Punjab-Haryana High Court
Kumar Sharma vs State Of Haryana on 25 April, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.D-936-DB of 2006
Date of Decision: April 25, 2013
Kumar Sharma
...Appellant
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Aftab Singh Khara, Advocate
Amicus Curiae, for the appellant.
Mr.Kshitij Sharma, Asstt. Advocate General, Haryana
for the respondent-State.
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INDERJIT SINGH, J.
The present appeal has been filed by the appellant against the judgment of conviction dated 15.09.2006 and order of sentence dated 18.09.2006, passed by the Sessions Judge, Faridabad, whereby he was held guilty and convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ` 2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of four months under Section 376 IPC. He was further convicted and sentenced to undergo imprisonment for life and to pay a fine of ` 2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of four months under Section 302 IPC. Both the sentences were ordered to run concurrently. Crl. Appeal No.D-936-DB of 2006 -2-
The brief facts of the prosecution case are that SI Safiudeen received a telephonic message in the police post Dabua Colony, Faridabad that a girl had been killed in the Captainwali Gali, Dabua Colony, upon which he along with other police officials reached the spot, where complainant Sheela met and got recorded her statement. In her statement, she stated that she is resident of H.No.A-772, Dabua Colony, Faridabad. In this house, Kumar Sharma had also been living with his wife namely Mamta @ Sharda and children for about 5-6 months as tenant. She further stated that along with Mamta, her daughter namely "S" (name concealed) {deceased- prosecutrix} aged about 14 years from her first husband was also residing there. Kumar Sharma occasionally used to quarrel with his wife and daughter "S". On that day i.e. on 22.09.2005, Mamta @ Sharda and mother of accused Kumar Sharma went out for work. The deceased-prosecutrix and Kumar Sharma were present at home. At about 3.00/3.30 P.M., when she was coming downstairs, then she found Kumar Sharma cleaning the courtyard with cloth (Pocha) and door of the room was closed. Complainant enquired from accused Kumar Sharma as to where "S" had gone. Then accused got up and bolted the room and fled away. Thereafter, the complainant opened the door and found dead body of "S" lying on the bed. There was ligature mark on her neck. Kumar Sharma had murdered "S" by strangulating her. After recording the statement of complainant, ruqa was sent at 7.00 P.M.; FIR was registered on the same day at 7.25 P.M. and Special Report was received at 10.00 P.M. by the Illaqa Crl. Appeal No.D-936-DB of 2006 -3- Magistrate. Inquest proceedings on the dead body of "S" were conducted and inquest report Ex.PC was prepared. Rough site plan Ex.PM of the place of occurrence was prepared. Statements of witnesses were recorded. Dead body was sent for conducting post- mortem examination. Search for arresting the accused was conducted. However, one Rakesh Sharma produced the accused and accused was arrested. On interrogation, accused made disclosure statement regarding concealing of a chunni (dupatta) and bed sheet and in pursuance of his disclosure statement Ex.PG, bed sheet and chunni were got recovered by the accused. Rough site plan Ex.PN of the place of recovery was prepared. Accused was got medico legally examined. After necessary investigation, challan was presented against the accused-appellant before the Court.
On presentation of challan, copies of challan and other documents were supplied to the accused-appellant under Section 207 Cr.P.C. Finding prima facie case, the appellant was charge-sheeted under Sections 376 and 302 IPC, to which he pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 Sheela, complainant, who mainly deposed as per prosecution version. She stated that "S" (since deceased) daughter of Mamta was from her first husband. She also stated in her statement that she opened the door and found that "S" was lying on the bed covered with chunni. She thought that "S" was sleeping. She called her but she did not respond as she was lying dead. PW-2 Mamta @ Sharda also deposed as per Crl. Appeal No.D-936-DB of 2006 -4- prosecution version. She deposed that she was married twice. Her first marriage was with Suresh and out of that wedlock, three daughters were born including "S"(deceased-prosecutrix). Deceased- prosecutrix was aged about 14 years. She further stated that her second marriage was held with accused Kumar Sharma about eight years back and out of this wedlock also, three children were born. The accused was doing work of aluminium casting and had left the work in between. She further deposed that accused used to drink liqour and used to quarrel in the house. Since, she (PW-2) was the sole earning member and her income was not sufficient, there used to be quarrel. The accused after consuming liquor, used to threaten that he would murder her and would go to jail. "S" (deceased-prosecutrix) used to live with her at the instance of accused himself. The accused did not use to quarrel with the deceased-prosecutrix. PW-2 Mamta further stated that on the day of occurrence, she had gone to attend her duty leaving behind "S" with accused in Dabua Colony, where they resided at that time. The mother of the accused also left for her duty. At about 4.00 P.M., she received a telephonic information in the company, that her daughter was murdered by strangulation by her husband. She came home and found deceased-prosecutrix lying dead there on a cot and had been covered with chunni. There were nail marks on her chest and the accused raped and murdered her. PW-3 Dr.A.K.Gupta, Medical Officer, along with Dr.R.Mathur and Dr.Bina Sharma conducted post-mortem examination on the dead body of the deceased-prosecutrix on 23.09.2005 and found ligature Crl. Appeal No.D-936-DB of 2006 -5- mark present transversely in middle of neck all around its circumference brownish black in colour, 26 cms. x 1.0 cm in dimension. On dissection, ecchymosis was present and underlying carotid vessels were contused and ruptured. Regarding external and internal examination of genital organs, hymen was torn. Two vaginal swaps were taken and sent for detection of human semen. In the opinion of the doctor, the cause of death in this case was asphyxia resulting from ante mortem strangulation which was sufficient to cause death in ordinary course of nature. Opinion regarding commission of rape was reserved to be given after receipt of FSL report. After going through the FSL report Ex.PD, it is found that human semen was detected on underwear and vaginal swabs of the deceased. In the opinion of the doctors, possibility of commission of rape on the deceased cannot be ruled out. PW-4 Dr.Bina Sharma, who was also member of the Board, who conducted post-mortem examination, mainly deposed the same facts that in her opinion possibility of rape committed on the deceased cannot be ruled out. PW-5 Inspector Baldev Singh mainly deposed regarding preparing of report under Section 173 Cr.P.C. PW-6 Constable Manoj Kumar mainly deposed regarding preparing of scaled site plan Ex.PE. PW-7 Rakesh Sharma mainly deposed that on 22.09.2005 at noon time, accused came to his shop in village Saran where he was sitting. The accused was very scared and nervous. The accused told him that his daughter had died. The accused also told that he murdered her by strangulating with chunni. He also told him that deceased-prosecutrix was daughter Crl. Appeal No.D-936-DB of 2006 -6- of his wife from her first husband. He took the accused to police post of Dabua Colony, Faridabad in the evening but on the way to police post, the police met him on the way and he handed over the accused to the police. In the cross-examination, he stated that police met him at about 8.00/8.30 P.M. He also stated that accused came to him at about 2.00/2.30 P.M.. He further stated that till he took the accused to the police, the accused remained with him. He stated that he could not comprehend what the accused was saying and he thought the accused was joking. After confirming from the accused, he took him to the police. PW-8 Anil, Photographer mainly deposed regarding taking of photographs Ex.PF/1 to Ex.PF/3 and proved negatives Ex.PF/4 to Ex.PF/6. PW-9 Bhup Singh, is the witness regarding the disclosure statement and recovery of chunni and bed-sheet. He also deposed that he is husband of PW-1 Sheela, complainant. Deceased-prosecutrix was residing in the house with her mother Mamta and accused Kumar Sharma along with other children of accused and there used to remain quarrel between the accused and his wife. The accused was sitting idle for 3-4 months before the occurrence. PW-10 Constable Dhanbir, PW-11 Head Constable Zamil Ahmad and PW-12 Constable Anup Singh are the formal witnesses, who tendered into evidence their affidavits Ex.PJ, Ex.PK and Ex.PL respectively. PW-13 SI Safiudeen, who is the Investigating Officer, mainly deposed about the investigation conducted by him in the present case.
At the close of prosecution evidence, the accused- Crl. Appeal No.D-936-DB of 2006 -7- appellant was examined under Section 313 Cr.P.C. and he denied the correctness of the evidence and pleaded himself as innocent. He further stated Sharda @ Mamta wanted to remove "S", who was her daughter from her previous husband, from her way. He stated that Sharda, therefore, did not attend her duty on that day. She had killed her by strangulating her and he has nothing to do with the occurrence.
No evidence has been led in defence.
On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced as stated above by the Sessions Judge, Faridabad.
At the time of arguments, learned counsel for the appellant argued that the accused has been falsely implicated in the present case. The defence version is believable. He further argued that as per the Investigating Officer, he reached the place of occurrence at 5.30 P.M. but the FIR was registered late. He next argued that as per statement of PW-1 Sheela and PW-2 Mamta, the body of the deceased was covered with chunni at that time but the Investigating Officer has stated that chunni was got recovered by the accused in pursuance of his disclosure statement. Learned counsel for the appellant further argued that there is also discrepancy regarding the time as PW-7 Rakesh Sharma has stated that accused came to him at noon time. He next argued that recovery of cloth with which the accused was cleaning the floor was not recovered. Learned counsel for the appellant further argued that a reasonable doubt exists in the present case and appeal should be accepted.
Crl. Appeal No.D-936-DB of 2006 -8-
On the other hand, learned Asstt. Advocate General, Haryana for the respondent-State has argued that case of the prosecution has been duly proved by PW-1 Sheela, complainant and her statement has been duly supported and corroborated by the statement of PW-2 Mamta, mother of the deceased. Learned State counsel further argued that the medical evidence further supports and corroborates the prosecution version. Further, the extra judicial confession made by the accused before PW-7 Rakesh Sharma supports and corroborates the prosecution version. The recovery of chunni and bed-sheet further supports and corroborates the prosecution version. Therefore, he argued that there is no merit in the appeal and it should be dismissed.
We have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellant and learned Asstt. Advocate General, Haryana for the respondent- State.
From the evidence on record, we find no merit in the arguments of the learned counsel for the appellant. It is the case of circumstantial evidence. When PW-1 Sheela, complainant came downstairs, accused Kumar Sharma was cleaning the floor with a piece of cloth and when she enquired regarding "S" (deceased) then the accused after bolting the door of room from outside, ran away. The complainant opened the door and found deceased lying on the cot. The mere fact that in the FIR it is not mentioned that her body was covered with chunni, in no way, can be held as material Crl. Appeal No.D-936-DB of 2006 -9- improvement or material contradiction. The fact that she (deceased- prosecutrix) was sleeping etc. in no way can be held as material improvement or material contradiction which may go to the root of the case. PW-1 Sheela is an independent witness and there is nothing on the record that why she would depose falsely against the accused. The conduct of the accused that he ran away from the spot after PW- 1 Sheela complainant enquired from him regarding "S" (deceased) also goes against the accused. Again, PW-2 Mamta is the wife of the accused. She has also deposed against the accused. The occurrence took place in the house of the accused and admittedly at that time PW-2 Mamta and mother of the accused were not present in the house. Therefore, accused has to explain under Section 106 of the Evidence Act, how the death of "S" occurred. As per Section 106 of the Evidence Act, facts which are especially within the knowledge of a person, that person has to prove the same. But, in the present case, there is no explanation from the accused side. There is no cogent evidence on the record to show that PW-2 Mamta was present in the house or she killed her daughter "S". There are no suggestions to PW-2 Mamta or PW-1 Sheela that Mamta had caused the occurrence. There is also no suggestion to the witnesses, where Kumar Sharma was at the time of occurrence or whether any other person came to the house. The defence version that PW-2 Mamta, mother of the deceased had killed her daughter "S", is not supported or corroborated from any evidence on the record. As already discussed, even the suggestion to PW-2 Mamta has not been put Crl. Appeal No.D-936-DB of 2006 -10- regarding the defence version. There is also nothing on the record why PW-2 Mamta will kill her own daughter "S". Therefore, defence version cannot be believed.
The perusal of the cross-examination of PW-1 Sheela and PW-2 Mamta shows that there is nothing to disbelieve their statements. They are truthful, trustworthy and reliable witnesses. Their statements have been duly supported and corroborated by medical evidence and also by the FSL report. Further, PW-7 Rakesh Sharma, before whom the accused made extra judicial confession has supported and corroborated the prosecution version and this confession of the accused also shows that the accused had committed the murder of "S". There is also nothing in the statement of PW-7 Rakesh Sharma, which make his statement unreliable or unbelievable. He has produced the accused before the police on the same day in the evening. Therefore, he is also a truthful and trustworthy witness. There is nothing on the record to show why he would depose falsely against the accused as he is an independent witness and has no enmity or motive against the accused. The recovery effected in the present case further supports and corroborates the prosecution version. The mere fact that cloth with which accused Kumar Sharma was cleaning the floor was not recovered, in no way creates a reasonable doubt in the prosecution version.
As regarding the discrepancy of time in the statement of PW-7 Rakesh Sharma, we find that in the chief examination, this Crl. Appeal No.D-936-DB of 2006 -11- witness has stated that accused came to him at noon time but in cross-examination, he made it clear that accused came to him at about 2.00-2.30 P.M. This discrepancy on the time is a minor discrepancy and such type of discrepancy occurs in the statements of the witnesses due to time gap etc. As regarding argument that police party reached the spot at 5.30 P.M. and FIR was registered at 7.25 P.M., we find that after reaching the spot the Investigating Officer recorded the statement of the complainant which was read over to the complainant and then he recorded the police proceedings and then ruqa was sent at about 7.00 P.M. Therefore, this time might have been consumed in recording the statement of the complainant. Rather the occurrence took place at 3.30 P.M., FIR was registered at 7.25 P.M. and Special Report was received by the Illaqa Magistrate at 10.00 P.M., all this shows that there is no unnecessary delay in recording the FIR. There is only one accused in the present case. There is nothing on the record that why the accused will be falsely implicated in the present case and the actual culprit will be left out. The mere fact that the chunni was got recovered by the accused in pursuance of his disclosure statement and PW-1 Sheela stated that dead body was covered with the chunni, creates no reasonable doubt in the prosecution version. There may be more than one chunni in the house which are usually worn by ladies on the head. The perusal of the evidence on the record shows that PWs have consistently deposed regarding the prosecution version. There are no material contradictions or material Crl. Appeal No.D-936-DB of 2006 -12- improvements in their statements, which may go to the root of the case. PWs are truthful, trustworthy and reliable witnesses. Their statements have been supported and corroborated by medical evidence and investigation of the case. The defence version is not believable. PW-7 Rakesh Sharma has also supported and corroborated the prosecution version and has proved the extra judicial confessional made by the accused.
In view of the evidence on record, we find that chain of circumstances is complete and point towards the guilt of the accused only and none else. There is no explanation from the accused under Section 106 of the Evidence Act. FIR is also prompt one. The prosecution has duly proved its case by leading cogent evidence beyond reasonable doubt. The accused-appellant has been rightly convicted and sentenced by the learned trial Court. Accordingly, the judgment of conviction and order of sentence are upheld.
Resultantly, we find no merit in this appeal and the same is hereby dismissed.
(M.JEYAPAUL) (INDERJIT SINGH)
JUDGE JUDGE
April 25, 2013
Vgulati