Punjab-Haryana High Court
Raj Kumar vs State Of Punjab on 14 May, 2012
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
Crl. Appeal No. 385 DB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 385 DB of 2002
Date of decision: May 14, 2012
Raj Kumar
...Appellant
Versus
State of Punjab
...Respondent
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. CM Munjal, Advocate,
for the appellant.
Mr. Pavit Singh Mattewal, Additional Advocate General,
Punjab.
1. To be referred to the Reporter or not ?
2. Whether the judgment should be reported in the Digest ?
A.N. JINDAL, J.
The case relates to uxoricide by Raj Kumar accused/appellant (husband) with the help of his father Bhag Chand (since acquitted). Upon trial, vide judgment dated 7.5.2002, Raj Kumar was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of `1,000/- for the offence under Section 302 of the Indian Penal Code.
Lucky Kumar, brother of the deceased Asha @ Kali, came forward with the statement dated 9.2.2000 Ex. PF before the police, wherein he disclosed that Asha was married to Raj Kumar. Out of the wedlock, two sons were born, about 3 years prior to the occurrence, relations between Asha and accused Raj Kumar became strained and they used to quarrel over Crl. Appeal No. 385 DB of 2002 2 the matter that Bhag Chand used to cut gestures upon her and differences reached the stage of divorce but due to the intervention of Ex. M.C. Lal Chand, the matter was compromised. Consequent upon the compromise, divorce petition was withdrawn and she returned to the house of Raj Kumar. However, the accused were nursing grudge against the deceased on account of previous litigation, therefore, they used to taunt and maltreat her. In the meantime, Asha also came to know that Raj Kumar had extra marital relations and she objected and informed about the same to the complainant. Whereupon the latter tried to persuade Raj Kumar not to do so.
On 8.2.2000, Asha deceased informed the complainant that the accused were harassing her and she should be taken away from there.
Accordingly, on 9.2.2000, at about 4 p.m. the complainant, alongwith Lal Chand, Ex. Municipal Commissioner, Bhucho Mandi, reached the house of Asha to inquire about her well being, when Raj Kumar and Bhag Chand came running from inside the house and disclosed that they had finished the dispute for ever. While saying so, they fled away. On entering the house, the complainant and Lal Chand saw that Asha was lying burnt with fire.
On the basis of the aforesaid statement of Lucky/complainant, FIR Ex. PF/2 was registered. The Investigating Officer visited the place of occurrence; prepared inquest report; despatched the dead body for post- mortem examination; took the plastic can, containing kerosene into possession, recorded the statements of the witnesses and prepared rough site plan of the place of occurrence.
On completion of the investigation, the accused were challaned. Charges under Section 302 read with Section 34 IPC were framed against Crl. Appeal No. 385 DB of 2002 3 the accused, to which they pleaded not guilty and claimed trial.
During the trial, the prosecution examined Satpal Singh, Record Keeper PW1, who proved the statement of Pushpa @ Kali recorded in the divorce petition, now recorded as Asha in this case. HC Gurjant Singh PW2, Constable Paramjit Singh PW4, Constable Manjit Singh PW5 and Constable Ajaib Singh PW11 are the formal witnesses. Sohan Lal PW3, Draftsman proved the site plan Ex. PC, Lucky Kumar PW6 is the complainant, who supported the prosecution version in its entirety, Lal Chand, Ex. Municipal Commissioner PW7 is the other eye witness to the occurrence, Om Parkash PW8 also supported the prosecution version.
Dr. Gurmit Singh PW9 conducted the post-mortem on the dead body of the deceased Asha and observed as under:-
"The body was of a young female aged about 24 years. Length of the body was 4' 6". She was wearing a burnt and charred piece of cloth around her right upper arm. Eyes were closed. Mouth was partially opened. Tongue was protruding. Superficial to deep burns were all over the body. Smell of kerosene was present. Sooty blackening was present. Singeing of hair and eye brow were present. Body was in pugilistic attitude. Cracks in skin were present in both groins. Line of redness was present. Post-mortem staining on the back was present.
Scalp skull was congested. Membranes and brain spinal cord were congested. Walls, ribs and cartridges were readily described. Pleurae, right lung, left lung were congested. Hyorid bone was intact and on dissection soot particles were Crl. Appeal No. 385 DB of 2002 4 present. Pericardium heart was healthy and full of blood. Walls of the abdomen were already described. All other organs were healthy."
SI Sukhdev Singh PW10 is the investigating officer.
When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against them. While admitting Asha to be his wife, Raj Kumar further disclosed that she used to suspect him of having some extra marital affairs, therefore, she had committed suicide under depression. He, his father and mother all were employees and as such none of them was present in the house at the time of occurrence. However, as soon as he came to know about the incident, he got sent a telephonic message to Om Parkash Fauji, who is deceased's father's sister's husband through Rakesh Kumar. They came to their house, met them and implicated them in the case. Bhag Singh also claimed himself to be innocent. In defence, they examined Anil Kumar alias Sunny as DW.1 and Rakesh Kumar alias Bhutti as DW.2 The trial resulted into acquittal of Bhag Chand and conviction of Raj Kumar/appellant.
Arguments heard. Record perused.
Shri C.M. Munjal, learned counsel for the accused, while building the case in favour of the appellant, has urged that there is delay in lodging of the FIR and sending the same to the Illaqa Magistrate. No motive has been established against the accused. After the compromise was effected, the deceased and the accused were living happily. Since they had two sons, therefore, the question of quarrelling with the deceased did not arise. The deceased had committed suicide due to depression which she had Crl. Appeal No. 385 DB of 2002 5 attracted on account of suspicion against her husband/accused of his having extra marital affairs. The occurrence had taken place at 1 p.m., but it was shown to have taken place at 4 p.m. The story is highly doubtful and improbable.
To the contrary, Mr. Mattewal, learned Additional District Judge, Punjab, has countered all the arguments so raised and urged that the copy of the statement Ex. PA reveals that Pushpa @ Kali, now mentioned as Asha in this case, had filed a petition for divorce on 13.3.1993, which was withdrawn by her on 19.3.1994, obviously on account of some compromise, as disclosed by her brother Lucky, which invite an inference that the accused must be nursing a grudge against the deceased. It was also urged that due to such strained relations and also on account of his extra marital relations, he might be in the opportunity to get rid of her. The case stands supported not only by the complainant (PW-6) but also Lal Chand, Ex. Municipal Commissioner (PW-7) and Om Parkash (PW-8). The death appears to be not by burning but the medical evidence indicates that accused after strangulating killed her. The plea of suicide as raised by the accused stands completely falsified from the medical evidence. The deceased died at the house of the accused, therefore, it was accused to explain as to how the live body of his wife was turned into corpus.
Having heard the rival contentions and having scrutinized the record of the case, we are unable to persuade ourselves by the arguments raised by Shri C.M. Munjal.
As regards the contention of delay in lodging of the FIR, argument is devoid of any merit. Both Lucky (PW6) and Lal Chand (PW-7) are consistent in their statements that when they reached the house of the Crl. Appeal No. 385 DB of 2002 6 accused at about 4 p.m., they first of all came across the accused who had challenged them saying that they had finished their dispute for ever. The statement of Lucky was recorded in less than 2-1/2 hours, on the basis of which FIR Ex. PF/2 was recorded at Police Station Kotwali, Bhatinda at 6.45 p.m. which was completed at 8 p.m. on the same day. However, it cannot be disputed that the FIR reached the Illaqa Magistrate on the next day at 12.50 a.m. but we cannot term this delay of four hours as a delay which can be instrumental for concoction, aggregation or manufacturing any false version. The parties after marriage were not in good terms. Their differences had reached the court. The deceased had also filed a petition for divorce against the accused Raj Kumar, which might have attracted his annoyance and he in order to avoid the litigation would have brought her to his house. Further, we have the evidence of Lucky to prove the allegations against the accused that Asha used to inform him that the accused Raj Kumar had illicit relation with some lady. He might also have annoyed when Lucky complainant as well as Asha prevented him not to indulge in such activities. Asha had died at the house of the accused other than in normal circumstances and in the light of the sufficient motive to commit the crime. There were sufficient reasons to name the accused as culprit, particularly when they had seen that he as well as Lal Chand had seen him coming out of the house saying that they had finished the matter for ever. Mere delay of four hours in sending the special report is immaterial, as no such allegations with regard to concoction of the prosecution version have been levelled against the accused.
We also do not countenance the argument that the occurrence had taken place at about 4 p.m. and not 1 p.m. Both the witnesses are Crl. Appeal No. 385 DB of 2002 7 consistent in their statements that occurrence had taken place at 4 p.m. No such evidence has been led by the accused in order to establish that occurrence did not place at the time, as alleged by the prosecution. The plea appears to have been set up only to make the ground of defence that they were on duty at 1 p.m. But still the accused failed to lead any evidence on record that they were on the job and were on duty at the time of occurrence at 1 p.m. or 4 p.m. The post-mortem, which was conducted by the doctor on the next morning on 10.2.2000 at 9.50 a.m. reveals that time lapse between death and post-mortem was within 24 hours. Thus, the argument that she died at 1 p.m. and not 4 p.m. is also of no consequence. The arguments that she died at 1 p.m. and not 4 p.m. could only be available to the accused if they first prove that they were on duty at that time or she had committed suicide, as alleged by them. At the cost of repetition, it has already been observed that the accused has failed to establish that he was on duty on the date of occurrence by leading any cogent evidence.
As regards, the plea of suicide, the statement of Dr. Gurmit Singh (PW-9) has ruled out any possibility of death by suicide. He is of the definite opinion that the cause of death was due to nerueogenic shock due to burn injuries, which were ante-mortem in nature. According to the post- mortem examination, one other glaring fact which has come to light is that the deceased was wearing a burnt and charred piece of cloth around her right upper arm and tongue was protruding. The burns were all over the body. All these facts indicate that she was burnt to death. Her upper arm must have been tied to restrict her movements and this medical witness has also stated that it was not possible for him to comment that burn injuries could be due to suicide. Thus, it means that he did not rule out any Crl. Appeal No. 385 DB of 2002 8 possibility of suicide in the case. Rather, it appears from the medical evidence that first of all the deceased was strangulated but when she did not die then she was burnt to death. The case of the accused that Asha was suspecting that he had some extra marital relations with some lady and, as such, she was suffering from depression, therefore, she committed suicide stands unsubstantiated by any evidence. No doctor has been examined to establish that Asha was got examined by the accused for her alleged ailment. None of the members of the family was examined by him to establish the said ailment of Asha. Rather, documents Ex. PA (statement regarding withdrawal of divorce petition) and the divorce petition itself which is Ex. D.4) proved on record indicate that the accused used to beat her so severely that she had to get aborted twice. All this goes to prove the motive on the part of the accused for the commission of crime.
As regards the veracity of statements of witnesses, Lal Chand (PW-7) is the key witness. He had sent Asha at his responsibility to the house of the accused, therefore, it was obvious for Lucky (PW-6) to take her to the house of the accused. However, as Asha had serious apprehension of danger to her life, therefore, she had called Lucky one day prior to the occurrence to take her back. Lal Chand, who was intervenor to the settlement between the couple, had specifically stated that Lucky had come to him on 8.2.2000 and shown his intention to visit the house of the accused. He had also complained about the beatings being given by the accused to Asha. They started from Bhucho at 2.30 p.m. on 9.2.2000 and reached the Bus Stand Bathinda at 3 p.m. and at the house of the accused at 4 p.m. He stated that Lucky had asked him to accompany him one day earlier to the occurrence on 8.2.2000 at 8 p.m. The Investigating Officer Crl. Appeal No. 385 DB of 2002 9 recorded his statement on the same day at 6.30 p.m. He pointed out all the places where the dead body, the ash and kerosene tin were lying and despite lengthy cross-examination conducted upon him, no dent could be created in his statement. His statement was corroborated by the testimony of the complainant on all material points. Barring minor discrepancies which are bound to occur in the statements of the truthful witnesses after the passage of time and loss of memory. They are quite consistent quo the time, place and the manner of occurrence. The discrepancies are too minor and immaterial to affect the substratum of the prosecution case. Had they actually concocted any version then they would have made efforts to become eye witnesses to the occurrence but they avoided to do so and disclosed as to what was actually seen by them. They did not say that they had seen any of the accused committing the crime or any other overt act. They could name all the family members being the perpetrators of the crime but they also did not chose to do so. Without making any comments over the acquittal of Bhag Chand, as observed by the trial court also, we cannot doubt the complicity of Raj Kumar in the commission of the crime for variety of reasons. He being the husband of the deceased and having her custody was duty bound to take care of her well being. The deceased was living at the house of the accused. It is not the case that Raj Kumar was not residing in the said house. Therefore, the accused was to restore the safe custody of Asha to her parents. The motive to commit the crime has been duly proved. Firstly, the marital relations between the two were not good and Raj Kumar must be nursing grudge for the reason that he had been dragged by Asha in the court. Secondly, the deceased as well as her brother were prohibiting him from indulging in extra marital affairs. It is also Crl. Appeal No. 385 DB of 2002 10 pertinent to mention here that Asha died at the house of the accused other than in normal circumstances. In all probabilities in the absence of any evidence, we cannot rule out the presence of Raj Kumar at the house at the time of the occurrence. The dead body of Asha was recovered from the house. The Investigating Officer also lifted the kerosene tin containing the remaining kerosene from near the dead body. That apart Dr. Gurmit Singh (PW-9) has also not agreed to the suggestion put to him that it was a case of suicide. The accused did not accompany the deceased at the time of inquest nor did he shift her to the hospital after the incident. Rather, he absconded and ultimately arrested on 13.2.2000.
The trial court, while excluding the story of suicide, observed as under:-
"...It is unbelievable that Asha Rani could pour the kerosene on herself and then commit suicide. If it had been so, there would have been marks of burning or ash would have been available in other parts of the room where the dead body of Asha Rani was found. According to Lucky Kumar (PW.6), no ash was found in any other part of the room. It clearly excludes the possibility that Asha Rani committed suicide by sprinkling kerosene on her body. The police has also been unable to collect any evidence to show that drops of kerosene or marks of kerosene smell were available in other part of the room. All these circumstances when taken together clearly point out that Asha Rani was burnt by pouring kerosene at a place where her dead body was found. It may be that she had not died when kerosene was put on her body. It may be that she either was Crl. Appeal No. 385 DB of 2002 11 sleeping or was under the effect of sedation. The evidence of Dr. Gurmit Singh (PW.9) shows that there were superficial to deep burns all over the body of deceased. She was wearing a burnt and charred piece of cloth around her right upper arm. Smell of kerosene was present. The cause of death, according to doctor, was due to nerueogenic shock on account of burn injuries. In this manner, it is proved that ultimately death must have been occurred due to burn injuries, but before burning Asha Rani, she must have been put on the place where her dead body was found..."
Now coming to the defence plea, we do not find any merit in the same. The accused has tried to prove his innocence by saying that he was not present in the house at the time of occurrence. In support of his version, he examined Rakesh Kumar DW.2 He states that he had seen the deceased running in the street and on his inquiry, he came to know that Asha had committed suicide by burning. When he entered the house, he had seen her dead body lying in the rear room. Sister of Raj Kumar, Grinderman and neighbours were present there. He has made a very funny statement. According to him, when he came out of the house in search of Raj Kumar, he met him in the market. He did not state if Raj Kumar on hearing the news was shocked or reached the house. He states that the occurrence had taken place at 9/10 a.m. whereas, according to the accused, the occurrence had taken place at 1 p.m. Had it been so then he or Raj Kumar would have informed the police about the occurrence. He also did not join the investigation to disclose the facts which were in his knowledge. Thus, his statement rather helps the prosecution case and not the case of the accused. Crl. Appeal No. 385 DB of 2002 12
The testimony of Anil Kumar (DW1), an STD holder, does not help the case of the accused, though he has proved three receipts regarding the phone calls, but he has admitted that the receipts did not bear his signatures and did not bear the name of the PCO. He does not possess any record about the phone calls. As such, the receipts Ex. D1 to D.3 produced by the witness on record are useless.
No other argument has been raised.
Resultantly, finding no merit in the appeal, the same is dismissed.
(HEMANT GUPTA) (A.N. JINDAL)
JUDGE JUDGE
May 14, 2012
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