Punjab-Haryana High Court
Satbir vs State Of Haryana on 30 September, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla, Amol Rattan Singh
Criminal Appeal No.D-278-DB of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-278-DB of 2011
Date of Order: 30th September, 2014
Satbir son of Sube Singh, resident of village Surha, Police
Station Jhajjar.
...Appellant
Versus
State of Haryana
..Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. J.S.Bedi, Senior Advocate with
Ms. Diya Sodhi, Advocate
for the appellant.
Mr. Sandeep Vermani, Addl. A.G.,Haryana.
Mr. Anshuman Dalal, Advocate,
for the complainant.
RAJIVE BHALLA, J.
The appellant, challenges judgment dated 24.02.2011 and order dated 25.02.2011,recorded by the Additional Sessions Judge, Jhajjar, convicting and sentencing him for the murder of his wife and mother-in-law in the following terms:- NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -2-
Under Section 498-A IPC The accused namely Satbir is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.5000/-. In default of payment of fine, further imprisonment for a period of six months.
Under Section 302 IPC The accused namely Satbir is further sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/-. In defualt of payment of fine, further imprisonment for a period of two years.
PW12 Jai Bhagwan, Inspector/SHO, Police Station, Jhajjar, was present at a bridge, on the Jhajjar-Gurgaon road with other police officials, where they received information about a murder in village Surha. The police team headed by Inspector/SHO, proceeded for village Surha and upon arriving at the house of Satbir Singh found two dead bodies one of Sushma Devi (wife of the appellant) and the other Kamla Devi (mother-in- law of the appellant), lying in the house. Parveen Kumar, brother of Sushma Devi (deceased) and son of Kamla Devi (deceased), arrived after some time and made a signed statement, Ex.P3 that his young sister Sushma Devi was married to Satbir Singh in March, 2004. The couple was blessed with a son, Jatin, NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -3- about three years ago and, though, at the time of marriage they provided dowry beyond their means, Satbir Singh had started harassing his sister by demanding a motorcycle on the pretext that he gets late for his duty. To ensure the welfare of his sister, they gave Rs.35,000/- in cash. Satbir Singh, however, was not satisfied and started torturing his sister and even stopped her from visiting her matrimonial home, in village Bupnia. Satbir Singh's mother Barsati also began taunting the deceased for one reason or the other. On 07.08.2008, Kamla Devi, mother of the complainant, went to village Suhra to meet his sister. At about 9.00 A.M., he received a message that his sister Sushma Devi and his mother Kamla Devi have been murdered and, therefore, along with his uncle Surender Singh, Deepak son of Surender Singh, Sumer Singh son of Pyare Lal, reached village Suhra and are sure that his sister and mother have been murdered by Satbir Singh son of Sube Singh (husband), Barsati wife of Sube Singh (mother-in-law), Sube Singh son of Jugti (father-in-law), Parkash son of Sube Singh and the wife of Parkash, by using a sharp edged weapon.
The Inspector/SHO appended endorsement, Ex.P19/A, at 3.05 P.M. and forwarded the statement to the police station, where FIR No.448, dated 08.08.2008, Ex.P-19, came to be registered, under Sections 148/149,302 of the Indian Penal Code, at Police Station, Jhajjar. A special report was NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -4- forwarded and received by the Magistrate at 5.00 PM, on 08.08.2008, itself. PW12 Inspector/SHO Jai Bhagwan, collected blood from near the dead body of Kamla Devi, which was converted into a sealed parcel and taken into possession vide Ex.P18, whereas blood taken from near the dead body of Sushma Devi was taken into possession, vide recovery memo, Ex.P17. The recovery memos were signed by the Investigating Officer and witnessed by ASI Pardeep Kumar and HC Suraj Bhan. The Investigating Officer prepared an inquest report, Ex.P5 pertaining to Sushma Devi and Ex.P9 pertaining to Kamla Devi. The Investigating Officer, recorded statements of ASI Pardeep Kumar, HC Suraj Bhan, Jitender and Sanjay, all residents of village Bupania. The dead bodies were forwarded for post mortem and after post mortem, the doctor handed over parcels to EHC Ranjit Singh, which were taken into possession vide recovery memo Ex.P24. The site of the occurrence was photographed by Surender Singh and case property was deposited with MHC.
The appellant Satbir Singh, surrendered before the Chief Judicial Magistrate, Jhajjar, on 13.08.2008 and was formally arrested after an application was filed for his remand was allowed, on14.08.2008. Satbir Singh suffered a disclosure statement, Ex.P25, in the presence of Dinesh Kumar and Bhoop Singh, and offered to get a sword, slippers and clothes, which he NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -5- has concealed in his house and a motorcycle, which he had parked at a shop at Dhansa Bus Stand, recovered. Satbir Singh was taken to his house in village Suhra, where he took out a sword, clothes, a pair of slippers from a cupboard lying in the last room of his house. A sketch of the sword, Ex.P26, attested by Dinesh and Bhoop Singh, was also prepared. The sword and other articles were converted into a sealed parcel bearing seal 'SNK' and taken into possession, vide recovery memo, Ex.P27. A rough site plan of the place of recovery is, Ex.P33. Satbir Singh got his motorcycle bearing registration No.HR-14C-9327, recovered, which was taken into possession vide recovery memo, Ex.P32. The investigating Officer recorded the statements of Bhoop Singh and Dinesh Kumar, witnesses to the recovery. The Investigating Officer, filed an application, on 19.08.2008, Ex.P34, before the doctor to ascertain his opinion whether the sword, produced by Satbir Singh, could be used to inflict injuries detected on the person of the deceased. PW14 Satya Narain, who, in the meanwhile, was handed over charge of the investigating concluded investigation and filed a final report, under Section 173 Cr.P.C., arraying Satbir Singh, the appellant, Sube Singh, his father and Barsati, his mother, as accused.
The Additional Sessions Judge, Jhajjar, framed charges under Sections 498-A/302/304-B/149 of the Indian NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -6- Penal Code but as the appellant pleaded not guilty and claimed trial, the prosecution was called upon to adduce evidence. In order to prove its case, the prosecution, has examined:-
PW1 Sanjay son of Raj Singh, resident of village Bhupania, Tehsil and District Jhajjar, who has deposed that after receipt of information on 08.08.2008, he accompanied Jitender and after they reached the house of Satbir in village Suhra, found the dead bodies of Kamla wife of Mahender Singh, his aunt and Sushma daughter of Kamla, lying in the last room of the house belonging to Satbir. Sanjay further deposed that he identified the dead bodies of Kamla and Sushma and the police recorded his statements Ex.P1 and Ex.P2, in this regard.
PW2 is Parveen Kumar son of Mahender Singh and Kamla (deceased) and brother of Sushma Devi (deceased), who has deposed about demands for dowry, alleged demand of Rs.35,000/- to purchase a motorcycle, torture and harassment by Satbir Singh. Parveen Kumar has also deposed that a day before the occurrence, his mother Kamla had gone to village Suhra, to inquire about the welfare of Sushma Devi. On 08.08.2008, at about 9.00 AM, he received information that his mother and sister have been murdered at village Suhra. He reached Satbir Singh's house with his uncle Surender, his cousin Deepak, Sanjay, Sumer Singh and other respectables of the village and came to know that his mother and sister have NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -7- been murdered by Satbir, Barsati, Sube Singh, Sat Parkash and his wife Rajesh with sharp edged weapons. Parveen Kumar also deposed that his sister had told him that her husband has an illicit relationship with his sister-in-law(Babhi), who told Satish to eliminate Sushma, as she will get him married, elsewhere.
PW3 is Surender Singh son of Surat Singh, uncle of PW2 Parveen Kumar, who has deposed about harassment, torture, demand of dowry etc. He also deposed about payment of Rs.35,000/- for purchase of a motorcycle etc., and has deposed in consonance with the deposition by PW2.
PW4 is Dr. Man Mohan Singh, Medical Officer, General Hospital, Jhajjar, who conducted post mortem and deposed with respect to injuries and the cause of death.
PW5 is ASI Pardeep Kumar, who accompanied Inspector Jai Bhagwan, the then SHO, Police Station Jhajjar, to the spot and deposed that blood stained earth was lifted with the aid of white cloth from near the dead bodies of Sushma and Kamla and recording of memos Ex.P17 and Ex.P18.
PW6 is SI Azad Singh, Escort Guard, Jhajjar, who deposed that he recorded formal FIR, Ex.P19, at 3.45 PM on 08.08.2008. PW7 is HC Jai Chand, who deposed that he prepared the scaled site plan, Ex.P20, at the asking of SI Sat Narain and on the pointing out of Parveen Kumar. PW8 is EASI Surender Kumar, who deposed that he took photographs NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -8- Ex.P21 and Ex.P22, on 08.08.2008, with a digital camera. PW9 is HC Kuldeep Singh, who tendered his affidavit, Ex.P23, into evidence regarding taking into possession of case property. PW10 is EHC Ranjit Singh, who handed over a sealed parcel, received after post mortem from the doctor to Inspector Jai Bhagwan, which was taken into possession vide recovery memo Ex.P24. PW11 is EHC Satawan, who tendered his affidavit, Ex.P25, into evidence.
PW12 is Jai Bhagwan, the then SI/SHO , Police Station Jhajjar, who received information regarding the murders, proceeded to the house of Satbir son of Sube Singh, in village Suhra, found two dead bodies lying in the last room of Satbir Singh's house, collected blood stained earth, prepared inquest report, forwarded dead bodies for post mortem and prepared various formal documents etc. , including the photographs and the site plan of the house and the place where the dead bodies were lying.
PW13 Dinesh son of Sumer Singh, is a witness to the interrogation of Satbir Singh as well as his disclosure statement, Ex.P25, the consequent recovery of the sword, slippers etc. PW14 is Satya Narain, SHO, Police Station, Bahadurgarh, who recorded the disclosure statement and effected recoveries of the sword, slippers, clothes and the motorcycle. PW14 also forwarded the case property to Forensic NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -9- Science laboratory and upon conclusion of investigation, filed the final report.
Upon completion of prosecution evidence, incriminating circumstances were put to the appellant and his co-accused, who denied the circumstances and pleaded false implication.
Sube Singh, father of the appellant denied the allegations of demand of dowry, harassment etc. and deposed that he has retired from the army and purchased a motorcycle from the Army Canteen, with his own money. On 07/08.08.2008, he had gone to Jhajjar for treatment as he is heart patient and to draw his pension.
Barsati wife of Sube Singh, mother of the appellant made a statement on similar lines and stated that she had gone to the house of her son Har Parkash, brother of the appellant.
Har Parkash stated that he is living separately, since his marriage in 1993 and is an Ex. Air Force employee who lives at Jhajjar and on the date of occurrence, was serving in Re- logistic Company India Pvt. Limited at Kundli, Sonepat. Rajesh wife of Har Parkash made a similar statement. It would be appropriate to point out that Sube Singh, Barsati, Har Parkash and Rajesh wife of Har Parkash have been acquitted.
Satbir, the appellant, stated as follows:-
"I am innocent. I am falsely implicated in this NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -10- case. I neither demand any dowry nor harassed the deceased. No complaint of any demand of dowry. My father, mother, brother and Bhabi Rajesh were living separately from me. I was doing property dealings in Gurgaon with my brother-in-law (jija). The deceased was hot headed and also earlier dispute but the same was settled but not connected with dowry demand. My father purchased a motor cycle from Army Canteen from his own money.
Nothing was disclosed by me regarding the crime and nothing was recovered from me. Talwar was planted upon me and medical evidence does not support the prosecution case. No connecting evidence is produced by the prosecution regarding my implication to the crime. Allegation of illicit relations with my bhabi is concocted and much after FIR."
The accused produced 11 witnesses in defence and a large number of documents.
DW1 Sandeep Kumar, Sanitary Inspector, Jhajjar, proved that Har Parkash, accused, who has been acquitted, resides separately, by proving application, Ex.DB, for a no due certificate for construction of his house etc. NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -11- DW2 R.S.Gulia, Welfare Organizer, Zila Sainik Board, Jhajjar, proved that Sube Singh (acquitted), father of the appellant had retired from the Army and vide indent, Ex.DF, applied for a motor cycle, on 11.09.2007, which was verified by the Secretary, Zila Sainik Board, Jhajjar, as recorded in Ex.DE and Ex.DE/1.
DW3 is Ram Singh, Peon, who proved OPD Slip, Ex.DG, pertaining to Sube Singh, Ex. Naib Subedar, regarding his treatment at Defence Centre and its entry in the original register.
DW4 is Pawan Solanki, Inspector, Food Supply, Jhajjar,who proved ration card, Ex.DI, in the name of Har Parkash Gulia, issued at Jhajjar.
DW5 Suresh Tayal, Special Assistant, Punjab National Bank, Jhajjar, proved that Rs.45,000/- was withdrawn in cash from his account by Sube Singh son of Jugti Ram, on 10.09.2007.
DW6 V.S.Kadian, Sergant working in Legal Cell of Air Force Record Office, Suboroto Park, New Delhi-10, proved the service record of Har Parkash. DW7 Rakesh Kumar, Registration Clerk, proved the registration certificate of T.V.S. Motor Cycle bearing registration No.HR-14-C-9327, dated 20.09.2007. DW8 Satbir Singh, Clerk of R.E.D.School, Jhajjar, proved that Har Parkash's children are studying in the aforesaid NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -12- school at Jhajjar.
DW9 Ramesh Kumar son of Ram Karan, is a brother- in-law (sister's husband) of the appellant and has been produced as witness of an alibi. Ramesh Kumar has deposed that Satbir was working with him as a partner in the business of property dealing and they had an office at Khandsa Road, Gurgaon. DW9 has also deposed that on 08.08.2008, a message was received regarding the murders of Sushma wife of Satbir and Kamla mother of Sushma. On receipt of the message, Satbir left for village Surha. On the night of 07.08.2008, Satbir was with him.
DW10 is Balbir Singh son of Mange Ram, who deposed that he had purchased a Maruti car from Smt. Rajesh (acquitted) wife of Har Parkash. DW11 Amrik Singh, Junior Assistant in the office of Registering Authority (Motor Vehicle), Mohali, Punjab, who proved transfer of scooter in the name of Har Parkash etc. Police reports Ex.DU and Ex.DV, dated 05.11.2008 and 10.11.2008, filed by the police in the bail application of Har Parkash and Rajesh, were tendered into evidence. A certified copy of the bail order was also tendered into evidence as Ex.DW.
The learned trial court after considering the evidence on record, convicted Satbir Singh son of Sube Singh, for the murders of Kamla Devi and Sushma Devi but acquitted the other NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -13- accused.
Counsel for the appellant submits that motive for the alleged murders is harassment and a consistent demand for dowry, which is said to have been satisfied at one stage, by payment of Rs.35,000/- to Satbir Singh, for purchase of a motorcycle. The demand for payment of Rs.35,000/- is falsified by the fact that the accused have produced evidence, on record, that the appellant's father withdrew Rs.45,000/- from his bank account and after taking requisite permission from the Zila Sainik Board, purchased a motorcycle, from the Army Canteen. Apart from this false allegation, depositions by prosecution witnesses are devoid of any specific allegation of demand for dowry, harassment, cruelty or torture. The allegation that the appellant had an illicit relationship with his sister-in-law is neither proved nor was any such statement made before the police by PW2 Parveen Kumar, the complainant, or by any of the other witness. The allegation even otherwise has not been believed by the trial court while acquitting the other accused, thereby clearly proving that the very foundation of the prosecution case stands falsified. Counsel for the appellant further contends that the dead bodies were found in the last room of the house. The police searched the room and the entire house on 08.08.2008, but did not come across any weapon but surprisingly on 14.08.2008, suddenly recovered a sword from an open NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -14- cupboard, in this room. A perusal of Ex.DA, the statement recorded under Section 161 Cr.P.C., by EHC Kuldeep Singh, reveals that a parcel containing the sword was deposited with him, as malkhana incharge, on 08.08.2008. The sword, therefore, could not possibly be recovered on 14.08.2008. PW9 Kuldeep Singh was confronted with his statement, Ex.DA, but was unable to furnish an explanation except for a simple denial thereby proving that the sword was not recovered from the crime scene on 08.08.2008 or thereafter and foisted upon the appellant. It is further submitted that PW14, has deposed that the sword was produced by the appellant from a cupboard in the last room on 14.08.2008, whereas PW12, the then SHO, who visited the crime scene, on 08.08.2008 has admitted that the cupboard was lying open on 08.08.2008, thereby proving that the sword has been foisted upon the appellant, so as to show recovery of a weapon. It is further argued that even the doctor produced to prove the cause of death, has deposed that injuries were caused by two weapons. The doctor has also deposed that injuries could have been caused with a 'gandasa', thereby disproving the prosecution story that injuries were inflicted with a sword. This apart the prosecution even tried to introduce an element of rape. It is further contended that the evidence of motive, having been proved to be false, recovery of the weapon proved to be clearly foisted, the appellant cannot be NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -15- convicted on the ground that the dead body of his wife and mother-in-law were found in a room in his house.
Counsel for the appellant further contends that the appellant has primarily been convicted as the dead bodies of his wife and mother-in-law were found in his house, but as criminal jurisprudence requires the prosecution to prove its case in its entirety and only if the evidence adduced points to the appellant as the accused may he be called upon to explain special facts within his knowledge under Sections 106 and 114 of the Evidence Act. The prosecution having failed to adduce any evidence against the appellant, an inference cannot be drawn under Section 106 of the Evidence Act, that the appellant, murdered his wife and mother-in-law.
It is further submitted that deposition by DW9 Ramesh Kumar, brother-in-law of the appellant that they are partners in a business at Gurgaon and on 07/08.08.2008, the appellant was with him and only left for his village after he received a telephone call about the murders, has not been considered by the trial court. The statement by DW9 proves that the appellant was not present in his house and, therefore, is not required to discharge onus placed by Sections 106 or 114 of the Evidence Act. The learned trial court has, however, without reference to any evidence other than that the dead bodies were found in the house of the appellant, and by ignoring failure of the NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -16- prosecution to prove motive, proceed to convict the appellant without reference to any evidence other than the evidence of recoveries from his house.
Counsel for the State of Haryana submits that the discovery of two dead bodies, admittedly, from the house of the appellant, the recovery of sword by and at the behest of the appellant, proves the guilt of the appellant. The purchase of the motorcycle in the year, 2007, is entirely irrelevant as prosecution witnesses have deposed that Rs.35,000/- were paid for purchase of the motorcycle, in 2006. The discrepancies in collecting evidence and in depositions by formal witnesses do not entitle the appellant to any consideration. The deposition by DW9, is a fake attempt to create an alibi, which has been rightly rejected by the trial court. The appellant having himself admitted that his wife was hot headed lady and there was a prior dispute (though settled) proves that all was not well in the marriage and, therefore, the appellant murdered his wife and his mother-in-law, on the night of 7/08.08.2014.
We have heard counsel for the parties, appraised the evidence on record and duly considered the judgment and order passed by the trial court, convicting and sentencing the appellant in terms recorded in the opening paragraph of the judgment.
Two murders, one of his wife Sushma and the other of NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -17- his mother-in-law Kamla Devi, took place on the night of 7/08.08.2008, in the last room of the house belonging to the appellant. The absence of an eye witnesses rendered the task of the prosecution onerous but not insurmountable. The prosecution primarily relies upon evidence of motive, recovery of dead bodies, from the last room in the house owned and in control of the appellant, medical evidence, to prove a homicidal death, recovery of a sword, the FSL report, other link evidence and failure of the appellant to disclose special facts within his knowledge, as sufficient to fasten culpability for the murders of the appellant's wife and mother-in-law.
As regards motive, the allegation put forth by the prosecution, is one of demand of dowry, harassment and torture etc. The allegation of torture, harassment and demand of Rs.35,000/- for a motorcycle, may have been rejected against the co-accused, who have been acquitted but as prosecution witnesses have consistently deposed that the appellant demanded and was paid Rs.35,000/- for purchase of a motorcycle in 2007, we are inclined to accept this evidence as proof of the fact that the appellant was harassing his wife by raising demands for money etc. from his in-laws. The appellant as well as the other witnesses, in their endeavour to falsify the allegation of a demand for Rs.35,000/- have produced evidence to prove that Sube Singh, the appellant's father withdrew NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -18- Rs.45,000/- in 2007 and thereafter, purchased a motorcycle, which was recovered from the appellant. The purchase of the motorcycle, by the appellant's father is undoubtedly proved but does not entitle the appellant to any benefit as payment for purchase of the motorcycle was made in cash in the year 2006 but the motorcycle was purchased through an Army Canteen, in 2008. The motorcycle could only be purchased through a bank instrument and permission was taken from the army. The purchase of the motorcycle, was, therefore, shown through the appellant's father. It would also be appropriate to point out that while recording his statement under Section 313 Cr.P.C., the appellant has himself stated that his wife was a hot headed lady and there was a dispute between them, which stood resolved but this dispute did not relate to dowry, thereby in essence, alluding to the fact that all was not well in the marriage and whether the dispute, unfortunately translated into a fatal attack on the night of 07/08.08.2008 by the appellant, is the question that calls for an answer particularly in the context of murders and recovery of dead bodies from the last room of the house of the appellant.
PW2 Parveen Kumar, brother and son of the deceased, respectively, recorded a statement alleging murders by the appellant. The scaled site plan, Ex.P20, photographs, Ex.P21 and Ex.P22, prove that dead bodies of Sushma and NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -19- Kamla were found in the last room of the house belonging to the appellant. The inquest report, Ex.P9, records that Kamla's hands were tied behind the back. Ex.P5, the inquest report, pertaining to Sushma wife of Satbir reveals that the face was covered with a veil. The injuries on both the deceased, as per the inquest report, were inflicted with a sharp edged weapon. The injuries on the persons of the deceased as detected by PW4 Dr. Man Mohan Singh, Medical Officer, General Hospital, Jhajjar, during post mortem, are as follows:-
INJURIES WITH REGARD TO SUSHMA "1. Incised wound through and through at the level of neck corresponding vessels, Muscles bones were cut through and through only skin flap left on right side of neck.
2. Incised would 2x2cm on right shoulder joint anterior aspect.
3. Contusion multiple in number of various sizes and shape present on right side of chest bluish in colour.
4. Contusion 6x5cm on left side of thigh bluish in colour.
5. Contusion multiple present on right side of thigh and right leg blue in colour.NARESH KUMAR
2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -20-
6. Contusion of various sizes and shape present on left leg bluish in colour.
7. Multiple contusion and abrasion on left side of back and left arm and whole of back.
8. Contusion 3x3 present on parietal region on cut section haemotoma present in subdural and extra dural space of parietal region of skull."
INJURIES WITH REGARD TO KAMLA "1. Incised wound through and through at the level of neck corresponding vessels, muscles bones were cut through and through only skin flap left on the right side of the neck.
2. Incised wound 1x1.5cm on left side of chest in axillary region on cut section fracture 4th rib left side and right lung injured."
The doctor also proved post mortem reports, Ex.P4 and Ex.P5 and opined that cause of death in both cases is shock and hemorrhage due to injuries, which were ante mortem in nature and sufficient to cause death in the ordinary course of nature. The doctor, in his cross-examination, stated that the NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -21- police did not seek his opinion with regard to the nature of weapon used and that injuries could be caused by different weapons but after he was recalled for further examination-in- chief and the parcel containing the weapon allegedly used was shown to him, he admitted that the police had sought and obtained his opinion, Ex.P36, regarding the weapon used and admitted his signatures on Ex.P36. The prosecution has, therefore, proved that Kamla Devi and Sushma Devi, died from injuries inflicted with a sharp edged weapon.
The prosecution in its endeavour to prove that the appellant inflicted the fatal injuries, relies upon disclosure statement, Ex. P25, leading to recovery of a sword, as recorded in recovery memo, Ex.P25. The sword was shown to PW4, Dr. Man Mohan Singh, vide application, Ex.P34, who opined that injuries no.1 and 2 on Sushma and injuries no.1 and 2 on Kamla, could have been caused by this weapon. The sword, which was blood stained, as well as other evidence collected by the prosecution, was forwarded for forensic examination. Ex.P35, report received from the Forensic Science Laboratory, confirms the presence of human blood, on the sword, but as far as the grouping of the blood, the report is inconclusive. The FSL report also found human blood on clothes, worn by the deceased. The FSL report proves that the sword was used for inflicting injuries. The fact that dead bodies were found in the NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -22- last room of the appellant's house, fatal injuries were inflicted with a sword, a sword was recovered from the appellant, the sword was found to be blood stained, prove that Kamla Devi, and Sushma Devi, were murdered in the last room of the house belonging to the appellant, by inflicting injuries with a sword. The question that remains is whether prosecution has adduced sufficient circumstantial evidence to enable us to raise an inference of culpability and to hold that the appellant murdered his wife Sushma Devi and his mother-in-law Kamla Devi, with the sword recovered from the appellant.
At this stage, it would be necessary to point out that the trial court has convicted the appellant by relying upon Section 106 of the Evidence Act. We are left with the final argument, namely, that onus to prove an offence lies upon the prosecution and only if the prosecution produces prima-facie evidence of culpability, may an inference be drawn from recovery of a dead body from the house of an accused and his failure to furnish an explanation or disclose special facts in his knowledge under Sections 106 and 114 of the Evidence Act, that the accused committed the murder of the deceased.
In a case where dead bodies are recovered from the house of an accused, the prosecution proves that the homicidal death was a murder proves that the weapon recovered from the accused, was used in the murder, the evidence so adduced NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -23- would necessarily point to the accused as the perpetrator of the murder. The onus, thereafter, to disclose special facts within his knowledge, under Sections 106 and 114 of the Evidence Act necessarily shifts to such an accused. Thus, though the primary onus to prove its case lies upon the prosecution but where an offence takes place within the confines of a room, in the exclusive control/ownership of an accused and the evidence adduced by the prosecution points to the accused as the perpetrator of the murder, the onus must necessarily shift to the accused to disclose relevant facts as to what transpired in the room/house in his control and if not satisfactorily explained would raise an inference against such an accused. The mere failure, however, of an accused to prove his alibi, if raised, cannot be a circumstance to infer culpability but where prosecution evidence, points towards the accused as the perpetrator of the crime, he would be required by Sections 106 and 114 of the Evidence Act, to disclose special facts within his knowledge. The feigned ignorance of an accused or a simple denial, may not be sufficient to discharge onus, placed by Sections106 and 114 of the Evidence Act. It would be appropriate, at this stage, to refer to paragraph from a judgment of the Hon'ble Supreme Court in Sucha Singh v. State of Punjab, 2001(2) RCR(Crl.), 298, so as to place our aforesaid conclusion, in perspective:-
NARESH KUMAR2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -24-
"We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knwoledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
The relevant facts proved by the prosecution, namely, dispute in the marriage, proved not only from part of the statement recorded under Section 313 Cr.P.C., but also from depositions by prosecution witnesses, the murders of the appellant's wife and his mother-in-law, the recovery of their bodies from the last room, in the appellant's house, the recovery of the weapon by and at behest of the appellant, the report of the FSL and deposition by the doctor, that injuries could have been inflicted with this sword, in our considered opinion, are sufficient to shift the onus to the appellant, under Sections 106 and 114 of the Evidence Act, required the appellant to disclose NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -25- as to what transpired on the night intervening 07/08.08.2008, that led to the death of his wife and mother-in-law.
The appellant as is apparent from his statement, under Section 313 Cr.P.C., feigned, total ignorance of what occurred on the night of the 07/08.08.2008, in his house and produced his brother-in-law in defence in his attempt to prove that the appellant was not in his house on the night of 07/08.08.2008. The deposition by the appellant's brother-in-law does not inspire confidence and has, therefore, been rightly discarded by the trial court. The appellant's brother-in-law has deposed that he and the appellant were in business of the property dealing at Gurgaon and were running an office. The appellant was with him on the night of 07/08.08.2008 and left for his village after he received a telephone call. The bald statement by the appellant's brother-in-law, not supported by any evidence of the business, the place where the office was being run or that the appellant resided at Gurgaon, does not entitle the aforesaid deposition to any credence much less does it discharge the onus placed under Sections 106 and 114 of the Evidence Act. The failure of the appellant to offer any acceptable explanation, which may enable us to draw an inference in favour of the appellant, disentitles the appellant to any relief much less any doubt as to the perpetrator of the murder of Sushma Devi and Kamla Devi, wife and mother-in-law, i.e. the appellant. The NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -26- evidence adduced by the prosecution gives rise to a credible inference that the appellant murdered Sushma Devi and Kamla Devi,on the night of 07/08.08.2008.
The argument that PW4 Dr. Man Mohan Singh has deposed that injuries could have been caused by two separate weapons, as the injuries are incised and contusions, in our considered opinion, does not entitle the appellant to any benefit. The doctor having opined beneath application, Ex.P34, and duly admitted, in his deposition that injuries no.1 and 2 on both the deceased could have been caused by the sword recovered pursuant to disclosure statement made by the appellant, renders irrelevant, the question whether one or two weapons were used.
An argument that PW11 has admitted during cross- examination that a cupboard in the room where dead bodies were discovered was lying open on 08.08.2008 (two dates of disclosing of the murders) but surprisingly a sword was recovered on 14.08.2008, from this very cupboard casts a serious doubt on the disclosure statement and the recovery, does not merit acceptance. The police as is well known, are ill trained and ill equipped for even perfunctory investigations and do often, leave flaws in investigation but these flaws cannot be invoked to plead innocence much less lead to acquittal, as we cannot lose sight of the fact that both the deceased were closely NARESH KUMAR 2014.10.10 14:07 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-278-DB of 2011 -27- related to the appellant, namely, his wife and mother-in-law and were found brutally murdered in the last room of his house. Even if we raise a doubt as to the recovery of the sword, the appellant having not furnished any explanation apart from raising a tepid plea of alibi based upon the deposition by DW9, is not entitled to any benefit much less a benefit of doubt.
Another flaw in the prosecution, namely, that Ex.DA, statement by EHC Kuldeep Singh, the Moharer Head Constable records that sword was entrusted to him on 08.08.2008, whereas it was recovered on 14.08.2008, appears to be an error on the part of this witness for the simple reason that if the sword was actually recovered on 08.08.2008, there was no reason for the police not to show its recovery on 08.08.2008.
Thus, having held that the appellant is the perpetrator of the crime, i.e., the brutal murders of Sushma Devi and Kamla Devi, we find no error in the judgment and order, passed by the trial court, convicting and sentencing the appellant, for the murder of two woman, who are none other than his wife and mother-in-law.
Consequently, the appeal is dismissed.
(RAJIVE BHALLA)
JUDGE
30th September, 2014 (AMOL RATTAN SINGH)
nt
NARESH KUMAR
JUDGE
2014.10.10 14:07
I attest to the accuracy and
authenticity of this document
Chandigarh