Punjab-Haryana High Court
Nishabar Singh And Others vs State Of Haryana on 17 March, 2009
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Daya Chaudhary
Crl. A. No.865-DB of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. A. No.865-DB of 2006
DATE OF DECISION: MARCH 17, 2009
Nishabar Singh and others
.....APPELLANTS
Versus
State of Haryana
....RESPONDENT
Present: Mr.R.S. Rai, Senior Advocate
with Mr.Gautam Dutt, Advocate,
for the appellants.
Mr.Partap Singh, Addl.Advocate
General, Haryana.
..
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
---
SATISH KUMAR MITTAL, J.
This criminal appeal has been filed by five accused, namely, Nishabar Singh, Puran Singh alias Kalu (both brothers), Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh (sister's sons of accused Nos.1 and 2) against their conviction under Section 302 read with Section 149 IPC for committing the murder of Kulwinder Kaur wife of accused No.1 and sentence to undergo life imprisonment with a fine of Rs.10,000/-, in default of payment of which, they were directed to further undergo rigorous imprisonment for a period of six months; and also against their conviction under Section 148 IPC and sentence to undergo rigorous imprisonment for a period of one year. However, both the sentences were Crl. A. No.865-DB of 2006 -2- ordered to run concurrently. Sixth accused, namely, Nazar Singh, brother of accused Nos.1 and 2, has been acquitted by the trial Court.
2. In brief, the prosecution version is that deceased Kulwinder Kaur was married with accused Nishabar Singh on 14.2.1999. Soon after the marriage, accused Nishabar Singh and his family members started teasing and giving beating to deceased Kulwinder Kaur for bringing less dowry. On that account, in the year 1999 itself, Kulwinder Kaur left her matrimonial home and started residing at her parents house in Karnal. Thereafter, she got registered a criminal case against accused Nishabar Singh and his family members under Sections 406, 420, 498-A and 506 IPC. In that case only Nishabar Singh was challaned. During the pendency of the said case, deceased Kulwinder Kaur also filed a petition for dissolution of marriage on the ground of cruelty and harassment by her husband. Subsequently, the said petition was converted into a petition under Section 13-B of the Hindu Marriage Act for seeking decree of divorce by mutual consent. Accordingly on 13.10.2001, on the statement of both the parties, the marriage was dissolved by a decree of divorce with mutual consent. But the criminal case got registered by deceased Kulwinder Kaur still remained pending. On 24.5.2002 the alleged occurrence had taken place in which Kulwinder Kaur was alleged to have been murdered by the aforesaid six accused. In this case, FIR No.246 was got registered on 24.5.2002 at Police Station City, Karnal under Sections 148, 302/149 IPC on the statement (Ex.P11) made by Gurmeet Singh (PW2), brother of deceased Kulwinder Kaur.
3. In his statement, PW2-Gurmeet Singh, in addition to the afore- stated facts with regard to the previous litigation, stated that on 24.5.2002 at about 6.00 p.m. he had gone to the market along with his sister Kulwinder Crl. A. No.865-DB of 2006 -3- Kaur on the motor-cycle from where they had returned to their house after half-an-hour after purchasing some household articles. At that time his mother Pritpal Kaur (PW3), his wife Gagandip Kaur, who was examined by the accused as DW8, were present at his house. At about 6.45 p.m., his sister Kulwinder Kaur went to toilet constructed outside the house. When she reached the middle of the street, in the meantime, they heard the cries of his sister Kulwinder Kaur, upon which he, his wife and his mother came out of the house and saw that Nishabar Singh (accused No.1) armed with sword, Nazar Singh, armed with iron Datra, Puran Singh alias Kalu (accused No.2) armed with sword, Gurmit Singh alias Ghelu, armed with Gandasi, Gurprit Singh alias Sonu armed with knife and Pammu son of Jasbir Singh, armed with knife were attacking his sister Kulwinder Kaur with their respective weapons. When they raised raula "Mar-Dia Mar-Dia", the accused after giving injuries to his sister, chased them in the lane along with their weapons. Due to fear, they went inside the room of their house and bolted the door from inside. Thereafter, the accused tried to break open the door but they could not succeed. On hearing the noise of neighbourers, the aforesaid accused ran away along with their respective weapons. Thereafter they came in the lane and found that Kulwinder Kaur was lying dead. She had received injuries on her arm, neck, head, right cheek and right leg with sharp edged weapons. It was also stated that the assailants had also taken away one gold necklace, earrings and a ring from the body of his sister, which were worn by her, therefore, action be taken against the aforesaid accused for committing the murder of his sister.
4. After registration of the case, the police visited the spot, prepared the inquest report and sent the dead body of Kulwinder Kaur to Crl. A. No.865-DB of 2006 -4- General Hospital, Karnal for post mortem. On 25.5.2002, Dr.Rakesh Girdhar, Medical Officer, General Hospital, Karnal conducted post mortem of deceased Kulwinder Kaur. In his post mortem report (Ex.PA) which he had proved in the Court, he found the following injuries on the person of deceased Kulwinder Kaur:-
"1. 3 cm x 1.2 cm bone deep incised wound with fractured fragment coming out of wound with partial skin thickness deep incised wound extending 6 cm. medially.
2. 5 cm x 1 mm skin deep incised wound on anterior aspect of right shoulder.
3. 12 cm x 3 mm skin deep incised wound on right upper breast.
4. 8 cm x 5 mm skin deep incised wound on right breast just below injury No.3, 6 cm above the right nipple.
5. 11 cm x 4 cm x skull deep incised wound on left parital region of scalp in coronal plain in line with pinna. There is fracture of the underlying skull bone with disruption of membranes and brain matter was coming out of wound. Brain matter was disrupted up to 2 cm deep.
6. 13 cm x 4 cm incised wound just below mandible with cut pharynx and posterior angles of mendible up to mouth cavity deep.
7. 2 cm x 5 mm incised wound on front of mid part of neck.
Exploration of the wound revealed through and through cut of trachea and esophagus with food contents coming out of the wound.
8. 7 cm x 5 mm x skin deep incised wound on the left side of neck vertically placed.
9. 2 cm x 2 mm incised wound on the left ear lobule.
10. 2 cm x 5 mm incised wound just lateral to left eyebrow.
11. 5 cm x 2.5 cm incised wound and on the anterior aspect of left shoulder with fracture of the humerus with 12 cm partial skin deep extension downwards which was 2 mm Crl. A. No.865-DB of 2006 -5- wide.
12. 5 cm x 2 mm incised wound skin deep on medical side of mid arm.
13. 5 cm x 2 cm incised wound on posterior aspect of left arm 7 cm above the left elbow with fracture of the humerus.
14. 8 cm skin deep incised wound on posterior aspect of the left arm.
15. 7 cm x 2 cm incised wound skin deep 2 cm distal to the elbow joint.
16. 4 cm x 2 cm bluish contusion on the back of left elbow joint."
In his opinion, the cause of death of the deceased was due to shock and haemorrhage as a result of injuries to vital organs. All the injuries were found ante-mortem in nature and sufficient to cause death in ordinary course of nature. This witness in cross-examination has stated that possibilities of all the injuries having been caused with gandasi (Ex.P8), cannot be ruled out. He further stated that the possibility of the injuries caused on the person of deceased with gandasi is more than a sword.
5. During investigation, accused Nishabar Singh was arrested on 1.6.2002 and from his possession the gandasi (Ex.P8) was recovered vide recovery memo Ex.P24. On 2.6.2002, on his disclosure statement, his clothes, which he was wearing at the time of the occurrence, were got recovered vide recovery memo Ex.P25. In the investigation, no other recovery was effected from any of the other accused. Further, during the investigation, which was also conducted by DSP and got verified by SP, all the other accused except Nishabar Singh were found innocent. Therefore, the challan was filed only against accused Nishabar Singh.
6. After commitment of the case against accused Nishabar Singh, Crl. A. No.865-DB of 2006 -6- he was charge-sheeted for the offence under Section 302 IPC to which he pleaded not guilty. After examination-in-chief of three witnesses, namely, PW1-Dr.Rakesh Girdhar, PW2-Gurmeet Singh (complainant) and PW3- Pritpal Kaur, the prosecution filed an application under Section 319 Cr.P.C. for summoning the aforesaid five accused, who were found innocent during the investigation. Initially, the said application was dismissed by the trial Court, but this Court, on a revision petition filed by the complainant against the said order, allowed the same vide order dated October 27, 2005 and ordered for summoning the aforesaid five accused to face the trial.
7. After appearance of the summoned accused, all the six accused including accused Nishabar Singh were charge-sheeted for the commission of offence punishable under Sections 148 and 302 read with Section 149 IPC to which they pleaded not guilty and claimed trial.
8. In support of its case, the prosecution examined 11 witnesses, including PW1-Dr.Rakesh Girdhar, who conducted post mortem of the deceased; PW2-Gurmeet Singh (complainant), who fully supported the case of the prosecution. However, in his examination-in-chief before the court he stated that Nishabar Singh was armed with gandasa and other accused were armed with gandasis and swords etc.; PW3-Pritpal Kaur, mother of the deceased. She has also fully supported the prosecution version; PW4- Constable Vir Shakti Singh, Draftsman, (a formal witness); PW5-Sat Pal, Photographer (a formal witness); PW6-Constable Nirmal Kumar, a witness of delivery of special report to Illaqa Magistrate, which was delivered at about 1.35 a.m. on 24/25.5.2002; PW7-EHC Lakhwant Singh, (a formal witness),who proved his affidavit Ex.P20; PW8-Constable Balwan Singh (a formal witness), who proved his affidavit Ex.P21; PW9-Vipin Kumar, Crl. A. No.865-DB of 2006 -7- Additional Ahlmad in the Court of JMIC, Karnal, who proved on record about the pendency of the criminal case under Sections 406/420/498-A and 506 IPC against accused Nishabar Singh. PW10-Mohinder Kumar, Inspector, who partly investigated the case and before whom accused Nishabar Singh was produced and a gandasi (Ex.P8) was recovered from him vide recovery memo Ex.P24 and before whom on the disclosure statement of Nishabar Singh, the clothes were got recovered. PW11-SI Jagan Nath, who after the occurrence went to the spot and got recorded the statement of the complainant and got registered the FIR in question. This witness also partly investigated the matter.
9. In his statement under Section 313 Cr.P.C., accused Nishabar Singh pleaded that he was innocent and was falsely implicated. He had taken the defence that his marriage with deceased Kulwinder Kaur was a simple marriage and no dowry was given and taken in the marriage. After the marriage, he came to know that his wife Kulwinder Kaur was of loose character and she had illicit relations with many people. He stated that before his marriage, his wife left her parents house with one Teji Pandit resident of Shiv Colony, Karnal and remained with him for 15 days, and thereafter, the matter was compromised, but this fact was not disclosed to him before his marriage. When this fact came to his knowledge, the differences occurred between him and his wife. Since she could not face the circumstances, therefore, she left the matrimonial home. Thereafter he tried to sort out the differences by convening a Panchayat and to bring back his wife, but she did not return. Thereafter, a criminal case was got registered by her against him, but after some time, the matter was compromised and a consent decree of divorce was passed on 13.10.2001. Since then he did not Crl. A. No.865-DB of 2006 -8- have any connection with his wife Kulwinder Kaur. He further took the stand that thereafter he came to know that Kulwinder Kaur left her parents house and remained with said Teji Pandit for a period of ten days. When she came back to her parents house, she was given beating by the complainant party with the sharp edged weapons due to which she died on 24.5.2002. When the complainant party was in the process of throwing the dead body of Kulwinder Kaur in Yamuna Canal, which was just adjacent to their residential house, they apprehended that they were noticed by someone, therefore, they left the dead body in the street and raised alarm that their son-in-law committed the murder of their daughter. He further stated that he had neither any motive to commit the murder of Kulwinder Kaur nor committed her murder.
10. The other accused in their statements have pleaded innocence and had taken the stand that they were neither present at the spot nor participated in the alleged occurrence. Accused Nazar Singh pleaded that he was innocent and was neither present at the spot nor participated in the occurrence. Rather, he was on his duty and posted at Jind in police department.
11. In defence, the accused examined eight witnesses. DW1-DSP Om Parkash Narwal was examined in order to prove that during investigation of the case except accused Nishabar Singh, he found the remaining five accused, namely, Nazar Singh, Puran Singh alias Kalu, Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh alias Pammu as innocent. DW2-HC Narender Singh, Police Line, Jind was examined to prove the plea of alibi taken by accused Nazar Singh. This witness has proved that on the date of occurrence, accused Nazar Singh was Crl. A. No.865-DB of 2006 -9- present and posted at Police Station Sadar, Jind and on 24.5.2002 at 11.00 a.m., he reported for duty vide DDR No.18 dated 24.5.2002. DW3-Mukesh Kumar, Miscellaneous Clerk, Tehsil Office, Karnal, who proved various affidavits, which have been exhibited as Mark DC to Mark DP, given by various persons to the effect that other five accused were innocent and they were falsely implicated. DW4-Ram Lubhaya, who was neighbourer and who went to the spot immediately after the occurrence, had stated that when he reached the spot, Ranjit Singh, his wife, his daughter-in-law and his son were already present at the spot. But they did not disclose to him as to who had committed the murder of Kulwinder Kaur. He further stated that a Panchayat was convened in which he had also participated and as per their verification, five accused, namely, Nazar Singh, Puran Singh alias Kalu, Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh alias Pammu were innocent. DW5-Ranjit Singh, father of the deceased in his statement, which was recorded on 1.2.2006, stated that on 24.5.2002 he reached his house at about 7.15 p.m., i.e., after the alleged occurrence, but none of his family members told him that they had witnessed the occurrence nor any other person had narrated him about having seen the occurrence. He did not tell the police about the name of culprit as he was not present at the spot at the time of the occurrence. However, in cross- examination, he has admitted that the inquest report Ex.P3 bears his signatures as well as signatures of his brother Tirlochan Singh. He further admitted that he moved an application before the trial Court for providing police protection to the witnesses as the accused were threatening them. He also admitted that he moved such application on 5.12.2005. On that application, the police help was provided to them. He stated that they were Crl. A. No.865-DB of 2006 -10- apprehending danger to their lives while coming to the court. He further stated that he left Karnal and shifted to village Gorgarh because his daughter was murdered and also apprehending danger to their lives. He had further stated that after the statement of Pritpal Kaur (PW3) in the court, accused Gurmit Singh alias Ghelu moved an application to CIA Staff, Karnal against them for the murder of his daughter Rajwinder Kaur alias Babli, who died due to heart attack. On that application, they were called by the police of CIA Staff, Karnal, though he had denied the suggestion that under the threat of accused they have compromised with the accused outside the court. DW6-ASI Ram Kishan, CID Unit, Fatehabad and DW7-KHC Ravinder Kumar, Police Lines, Jind were also examined to establish the plea of alibi taken by accused Nazar Singh. DW7 had stated that as per record, on the date of the occurrence, he had delivered the arms to Constable Nazar accused at about 8.00 p.m. after obtaining his signatures on the arms distribution register. DW8-Gagandeep Kaur is wife of the complainant. Though she was the eye-witness, but has not supported the prosecution version. She had stated that she had not seen the occurrence. Her statement was recorded on 10.2.2006.
12. In defence, the accused have also placed on record the statements Ex.D10 and Ex.D11 made by Pritpal Kaur, mother of the deceased and complainant Gurmeet Singh, respectively, in the criminal case registered under Sections 406, 420, 498-A and 506 IPC. In those statements, these witnesses have stated that there was no demand of dowry by accused Nishabar Singh and there was no dispute between the married couple and the deceased was never harassed, beaten or tortured by her husband. It was further stated that Kulwinder Kaur was murdered, but they did not know Crl. A. No.865-DB of 2006 -11- who had murdered Kulwinder Kaur. They have specifically stated that neither accused Nishabar Singh nor his relatives murdered Kulwinder Kaur.
13. It is pertinent to mention here one more fact which is very relevant that after the examination of Gurmeet Singh (complainant) and Pritpal Kaur , the accused moved an application under Section 311 Cr.P.C. for re-examination of Gurmeet Singh (PW2) and Pritpal Kaur (PW3) on the ground that those witnesses had not truly stated the facts to the court under the pressure of the police. The said application was dismissed on 10.2.2006. Thereafter on 20.2.2006 another application was filed by complainant Gurmeet Singh (PW2) and Pritpal Kaur (PW3) for their re-examination on the same ground. The said application was also dismissed by the trial Court while observing as under:-
"12. It appears that after making the statements by these witnesses, some development has taken place outside the court and due to that development, it appears that the present application has been moved by the complainant just to wash out their earlier statements. So far as the plea that earlier statements have been made by these witnesses under police pressure is totally without any substance. Ranjit Singh, father of the present complainant and husband of PW3 Smt. Pritpal Kaur has appeared as DW5 and in the cross-examination he has categorically admitted that he has moved an application before this court that prosecution witnesses should be provided the police protection as the accused were threatening them. He further admitted that on the basis of that application they were provided police protection. He further admitted that the said application was moved by him on 5.12.2005. He further categorically admitted that they apprehended danger while coming in the court and they left Karnal and shifted to village Gorgarh, because their daughter was murdered and they were Crl. A. No.865-DB of 2006 -12- apprehending the danger to their life. These admissions of the father of the complainant show that they were having the threat not from the police, but from the accused that is why he has sought police protection for the prosecution witnesses.
13. This witness has further admitted that Rajwinder alias Babli, his daughter has died due to heart attack. He further categorically admitted that after the statement of PW3 Pritpal Kaur in the present case, one of the accused Gurmit alias Ghelu moved an application to CIA Staff, Karnal against them for the murder of their daughter Rajwinder Kaur alias Babli and they were called by the police to CIA Staff, Karnal. It prima facie appears that due to this pressure as they were got summoned by the CIA Staff, Karnal by one of the accused by moving an application for the murder of their own daughter, they want to wriggle out from their statements made in the court and want to oblige the accused persons.
14. It is further pertinent to mention that on the last date of hearing i.e. 10.2.2006, an application was filed by the accused for recalling these witnesses namely PW2 Gurmit Singh PW3 Pritpal Kaur on the similar grounds that they have not supported the prosecution version in their statements recorded in the court of Sh.Devender Singh, learned Judicial Magistrate Ist Class, Karnal, in case under Sections 406/420/498A/506 of the Indian Penal Code, which was lodged against accused Nishabar Singh, his father and family members and copies of the said statements are Ex.D10 and Ex.D11. The said application of accused was dismissed by this Court on the same day i.e. 10.2.2006 by passing a detailed order on merits. After dismissal of the said application, the present application has been moved by complainant Gurmit Singh to achieve the same motive i.e. to re-summon and re-examine PW2 i.e. Applicant Gurmit Singh himself and his mother PW3 Pritpal Kaur. I found substance in the plea of learned Public Prosecutor that this action of complainant clearly shows the collusion between Crl. A. No.865-DB of 2006 -13- the accused and these prosecution witnesses. Thus, in these circumstances, the application in question is not bona fide and it appears that the said application has only been filed to help the accused as a result of some later development. There is no substance in the plea mentioned in the application that the statements made by these witnesses on 13.12.2005 and 2.1.2006 were the result of pressure by the police. So, this Court cannot act as a tool in the hands of the complainant who appears to have colluded with the accused."
14. The trial Court after considering the evidence led by both the parties and hearing the arguments of the learned counsel for the parties, and while relying upon the version given by the two prosecution witnesses i.e. Gurmeet Singh (PW2) and Pritpal Kaur (PW3), convicted and sentenced the five accused, as indicated above, and acquitted accused Nazar Singh while giving him the benefit of doubt.
15. Learned counsel for the appellants argued that there was absolutely no motive either with Nishabar Singh or other five accused for committing the murder of Kulwinder Kaur. Prior to the date of alleged occurrence, the marriage between Nishabar Singh and Kulwinder Kaur was dissolved by a decree of divorce by mutual consent vide judgment and decree dated 13.10.2001, and thereafter, Nishabar Singh and his family members were having no connection with deceased Kulwinder Kaur. As far as other accused are concerned, they are residents of Karnal and were not the accused in dowry harassment case registered on the complaint made by the deceased. Therefore, there was no motive for them to commit the murder of Kulwinder Kaur, as alleged by the prosecution witnesses.
16. Secondly, learned counsel submitted that the two prosecution witnesses, i.e., complainant Pritpal Kaur (PW3) and Gurmeet Singh (PW2) Crl. A. No.865-DB of 2006 -14- made contradictory statements Ex.D10 and Ex.D11 in a criminal case registered against accused Nishabar Singh under Sections 406, 420, 498-A and 506 IPC where they had stated that no demand of dowry was made by accused Nishabar Singh and his family members; there was no dispute between the married couple; and the deceased was never harassed or beaten by her husband. They had further stated that the deceased was not murdered by Nishabar Singh and his relatives. Learned counsel further stated that these very two witnesses moved an application under Section 311 Cr.P.C. for their re-examination as they could not disclose the true facts under the pressure of the police. Therefore, he submitted that merely on the basis of statements of these two prosecution witnesses, who are highly interested and whose testimony is not reliable, the prosecution cannot be said to have proved the guilt against all the accused, including Nishabar Singh, beyond reasonable doubt.
17. Thirdly, learned counsel argued that during the police investigation, all the five accused except Nishabar Singh were found innocent. He submitted that a detailed investigation was conducted by the Investigating Officer and by DW1-DSP Om Parkash Narwal, which was duly verified by the Superintendent of Police. In the investigation, all the five accused had undergone Polygraph (Lie-Detector) Test. In that test, they were not found involved in the alleged crime. He further stated that during investigation the police had collected various affidavits (Mark DC to Mark DP) from various prominent persons of the Mohalla and the city. He further submitted that no recovery was effected from any of the five accused and the documents regarding a Panchnama was also taken into consideration and after the detailed investigation these accused were found innocent. Crl. A. No.865-DB of 2006 -15-
18. Fourthly, learned counsel submitted that the oral version given by PW3-Pritpal Kaur does not corroborate the medical evidence available on the record. Dr.Rakesh Girdhar (PW1) in his statement has stated that all the sixteen injuries found on the person of deceased could have been caused by one weapon, i.e., Gandasi (Ex.P8). The said witness in his cross- examination stated that the possibility of the injuries caused on the person of deceased with gandasi is more than a sword. This fact also establishes that the five accused were falsely implicated.
19. Learned counsel further argued that in support of its case the prosecution has examined the complainant Gurmeet Singh (PW2) and Pritpal Kaur (PW3), who are members of one family and are highly interested witnesses. He submitted that the testimony of these two witnesses is not trustworthy in view of the fact that other two members of the family, namely, Ranjit Singh (DW5) and Gagandeep Kaur (DW8), who were allegedly very much present at the time of the alleged occurrence, had appeared as defence witnesses, but have not supported the version given by Gurmeet Singh (PW2) and Pritpal Kaur (PW3). According to them, neither they had witnessed the occurrence nor any of their neighbourers in the street had witnessed the occurrence. They did not tell the police about the name of culprit as they had not witnessed the murder of Kulwinder Kaur.
20. Learned counsel further argued that the trial Court has accepted the plea of alibi taken by accused Nazar Singh. In defence, he had led sufficient evidence to prove that on the date of the occurrence he was on his duty and posted at Jind in Police Department, and was neither present at the spot nor participated in the occurrence. DW2-HC Narender Singh, Police Line, Jind was also examined to prove the plea of alibi. This witness has Crl. A. No.865-DB of 2006 -16- also proved that on the date of occurrence, accused Nazar Singh was present and posted at Police Station Sadar, Jind and on 24.5.2002 at 11.00 a.m., he reported for duty. Counsel states that this fact establishes that the statements made by Gurmeet Singh (PW2) and Pritpal Kaur (PW3) regarding participation of accused Nazar Singh in the alleged occurrence, which has been disbelieved by the trial Court, creates a doubt in the entire version given by these two witnesses, and in that situation the possibility of false implication of other four persons, namely, Puran Singh alias Kalu, Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh, cannot be ruled out. He further submitted that as far as three accused, namely, Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh, who are sister's sons of accused Nishabar Singh and Puran Singh alias Kalu are concerned, their participation in the occurrence is highly improbable and unbelievable because there was no motive for them to commit the murder of Kulwinder Kaur.
21. On the other hand, learned counsel for the respondent-State submitted that Gurmeet Singh (PW2) and Pritpal Kaur (PW3), who had witnessed the alleged occurrence, have categorically supported the prosecution version when their statements were recorded in the Court on 13.12.2005, but after 2.1.2006 these two witnesses have taken U Turn under some out of court agreement/understanding. On 31.1.2006, Gurmeet Singh (PW2) and Pritpal Kaur (PW3) had to appear as witnesses in a criminal case registered under Sections 406/420/498-A and 506 IPC on the complaint of Kulwinder Kaur, but on that date they did not support the prosecution case under the said agreement. Before that, father of the deceased Ranjit Singh (DW5) and sister-in-law of the deceased Gagandeep Kaur (DW8) moved an Crl. A. No.865-DB of 2006 -17- application before the trial Court that the witnesses should be provided the police protection as the accused were threatening them. In that application, it was stated that they apprehended danger to their life while coming to the Court and due to that danger, they had left Karnal and shifted to village Gorgarh. He further admitted that after the statement of Pritpal Kaur (PW3) in the Court, accused Gurmit Singh alias Ghelu moved an application to CIA Staff, Karnal for the murder of his daughter Rajwinder Kaur alias Babli, who died due to heart attack. On that application, they were called by the police of CIA Staff, Karnal. Learned counsel submitted that it appears that in view of the said harassment and threat, the prosecution witnesses resile from their earlier statements made before the police and the Court and some of them appeared as defence witnesses. Therefore, no credential can be given to the statements of DW5-Ranjit Singh and DW8-Gagandeep Kaur, and also the statements Ex.D10 and Ex.D11 made by Pritpal Kaur and Gurmeet Singh, respectively. He submitted that in view of these facts, circumstances and evidence led by the prosecution, the trial Court has rightly convicted the appellants for the alleged offence and no interference is required in their conviction and sentence.
22. After considering various submissions made by the learned counsel for the parties and going through the evidence led by the prosecution as well as defence, it appears that on 24.5.2002 deceased Kulwinder Kaur, who was married with accused Nishabar Singh in the year 1999, was inflicted sixteen injuries on her vital organs, as a result of those injuries, she had died. In the opinion of Dr.Rakesh Girdhar (PW1), who conducted post mortem of the deceased, all those injuries were found ante- mortem in nature and sufficient to cause death in ordinary course of nature. Crl. A. No.865-DB of 2006 -18- He further opined that the possibility of all the injuries having been caused with gandasi (Ex.P8), recovered from accused Nishabar Singh, cannot be ruled out. As per the prosecution version, the aforesaid injuries were caused to the deceased at about 6.45 p.m. on 24.5.2002 by six accused, namely, Nishabar Singh (husband of the deceased), Nazar Singh, Puran Singh alias Kalu (both brothers of Nishabar Singh), Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh (sister's sons of accused No.1), when deceased Kulwinder Kaur went to toilet existing outside the house of the complainant. The said occurrence was allegedly seen by three witnesses, namely, Gurmeet Singh, complainant (brother of the deceased), Pritpal Kaur (mother of the deceased) and Gagandip Kaur (sister-in-law of the deceased). PW2-Gurmeet Singh while appearing in the Court stated that after the marriage of his sister with accused Nishabar Singh, he started giving beatings to her on account of insufficient dowry. He raised the demand of cash, buffalo and motor-cycle. On that account, his sister got registered a criminal case against him and his family members under Sections 406, 420, 498-A and 506 IPC. He further stated that his sister had filed a divorce petition which was allowed and the divorce was granted to her by the Court. After the divorce, his sister started living with him at Karnal. According to him, on 24.5.2002 at about 6.30 p.m. when he along with his mother Pritpal Kaur and wife Gagandip Kaur was present in the house and his sister went to toilet existing outside their house across the street, they heard the cries of his sister. On hearing the cries, they came out of their house and saw that six persons, namely, Nishabar Singh, Nazar Singh, Puran Singh alias Kalu, Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Pammu were causing injuries to his sister with their respective weapons. On seeing them, Crl. A. No.865-DB of 2006 -19- one of the accused asked to catch them also. Thereupon, they entered in their house and bolted the door from inside. According to them, accused tried to open the door, but they could not succeed as the door was bolted from inside. According to them, thereafter their neighbourers raised lalkara and all the accused ran away with their respective weapons. Similar is the statement of PW3-Pritpal Kaur. The third eye-witness, namely, Gagandip Kaur was not examined by the prosecution and later on she had appeared as defence witness as DW8. During investigation, only a gandasi (Ex.P8) was got recovered from accused Nishabar Singh vide recovery memo Ex.P24. Further, on the basis of his disclosure statement, the blood stain clothes, which he was wearing at the time of the alleged occurrence were also got recovered vide recovery memo Ex.P26. However, no other alleged weapon was got recovered from any of the other accused. During investigation, except Nishabar Singh, all other accused were found innocent. As per the statement of DW1-DSP Om Parkash Narwal, a detailed investigation was conducted which was also duly verified by the Superintendent of Police. In that investigation, all five accused had undergone Polygraph (Lie-Detector) Test and the affidavits of various prominent persons of the locality were taken, and after taking into consideration all those facts, all the other accused, except Nishabar Singh, were found innocent. As per the statements of Gurmeet Singh (PW2) and Pritpal Kaur (PW3), when they bolted themselves inside their house in order to save themselves, the neighbourers raised the noise and on that all the accused ran away with their respective weapons. But, undisputedly, not a single neighbourer or any other independent witness, who corroborates the participation of six persons in the said alleged occurrence, has been examined. Further it appears to us that Crl. A. No.865-DB of 2006 -20- the oral version given by Gurmeet Singh (PW2) and Pritpal Kaur (PW3) does not corroborate the medical evidence available on the record. As per the opinion of the doctor, all the sixteen injuries found on the person of the deceased could have been caused only by one weapon, i.e. gandasi (Ex.P8). In cross-examination, PW1- Dr.Rakesh Girdhar had stated that the possibility of the injuries caused on the person of deceased with gandasi is more than a sword, whereas, on the other hand, as per the statements of Gurmeet Singh (PW2) and Pritpal Kaur (PW3), most of the accused were armed with sword and knife. All these factors indicate to us that Gurmeet Singh (PW2) and Pritpal Kaur (PW3) have not stated the true and correct version about the occurrence. The trial Court has also partly not accepted their version while acquitting accused Nazar Singh on the ground that at the time of the alleged occurrence he was not present and actually he was doing his duty in Jind. This fact further strengthen our opinion that these two prosecution witnesses, who are related witnesses, have not correctly stated the facts about the participation of six accused in the alleged occurrence. Equally, it is also not possible to discard totally the prosecution version on the ground that the testimonies of these two witnesses are wholly untrustworthy and unreliable. We are also not inclined to accept the contention of the learned counsel for the appellants that in view of the statements of DW5-Ranjit Singh and DW8-Gagandip Kaur as defence witnesses and the statements of PW2-Gurmeet Singh and PW3-Pritpal Kaur, which are Ex.D11 and Ex.D10, respectively, in the criminal case registered against accused Nishabar Singh where they had stated that Kulwinder Kaur was not murdered by her husband, the testimony of Gurmeet Singh (PW2) and Pritpal Kaur (PW3) is not trustworthy and the same has to be discarded Crl. A. No.865-DB of 2006 -21- as such. In our opinion, both the prosecution witnesses, namely, Gurmeet Singh (PW2) and Pritpal Kaur (PW3) had supported the prosecution version when their statements were recorded in the Court on 13.12.2005, but only after 2.1.2006 both these witnesses and other family members had taken `U' Turn under some out of court understanding with accused Nishabar Singh. This fact is clear from the statement of Ranjit Singh (DW5) in the Court where he admitted that he had moved an application before the trial Court for providing police protection as the accused were threatening them. In that application, it was also stated by him that they had shifted their house from Karnal to village Gorgarh as they were apprehending danger to their life. It appears to us that under the said threat or under other circumstances, an out of court understanding was arrived at between the parties and in that understanding, Ranjit Singh, father of the deceased and Gagandip Kaur, sister-in-law of the deceased did appear as defence witnesses and deposed contrary to the prosecution version. In view of the same understanding, Gurmeet Singh (PW2) and Pritpal Kaur (PW3) made contrary statements (Ex.D11 and Ex.D10) in the criminal case got registered by deceased Kulwinder Kaur against accused Nishabar Singh. In those statements, they had stated that there was no demand of dowry by accused Nishabar Singh and there was no dispute between the married couple and the deceased was never harassed, tortured or beaten by her husband. In our opinion, the trial Court has rightly discarded those evidence led by these persons in defence.
23. In view of the above facts and circumstances, thus, neither we are in a position to discard the whole prosecution version nor we are inclined to accept that in the alleged occurrence six accused had caused injuries to the deceased, as stated by Gurmeet Singh (PW2) and Pritpal Kaur Crl. A. No.865-DB of 2006 -22- (PW3), for various reasons indicated above. In such situation, we have to attempt to separate the chaff from the grain in order to reach the truth. Though the instant case may be baffling, but it cannot be said that it is so confusing and conflicting that the process of separating the chaff from the grain cannot be reasonably carried out. Firstly, before carefully and minutely analyzing the prosecution and defence evidence and other probabilities, it is to be examined what was the motive of the alleged crime. According to the prosecution version, accused Nishabar Singh and his family members were greedy persons and they used to give beatings to Kulwinder Kaur (deceased) on account of bringing insufficient dowry. Soon after the marriage, they demanded buffalo, cash and motor-cycle and on that account deceased Kulwinder Kaur got registered a criminal case against them in which only accused Nishabar Singh was challaned. Admittedly, after lodging of that criminal case, deceased Kulwinder Kaur had filed a petition for divorce and that petition was converted into a petition under Section 13-B of the Hindu Marriage Act and on the statement of both the parties, the marriage was dissolved by a decree of divorce with mutual consent vide judgment and decree dated 13.10.2001, much before the date of occurrence. Only that criminal case was pending in which only Nishabar Singh was the accused. While examining this motive, it does not stand to reason why two brothers of Nishabar Singh and three sister's sons of Nishabar Singh, who were not parties in that criminal case, would have participated in the alleged occurrence. There would have been reason for Nishabar Singh for causing the alleged occurrence because even after the decree of divorce, criminal case was not withdrawn against Nishabar Singh and he was being harassed. But as far as other accused were concerned, they Crl. A. No.865-DB of 2006 -23- were not accused in the criminal case. Therefore, the alleged participation of the other accused in the occurrence except Nishabar Singh, in our view, was doubtful. Further, if we carefully examine the statements of Gurmeet Singh (PW2) and Pritpal Kaur (PW3), then it appears that these witnesses levelled omnibus allegations against all the six accused, though they had put the specific weapons in the hand of particular accused, but both the witnesses without describing the separate role attributed to each of the accused stated that all the accused caused injuries to the deceased by their respective weapons. Further, the oral version given by these two witnesses is not being corroborated by the medical evidence. PW1-Dr.Rakesh Girdhar in his cross- examination has stated that possibility of all the injuries having been caused with gandasi (Ex.P8), cannot be ruled out. He further stated that the possibility of the injuries caused on the person of deceased with gandasi is more than a sword. These facts also create a doubt about the alleged participation of six accused in the occurrence.
24. We have further examined certain undeniable facts and circumstances. In this case, as per the statements of Gurmeet Singh (PW2) and Pritpal Kaur (PW3), accused Nazar Singh was alleged to have been present at the time of the occurrence. He was allegedly armed with iron Datra and also inflicted injuries to deceased Kulwinder Kaur. In defence, Nazar Singh has led more than sufficient evidence and has established that on the date of the alleged occurrence he was not present at the spot. Rather, he was on his duty and posted at Jind in police department. The trial Court has also believed his defence and acquitted him of the charge. This fact, in our opinion, creates a doubt about the presence of other four accused, who were having no motive whatsoever to commit the alleged crime. Further, in Crl. A. No.865-DB of 2006 -24- our opinion, the trial Court has not properly appreciated one more important factor. In this case, no independent person from the locality was examined as a prosecution witness to corroborate the participation of six accused in the alleged crime. As per the statements of Gurmeet Singh (PW2) and Pritpal Kaur (PW3), only on the noise raised by their neighbourers, the accused ran away from the scene with their respective weapons. But none of the neighbourer was examined by the prosecution. Further, the trial Court has not properly appreciated various affidavits of respectables of the locality taken during the investigation. PW10-Inspector Mohinder Kumar, Investigating Officer stated that he had taken into consideration all those affidavits and thereafter came to the conclusion about the innocence of remaining five accused. The Investigating Officer was an independent person and all those affidavits are available on the record in which it has been clearly stated that the five accused did not participate in the alleged occurrence as stated by Gurmeet Singh (PW2) and Pritpal Kaur (PW3). Thus, in our opinion, those affidavits, particularly in the facts and circumstances of the case, cannot be overlooked. Keeping in view these factors, we are of the opinion that the participation of the five accused, namely, Nazar Singh, Puran Singh alias Kalu, Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh, except Nishabar Singh, was highly doubtful. Therefore, all of them should have been given the said benefit of doubt, whereas the trial Court has given the said benefit to only accused Nazar Singh. Thus, in our opinion, the prosecution has failed to prove the guilt against the remaining four accused except Nishabar Singh. As far as Nishabar Singh is concerned, we are of the opinion that there is sufficient evidence which prove his guilt beyond a reasonable doubt and he Crl. A. No.865-DB of 2006 -25- is liable to be convicted for the offence under Section 302 IPC.
25. In view of the above, the appeal is partly allowed. Except appellant Nishabar Singh, all the remaining four appellants, namely, Puran Singh alias Kalu, Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh are acquitted of the charges levelled against them. Appellant Nishabar Singh is convicted under Section 302 IPC and sentenced for life imprisonment with a fine of Rs.10,000/-, in default of payment of fine, he shall further undergo rigorous imprisonment for a period of six months. Except appellant Nishabar Singh, all the remaining four appellants, who are in custody, be set at liberty forthwith, if not required in any other case.
(SATISH KUMAR MITTAL)
JUDGE
March 17, 2009 ( DAYA CHAUDHARY )
vkg JUDGE