Punjab-Haryana High Court
Rajbala And Others vs State Of Haryana on 25 April, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
CRA D-612-DB -2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA D-612-DB -2005
Date of decision: 25.04.2012
Rajbala and others
.....Appellants
versus
State of Haryana
......Respondent
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.D.S.Gill, Advocate (amicus curiae)for the appellants
Mr.Pardeep Singh Poonia, Addl.A.G. Haryana
Jasbir Singh, J.
Appellants have filed this appeal against judgment dated 18.7.2005 convicting them for commission of an offences under Sections 302, 201 read with Section 120-B(1) and 177 IPC. Further challenge has been laid to an order dated 22.7.2005, vide which, following sentence was inflicted upon them:-
"Raj Bala (a) To undergo R.I. For life and to pay a fine of Rs.2,000/- (Two thousands) U/Ss 302 read with Section 120-B (1) IPC, and in default of payment of fine to further undergo R.I. For two three months.
(b) She is further sentenced to undergo R.I. for five years and to pay a fine of Rs.1000/- (one thousand) and in default of payment of fine to further undergo R.I. for two months U/s 201 read with Section 120-B(1) of IPC.CRA D-612-DB -2005 2
Sanjay (a) To undergo R.I. for life and to pay a fine of Rs.2,000/- (Two thousands) u/s 302 read with Section 120-B(1) IPC, and in default of payment of fine to further undergo R.I. for three months.
(b) He is further sentenced to undergo R.I. for five years and to pay fine of Rs.1000/- (One) payment of fine to further undergo R.I. for two months U/s 201 read with Section 120-B(1) IPC.
Chander Bhan (a) To undergo R.I. for life and to pay a fine of Rs.2,000/- (Two thousands) U/s 302 read with Section 120-B (1) IPC, and in default of payment of fine to further undergo R.I. for three months.
(b) He is further sentenced to undergo R.I. for five years and to pay a fine of Rs.1000/- (One thousand) and in default of payment of fine to further undergo R.I. for two months U/s 201 read with Section 120-B(1) IPC.
(c) He is also sentenced to undergo S.I. For six months and to pay a fine of Rs.200 (Two hundred). In default of payment of fine to further undergo S.I. for 15 days u/s 177 IPC."
All the three appellants were made to face trial in FIR No.572 dated 7.10.2003. It was an allegation against them that on 6.10.2003, they, in conspiracy with each other, have committed murder of Narinder in their house, disfigured face of deceased Narinder with a view to screen the crime and to mislead the investigating agency. It was also an allegation against them that they deliberately gave wrong information to the police by lodging an FIR referred to above.
The process of law was set in motion on a statement (Ex.P38) made by Chander Bhan (A3) on 7.10.2003 at 1.10 P.M. on the basis of which, an FIR (Ex.P40) was recorded in police station city Rohtak at 1.40 CRA D-612-DB -2005 3 p.m. on 7.10.2003. In the FIR, it was stated that in the evening of 6.10.2003, Sanjay (A2) went to sleep in a room at first floor of the house. About 6.30 am on 7.10.2003, when A1 Rajbala went upstairs, she noticed the smoke coming out from that room. A3 was informed. Then they entered the room, saw a dead body lying on the bed, which was under fire. Both presumed that it was dead body of A2. The fire was extinguished by the neighbours. Dead body was shifted from that room to the roof of the house. Injuries marks were noticed on the forehead of the body, which was half burnt. A3 made a statement to the police, in which, suspicion for murder of A2 was raised against the neighbours, namely, Parmod, Samunder and Bal Kishan etc. on account of an old pending dispute between the parties.
Statement of A3 Chander Bhan was recorded by ASI Ram Kishan (PW20). The investigating officer on receipt of information went to the spot. Dead body was got photographed from Raj Kumar (PW1). PW20 also got prepared a rough site plan of the place of occurrence with correct marginal notes. He prepared inquest report on the dead body and sent it for postmortem examination, which was conducted by Dr.Sanjiv Kumar (PW8) on 8.10.2003. In the meantime, the investigating officer also took into his possession burnt bed against recovery memo (Ex.P42). Blood was also lifted from the floor and walls of the room and taken into possession. He also recovered some other offending articles from the place of occurrence. The proceedings under Section 174 Cr.P.C. were prepared. It has come on record that the dead body was cremated CRA D-612-DB -2005 4 presuming it to be the dead body of Sanjay (A2).
A fact that the dead body was that of Narinder and not of Sanjay (A2) came to the light when a statement was made by Bharpai (PW10) to the Investigating officer on 8.11.2003. In her statement, she deposed that on the intervening night of 6/7th October 2003, she heard noise in the first floor room of the house of the appellants. She has also seen A1 and A3 going down the staircase at night along with young boy with muffled face. It has also come on record that after performing the last rites, family of the appellants had shifted their residence from Rohtak to Jind. On 22.11.2003, the investigating officer received a telegram (Ex.P16) wherein it was stated that Sanjay(A2) was alive and not dead as alleged. The above telegram was sent by PW16 Om Parkash a close relative of the appellants. Sanjay was produced before the investigating officer on 6.12.2003 by Om Parkash (PW12) before whom, as per case of the prosecution, A2 has made a confessional statement, admitting his guilt in killing Narinder . Dharminder (PW11) identified Narinder from the photographs of the dead body taken by PW1 on 7.12.2003.
PW11 Dharminder (brother of the deceased) made a statement to the investigating officer that A2 and the deceased were on friendly terms. On 6.10.2003, at about 11.00 p.m. A2 came to his house and asked the deceased to accompany him to Bombay. Deceased Narinder packed his clothes, took money from him and went with A2 and did not return.
After arrest of the accused, he was interrogated. He made a disclosure statement, which led to the recovery of a bag containing clothes CRA D-612-DB -2005 5 of Narinder deceased from Minerva Hotel, Hisar. Clothes of A2 were also recovered from a rental room at Agra. In the same fashion, A3 also suffered a disclosure statement and got recovered an iron rod from his house. Rajbala (A1) got recovered a wrist watch of the deceased Narinder.
On completion of investigation, final report was put in Court. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent Court for trial. All the appellants-accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution produced 20 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of prosecution's evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. A1 Rajbala took up the following stand:-
"I have already disclosed my defence in my statement under Section 313 Cr.P.C. Moreover, at about 5.30 a.m. on 8.10.2003 I went upstairs to Sanjay, my son and Kiran, my daughter. I saw smoke coming out of the room of Kiran and the bed on which Kiran used to sleep, was on fire. I raised hue and cry, which attracted my husband and our neighbors. The gathering extinguished the fire and brought outside the half burnt dead body of some boy, which we all recognized to be that of Sanjay. It was unbearable for me to see my young son dead and half burnt and that too in the room of my daughter. As a result of this sudden catastrophe, I was completely broken and my vision and thoughts became blurred and hazy. The whole neighbourhood was shocked and none suspected CRA D-612-DB -2005 6 the identity of the dead body and believed that it was that of Sanjay my son. My husband summoned his brother Laxman and his family who too identified the dead body as that of Sanjay. My husband made a report to the police. I along with my husband and son surrendered before the police on 26.11.2003. We were kept in the Police Post Shivaji Colony, for about 20 days. It was only on 25.11.2003 that Sanjay and Kiran came to us alongwith their maternal uncle Satyawan and disclosed that the dead body was that of an intruder who attempted to commit rape my daughter and who was murdered by Sanjay in order to save his sister from the rapist. It was only due to a bonafide fear about the consequences of this sham crime that Kiran and Sanay absconded. In a bonafide and honest belief, I considered the dead body to be that of my son. We did not disclose the absence of Kiran from the house because it was disgraceful for the whole family. I never made any disclosure regarding any watch nor I got recovered any. The whole story is false and fabricated."
To the same effect are the statements made by A2 and A3. A2 also appeared as a defence witness (DW1) to prove above version of the accused. The trial Judge on appraisal of evidence found all the three appellants guilty, they were convicted and sentenced accordingly, as found mentioned in earlier part of this order. Hence, this appeal.
Counsel for the appellant, Mr.D.S.Gill, Advocate has vehemently contended that it is a case of blind murder. The alleged occurrence was not seen by any witness. Nobody has identified A2 Sanjay as a murderer. It is further stated that due to poor eyesight, A1 and A3 CRA D-612-DB -2005 7 thought that their son has been murdered and the body was burnt by the culprits. It is further stated that in fact Sanjay has committed murder of Narinder deceased under grave and sudden provocation when he found that Narinder deceased making an attempt to molest his sister. Out of fear, after committing the crime, A2 fled away from the place. He prayed that appeal be allowed and the appellants be acquitted of the charge framed against them.
Prayer made has vehemently been opposed by the State Counsel. He by making reference to the statements made by the prosecution witnesses, argued that after committing murder of Narinder all the three accused made an attempt to conceal the crime in a very dubious manner. The dead body of Narinder was cremated by making it to believe that it was the dead body of Sanjay (A2). State counsel argued that the appellants have failed to give any explanation regarding death of deceased Narinder in their house. No report was made regarding missing of Sanjay and his sister, rather a very false story was put up to mislead the prosecution. He prayed that appeal having no substance be dismissed.
It has come on record that initially, an FIR was recorded on a statement made by A3 Chander Bhan, wherein an attempt was made to say that Sanjay (A2) was killed by the neighbours . Truth came to the light when statement was made by PW10 Bharpai stating that she has heard noise from first floor room of the appellants. She has also seen A1 and A3 coming down the stairs and one young boy with muffled face was also seen in the street at that time. She has specifically stated that the appellants CRA D-612-DB -2005 8 were the real culprits and they have killed somebody else. Narinder deceased was identified by Dharminder (PW11) his brother when photographs of the dead body were shown to him in the month of December 2003. The appellant No.2 Sanjay was seen alive by Om Parkash (PW16). He sent a telegram to the police stating the above fact. Appellant No.2 also made a confessional statement of his guilt in front of Om Parkash (PW12), who produced him before the investigating officer. When the above facts came to the notice of the investigating officer, he arrayed all the three appellants as accused and started the investigation. It has come on record that dead body on which postmortem was conducted by Dr.Sanjiv Kumar on 8.10.2003, was that of Narinder.
At the time of postmortem examination, following injuries were found on the person of the deceased:-
"1. Lacerated wound 2 x 2 cm on right forehead 2 cm above mid right eye-brow and 2 cm lateral to mid-line. Clotted blood was present. On dissection, underlying bone was found depressed fractured (frontal bone).
2. Lacerated wound 6 cm x 1 cm on right temporo parietal region was found. It was 10 cm above right pinna and 12 cm posterior to injury No.1. Clotted blood was present.
3. Lacerated wound 4 cm x 4 cm on left temporal region, 3 cmabove left pinna was found. Clotted CRA D-612-DB -2005 9 blood was present. On dissection, underlying bone was found fractured with end of fractured bone bloody infusion.
4. Lacerated wound 9 cm x 3 cm on left parieto occipital area, 2 cm lateral to midline, 10 cm superior and posterior to left pinna was present.
Clotted blood was present. On dissection underlying bone was found fractured with bloody infiltration and of fractured bone.
Sub-dural haematoma was present in left parieto occipital and right fronto parietal region.
5. Superior deep burns were present all over the body except posterior surface of thorax and abdomen. No red line of demarcation between burnt and non-burnt area was found. No evidence of cherry red colour in subcutaneous plane was found. Burns were post mortem in nature."
The ligature mark was also noticed on anterior upper part of the neck. On dissection, underlying neck structures were found ecchymosed. However, fracture of hyoid bone was not detected. As per opinion of this witness, death was the result of strangulation with head injuries and its complications which were ante mortem in nature and sufficient to cause death in ordinary course. Burns were found post CRA D-612-DB -2005 10 mortem in nature.
The deceased was a well built young man. It appears that after strangulating him injuries were caused with a blunt weapon. It cannot be a handy work of only one person as has been alleged by A2 in his defence evidence. The very fact that A1 and A3 have made an attempt to de-track the investigation by giving false information, it can be said that they were the participants and the conspirators in committing murder of Narinder deceased.
As per case of the prosecution, dead body was got photographed on 7.10.2003. Identity of the deceased came to the light when dead body was identified, as that of Narinder by PW11 Dharminder his brother. This witness has deposed that on 6.10.2003, A2 persuaded the deceased to accompany him to Bombay. On a disclosure statement made by A2, a bag containing the clothes of the deceased was recovered. True story came to the light when telegram was received in the police station which was sent by Om Parkash (PW16), intimating that Sanjay was alive. After the alleged occurrence, the family of appellants has shifted to Bhiwani from Rohtak. The record of telegram was proved on record by Yashpal Kalia (PW2).
It has also come on record that before PW12 Om Parkash on 7.12.2003, A2 made a confessional statement, admitting his guilt. A2 was produced before the police by the above witness. Testimony of this witness inspires confidence. It has also come on record that initially on 7.10.2003, dead body was identified by PW15 as that of Sanjay (A2). CRA D-612-DB -2005 11 During trial this witness has stated that on account of burns, dead body was not identifiable and he identified it, as that of Sanjay on asking of A1 and A3. Recovery of clothes of the deceased, weapon of offence and wrist watch of the deceased at the instance of the appellants is also proved on record.
The process of investigation appears to be fair. Facts regarding investigation have been brought on record by Parveen Kumar ASI (PW19), Yaad Ram (PW18) and the investigating officer ASI Ram Kishan (PW20). The process of investigation appears to be justified and as per norms. The defence version is an afterthought. The very fact that A2 was alive, despite that dead body of Narinder was projected as his dead body, shows that all the three appellants have committed crime in connivance with each other.
Death has occurred in their house. Explanation given by them appears to be flimsy and do not inspire confidence. Except all the appellants and daughter of A1 and A3, none else was available in the house. An attempt has been made to conceal presence of the deceased in the house. Under the circumstances, it is for the appellants to state the facts and circumstances in which death of Narinder has occurred.
Under similar circumstances, 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 was 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 CRA D-612-DB -2005 12 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 their Lordships of 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 which an outsider may not have any access, it is for the husband to explain the ground foir 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 CRA D-612-DB -2005 13 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 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, position is also the same. In view of the facts stated in earlier part of this order, appellants are duty bound to CRA D-612-DB -2005 14 disclose facts about death of Narinder in their house. Defence taken by them is not believable. To show that an attempt was made by the deceased to molest daughter of the house, she was not brought in the witness box.
In view of facts mentioned above, no case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
25.4.2012 (Sabina)
gk Judge