give counselling to them but it was without any effect. He came out of the house of Pooja @ Richa in anger. After 10-15 minutes, he accompanied with Jagmohan Singh gone to the house of Pooja which means that when he failed to pacify them he thought it proper to take the help of PW-7 Jagmohan Singh to resolve their dispute and he again returned to the house in question and by this time, the offence was already committed. PW-5 Ashok Kumar and PW-7 Jagmohan Singh have consistently deposed that when they reached the house in question for counselling them, the present appellant and Pooja hurriedly came out of the house and were in frightened condition. Thereafter, both PW-5 Ashok Kumar and PW-7 Jagmohan Singh entered the house and found the body of Kamal Kumar hanging from the ceiling fan and a bedsheet was tied around his neck.
21. So, from the aforesaid evidence, it comes out that the deceased was present in the house in question at the time of occurrence with the present appellant and his co-accused Pooja.
They were found quarrelling under the influence of liquor. PW-5 Ashok Kumar tried to pacify them but he failed to succeed. When after about 10-15 minutes, he returned to the house accompanied with PW-7 Jagmohan Singh, the appellant and his co-accused were found leaving the house hurriedly and they were in frightened state. When the complainant and PW-7 entered the house, they spotted the body of deceased Kamal Kumar hanging from the ceiling fan.
22. As already mentioned when the last seen theory is established accompanied with the aforementioned circumstances, it PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 10 becomes the duty of the appellant to explain as to how the deceased suffered the death but instead of disclosing the true facts, the appellant has raised the false plea of suicide. As per the medical evidence i.e. the statement of PW-1 Dr Manjit Singh, who conducted the post-mortem examination on the dead body of Kamal Kumar, and the post mortem report prepared by him, the deceased was having multiple abrasions on his neck and his cause of death was due to asphyxia as a result of throttling which was sufficient to cause death in the ordinary course of nature and the injuries were ante mortem in nature which shows that the death of Kamal Kumar was not suicidal rather it was homicidal. Thus, the appellant has come forward with a false plea. It is settled proposition of law that a false plea/answer also supplies a link in the cases based on the circumstantial evidence. To support this view, reference can be made to the cases State of Maharashtra versus Suresh 2000(1) RCR (Criminal) 149, State of Andhra Pradesh versus Kanda Gopalndu 2005 (4) RCR (Criminal) 686 and Ramesh bhai Mohan Bhai Koli and others versus State of Gujarat 2010 (4) RCR (criminal) 807.
23. Section 106 of the Indian Evidence Act postulates when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. To support this view, reference can be made to the case Nitin Parmar Versus State of Uttarakhand 2014 Criminal Law Journal 984. As only three persons i.e the present appellant, his co-accused Pooja and deceased Kamal Kumar were present in the house when this occurrence has taken place so, the circumstances leading to his death were especially within the PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 11 knowledge of the appellant but instead of disclosing the true facts, he has come forward with a false plea of suicide. Thus, the presumption under Section 106 of the Indian Evidence Act arises against him. He was last seen together with the deceased in the house in question and he along with his co-accused were found in the frightened condition and were hurriedly leaving the house in question after the commission of the offence. So, it can be safely concluded that he was the murderer.
24. Medical evidence:
PW-1 Dr Manjit Singh along with Dr. Ashok Raswant and Dr.Y.C. Markin has conducted the post-mortem examination. The copy of the post-mortem report is Ex.PA/1. PW-1 Dr. Manjit Singh deposed that the following injuries were found on the person of the deceased:
(i) Multiple small abrasion (possibility due to nails) was present over the left and in front of the neck in an area of 2" X 2".
(ii) Four small abrasions 2mm X 2mm in size were present on left side of the neck below the left ear. All the viscera were congested and on cut section of lungs, dark coloured blood was coming out. Stomach was containing 200 cc of semi digested food.
25. He further deposed that in their opinion, the cause of death was due to asphyxia as a result of throttling which was sufficient for cause of death in the ordinary course of nature and the injuries were ante mortem in nature. So, as per the medical evidence, the cause of death of deceased Kamal Kumar is asphyxia PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 12 due to throttling. Even the injuries found on his neck corroborates the findings of throttling. No doubt in the cross examination, PW-1 Dr. Manjit Singh has stated that abrasions on the neck are possible if a man hangs himself and later on try to remove the throttling material or sheet of cloth. Again said, if a man goes to hang himself but later on decide that he was not going to be hanged and then he tried to remove the ligature, then the abrasions on the neck with the nails are possible. In view of this statement of PW-1 Dr Manjit Singh, learned counsel for the appellant has vehemently contended that it was a case of suicide out of frustration in love by deceased Kamal Kumar as he got no response from co-accused Pooja to whom he was insisting for marriage but this plea of learned counsel for the appellant is without any substance. PW-1 Dr. Manjit Singh has only narrated in the cross examination the broader possibility of the presence of abrasions on the neck in a given situation. In order to assess the evidentiary value of the medical evidence, we have to read it in conjunction with the ocular and circumstantial evidence available on record. As already discussed, the deceased was found in the company of the accused immediately before his death in the house wherein co- accused Pooja was residing. They were found quarrelling by PW-5 Ashok Kumar. He made the futile effort to pacify them and then left the house. He again returned after 10-15 minutes accompanied by PW-7 Jagmohan Singh, the owner of the house, this time, the appellant and his co-accused were found leaving the house hurriedly and in frightened condition. The circumstances totally rule out the theory of suicide projected by the appellant. Thus, the PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 13 medical evidence clearly establishes that deceased Kamal Kumar has died as a result of asphyxia due to throttling and even the injuries were found on his neck which is a further strong incriminating circumstance against the appellant.
26. Recovery of dead body from the house:
From the statements of PW-5 Ashok Kumar, PW-7 Jagmohan Singh and PW-8 Head Constable Gurinderjit Singh, it comes out that the dead body of Kamal Kumar was found in the house wherein co-accused Pooja was residing and the presence of the present appellant at the time of occurrence in that house is also established.
27. The appellant by referring the statement of PW-7 has stated that deceased Kamal Kumar was a tenant in that house. So, recovery of the dead body from that house cannot be used as an incriminating evidence against the present accused but this plea of learned counsel for the appellant is devoid of merit. PW-5 Ashok Kumar, complainant, has categorically deposed that co-accused Pooja was residing in that house. Even, if we take into consideration the statement of PW-7 Jagmohan Singh, the owner of the house, Pooja was also living in that house with Kamal Kumar. So, co- accused Pooja was also in possession of said house and appellant Pardeep Kumar was found present therein at the time of occurrence. The dead body has been recovered from the said house when the accused were hurriedly leaving that house in frightened condition. So, this is another strong incriminating circumstance in the chain of circumstantial evidence.
PUSHPINDER SAINI2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 14
28. Motive:
Even as per the statement of the appellant recorded under Section 313 Cr.P.C, deceased Kamal Kumar was in love with co-accused Pooja. He was insisting her for marriage. Co-accused Pooja was not giving any response. They had altercation immediately prior to the occurrence. PW-5 Ashok Kumar has categorically stated that the accused appellant used to visit Pooja at her house in the absence of her brother and he used to protest on this score against the accused as she was his artist and accused should not visit her. Thus, the accused appellant also had a motive for the commission of offence.
29. The contentions raised by the learned counsel for the appellant that in the inquest report, the cause of death is mentioned hanging is of no consequence in view of the medical evidence which clearly shows that cause of death was due to asphyxia as a result of throttling. Even the multiple abrasions were found on his neck which corroborate the findings of throttling.
30. The occurrence has taken place at about 10:30 PM on 15.10.1998. The statement of complainant PW-5 Ashok Kumar ( Ex.PF/1) has been recorded by the police at 11:55 PM and even the FIR was registered on 16.10.1998 at 00.30 hours. So, it is a case where the matter was promptly reported to the police and the name of the appellant and his co-accused clearly figure in the statement of the complainant Ex.PF/1. In these circumstances, if the Investigating Officer has omitted to mention the name of the accused while PUSHPINDER SAINI 2014.12.19 11:35 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No.D-7-DB-2003 15 preparing the site plan and the memo regarding the recovery of the liquor and peace of the cardboard is immaterial and is not going to effect the merits of the case.
31. Thus, keeping in view our aforesaid discussion, the case of the prosecution is based on the cogent, convincing and reliable circumstantial evidence. The aforesaid circumstances are cogently and firmly established against the appellant which unerringly point towards his guilt and there is no escape from the conclusion that within all human probabilities, the offence has been committed by the appellant and his companion and by none else. These circumstances are consistent with the guilt of the accused and totally inconsistent with his innocence. Consequently, the conviction of the appellant recorded by the learned trial Court does not suffer from any legal infirmity and is hereby confirmed. The sentence awarded to the appellant is also just and appropriate.
32. Resultantly, the present appeal has no merit and the same is hereby dismissed.
( M. JEYAPAUL )
JUDGE
( DARSHAN SINGH )
December 10, 2014 JUDGE
ps
PUSHPINDER SAINI
2014.12.19 11:35
I attest to the accuracy and
integrity of this document
High Court Chandigarh