Punjab-Haryana High Court
Raj Kumar And Another vs State Of Punjab on 12 March, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No. 406-DB of 2005 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:March 12, 2012
Criminal Appeal No. 406-DB of 2005
Raj Kumar and another
......Appellants
Versus
State of Punjab .......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.S.S.Tiwana, Advocate,
Amicus Curiae for the appellants.
Mr.P.C.Goyal, Addl.A.G.Punjab.
****
JUDGMENT
SABINA, J.
Appellants have preferred this appeal challenging their conviction and sentence for commission of an offence under Sections 302/ 201 of the Indian Penal Code, 1860 (IPC for short), as ordered by the trial Court vide judgment/ order dated 8.4.2005.
The prosecution story, in brief, is that complainant Gurbachan Singh was sarpanch of Janta Colony, Naya Gaon. On 1.10.2000 Raju met him and told him that Raj Kumar, resident of their area had two daughters namely Jyoti and Neelu. Jyoti was aged Criminal Appeal No. 406-DB of 2005 2 about 9-10 years. After the death of his wife about three years back, Raj Kumar was living with Reeta Rani, wife of his elder brother. Reeta Rani and Raj Kumar used to give beatings to Jyoti. Few days back Raj Kumar and Reeta Rani, in conspiracy with each other, had given beatings to Jyoti with the help of thapi (wooden piece used for washing clothes). As a result of beatings given to her, Jyoti had died and Raj Kumar along with Reeta Rani had buried the dead body in their house.
On the basis of the statement of the complainant formal FIR No.272 was registered on 1.10.2000 at police station Mohali under Sections 302/ 201/ 34 IPC.
Assistant Sub Inspector Nirmal Singh reached the spot. Both the accused were produced before him by Harbant Singh Bajwa, Sarpanch of village Naya Gaon and they were formally arrested. During interrogation, accused Raj Kumar suffered a disclosure statement in the presence of Gurbachan Singh and Harbant Singh Bajwa that he along with Reeta Rani had given beatings to his daughter Jyoti with a thapi and as a result she had died. Thereafter, the dead body was buried in their house after digging the floor. They offered to get the dead body recovered from the disclosed place. Similar disclosure statement was suffered by Reeta Rani during interrogation. Thereafter, application was moved by Assistant Sub Inspector Nirmal Singh through Head Constable Faqir Chand for deputing a Magistrate at the time of search and recovery of the dead body.
On 2.10.2000, in the presence of Tehsildar and Naib Criminal Appeal No. 406-DB of 2005 3 Tehsildar, Majri, the accused got recovered the dead body of deceased Jyoti from the disclosed place. At the time of recovery of the dead body, the photographer, who had been summoned at the spot, took the photographs. Assistant Sub Inspector Nirmal Singh prepared the inquest report qua the dead body and sent the same for postmortem examination. He also recorded the statements of Tehsildar, Naib Tehsildar, Harbant Singh Bajwa and Gurbachan Singh. Rough site plan of the place of recovery was prepared.
On 3.10.2000, Assistant Sub Inspector Nirmal Singh joined the police party headed by Sub Inspector Gurmit Singh. Lady Constable Paramjit Kaur was also joined at the time of interrogation. Accused Reeta Rani suffered a disclosure statement and on the basis of the same, she got recovered the thapi from the disclosed place and the same was taken in possession.
After completion of investigation and necessary formalities, challan was presented against the appellants.
Prosecution in order to prove its case examined 16 witnesses.
The appellants, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), after the close of prosecution evidence, pleaded that they were innocent and had been falsely involved in the case. Dead body of Jyoti had not been recovered from their house as alleged.
The appellants did not lead any evidence in their defence. Learned amicus curiae for the appellants has submitted that the prosecution had miserably failed to prove its case. The Criminal Appeal No. 406-DB of 2005 4 prosecution case mainly rested on the extra judicial confession alleged to have been suffered by the appellants before PW-11 Harbant Singh Bajwa. The appellants had no occasion to suffer extra judicial confession before the said witness as he did not know appellant Raj Kumar. The appellants had not suffered any disclosure statement which led to the recovery of the dead body as alleged by the prosecution witnesses.
Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. Both the appellants had gone to Harbant Singh Bajwa, sarpanch of village Naya Gaon and had suffered extra judicial confession before him. Since the said witness was sarpanch of the village, it was natural for the appellants to have suffered extra judicial confession before him.
The present case rests on circumstantial evidence. In 'Manjunath Chennabasapa Madalli versus State of Karnataka', AIR 2007 Supreme Court 2080, it was held as under:-
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446) ; State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh Criminal Appeal No. 406-DB of 2005 5 v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
Thus, in order to establish its case based on circumstantial evidence, prosecution is required to complete the chain of circumstance which would lead to the inference of the guilt of the accused and negate their innocence.
Let us examine the evidence led by the prosecution in order to prove its case to come to a conclusion as to whether it has been successful in discharging its onus.
PW-1 Dr.Simi Malhotra deposed that on 2.10.2000 she had conducted the postmortem examination on the dead body of Jyoti along with Dr. Ashok Saini and Dr.Manjit Singh and found following injuries on her person:-
"1. 3 cm x 2 cm wound on the scalp lateral to the midline on left side. Underlying skull bone fractured. Meninges Criminal Appeal No. 406-DB of 2005 6 showed laceration and brain was soft and pulpy on dissection.
2. 4 cm x 2 cm wound on the scalp, 1" posterior and lateral to wound No.1.
3. 2" x 1" wound on the left shoulder from which Acromion process was pretruding left shoulder dislocated.
4. 3 cm x 2 cm oval wound found on left leg in the middle part on the anterior surface. Maggots were present.
5. 2 cm x 1 cm oval wound present on the upper 1/3rd of right leg on the anterior surface. Maggots were present."
In their opinion, the probable time between death and postmortem was 3-5 days. The cause of death in the present case was due to head injury, which was ante mortem in nature and sufficient to cause death in the ordinary course of nature.
The complainant appeared in the witness box as PW-6, and deposed that PW-7 Raju had told him that appellant Raj Kumar had killed his daughter and had buried her in his house. The said witness was declared hostile as he did not support the prosecution case qua disclosure statements suffered by the accused. However, when he was cross-examined by the learned public prosecutor, he admitted that appellant Raj Kumar had suffered a disclosure statement during interrogation and on the basis of the same he had got recovered the dead body of Jyoti from his house. He did not support qua disclosure statement suffered before him by appellant Reeta Rani.
Criminal Appeal No. 406-DB of 2005 7
PW-7 Raju deposed that on 1.10.2000, he came to know that daughter of appellant Raj Kumar was not traceable and foul smell was coming from his house. Persons from the area collected at the spot and stated that Raj Kumar had killed his daughter and had, thereafter, buried her in his house. He gave the information in this regard to PW-6 Gurbachan Singh.
PW-2 Malkiat Singh, Tehsildar, deposed that on 2.10.2000, appellant Raj Kumar had led the police party to the place where the dead body of Jyoti was lying buried. After digging the earth, dead body of Jyoti was recovered. In their presence Raj Kumar had admitted that he had buried the dead body.
PW-3 Gurmail Singh, Naib Tehsildar, deposed that on 2.10.2000, accused Raj Kumar had gone inside his house and had brought the dead body outside. He had not seen the place from where the dead body was got recovered. The dead body was taken in possession.
PW-11 Harbant Singh Bajwa deposed that on 1.10.2000, he was sarpanch of village Naya Gaon. On that day Raj Kumar and Reeta Rani accused came to his house. Raj Kumar had confessed before him that he had given beatings to his daughter and as a result of the same, she had died. He along with his wife Reeta Rani had buried the dead body of Jyoti by digging a pit in a room of their house. Accused Reeta Rani had also suffered a similar confession before him. Both of them had requested him that they should be produced before the police. Thereafter, he produced both the accused before Assistant Sub Inspector Nirmal Singh. On 2.10.2000, Criminal Appeal No. 406-DB of 2005 8 accused suffered a disclosure statement during interrogation and got recovered the dead body of deceased Jyoti from the disclosed place in the presence of the two Tehsildars and Executive Magistrate.
It has been held in Bhagwan Dass vs. State of (NCT) of Delhi 2011 (2) RCR (Criminal) 920, as under:-
"12. In our opinion the statement of the accused to his mother Smt. Dhillo Devi is an extra judicial confession. In a very recent case this Court in Kulvinder Singh & Anr. vs. State of Haryana Criminal Appeal No.916 of 2005 decided on 11.4.2011 referred to the earlier decision of this Court in State of Rajasthan vs. Raja Ram (2003) 8 SCC 180, where it was held (vide para 10) :
"An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses Criminal Appeal No. 406-DB of 2005 9 who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touch-stone of credibility, the extra- judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
PW-11 Harbant Singh Bajwa was the sarpanch of village Naya Gaon at the relevant time. Appellants were residents of Naya Gaon and in these circumstances, it was natural for them to have reposed confidence in the said witness and confess their guilt. The statement of PW-11 inspires confidence.
From the statement of PW-11, it is evident that appellant Raj Kumar had given beatings to his daughter and as a result of the same she had died. Appellant Reeta Rani had not given beatings to Jyoti which resulted in her death. Thereafter, with a view to save himself, Raj Kumar along with his co-accused Reeta Rani buried the Criminal Appeal No. 406-DB of 2005 10 dead body in a room of their house. The appellants were produced before the police by PW-11 on the basis of extra judicial confessions suffered by them before the said witness. Thereafter, during investigation, the appellants suffered disclosure statements and on the basis of the same, the dead body was got recovered by them from the disclosed place on 2.10.2000. As per the medical evidence, the probable time between death and postmortem was 3-5 days. The postmortem examination was conducted on 2.10.2000. The dead body had been recovered from the house of the appellants. It was for the appellants to have explained as to under what circumstances the dead body of Jyoti, daughter of appellant Raj Kumar, was buried in his house. A cumulative effect of all the circumstances brought on record by the prosecution during trial lead to the irresistible conclusion that deceased Jyoti had been murdered by appellant Raj Kumar and thereafter, her dead body was buried by both the appellants in their house to destroy the evidence qua her murder.
In the facts and circumstances of the present case, we are of the considered opinion that the conviction and sentence of appellant Raj Kumar under Section 302/ 201 IPC is liable to be maintained, whereas, the conviction and sentence of appellant Reeta Rani under Section 302 IPC is liable to be set aside and her conviction and sentence under Section 201 IPC is liable to be maintained.
Accordingly, this appeal is dismissed qua appellant Raj Kumar. So far as appellant Reeta Rani is concerned, her conviction Criminal Appeal No. 406-DB of 2005 11 and sentence under Section 302 IPC are set aside, whereas, her conviction and sentence under section 201 IPC, as ordered by the trial Court, are maintained.
Appeal stands disposed of accordingly.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
March 12, 2012
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