Punjab-Haryana High Court
Pawan Kumar vs State Of Haryana on 15 February, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA No.D-667-DB of 2008
Date of decision: 15.02.2012
Pawan Kumar
.....Appellant
versus
State of Haryana
......Respondent
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Ms.Aditi Girdhar, Advocate for the appellant
Mr.G.S.Chahal, Addl.A.G. Haryana
Jasbir Singh, J.
It was allegation against the appellant Pawan Kumar that on the intervening night of March 7 and 8 2003, in his house, he intentionally had committed murder of his wife, namely, Suman, by causing her injuries with the help of a wooden log. Vide judgment dated 12.8.2005, he was convicted for commission of an offence under Section 302 IPC for causing death of his wife and on 18.8.2005, he was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- for the above offence with a default clause. Hence, this appeal.
As per record, marriage between the appellant and the deceased was performed in the year 1996. Out of the wedlock, two daughters were CRA No.D-667-DB of 2005 2 born. Sister of the deceased, namely, Jagmati is marriage to Satbir Singh elder brother of the accused.
Process of law was set in motion on a statement (Ex.P4) made by PW7 Ravinder Kumar (brother of the deceased) at 10.15 a.m. on 8.3.2003. His statement was recorded by PW11 SI Pawan Kumar. An FIR (Ex.P5) was recorded against the appellant-accused in police station Kalanaur at 10.25 a.m. on 8.3.2003 under Section 302 IPC for committing murder of his wife Suman.
The trial Judge has noted the following facts regarding case of the prosecution:-
"That on March 6, 2003, the accused along with his wife Suman and their daughters went to village Khewra, district Sonepat, parental house of Suman, deceased. There Suman told her brother Ravinder Kumar, complainant, (PW7) that the accused was harassing and maltreating her for the reason that she was giving birth to daughter after daughter and not delivering a son and that he will contract a second marriage. Ravinder Kumar, (PW7), asked the accused as to why he was doing this, on which, the accused told him, (PW7) that he will contract second marriage otherwise his line of male descendants will come to an end. Ravinder Kumar, (PW7), then talked to both of them by way of persuasion requesting them to pull on together peacefully.
2. On March 7, 2003, Ravinder Kumar, complainant, (PW7), along with the accused, Suman, deceased and their two daughters came to village Kalanaur and told the family CRA No.D-667-DB of 2005 3 members of the accused that he (accused) wanted to remarry on account of not having a son from Suman. The family members of the accused assured him that they would make the accused understand. After having dinner, Ravinder, complainant slept with his another brother-in-law Satbir whereas the accused alongwith Suman and their two daughters slept in another portion of the house.
3. Next morning, that is, Marc 8, 2003, at about 5.00 a.m. the complainant heard shrieks of his sister Suman. He reached the room where Suman was sleeping and knocked the door. He noticed the accused causing injuries to Suman with a Danda (Exhibit P22) from the Jangla/ window of the room. The accused opened the door and fled away from the scene. He entered the room and found Suman lying dead on a cot drenched in a pool of blood."
Thereafter, PW7 Ravinder Kumar informed his family members on a telephone about the above incident. His cousin, Krishan Pal, Naresh and other family members reached the house of the deceased at about 9/9.30 a.m. on the said date. PW7 thereafter went to inform the police to lodge a report. PW11 SI Pawan Kumar met him on his way and recorded his statement whereupon an FIR (Ex.P5) was registered against the appellant- accused. PW11 went to the spot. He got the dead body and the place of occurrence photographed, prepared inquest proceedings on the dead body and sent it for postmortem examination. He also took in his possession blood stained pieces of Darri, mattress, blanket and broken pieces of bangles against seizure memo (Ex.P23). He also got prepared a rough site CRA No.D-667-DB of 2005 4 plan of the place of occurrence with correct marginal notes. Postmortem on the dead body was conducted by Dr.Kiran Bala (PW6) on 8.3.2003 at 2.30 p.m. She found 12 injuries on the person of the deceased.
Appellant-accused was produced before the investigating officer by Subhash Chander (PW8) on 9.3.2008. He was put under arrest. On interrogation, he made a disclosure statement (Ex.P25), which led to the recovery of a wooden log from behind a box in the room of his house. Weapon of offence (Ex.P22) was taken in possession against recovery memo (Ex.P26).
On completion of investigation, final report was put in Court. Copies of the documents were supplied to the appellant-accused as per provisions of Section 207 Cr.P.C. Case was committed to the Court of competent jurisdiction for trial. Accused was charge sheeted vide order dated 23.5.2003, to which he pleaded not guilty and claimed trial. The prosecution produced eleven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statement of the appellant-accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. However, he led no evidence in defence.
The trial Judge on appraisal of evidence found him guilty for the offence with which he was charged and accordingly he was convicted and sentenced as found mentioned in earlier part of this order.
Counsel for the appellant has vehemently contended that the prosecution has failed to explain delay in getting the FIR recorded. Place of occurrence is situated at a short distance from the police station in Kalanaur. CRA No.D-667-DB of 2005 5 Occurrence alleged to have taken place at 5.00 a.m. on 8.3.2003. Alleged eye witness Ravinder Kumar (PW7) was present at the spot. However, his statement (Ex.P4) was recorded only at 10.15 a.m. on the above date. For this huge delay of five hours, no explanation has been given which is fatal to the case of the prosecution. It is further argued that there is no independent corroboration to the version of the prosecution. PW7, PW10 are the interested witnesses being closely related to the deceased. Despite being available, the family members and the neighbours were not associated in the investigation. It is further stated that the alleged recovery of wooden stick does not inspire confidence. As per statement made by PW7 Ravinder Kumar (Ex.P4), the appellant-accused alleged to have escaped from the place of occurrence with the weapon of offence. Subsequent thereto, the investigating officer has shown recovery of above weapon from a room where death has occurred. Counsel further argued that there was no question of making any extra judicial confession by the appellant before PW8 Subhash Chander, who is not related to him. It is stated that it was a case of blind murder. At the time of alleged occurrence the appellant - accused was in his fields and came to his house only on getting information of death of his wife. It is case of the defence counsel that the appellant has falsely been implicated in this case. She prayed that the appeal be allowed, impugned judgment and order be set aside and the appellant be acquitted of the charges framed against him.
Prayer made has vehemently been opposed by the State counsel, who by making reference to the deposition made by the prosecution witnesses argued that the prosecution has proved its case. Sister of the deceased namely Jagmati is also married to the elder brother of CRA No.D-667-DB of 2005 6 the appellant, namely, Satbir Singh. Parents of the appellant -accused put pressure upon PW7 Ravinder Kumar not to state facts to the police. PW7 sent message regarding death of Suman to his relations on telephone. They came to the place of occurrence at about 9/9.30 a.m. After making consultation with them the matter was reported to the police at 10.15 a.m. on 8th March 2003. The time consumed under the circumstances was justified. He further stated that as the family members and the neighbours were helping the accused, so they refused to make statement against him on account of which they were not cited as witness. The very fact that the family members of the appellant had not appeared in his defence clearly shows that the appellant was guilty of committing murder of his wife. Recovery of weapon of offence inspires confidence and it has been proved by the investigating officer and other witnesses. On examination, human blood was found on the wooden log. He prayed that appeal having no substance be dismissed.
After hearing counsel for the parties and on analysis of the paper book, this Court is of the opinion that the present appeal is bound to fail.
Marriage between appellant and the deceased was solemnized in the year 1996. Out of the wedlock two daughters took birth. The appellant was not happy. He wanted a male child on account of which he was harassing the deceased. She intimated the above fact to his brother and other relatives on 6th March 2003, when she along with her daughters visited her parental house. His brother Ravinder Kumar(PW7) accompanied her to her matrimonial house so that the appellant-accused be made to see the reason, in consultation with other family members. Smt.Jagmati sister of CRA No.D-667-DB of 2005 7 the deceased is married to Satbir Singh elder brother of the appellant. PW7 has clearly described the mode and manner in which occurrence has taken place. In the evening after taking dinner the appellant, deceased and their children went to a separate room. PW7 heard shrieks of the deceased. When he went to the room occupied by the appellant and the deceased, he saw the appellant causing injuries to the deceased. He knocked at the door which made the appellant-accused to flee away from the spot. Despite lengthy cross-examination, the defence has failed to shatter testimony of above witness. His presence at the spot appears to be natural. He is a truthful witness, who has stated that before the birth of second daughter relations between the appellant and the deceased were very cordial. Appellant was annoyed with his wife because she had given birth to a second female child.
Merely because family members of the appellant were not associated in the investigation no benefit of the same can be given to the appellant. It has come on record that family members of the appellant were rather pressurizing the appellant not to lodge a report with the police against the appellant. PW11 the investigating officer has also stated that the family members of the appellant had refused to make any statement against him.
The occurrence was seen by PW7 in which injuries were given by the appellant to the deceased. Statement made by this witness appears to be truthful. Not only as above, the deceased and the appellant were last seen by PW7 in their house in the evening of 7th March 2003. In the morning Suman was found dead. There is nothing on record to show that she was killed by a stranger. House of the appellant is situated inside the abadi of the village. Family of brother of the appellant was also residing in CRA No.D-667-DB of 2005 8 the same house. Under the circumstances, it can be inferred that the manner in which death has occurred was known to the appellant. The provisions of Section 106 of Evidence Act, 1872 can be read against the appellant in the above situation. In his statement, the appellant-accused has taken a defence of alibi by stating that at the time of death, he was working in his fields. There is no evidence on record to prove the above fact. Neither his family members nor any of his co-villagers has appeared in the witness box to prove the above fact. Dead body was found from a room of the house of the appellant. For the murder of his wife, he has failed to give any explanation.
A Division Bench of this Court in Amarjit Singh and others v. State of Punjab, 1989(1) R.C.R. 18, has opined that if death had occurred in a family house, it is for other members of the family to explain the circumstances in which death has taken place. Their lordships of the Supreme Court in Raj Kumar Prasad Tamarkar v. State of Bihar and another, (2007)10 SCC 433, by taking note of a fact that the death had occurred in a bedroom, where husband and wife were alone, when husband failed to give any explanation for the same, it was held a circumstance against him. To the same effect is the ratio of the judgment in Duyaneshwar v. State of Maharashtra, (2007) 10 SCC 445, in which the Hon'ble Supreme Court observed as under:
"10. It has not been disputed before us that the deceased was murdered in her matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was a possibility of an outsider to commit the said offence. One of the circumstances which is relevant is that when the couple was last seen in a premises to CRA No.D-667-DB of 2005 9 which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his wife. In Raj Kumar Prasad Tamarkkar v. State of Bihar, this Court held:(SCC p. 440, paras 22-23).
"22. The conspectus of the events which had been noticed by the learned Sessions Judge as also by the High Court categorically goes to show that at the time when the occurrence took place, the deceased and the respondent only were in the bedroom and the terrace connecting the same. There was no other person. The cause of death of the deceased Usha Devi i.e. By a gunshot injury is not disputed. The fact that the terrace and the bedroom are adjoining each other is not in dispute.
23. The autopsy report shows that 'a blackening and charring' existed so far as Injury (i) is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance. Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore, cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. The place of injury is also important. The lacerated wound was found over glabella (middle of forehead). It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance. There was, thus, a remote CRA No.D-667-DB of 2005 10 possibility of causation of such type of injury by any other person, who was not on the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same."
In the present case also, situation is the same. Under the given circumstances, it is for the appellant to state the manner how the death of his wife has occurred.
Post mortem on the dead body was conducted by Dr.Kiran Bala (PW6). This witness has found the following injuries on the person of the deceased:-
"1. There was lacerated wound of the size 5x2 cms. on the frontal region (left aspect) 7 cms. above the left supra orbital margin.
2. There was lacerated wound of size 6x3 cms. 1 cm above the left supra orbital margin (forehead)
3. Lacerated wound of size 3 x 1.5 cms on the frontal region vertical in position, .2 cm lateral to the midline.
4. Lacerated wound of size 7x5 cms starting from forehead upto the nasal septum underlying bone fractured and visible in multiple pieces.
5. Lacerated wound of size 2 x .5 cms on the lateral and left aspect of the left eye.CRA No.D-667-DB of 2005 11
6. Lacerated wound of size 1.5 x 5 cms on the left cheek 2 cms below the left eye.
7. Lacerated wound of size 2.5 x 1.0 cms, 1 cm lacteral and left aspect of nose.
8. Lacerated wound of size 3.5 x 1.5 cms on the left nasolabial fold 4 cms away from the midline.
9. Lacerated wound of the size 2 x 1.0 cms on the area between the nose and upper lip, slightly left and lateral to the midline."
In all the above injuries, underlying bones were fractured and visible. The face was virtually flattened. Most of the bones were crushed into multiple pieces. PW6 also found the following minor injuries on the person of the deceased:-
"1. There was contusion of size 6x5 cms on the frontal and anterior aspect of the left shoulder.
2. There was lacerated wound of size 2x1 cms on the right middle finger 1 cm above the base.
3. Superficial abrasion on the dorsum of left hand."
It does not appear to be a case of some stranger. House is supposed to be locked from inside at night.
So far as delay in recording the FIR is concerned, the time consumed in between death and reporting the matter to the police appears to be justified. PW7 was alone at the place of occurrence. His sister was killed. His another sister is married in the same house. He was under
pressure. Family members of the appellant were asking him not to report CRA No.D-667-DB of 2005 12 the matter to the police. He intimated the occurrence on telephone to his relations. They came at about 9/9.30 a.m. After discussing with them the matter was reported to the police at 10.15 a.m. Otherwise also, it is not expected that PW7 will put marriage of his second sister in danger by making a false report against the appellant. The very fact that none of the family members of the appellant ever made any attempt to lodge protest with the higher authorities regarding alleged false involvement of the appellant in this case, shows that he was guilty.
PW8 Subhash Chander has also proved offence committed by the appellant. Before this witness the appellant made extra judicial confession, admitting his guilt on 9.3.2003. This witness produced him before the investigating officer on the said date. PW8 is a person of means. He is former Vice Chairman of the Municipal Committee Kalanaur, a respectable person, who has no enmity with the appellant-accused. Deposition made by him appears to be trust worthy. This witness has made no attempt to exaggerate anything, rather truthfully, has stated the facts narrated to him by the appellant-accused.
The Hon'ble Supreme Court in Velayuda Pulavar v. State by Sub Inspector of Police, 2009 (14) Supreme Court Cases 436, has observed that conviction can be recorded solely on the basis of an extra judicial confession if it is found to be credible and worthy of acceptance. In the case of Chattar Singh and another v. State of Haryana, 2008(4) Recent Criminal Cases 133, it was held as under:
"18. 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 CRA No.D-667-DB of 2005 13 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 extrajudicial 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 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 touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
To the same effect is the ratio of the judgment in Aftab Ahmad Anasari v. State of Uttaranchal, 2010 (1) Recent Criminal Reports 832, wherein it was observed that though extra judicial confession is considered to be a weak piece of evidence, yet there is neither any rule of law nor of CRA No.D-667-DB of 2005 14 prudence that the evidence furnishing extra judicial confession cannot be relied upon unless corroborated by some other credible evidence. It was further held as under:
"The evidence relating to extra judicial confession can be acted upon if the evidence about extra judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. In State of U.P. vs. M.K. Anthony AIR 1985 SC 48, this Court, while explaining the law relating to extra judicial confession, ruled that if the word spoken by the witness are clear, unambiguous and unmistakable one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction..."
In the present case, there is nothing on record to show that PW8 had any motive to make a false statement against the appellant- accused. Statement of the witness is free from any blame.
The recovery of weapon of offence is also proved on record. After arrest, the appellant-accused was interrogated. He suffered a disclosure statement, on the basis of which, weapon of offence was recovered. The recovery stands proved by the investigating officer and PW10 Krishan Pal. Mode and manner of the investigation is also proved by CRA No.D-667-DB of 2005 15 the investigating officer (PW11). This witness at every step of the investigation had prepared necessary documents, took into his possession blood stained earth and other blood soaked articles. He has sent those articles to the FSL for examination. Weapon of offence and other articles recovered were found soaked with human blood. The investigation appears to be fair.
Counsel for the appellant has failed to indicate any misreading of evidence on the part of the trial Judge.
No case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
15.02.2012 (Sabina)
gk Judge