Punjab-Haryana High Court
Jaspal Singh vs State Of Punjab on 23 November, 2011
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D 287-DB of 2007
Date of decision: 23.11.2011
Jaspal Singh
.....Appellant
versus
State of Punjab
......Respondent
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.Sanjeev Sharma, Advocate for the appellant
Ms.Gurveen H. Singh, Addl. A.G. Punjab
Jasbir Singh, J.
In this appeal, judgment dated 6.12.2006 and an order dated 7.12.2006 are impugned by the appellant. Vide the judgment, referred to above, the appellant was convicted for commission of an offence under Section 302 IPC on three counts i.e. for committing murder of his wife Bhupinder Kaur (aged 40 years), daughter Komalpreet Kaur (aged 13 years) and son Ajaydeep Singh (aged 7 years). On 7.12.2006, following sentence was awarded to the appellant:-
"(A) Convict is sentenced to "imprisonment for life" and to pay a fine of Rs.2,00,000/- (Rupees Two lacs) and in default of payment of fine, he shall further undergo rigorous imprisonment for five years under Section 302 CRA-D 287-DB of 2007 2 of Indian Penal Code for committing murder of Bhupinder Kaur.
(B) Convict is sentenced to "imprisonment for life" and to pay a fine of Rs.2,00,000/- (Rupees Two lacs) and in default of payment of fine, he shall further undergo rigorous imprisonment for five years under Section 302 of Indian Penal Code for committing murder of Komalpreet Kaur.
(C) Convict is sentenced to "imprisonment for life" and to pay a fine of Rs.2,00,000/- (Rupees Two lacs) and in default of payment of fine, he shall further undergo rigorous imprisonment for five years under Section 302 of Indian Penal Code for committing murder of Ajaydeep Singh."
Period in detention already undergone was ordered to be set off against the sentence awarded to the appellant and all the sentences were ordered to run concurrently. It was further ordered that fine if recovered shall be paid to Fatehbir Singh, the only surviving son of deceased Bhupinder Kaur.
It is allegation against the appellant that in the intervening night of 21st /22nd of October 2004, he had committed murder of his wife, daughter and son, named above by strangulating them. The place of occurrence is residential house of the appellant.
Process of law was set in motion on a statement (Ex.PF) made by Baljit Singh (brother of the deceased Bhupinder Kaur) on 22.10.2004 at 9.50 am, on the basis of which, an FIR (Ex.PF/2) was recorded in police station Goindwal at 10.25 am, on the above date. Statement of Baljit Singh CRA-D 287-DB of 2007 3 (PW5) was recorded by SI Ajit Singh. Special report reached the Ilaqa Magistrate on that very date at 4.30 p.m. The trial Judge has noted the following contents of statement (Ex.PF) made by PW Baljit Singh:-
"In his statement Baljit Singh stated that he is resident of village Liddar, Police Station Samrala, District Ludhiana. His sister Bhupinder Kaur was married to accused Jaspal Singh in the year 1987 and gave birth to three issues daughter Komalpreet Kaur 13 years, son Fateh Singh 10 years and another son Ajaydeep Singh 7 years. He further stated that Jaspal Singh, accused, was earlier employed in Indian Army and had retired and getting pension about two years prior to the occurrence. For some time prior to the occurrence, Jaspal Singh was harassing and torturing his sister and children. He further stated that his sister Bhupinder Kaur informed him (Baljit Singh) about this several times on telephone on 21.10.2004 also, he received a telephone call from his sister Bhupinder Kaur that Jaspal Singh was torturing and harassing her and children. She asked Baljit Singh to come and advice Jaspal Singh not to do so. At this, Baljit Singh and his father Arjan Singh had come to Fatehabad on the same day (21.10.04). They tried to persuade Jaspal Singh not to indulge in such things. However, Jaspal Singh started abusing Baljit Singh and his father. They took Bhupinder Kaur out of the house and asked her that Jaspal Singh is of army mental make up. They told her that they would go to another place to spend the night and in the morning, they would come back with CRA-D 287-DB of 2007 4 Panchayat and talk to Jaspal Singh about his conduct. They went away and spent night in Gurudwara Goindwal Sahib.
Baljit Singh in his statement has further stated that next day at about 7.00 a.m. when he and his father Arjan Singh reached house of his sister Bhupinder Kaur in village Fatehabad, they saw that Jaspal Singh, accused, was dragging younger son Ajaydeep Singh from the head. He was dragging him from one room to another. A yellow coloured piece of cloth was also there around the neck of Ajaydeep Singh. On noticing arrival of Baljit Singh and Arjan Singh, Jaspal Singh dragged Ajaydeep Singh into the room and threw him there. He told Baljit Singh that "I have killed your sister, your sister's daughter (bhanji) by pressing their necks and whatever you want to do you should do". At this stage, Baljit Singh and Arjan Singh entered the room and found that Bhupinder Kaur, Komalpreet Kaur and also Ajaydeep Singh were lying dead in one of the rooms of the house."
When an alarm was raised by PW5 and PW6, the appellant- accused fled away from the place of occurrence, however, many others were attracted to the spot. Baljit Singh (PW5) reported the matter to SI Ajit Singh, which led to registration of a criminal case against the appellant- accused for committing an offence under Section 302 IPC.
On receipt of information, SI Ajit Singh (PW7) went to the place of occurrence, prepared the inquest reports on the dead bodies of the deceased Bhupinder Kaur (Ex.PH), Komalpreet Kaur(Ex.PK) and Ajaydeep Singh (Ex.PJ) and thereafter, sent the bodies for post-mortem examination. He also got prepared a rough site plan with correct marginal notes. Post- CRA-D 287-DB of 2007 5 mortem on the dead bodies was conducted by Dr.Jaspal Singh (PW1) on 23.10.2004. Appellant was arrested on 23.10.2004.
On completion of investigation, final report was put in Court for trial. Copies of the documents, as envisaged Section 207 Cr.P.C, were supplied to the appellant-accused. Finding a prima-facie case against the appellant-accused, he was charge sheeted on 26.3.2005 for committing murder of his wife and daughter. Supplementary charge was framed against him on 24.4.2006 for committing murder of Ajaydeep Singh his son. The appellant pleaded not guilty and claimed trial. The prosecution produced seven 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. He also took up the following defence:-
"I am a retired Army personnel and have got the best built up house at my village amongst the other local residents. Some unidentified person had killed my wife and two children with an intention to make extortion. On the day of occurrence, I was away to Amritsar alongwith my father and my younger son, Fatehadeep Singh to attend the bhog ceremony at the residence of one Onkar Singh. The local police due to lapse of security management on the eve of Daushra festival, had falsely implicated me. I have never committed murder of my wife and children."
It was stated by the appellant that his family members have been killed by some unknown person. He has also taken a defence of alibi by stating that on the date of occurrence, he was away to Amritsar. CRA-D 287-DB of 2007 6 However, despite opportunities given in defence, no evidence was produced.
The trial Court, on appraisal of evidence, found the appellant guilty of the charges with which he was charge sheeted and accordingly, he was convicted and sentenced vide the impugned judgment and order, as shown in the earlier part of this order. Hence, this appeal.
Counsel for the appellant, by making reference to the statement made by PW6 Arjan Singh (father of the deceased Bhupinder Kaur), has vehemently contended that testimony of this witness has made the case of the prosecution very doubtful. This witness has not supported case of the prosecution and was declared hostile. It was admitted by this witness in cross-examination that on the date of occurrence, the appellant-accused along with his father and surviving son was away to Amritsar. It was argued that there was no motive with the appellant-accused to commit the crime. Regarding mal-treatment to the deceased wife and the children, there is no history as no complaint was ever lodged by the deceased at earlier point of time. He further argued that the family members of the appellant were murdered by some unknown person with a view to take away valuable articles from his house. He prayed that appeal be allowed, conviction and sentence awarded to the appellant be set aside.
Prayer made has vehemently been opposed by the State counsel. She by making reference to the statement made by PW5 Baljit Singh (brother of the deceased Bhupinder Kaur), medical evidence on record and statement made by SI Ajit Singh (PW7), argued that the prosecution was successful in bringing home guilt of the appellant-accused. By stating that testimony made by PW5 inspires confidence and as such on CRA-D 287-DB of 2007 7 the basis of his sole testimony, conviction can be upheld. She further argued that even PW6 Arjan Singh has virtually supported case of the prosecution though at times, he made an attempt to save the accused. She further argued that the appellant-accused had been troubling the family members on one pretext or the other and it was so reported by the deceased Bhupinder Kaur to his brother Baljit Singh (PW5) at many occasions. She further stated that there is nothing on record to show that murders were committed by some unknown persons. The very fact that appellant had run away from the spot after committing the crime, shows his involvement and further he had failed to give any reasonable explanation for death of his family members in his own house. She prayed that appeal, having no substance, be dismissed.
After hearing counsel for the parties, this Court is of the opinion that no case is made out to interfere in the judgment and order under challenge.
It is allegation against the appellant that he had committed murder of his wife, daughter and son in the intervening night of 21st / 22nd October 2004 by strangulating them. Vivid description of the occurrence has been given by PW5 Baljit Singh (brother of the deceased Bhupinder Kaur). This witness has specifically stated that on 21.10.2004, he had a talk with his sister Bhupinder Kaur, she asked him to come to her in-laws house as the accused was harassing the family. On receipt of that message, he along with his father, came to the house of the accused. He saw the appellant-accused quarrelling with his sister Bhupinder Kaur and he also started quarrelling with them. They spent night in a Gurdawara at Goindwal Sahib with a thought that they would convene a Panchayat on the next morning. On the next day i.e. 22.10.2004 at about 8.00 am, they again CRA-D 287-DB of 2007 8 went to the house of the accused, they saw the appellant-accused dragging his youngest child towards a room situated on the back side of his house. A piece of cloth of yellow colour was wrapped around neck of the child. The appellant-accused told them that he had already killed Bhupinder Kaur and Komalpreet Kaur and they can do whatever they wish to do. When both PW5 and PW6 reached the room, they found all the three named earlier lying dead. Thereafter, the matter was reported to the police, which led to registration of an FIR against the appellant-accused. Lengthy cross- examination of PW5 has failed to shatter his testimony. This witness has stood by his statement. The witness has not levelled any allegation against any other member of the family. On reading, the testimony of this witness appears to be truthful. If it had been a case of killing by unknown person, it is expected that PW5 and PW6 would stand by the side of the appellant- accused, rather then indicting him in this criminal case. The very fact that the appellant had run away from the spot indicates towards his guilt. The prosecution has successfully proved that death of Bhupinder Kaur, Komalpreet Kaur and Ajaydeep Singh was unnatural.
Post-mortem on the dead body of Bhupinder Kaur was conducted by Dr.Jaspal Singh (PW1) on 23.10.2004 at 10.15 am. Following injuries were found at her body:-
"1. Reddish brown forth was cozing from the nose to the right cheeks and face and bluished coloured with puffiness of face was present.
2. Ligature mark was present encircling the neck from right to left 21x6 cm which was 5 cm blow the mandible (chin) Margins were reddish brown with bruises CRA-D 287-DB of 2007 9 present and skith was parchment like on touth and palpation.
3. Injury on the base of nose on the right side 2x2 cm, bruises were present."
Asphyxia as a result of blockade of air way passage most probably strangulation was given as a cause of death.
This witness also conducted post-mortem on the dead body of Komalpreet Kaur at 10.30 am on that date and found the following injuries at her person:-
"1. Reddish brown froth was cozing from the nose which was radiating over the cheeks. Face was built coloured. Puffiness of eyes and swollen area of neck above the strangulation was present.
2. There was a ligature mark on the neck region which was about 15 x 2.5 cm. encircling the neck 6 cm x below the chin and sparing the nod area on the right side. Margins were bluish brown and parchment like feel on touch and palpation.
3. Larunk and trachea third and fourth tracheal ring was depressed and raddish froth was present."
As per opinion of the witness, cause of death in this case was asphyxia as a result of blockade of air way passage most probably strangulation.
This witness also conducted post-mortem on the dead body of Ajaydeep Singh at 10.45 am on that date and found the following injuries at his person:-
CRA-D 287-DB of 2007 10
1. Froth was cozing from the mouth. Face bluished coloured, lips and neck area above the nod was swollen and were bluished colouring.
2. Ligature mark was present on the neck encircling from left to right sparing the nodded area. Ligature mark was about 10x2 cm. Margins were reddish brown.
Parchment life feel on touch.
3. Burises were present over the skin area.
4. In Larynx and trachea on dissection of ligature area there was depressed groves and muscle fibres were torn off. Haemorrhagic spot were present. Third and fourth tracheal ring were depressed reddish bron froth was present."
Cause of death, as per opinion of the witness in this case, was asphyxia as a result of blockade of air way passage most probably strangulation.
It is specific case of the prosecution that PW5 and PW6 had seen the appellant -accused dragging his son Ajaydeep Singh to a room and a cloth of piece was wrapped around his neck. The appellant-accused has failed to bring on record any contradictory evidence to show that the death was not result of Asphyxia as stated by PW1 Dr.Jaspal Singh.
In his statement under Section 313 Cr.P.C., the appellant had stated that murders were the handy work of some unknown person who might have come to steal valuable articles from his house, which is stated to be very good built up in the village. Had it been so the thieves/ robbers are supposed to come armed, they may have caused injuries to the deceased, which has not happened in this case. Furthermore, it is not in dispute that the appellant along with his family members was residing in this house. All CRA-D 287-DB of 2007 11 the three dead bodies were recovered from a room of the house, which has a boundary wall. House is situated in a populated area. In view of facts of this case, it can be presumed that the manner in which deaths have occurred, was within the knowledge of the appellant. As per provisions of Section 106 of the Indian Evidence Act, 1872, under the circumstances, it is for the appellant-accused to explain the reasons and cause for the murder of his wife, daughter and son. The defence, which was taken by the appellant when his statement was recorded under Section 313 Cr.P.C., he has failed to prove it. No article was reported to have been stolen from the house which would have been a position if murders would have been committed by some unknown person. Appellant has also failed to prove that he was away to Amritsar as alleged by him. Despite opportunity given, no evidence was led in defence.
In view of the facts, explained above, it is duty of the appellant to explain as to how the deaths had occurred. 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 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 CRA-D 287-DB of 2007 12 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 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 CRA-D 287-DB of 2007 13 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 this case also, situation is the same. In the facts and circumstances of this case, it is duty of the appellant -accused to disclose cause of the death of his wife and children. There is nothing on record to show that it was a case of theft/ dacoity. The very fact that the appellant- accused ran away from the place of occurrence, indicates towards his guilty mind. Appellant and the deceased were last seen by PW5 and PW6 in their house in the intervening night of 21st / 22nd October 2004. The appellant was also seen dragging his son towards a room in the morning of 22nd October 2004. Death is unnatural i.e. by way of strangulation. Above fact is sufficient to uphold the conviction and sentence awarded to the appellant
-accused.
Merely because PW6 Arjan Singh (father of the deceased Bhupinder Kaur) had failed to support case of the prosecution in toto is no ground to interfere at the instance of the appellant. In his examination-in chief, the above witness when made an attempt to save the appellant- accused, was declared hostile and the Public Prosecutor was permitted to cross-examine him. During that process, this witness has virtually admitted entire case of the prosecution as was narrated by PW5 Baljit Singh. In his cross-examination, half heartedly again this witness has supported the CRA-D 287-DB of 2007 14 appellant. A reading of the statement made by this witness does not inspire confidence, rather it appears that may be because of old age or otherwise, this witness has made an attempt to conceal the truth. No benefit of that statement can be extended to the appellant-accused.
Process of investigation, as conducted by Ajit Singh (PW7) appears to be fair and proper. This witness has narrated the circumstances, in which information regarding murder was received and then how case was investigated. Defence counsel has failed to show any loophole in the process of investigation conducted by above witness.
In view of facts mentioned above, no case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
23.11.2011 (Sabina)
gk Judge