Punjab-Haryana High Court
Suresh Kumar @ Shashi vs State Of Punjab on 30 September, 2014
Author: T.P.S. Mann
Bench: T.P.S. Mann
MR No.01 of 2014 &
CRA-D-1211-DB-2014 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Murder Reference No.01 of 2014
Date of decision : September 30, 2014
State of Punjab
......Appellant
Versus
Suresh Kumar @ Shashi
...... Respondent
CRA-D-1211-DB-2014
Date of decision : September 30, 2014
Suresh Kumar @ Shashi
.....Appellant.
Versus
State of Punjab
....Respondent
CORAM : HON'BLE MR.JUSTICE T.P.S. MANN
HON'BLE MR.JUSTICE GURMIT RAM
***
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
***
Present : Mr. Rajesh Bhardwaj, Addl. A.G. Punjab.
Mr. Rajiv Vij, Advocate, (Legal Aid Counsel),
for the convict.
***
GURMIT RAM, J.
1. The above-noted murder reference and criminal appeal are taken up together for the purpose of disposing of and discussion since these have emanated from one and the same judgment and order of sentence dated GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :2:
19.02.2014/20.02.2014, vide which the respondent/accused has been held guilty for the offence punishable under Section 302 IPC and awarded with the sentence of death penalty.
2. The case of the prosecution in nut-shell is that on 30.7.2013 Police party of Rajinder Singh, Inspector, SHO of Police Station Sujanpur consisting of ASI Inderjit Singh, HC Surinder Kumar, HC Rajesh Kumar and other police officials was present at turning point of village Gandhla Lahri in connection with patrolling and checking of bad elements where complainant Sheetal Sharma d/o Kartar Chand r/o H. No.434, Gali No.3, Rose Avenue Colony, Dera Baba Nanak Road, Gurdaspur along with one Agya Ram s/o Diwan Chand r/o Shankar Colony, Gurdaspur met with Inspector Rajinder Singh and she made her statement before him which reads as under:-
That she was married with accused Suresh Kumar @ Shashi about 2 years back. After the marriage she gave birth to 2 children, i.e. elder daughter Nauviya aged about 1 ½ years and younger son Sumeet aged about two months. After the birth of these children, her husband, Suresh Kumar started indulging in quarrel with her on the plea that these children are not from his loins since she has some illicit relations with somebody else. He will not leave both the children alive and on account of this reason her husband always used to beat and harass her mentally. Yesterday, on 29.7.2013 she and her husband took the children to Gurdaspur from where the medication of her son namely Sumeet was going on. There also her husband misbehaved with her in the hospital. She went to her parent's house. After some time her husband also came to her parent's house and went away after taking the children alongwith him. Today in the morning at GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :3:
about 10 AM, she came to know that her both the children have been killed. Thereupon she along with her Taya (elder brother of her father), i.e. Agya Ram reached in village Rattan Colony, Chhotepur, in the house of her in-laws, where dead bodies of both of her children were lying on the bed and froth was coming out from the mouth of her daughter Nauviya. Her husband has killed her both the children after giving them milk mixed with poisonous substance for the reasons that he was suspecting about her character. Further, she prayed for taking legal action against the culprit. After recording her said statement, Inspector Rajinder Singh, also made his own endorsement on the said statement and sent the Ruqa to the Police Station on the basis of which, instant case was registered against the accused.
Thereafter Inspector/SHO Rajinder Singh went to the place of occurrence and prepared the inquest report of the dead bodies of both the children namely Sumeet and Nauviya. Then he sent the dead bodies of both the children to the Civil Hospital, Pathankot for the autopsy through police officials HC Surinder Kumar and PHC Lakhwinder Singh. On checking the scene of crime, 2 milk feeder bottles were found lying beneath the bed, which were taken into possession. Site plan of the place of occurrence was also prepared. During the post-mortem of both the deceased, their viscera were preserved which were sent to the office of Forensic Science Laboratory concerned for the examination. The accused confessed his guilt before PW-Charanjit Saini for having killed both his children by serving them milk mixed with poison. He was arrested in this case formally on 30.07.2013. On receipt of report of Chemical Examiner it was found that Aluminum Phosphide insecticide poison was found in the viscera of both GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :4:
the said deceased. After completion of all formalities of investigation, the accused was challaned and report under Section 173, Cr.P.C., was presented against the accused in the Court of learned Illaqa Magistrate, Pathankot. Copies of challan and of documents annexed thereto were supplied to the accused free of cost as envisaged under Section 207, Cr.P.C..
3. Thereafter accused was charge-sheeted under Section 302, IPC, (2 counts) to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 11 witnesses in total and thereafter closed its evidence.
5. On closure of prosecution evidence, accused was duly examined as required under Section 313 Cr.P..C. during which the entire incriminating evidence brought on file against him was put to him, which was denied by him entirely. Further he pleaded his innocence and his false implication in this case. He admitted his marriage with the complainant- Sheetal Sharma, who was not happy with him, since he was earning very less. She wanted divorce from him. Then he has also taken plea that on 29.07.2013 he along with his wife went to Gurdaspur to get medicine for his son. On reaching her parents' house, his wife refused to come back with him on the pretext that she did not want to live with him. One Tarlok Singh, Sarpanch intervened and called one Inspector Paramjit Singh, neighbour of his wife, on his ( Inspector Paramjit Singh) intervention his wife along with their children accompanied him to his house at village Gandla Lahri. Her brother and mother also accompanied them and then returned to their house on the same day. Tarlok Singh Sarpanch had seen them together at the turning of Gandla Lahri in the evening. On the next day, he woke up and found his wife and children missing.
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In his defence, appellant / accused has examined abovesaid Tarlok Singh as DW-1.
6. After hearing learned Public Prosecutor, learned defence counsel and going through the record, the learned trial Court held the accused guilty for the offence punishable under Section 302 IPC and convicted him accordingly by awarding him sentence to death for the offence punishable under Section 302, IPC, vide impugned judgment and order of sentence.
7. Feeling aggrieved from the aforesaid judgment and order of sentence, the respondent/appellant has approached this Court and filed the instant appeal against the said judgment and order of sentence.
The learned trial Court has sent murder reference for the confirmation of the dead penalty imposed upon the accused as required under Section 366 of the Cr.P.C.
8. Notice of this appeal was given to the learned Advocate General, Punjab. Record of trial Court was also requisitioned.
9. We have heard learned Additional Advocate General, Punjab & learned counsel for the convict and have gone through the entire record for the purpose of disposal of the abovesaid instant murder reference and appeal.
10. In order to prove its case, prosecution has examined PW-1, Sheetal Sharma-complainant, who deposed on the same lines as per her statement Ex.PW1/A, which she had made before the Police on 30.07.2013 with regard to the alleged occurrence. It is also in her statement that on receipt of the information of death of both of her children, she went to her in-laws house alongwith her paternal uncle Agya Ram and one Raj Kumar, GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :6:
where she found the dead bodies of both her children lying on the bed in the house of the accused. When they were going to lodge the report against the accused, Police met them at Gandla Lahri turning point, where she got recorded her statement Ex.PW1/A, then the police accompanied them to the place of occurrence. Inquest reports of the dead bodies of Navya and Sumeet were prepared by the Police on the identification made by Agya Ram and Raj Kumar. Then it is specific in her statement that accused had killed her both the children by poisoning them after mixing the same in the milk.
PW-2 Agya Ram, who is paternal uncle of PW-1 (complainant), has corroborated her above referred statement. Further he has proved aforesaid inquest reports, the carbon copies of which are Ex.PW2/A & Ex.PW2/B.
11. PW-7, Charanjit Saini is Ex-Sarpanch of village Gandla Lahri Tehsil and District Pathankot. His statement is to the effect that accused had made extra judicial confession before him on 30.07.2013 that he had killed both of his children by way of serving them milk mixed with poison.
12. PW-10, Dr. Sunil Chand, Medical Officer, Civil Hospital, Pathankot, had tendered in his statement his duly sworn affidavit, Ex.PW10/A as a part of his statement. He, in his affidavit has stated that he conducted post-mortem on the body of Nauviya d/o Suresh Kumar, female child and on the dead body of Sumeet s/o Suresh Kumar, aged about 2 months, male child, both residents of Ratan Colony, Chhotepur, Pathankot, Police Station, Sujanpur. Further he has produced the original post-mortem register in the Court with regard to the autopsies of both the said deceased, copies of which are Ex.PW10/B and PW10/C respectively. He has also GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :7:
stated that as per report of Chemical Examiner regarding visceras of deceased Navya and Sumeet which are Ex.PW10/D & Ex.PW10/E respectively, aluminium phosphide poison was detected in the viscera of both the deceased. On receipt of report of Chemical Examiner, he gave his opinion that cause of death in this case of both the abovesaid children was due to poisoning of aluminium phosphide insecticide, which is sufficient to cause death in the ordinary course of nature. His reports in this connection with regard to cause of death of deceased Nauviya and Sumeet are Ex.PW10/F & Ex.PW10/G. Further he has proved the applications moved for conducting post-mortem Ex.PW8/A & Ex.PW9/G, on the basis of which he was deputed to conduct post-mortem on the dead bodies of aforesaid deceased by Dr. Bhupinder, acting SMO vide his endorsements Ex.PW10/H & Ex.PW10/I.
13. PW-9, Rajinder Singh, SHO, is Investigating Officer in this case. He has stated that on 30.07.2013 he was present at turning point of Gandla Lahri, where Sheetal Sharma-complainant along with her relatives came and made her statement Ex.PW9/A, the carbon copy of which is Ex.PW1/A. Further he has proved his endorsement Ex.PW9/B made on her said statement and the FIR Ex.PW9/C, which was recorded by SI Gulshan Kumar, whose signatures he identifies. Thereafter he went to the place of occurrence alongwith aforesaid persons and prepared site-plan Ex.PW9/D. He also prepared inquest reports Ex.PW9/E and Ex.PW9/F with regard to dead bodies which were lying on the bed in the house of the accused on the identification of Agya Ram and Raj Kumar. Further he has also proved 2 applications Ex.PW8/A & Ex.PW9/G prepared for the post-mortem examination of both the dead bodies of the deceased. He handed over the GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :8:
dead bodies along with said police papers to HC Surinder Kumar & PHC Lakhwinder Singh for conducting post-mortem examination from civil Hospital, Pathankot. Further he has proved the memo Ex.PW5/A vide which 2 empty milk bottles with nipples, MO1 & MO2, which were lying under the bed were taken into police possession, after preparing their parcel. Further he has proved memo Ex.PW5/B vide which accused was formally arrested in this case and memo Ex.PW5/C pertaining to personal search of the accused. On return to police station, he deposited the case property, i.e. abovesaid parcel with the MHC. After completion of the investigation, challan against the accused was presented.
PW-5 ASI Inderjit Singh was accompanying the police party of SHO Rajinder Singh, Police Station, Sujanpur on 30.07.2013. He has also proved recovery memo Ex.PW5/A vide which two small plastic bottles of milk along with nipples which were found lying under the bed at the spot of occurrence were taken into police possession. Further he has also proved the memo Ex.PW5/B with regard to arrest of the accused and the information in this regard and memo Ex.PW5/C pertaining to personal search of the accused and corroborated the abovesaid statement of PW-9, SHO/Investigating Officer, Rajinder Singh.
PW-8 HC Surinder Kumar was also one of the members of the police party of SHO Rajinder Singh, on 30.07.2013 when he was present at the turning point of Gandla Lahri. He has stated that after preparing inquest proceedings with regard to dead body of both the children, SHO Rajinder Singh handed over the same to him and HC Lakhwinder Singh for conducting post-mortem examination along with police papers and application Ex.PW8/A. After post-mortem examination, they were handed GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :9:
over belongings of the deceased, copy of the post-mortem report, police papers duly signed by the Doctor and parcel containing visceras of the deceased along with sealed envelop containing requests for chemical examination of the visceras. Further he has proved receipt Ex.PW8/B vide which dead bodies were handed over to the relative of the deceased. On return to the police station they handed over the abovesaid entire material in intact condition to MHC Dalbir Singh.
14. PW-3, Harsh Kumar, Halqa Patwari, Souli Bhouli, is a formal witness of this case, he has prepared the scaled site plan of the place of occurrence at the instance of SHO Rajinder Singh, which is Ex.PW3/A.
15. PW-4, PHC Manoj Kumar has tendered in his evidence his duly sworn affidavit Ex.PW4/A to the effect that he delivered copy of special reports to the Illaqa Magistrate and Senior Police Officers in this case on 30.07.2013.
16. PW-6 MHC Dalbir Singh was posted as MHC at Police Station, Sujanpur on the relevant date and he has tendered in his evidence his duly sworn affidavit Ex.PW6/A to the effect that on 30.07.2013 case property of this case consisting of 2 baby milk feed bottles sealed with the seal of 'RS' was handed over to him, he deposited the same in the Malkhana after making entry in Register No.19. On 11.08.2013 he handed over the viscera of deceased Nauviya and Sumeet duly sealed with the seal of Doctor in 2 envelops bearing seal of the doctor to Lakhwinder Singh No.445 which were deposited by him in the office of Chemical Examiner, Kharar on 12.08.2013 against receipt. He kept the abovesaid case property in intact condition, so long as the case property remained in his possession.
17. The abovesaid Lakhwinder Singh appeared in this case as PW-
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11 and tendered his affidavit Ex.PW11/A as a part of his statement and fully corroborated the abovesaid statement of PW-6, MHC Dalbir Singh. It is also in his affidavit that he deposited case property of this case with the Chemical Examiner, Kharar, in intact condition.
18. Learned counsel for the appellant has contended that impugned judgment and order of sentence is patently illegal, manifestly unjust, perverse as well as erroneous and, as such, not sustainable in the eyes of law. In this regard it is further his contention that the impugned judgment vide which the learned trial Court has convicted the appellant is merely based on presumptions and totally ignored most material facts and on this ground also, this judgment has no legs to stand. Then he has also contended that there are material contradictions between statement Ex.PW1/A of the complainant made by her before the Police and the statement made by her in the Court as PW-1 on dated 02.01.2014 & 24.01.2014 and as such she has made improvements in her statement, which fact goes to show that the appellant has been falsely implicated in the present case. Further he has also pointed out about the lapses on the part of the Investigating Officer, Rajinder Singh, SHO, for not mentioning the fact of sealing of parcel of milk bottles in the memo allegedly recovered from the spot lying beneath the bed on which dead bodies of the 2 children were lying and also for not sending the same to the office of Chemical Examiner for their examination. Further he has submitted that Investigating Officer has also failed to lift the finger prints from these bottles in order to ascertain fact as to finger prints of which person were bearing on the same. Then it is further contended by him that PW-7, Charanjit Saini before whom the accused has allegedly suffered extra judicial confession with regard to the commission of alleged GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :11:
crime by him is also a made up witness of the prosecution. Then he has also submitted that Paramjit Singh, Inspector, who is stated to be residing in the neighbourhood of the parents of the complainant-Sheetal Sharma has also not been examined as the prosecution witness, who as per the case of the prosecution has informed the present complainant with regard to the alleged occurrence. Lastly he has contended that virtually the prosecution has no case to succeed against the appellant / accused and has prayed that appeal be accepted and the appellant / accused be acquitted of the charge framed against him by exculpating him of said charge on the basis of benefit of doubt.
19. On the other hand the learned State Counsel has strongly controverted the above contentions of the learned counsel for the appellant and has contended that there is sufficient, reliable and confidence inspiring evidence on the record in order to bring home the guilt of the accused and the learned trial Court has rightly held the accused guilty for the offence punishable under Section 302 IPC and convicted him accordingly with the sentence of death penalty. In support of his contention he has also referred to the above discussed depositions of the witnesses examined by prosecution during the trial of the case.
20. The learned counsel for the appellant in order to further eleborate his above contentions has firstly submitted that the alleged crime has not been committed by the appellant / accused and that he has falsely enmeshed in this case after concocting a cock and bull story on the part of complainant-party. Herein he has contended that infact the present complainant-Sheetal Sharma along with her mother and brother had come to her in-laws home at Gandhla Lahri on 29.7.2013 and that she stayed in her GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :12:
in-laws house during intervening night of 29.07.2013 & 30.07.2013, it was she who served milk mixed with poison to her children during the said intervening night and then left her in-laws' house in order to go scot free from her criminal liability in this case and further to blame the murder of her children to the accused falsely. In order to muster strength to his above contention, he has also referred to cross-examination of PW-1, Sheetal Sharma, wherein she has stated that Sarpanch, Tarlok Singh had noticed her brother and mother on 29.07.2013 at turning point of village Gandhla Lahri in the evening. Further he has also relied upon the statement of said Tarlok Singh as DW-1, wherein he has testified that on 29.07.2013 he saw accused Suresh Kumar @ Shashi, his mother-in-law, brother-in-law, Sheetal and their off-springs at turning point of village Gandhla Lahri, while he himself was proceeding towards Sujanpur.
But Sheetal Sharma-complainant (PW-1) in her cross- examination has stated that her brother and another were perceived by Sarpanch Tarlok Singh on 29.07.2013 at the turning point of village Gandhla Lahri in the eveining. She is silent about her own presence at that time along with them.
Even if the above contention of the learned counsel for the appellant is taken to be correct, even then the act and conduct of the appellant-accused does not justify the same. If the milk mixed with poison had been administered to the children by the complainant herself and that children had died of due to this reason, then the natural conduct of the accused as a normal man in the ordinary prudence was to raise hue and cry for informing the residents of the locality about the nature of this occurrence against her. Then he was also supposed to apprise the police in this regard GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :13:
in order to apprehand the complainant. Even he also did not send any intimation to the accolents, Sarpanch as well as Lamberdar of the village with regard to this incident. This silence on his part proves fatal to him. Further it also goes in a long way to prove his involvement in the commission of the alleged crime. So the above contention of the learned counsel for the appellant is declined and disposed of accordingly.
21. Then the learned counsel for the appellant has further argued that prosecution case is suffering from a serious lacuna also for the reason that Inspector Paramjit Singh, who had informed the present complainant about this occurrence has not been cited as a witness of prosecution in this case nor has he been examined by the prosecution during the trial of this case as a PW. Herein, he has submitted that this Paramjit Singh was the material witness in this case to know about the source from which he had got the information about this occurrence, who then further told the same to the complainant. But the case in hand is a blind murder case. There is no eye-witness to the alleged occurrence, so in this situation the examination or non-examination of Paramjit Singh as a prosecution witness is not of much significance nor it has any adverse effect on the merits of this case. It has come on the record in the statement of PW-1, Sheetal Sharma, complainant that said Paramjit Singh was living in their neighbourhood at Gurdaspur, so he being a neighbourer of her parents might have come to know about this occurrence and had further informed the same to the complainant. On being apprised of the alleged occurrence, complainant went to her in-laws home at village Gandhla Lahri and found the said information to be correct. Resultantly the above contention of learned counsel for the appellant is also declined and disposed of accordingly.
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22. Then learned counsel for the appellant has pointed out towards certain improvements which PW-1, Sheetal Sharma has allegedly made while making her deposition in the Court. Herein he has drawn the attention of the Court towards her cross-examination wherein she has deposed that she has stated before the police that one Raj Kumar also accompanied her to the Police, but when she was confronted with her alleged statement Ex.PW1/A, then this fact was not found to be so recorded in it. Then further he has brought to the notice of the Court another improvement in the statement of this witness wherein she has stated before the Court that accused had brought the children from her by way of snatching but when this witness was confronted with her abovesaid statement Ex.PW1/A then it is found that fact of taking away of children by the accused is recorded therein, but the fact of snatching was not found to be recorded therein. The above pointed out alleged improvements in the statement of PW-1 could not be termed as any material improvements in her statement. Such like minor improvements / alterations in the statement of a person are somewhat natural and can often happen after a lapse of some time, as no person can state like a parrot about a fact in the similar words as has been stated by him / her as the case may be about 5 / 6 months back. So the above contention of learned counsel for the appellant also does not hold any water and the same is declined accordingly.
23. On the basis of lapses done by the Investigating Officer, PW- 9, Rajinder Singh, SHO, during the investigation of this case, the learned counsel for the appellant has contended that he has not conducted the investigation in this case in a fair manner and that it has caused a serious prejudice to the accused. In this case as abovesaid, he has pointed out from GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :15:
the cross-examination of this witness where he has stated that he did not incorporate the fact of sealing of milk bottles in the memo nor did he lift finger prints from these bottles. Then in this connection, it is also his contention that these bottles were also not sent to the office of chemical examiner for the purpose of analyses and to ascertain the identity of the person whose finger prints, if any, on these bottles were.
But it is a settled law that the complainant is not to suffer if any lapse like the aforesaid lapses has been done by any Investigating Officer during investigation of the case. Moreover, if the finger prints were not lifted from the milk bottles allegedly recovered from the scene of the crime, then it would have been of no use to send the same to the office of the chemical examiner for the purpose of comparison of the finger prints. The abovesaid lapses on the part of the Investigating Officer show either his ignorance with regard to the legal consequences of the said lapses or that he did not take this apsect of this case seriously, while conducting investigation of this case.
24. Then the learned counsel for the appellant has further contended that as stated by PW-Sheetal Sharma in her statement Ex.PW1/A the treatment of her son Sumeet was already undergoing from a Doctor at Gurdaspur and whereas while appearing in the Court as PW-1 she in her cross-examination has stated that earlier her child was under treatment from civil hospital, but on that date, i.e. 29.7.2013 she had gone to Doctor Raj Kumar at Gurdaspur for the treatment of her son as suggested by her mother-in-law, which was their first visit to the said Doctor. But in her statement Ex.PW1/A she has not stated anywhere whether her son was under treatment from civil hospital Gurdaspur or from any other private GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :16:
Doctor at Gurdaspur. In her said statement, she has simply stated to the effect that medication of her child Sumeet was going on from Gurdaspur and while appearing in the Court as PW-1, in her cross-examination, she has simply stated that earlier her son was getting treatment from civil hospital without mentioning the place of that hospital. Then as abovesaid it has also come in her cross-examination that she had gone to Dr. Raj Kumar, at Gurdaspur for treatment of her son as suggested by her mother-in-law. So in this situation it can be concluded that earlier she might have been getting treatment of her son from civil hospital, Gurdaspur and her visit to Dr. Raj Kumar at Gurdaspur on that date to get treatment of her son could be the first visit to him.
25. Then it has been well-proved on the record that on 29.07.2013 accused accompanied the complainant Sheetal Sharma to Gurdaspur to get medicines for their son as per statement of Sheetal Sharma, PW-1. Accused rebuked her in the hospital and then she went to her parents' home at Gurdaspur. Accused also reached in the house of her parents after sometime and took away her children along with him to his house after snatching them from her forcibly. This statement of PW-1 is held to be sufficient to hold that accused was last seen with her children on 29.07.2013 while bringing them back to his house. The death of her both children has been caused during the intervening night of 29.07.2013/30.07.2013 and that too in his house, so in this situation he was bound to explain as to how the death of both the said children has been caused on the said intervening night. It has not come on the record that the children of the complainant and of the accused were subsequently seen in the custody of somebody else on 29.07.2013 when they were allegedly taken by the accused from the custody GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :17:
of the complainant. In order to come to this conclusion the learned trial Court has relied upon several authorities few of which are as under:-
Raj Kumar Prasad Tamarkar vs. State of Bihar & another, (2007)10 SCC 433. In this case law bride and her husband were in one room, when the alleged occurrence took place, it was held that burden of proof lies on the accused/husband to show under what circumstances the death of bride was caused. As per prosecution, in this case the bride was murdered by accused-husband with a revolver shot, he was held guilty of murder of his wife.
Duyaneshwar vs. State of Maharashtra, 2007(10) SCC 445. In this case it has been held that one of the circumstances which is relevant is that when the couple was last seen in a premises to which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his wife. In this case death of deceased was caused due to asphyxia (throttling). The appeal of her husband was dismissed.
Regarding the last seen theory there is a latest authority of Hon'ble Apex Court as laid down in Ramesh vs. State through Inspector of Police, AIR 2014 SC 2852. In this case law the witness has stated that they saw the deceased child while he was taken to the backyard of the mill by the accused. The deceased child was found missing since then and found dead in the next morning. The accused failed to gave any explanation as to why did he take the child to the backyard, further recovery of incriminating article was also made on the basis of his confession statement. Accused was held guilty of rape and murder of deceased child. It was also held by the Hon'ble Apex Court while taking into consideration its earlier decision, i.e. AIR 2005 SC 1000 as under:-
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The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In the case in hand as aforesaid death of the children of the complainant has been caused in the house of the accused during the intervening night of 29/30.07.2013. It is not the plea of the accused that he was not present in his house during the said night. Rather the plea taken by him is that his wife along with her mother and brother had visited his house on 29.07.2013 and that milk mixed with the poison was administered to the children by the complainant herself being in his house and the same has already been declined being not substantiated on the record. Moreover as aforesaid it is the case of the prosecution that accused was nursing a grudge that the children are not from his loins since he was suspecting the character of his wife.
26. With regard to the statement of PW-7 Charanjit Saini, counsel for the appellant has contended that this witness is tainted one and as such his testimony cannot be considered as a gospel truth for the disposal of this case. As per the deposition of this witness, the accused had met him on
30.07.2013 at about 2 PM on the turning point of Gandhla Lahri and had confessed his involvement in the commission of crime. He has further stated in his cross-examination that he had gone to police station at about 5 PM to record his statement before the police with regard to the abovesaid fact as told to him by the accused. Herein the learned counsel for the appellant has submitted that there is gap of 3 hours when the statement of GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :19:
this witness was recorded by the Police in this case after the alleged extra judicial confession made before him by the accused. But this witness is Ex- Sarpanch of village Gandla Lahri. He is about 72 years old and no enmity / motive has been attributed to him for deposing against the accused in this case for his false implication.
Moreover when an accused makes extra judicial confession before any person with regard to the commission of any heinous crime like murder, dacoity etc. then the person before whom such type of statement is made has to make his mind several times whether to bring this fact to the notice of the police or not either to avoid the animosity with the accused or to assist the accused who in the present case is the co-villager of PW-7 Charanjit Saini, before whom alleged extra judicial confession has been made by the accused. So the said delay of 3 hours in making statement to the police on the part of PW-7 itself is no ground to discard his testimony when no other fact in the shape of evidence has come on the record to hold that this witness is inimical towards the accused or he has some motive for his false implication.
24. Some of the authorites with regard to the extra judicial confession as laid down by the Hon'ble Apex Court are detailed as under:-
Madan Gopal Kakkad vs. Naval Dubey, 1992(3) SCC 204. In this case law the Hon'ble Apex Court in the relevant para No.21 has held as under: -
Though it is not necessary for us to enter upon a reappraisal or re-appreciation of the evidence since the findings of fact of the High Court have not been challenged yet we after most carefully and closely scrutinising the galaxy of GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :20:
the proven facts, have no hesitation in agreeing with the High Court that the extra-judicial confession made by the respondent which is not shown to have been obtained by coercion, promise of favour or false hope etc. is plenary in character and voluntary in its nature acknowledging his gulit. xxxxxxxx Gura Singh vs. State of Rajasthan, (2001)2 SCC 205. The principles of law as enunciated by the Hon'ble Apex Court with regard to the appreciation of the evidence pertaining to extra judicial confession are as under: -
(i) Extra-judicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement.
(ii) Evidence in the form of extra-judical confession made by the accused to witnesses cannot be always termed to be a tainted evidence.
(iii) If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone.
(iv) It is not open to the Court trying the criminal case to
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start with presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witness who speak for such a confession.
(v) Retraction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession.
(vi) An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity.
(vii) Before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26.
(viii) Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized.
(ix) Extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :22:
conviction even without corroboration. 1999(2) RCR (Crl.) 285 (SC) relied and AIR 1987 Supreme Court 1507 distinguished.
In the present case it is established on the record that alleged extra judicial confession made by the accused before PW-7 Charanjit Saini was true and voluntary account of his statement / deposition made by him before him with regard to alleged occurrence. As abovesaid, nothing has come on the record to discard the statement of PW-7 Charanjit Saini. So as such the learned trial Court has rightly appreciated and relied upon statement of this witness in order to bring home the guilt of the accused in this case.
27. In the light of above discussion the impugned judgment is held to be well written and based on reasons as well as on the evidence available on the file. There is no ground at all to make any kind of interference in the impugned judgment, so far as it relates to holding the accused guilty for the chargess framed against him. So this judgment to this extent stands affirmed.
28. The next moot point in this case is as to whether the present case is the rarest of the rare cases in order to warrant penalty of death for the accused in this case. It has come on the record that there were strained relations between the complainant and the accused for the reasons that accused was suspecting her character, who was his wife. Even he was having the suspicion to such an extent that both the children to whom the complainant had given birth are not from his loins and rather the same are from the loins of somebody else with whom the complainant was allegedly having illlicit relation. But his suspicion regarding the fact that his children GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :23:
are not from his loins is merely based on surmises and imbalance of presence of his mind since there was no definite proof that the alleged children of the accused are not from his loins for want of any scientific / legally admissible evidence, i.e. DNA test etc.. But then it is also a fact that if the suspicion has come into mind of any person with regard to the character of his wife, then it becomes a permanent source of agony for him, which also usually perturbs his mind, unless the same is got cleared or removed by the wife. Nobody tolerates that his spouse be having any extra marital / illegitimate relation with some other person. Then in this case, it is plea of the complainant that accused used to say that he will not allow his children alive since he was having suspicion that they are not from his loins. If she was knowing about this fact then she should not have allowed the custody of the children to the accused, when their custody was allegedly taken by him from her possession on 29.07.2013 forcibly. In this situation as a normal human being, she was bound to inform the police about this behaviour of the accused or to her accolents or the Panchayat or any other organization concerned. Further she could also have chased the accused in order to prevent him from doing any kind of criminal act against the children, but in the case in hand she did nothing in this regard, so her role in this situation is held to be little bit of an accomplice. By handing over the custody of her children to the accused who though was her husband, she had facilitated the accused in the commission of crime alleged.
29. The reasons given by the learned trial Court to bring this case in the category of rarest of rare cases are not found to be cogent and sufficient to hold so. Though it has come in the report of chemical examiner in this case that death of both the children have been caused due GAURAV SOROT 2014.11.05 16:13 I attest to the accuracy and authenticity of this document MR No.01 of 2014 & CRA-D-1211-DB-2014 :24:
to Aluminum Phosphide poison, but it is a fact that tablets of Aluminum Phosphide are usually used in each and every house in order to preserve and protect the foodgrains from the attack of any insects.
The learned trial Court while coming to the conclusion that it is a case of rarest of rare cases in order to award the death penalty to the accused has relied upon case law titled as Dharmendrasinh @ Mansing Ratansinh vs. State of Gujarat, 2002(2) R.C.R. (Criminal) 691. In this case law murder of 2 minor children was caused by their father. He was suspecting the character of his wife. He was awarded sentence of death penalty by the trial Court, which was further confirmed by the Hon'ble High Court, but the Hon'ble Apex Court has held as under:-
22. xxxx it cannot be said that the case falls in the category of rarest of rare cases so as to make the appellant liable for extreme penalty of death. The crime committed is no doubt heinous and unpardonable. The act of the appellant is condemnable. In our view however the normal sentence of life imprisonment for the offence of murder would meet the ends of justice.
Then there is another authority of Hon'ble Apex Court titled as Ramnaresh and Ors. Vs. State of Chhattisgarh, 2012(4) SCC 257, on the abovesaid issue. In this case law the accused who was brother-in-law of victim committed gang rape upon her along with his friends. Deceased had 2 infants. The accused did not care for their future. The High Court awarded death sentence. The age of the accused at the time of commission of crime was in between 21 to 31 years. The Hon'ble Apex Court converted the sentence of death to life imprisonment (21 years).
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30. Then there is another latest authority delivered by the Hon'ble Apex Court on the above point in controversy titled as Santosh Kumar Singh vs. State of Madhaya Pradesh, AIR 2014 SC 2745. It was a case of murder, attempt to murder, house tresspass and robbery and the appellant / accused was found guilty of said charges. He was 26 years of age at the time of commission of crime. He was an educated person and a tutor in the family of the deceased and was in acquaintance with the deceased. It was not the case of the prosecution that he cannot be reformed or that he is a social menace. Apart from this incident, there was no criminal antecedent of the appellant. It was held that though the accused had committed heinous crime but it cannot be held with certainty that this case falls in the rarest of rare cases category. His death sentence was found to be undoubtedly harsh and as such, the same was commuted to life imprisonment.
In the case in hand also the age of the accused at the time of commission of offence was around 30 / 31 years. As per the record, he is not a man of any criminal background except the present incident. Keeping in view the aforesaid peculiar circumstances of case, age of the accused and the principles laid down in the cases Dharmendrasinh @ Mansing (supra), Ramnaresh (supra) and Santosh Kumar Singh (supra), it is held that ends of justice would meet in this case, if the accused is awarded rigorous imprisonment for life (25 years). So accordingly the sentence of death of the accused is ordered to be commuted to rigorous imprisonment for life. However, his case for pre-mature release, if any, be considered only after he serves an actual imprisonment for 25 (twenty five) years. As a result thereof the quantum of sentence as imposed by the learned trial Court upon the accused stands modified accordingly.
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31. Consequently, this appeal to the extent of quantum of sentence as modified above is partly accepted. The reference made by the learned trial Court for the confirmation of death sentence is declined.
( GURMIT RAM ) ( T.P.S.MANN )
JUDGE JUDGE
September 30, 2014
Gaurav Sorot
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