Punjab-Haryana High Court
Balvir Singh Alias Bambal vs State Of Punjab on 14 January, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Amol Rattan Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. D-687-DB of 2007
DATE OF DECISION : 14.01.2013
Balvir Singh alias Bambal
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Ms. Geeta Sharma, Advocate, Legal Aid Counsel,
for the appellant.
Ms. Ritu Punj, Addl. A.G., Punjab.
***
SATISH KUMAR MITTAL , J.
1. Appellant Balvir Singh alias Bambal was tried by the court of learned Additional Sessions Judge, Muktsar, for the offence under Section 302 IPC, for committing the murder of his 6 years old step son. The trial court, vide its judgment and order dated 24.5.2007 convicted the appellant for the aforesaid offence and sentenced him to undergo rigorous imprisonment for life and to pay a fine of ` 2,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. Against the said judgment and order, the instant appeal has been filed by the appellant.
2. As per the prosecution version, 8/9 years prior to the occurrence, Smt. Bindo Bai (PW.2) daughter of complainant Dana Ram Crl. A. No. D-687-DB of 2007 -2- (PW.1) was married to Jagga Singh, elder brother of the appellant. From their wed-lock, two daughters and one son, namely Gurdas Singh (deceased) were born. About one year earlier to the occurrence, Jagga Singh died due to illness. After about six months of the death of Jagga Singh, with the intervention of the Biradari (brotherhood), appellant performed karewa marriage with Bindo Bai. Thereafter, when the appellant came to know that Bindo Bai was not able to give birth to a child, as she had undergone family planning operation, he started maltreating and compelling her to re-undergo a surgery, so that she can give birth to a child. But she was not agreeing to the same due to health risk. It is further the case of the prosecution that the appellant was having no liking for Gurdas Singh (deceased) and was not treating him as his son. Bindo Bai narrated all these facts to her father Dana Ram. On 10.11.2005, Dana Ram along with Sarpanch of village Lambi and one Saroop Singh of his village went to the house of the appellant in village Bhundar and made him to understand that son of his elder brother is like his own son. The appellant also told the complainant that he (complainant) had married the appellant to Bindo Bai who, after sterilisation operation, cannot give birth to any child and there would be no symbol of his in the world, and as such, injustice has been done with him. The appellant is further reported to have stated that Gurdas Singh (deceased boy) also appears to him like poison and even though he would look after him, he would have the name of his brother Jagga Singh. Prior to that, the appellant is also Crl. A. No. D-687-DB of 2007 -3- stated to have told his mother-in-law (wife of the complainant and mother of Bindo Bai) that if no child is to be born, what was the benefit of the marriage and the benefit of getting the sons of others. It is the further case of the prosecution that on 11.12.2005 at about 11.30 AM, appellant took Gurdas Singh to Gidderbaha for getting him new shoes. On the same day, in the evening, at about 6.00 PM, the appellant came back all alone. When his wife Bindo Bai enquired from him about Gurdas Singh, he became perplexed and did not give any satisfactory reply. Thereafter, he went away out of the house. Then, Bindo Bai made a telephone call to her father Dana Ram. Thereupon, complainant Dana Ram along with other persons came to the village and they searched the child. When they did not find the child, then on 13.12.2005, at about 9.00 AM, Dana Ram lodged a complaint (Ex.PA) to the police, in which it was suspected that the appellant might have killed or concealed the child some where, on the basis of which formal FIR (Ex.PW.5/B) under Section 364 IPC was registered against the appellant.
3. During the course of investigation, on 14.12.2005, statement of Bhola Ram son of Goma Ram resident of village Thehari (PW.3) was recorded, wherein he stated that on 11.12.2005 at about 3.30 PM, while going on his bicycle from his village Thehari to village Doda, when he reached on pavement along the bank of Sarhind Feeder canal at village Gurusar, he saw that the appellant and the child, namely Gurdas Singh Crl. A. No. D-687-DB of 2007 -4- (deceased), had climbed up to the canal and when he had gone at a little distance of about 35/40 steps, he heard a sound in the canal water and saw that the child had drowned in the canal. He further stated that the appellant had thrown the child in the canal in his presence and the child had drowned in the canal within his sight.
4. On 19.12.2005, dead body of the child was recovered from the Sirhind Feeder canal. Therefore, the offence under Section 302 IPC was added. Inquest report (Ex.PW.6/A) was prepared. The dead body of the child was identified by Jagga Singh and Phoma Ram. Rough site plan (Ex.PW.6/B) of the place of recovery was prepared. On the same day, i.e. on 19.12.2005 at 4.55 PM, Dr. H.N. Singh (PW.4), Medical Officer, Gidderbaha, conducted post mortem examination of the deceased. No external injury was found on the body of the deceased. The doctor opined that cause of death of the child was asphyxia due to drowning. The probable time between death and post mortem was stated to be within one to two weeks.
5. On 21.12.2005, Mehma Singh Sarpanch of village Bhundar produced the appellant before SI Harinder Singh (PW.5), SHO Police Station Kot Bhai, who arrested the appellant.
6. After completion of investigation, the challan was filed and charge under Section 302 IPC was framed against the appellant, to which he did not plead guilty and claimed trial.
Crl. A. No. D-687-DB of 2007 -5-
7. In support of its case, the prosecution examined six witnesses.
8. PW.1 Dana Ram (complainant), who is maternal grand-father of the deceased child, has reiterated the entire version, as stated by him in his initial statement (Ex.PA) to the police.
9. PW.2 Bindo Bai, mother of the deceased child, supported the prosecution version. She categorically stated that on the day of occurrence, at about 11.30 AM, the appellant took the minor child to Gidderbaha for getting him new shoes and he came back at about 6.00 PM all alone. On enquiry, he did not give any satisfactory reply and went away from his house. She further stated after about one week, the police found dead body of the deceased child from the canal.
10. PW.3 Bhola, the alleged eye witness, stated that he had seen the appellant and the child together near the canal, from where dead body of the child was recovered. He further stated that on the same night, he had gone to Bikaner to meet his maternal uncle and came back on the fourth day of the occurrence, when his statement was recorded by the police.
11. PW.4 Dr. H.N. Singh, who conducted post-mortem of the deceased, stated that death of the child was due to asphyxia due to drowning. He further stated that the probable time between injuries and death was within few minutes and between death and post mortem was within one to two weeks. He proved the Post Mortem Report of the deceased child as Ex.PW.4/A. Crl. A. No. D-687-DB of 2007 -6-
12. PW.5 SI Harinder Singh proved the statement of complainant Dana Ram (Ex.PA), his endorsement on the same (Ex.PW5/A), FIR (Ex.PW5/B), rough site plan of the place of occurrence (Ex.PW5/C) and the arrest memo (Ex.PW5/D).
13. PW.6 ASI Makhan Singh proved the recovery of dead body of the deceased child, adding of the offence under Section 302 IPC, the inquest report (Ex.PW6/A), rough site plan of the place of recovery of the dead body (Ex.PW6/B) and the recovery memo (Ex.PW6/C) vide which the Post Mortem Report, police papers, receipt regarding handing over dead body and the duly sealed parcel containing belongings of the deceased were taken into possession.
14. In his statement under Section 313 Cr.P.C., the appellant denied all the incriminating evidence appearing against him and pleaded his innocence. He stated that due to strained relations with his wife Bindo Bai, he started residing separately. He further stated that he neither took Gurdas Singh with him to Gidderbaha nor committed his murder. However, he did not lead any evidence in his defence.
15. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the evidence, available on record, the trial court convicted and sentenced the appellant, as mentioned in the first para of the judgment.
16. We have heard learned counsel for both the parties and Crl. A. No. D-687-DB of 2007 -7- carefully perused the record of the case.
17. Learned counsel for the appellant argued that in the present case, the prosecution has failed to prove its case beyond reasonable doubt. It has not been established beyond doubt that the appellant threw the child in the canal and the testimony of PW.3 Bhola, the alleged eye witness, in this regard, is highly improbable, unreliable and untrustworthy. The said witness is the friend of Darbara Singh, sister's son of the complainant, as admitted by him in his cross-examination. Learned counsel further argued that after witnessing the alleged occurrence, this witness did not report the matter to the police and he remained silent for three days. This conduct of PW.3 Bhola clearly indicates that he had not seen the occurrence and falsely deposed against the appellant due to his friendship with sister's son of the complainant. Therefore, testimony of this witness is not credible and reliable, and on the basis of the same, conviction of the appellant for the offence of murder is not sustainable.
18. Learned counsel for the appellant further argued that the testimony of PW.2 Bindo Bai is also not reliable and trustworthy. According to the learned counsel, after the karewa marriage between the appellant and this witness, relations between them were strained, because of the age difference, and the appellant started living separately from his wife Bindo Bai. Learned counsel further argued that because of the strained relationship, Bindo Bai has deposed falsely that on the day of occurrence, Crl. A. No. D-687-DB of 2007 -8- the appellant took the child to Gidderbaha for getting him new shoes. It is the defence of the appellant that he neither took the child to Gidderbaha nor committed any murder, and he has been falsely implicated in the case. Learned counsel argued that except the statements of PW.2 Bindo Bai and PW.3 Bhola, there is no other evidence to establish the involvement of the appellant in the present case and statements of both these witnesses are wholly unreliable and untrustworthy, therefore, the trial court has committed grave illegality, while convicting the appellant.
19. On the other hand, learned Additional Advocate General, Punjab, argued that the trial court has rightly convicted and sentenced the appellant on the basis of the prosecution evidence, available on record.
20. After considering the rival submissions made by learned counsel for the parties, and going through the record of the case, as well as the impugned judgment and order passed by the learned trial court, we do not find any merit in the present appeal.
21. Undisputedly, it has been established by the prosecution that Bindo Bai was married to Jagga Singh, elder brother of the appellant, about 8/9 years earlier to the occurrence. From the said wed-lock, two daughters and one son, namely Gurdas Singh (deceased) were born. It is further undisputed fact that after the death of Jagga Singh, the appellant had performed the karewa marriage with Bindo Bai, and she along with her children started living with the appellant. It has been established that dead Crl. A. No. D-687-DB of 2007 -9- body of Gurdas Singh was recovered from the canal on 19.12.2005, which was identified by Jagga Singh and Phoma Ram. It is pertinent to mention here that identification of the dead body of the deceased child was not under dispute. As per the Post Mortem Report, 6 years old child died due to drowning.
22. Now, the question arises as to whether the child was thrown in the canal, and if so, by whom, or whether the child himself fell in the canal.
23. As per the statement of PW.2 Bindo Bai, mother of the child, on 11.12.2005 at about 11.30 AM, her son Gurdas Singh was taken by the appellant to Gidderbaha for getting him new shoes, and when in the evening, he returned back, her child was not along with him. On enquiry, the appellant did not give any satisfactory reply. Thereafter, she informed her father about the missing of her son. For one day, they remained busy in searching for the child and ultimately, on 13.12.2005, at about 9.00 AM, the matter was reported to the police by Dana Ram, father of Bindo Bai. In his statement made before the police, it was specifically alleged by the complainant that the appellant was having no liking for the child, because he was always to be known as son of the elder brother of the appellant. He (appellant) was annoyed with his wife Bindo Bai, because she could not give birth to a child, due to family planning operation. He wanted that she should undergo a surgery, so that she can give birth to a child, for which she was not ready. All these facts have been proved by complainant Dana Ram Crl. A. No. D-687-DB of 2007 -10- and his daughter Bindo Bai, while appearing in the court as PW.1 and PW.2, respectively. Statements of both these witnesses are consistent and there is no material discrepancy in the same. The only argument raised by learned counsel for the appellant to disbelieve the statements of these two material witnesses is that relations between the appellant and his wife Bindo Bai were not cordial, therefore, Bindo Bai and her father have falsely deposed against the appellant. Except the suggestion put to these witnesses that the appellant was residing separately from his wife, there is no other evidence available on record, which remotely establish this fact. We do not find any reason and motive for these two witnesses to depose falsely against the appellant. Their statements and the version given by them fully inspire confidence. Normally, in the rural areas, it is the desire of every man to have his own son, so that he can carry his name in future. Thus, in our opinion, it has been established beyond doubt that on 11.12.2005 at about 11.30 AM, the appellant took Gurdas Singh to Gidderbaha for getting him new shoes and in the evening, he returned back to home all alone. Thereafter, the child was not seen in the village and ultimately, on 19.12.2005, his dead body was found in the canal. In these facts, it was for the appellant to explain as to how the child fell in the canal and died due to drowning. The appellant has completely failed to explain this fact. On the other hand, in order to establish the fact that the appellant had thrown the child in the canal, the prosecution has examined PW.3 Bhola, who has stated that he saw that the Crl. A. No. D-687-DB of 2007 -11- appellant had thrown the child in the canal, and thereafter he had run away from the spot. It is true that statement of this witness was recorded by the police on 14.12.2005, i.e. after three days of the occurrence. In this regard, this witness has specifically stated that after the incident, out of fear, he ran away and went to the village of his aunt Jagiro. On the same night, he had gone to Bikaner to meet his maternal uncle and came back on the fourth day of the occurrence, when his statement was recorded by the police. Though the conduct of this witness seems to be improbable, but from a close scrutiny of his testimony, it does not appear to be unreliable and untrustworthy. Merely because, this witness belongs to a village, where sister of the complainant was married, and merely because he was friend of the son of sister of the complainant, it cannot be inferred that he was planted one and had not seen the occurrence. Even if the testimony of this witness is to be discarded for any reason, the entire set of circumstances, started from the ill-will that the appellant bore towards the young deceased boy on account of not being his own son, till the time of his being seen to have departed with the young boy on the pretext of bringing him new shoes, and thereafter having come back alone without any explanation with regard to the deceased boy being missing, are ample evidence, pointing towards the guilt of the accused in the light of the evidence led by the prosecution. We, therefore, on consideration of the entire evidence have no doubt about the guilt of the appellant.
Crl. A. No. D-687-DB of 2007 -12-
24. No other point has been argued by learned counsel for the appellant.
25. In view of the above, the impugned judgment of conviction and the order of sentence, passed by the trial court, are upheld, and the appeal is, accordingly, dismissed.
( SATISH KUMAR MITTAL )
JUDGE
January 14, 2013 ( AMOL RATTAN SINGH )
ndj JUDGE