Punjab-Haryana High Court
Gulab Singh Son Of Balkar Singh vs State Of Punjab on 16 July, 2012
Author: Surya Kant
Bench: Surya Kant
Criminal Appeal No.682-DB of 2005 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.682-DB of 2005
Date of decision: July 16 ,2012
1. Gulab Singh son of Balkar Singh, Constable in Punjab Police,
resident of village Manakpur, Police Station Banur.
2. Sarban Singh son of Balkar Singh, Labourer, resident of
Village Manakpur, Police Station Banur.
.........................appellants
Versus
State of Punjab
......................respondent.
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE R.P.NAGRATH
Present: Mr.A.S.Sullar,Advocate for the appellants.
Ms.Manjri Nehru Koul, Addl.A.G.Punjab.
(i) Whether Reporters of local papers may be allowed
to see the judgment ?
(ii) To be referred to the reporter or not ?
(iii) Whether the Judgment should be reported in the Digest ?
R.P.Nagrath,J.
The appellants and their mother Gian Kaur were tried for the offences under Sections 302 read with Section 34 and both the appellants also for the offence under Section 201 of the Indian Penal Code, for having committed the murder of Surjit Kaur, the wife of Gulab Singh, appellant-accused at about 5.00 a.m. on 26.7.2003 and stealthily cremating the dead body in order to cause the evidence of Criminal Appeal No.682-DB of 2005 2 murder to disappear, for screening the offenders from legal punishment. Learned Additional Sessions Judge (Adhoc), Fast Track Court, Patiala convicted both the appellants of the charges framed against them vide judgment dated 17.8.2005 and acquitted Gian Kaur co-accused by extending her the benefit of doubt. Both the appellants were sentenced to undergo imprisonment for life and to pay fine of Rs.1000/- each, in default thereof, to undergo imprisonment for one year, under Section 302 read with Section 34 of the Indian Penal Code, and for five years rigorous imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year, under Section 201 of the Indian Penal Code. The sentence of Gulab Singh, appellant-accused was to run consecutively, but the substantive sentence of Sarban Singh awarded under Section 201 of the Indian Penal Code was to run concurrently with the sentence of life imprisonment, awarded under Section 302 read with Section 34 of the Indian Penal Code.
2. Mohinder Singh son of Ujjagar Singh, the father of Surjit Kaur and resident of village Kharoula, reported the incident to the Police, vide his statement Ex.PA, which was recorded on 26.7.2003, at about 8.45 a.m. The prosecution story as unfolded during the trial is that the daughter of Mohinder Singh,Complainant was married to Gulab Singh, accused-appellant, about 12/13 years ago. She had three children from the wedlock; one son and two daughters. Gulab Singh, accused was posted as Constable in the Police Department. He used to have constant quarrel with the deceased. Few days Criminal Appeal No.682-DB of 2005 3 before the incident, both the appellants and Gian Kaur their mother gave beating to the deceased for which a compromise dated 13.7.2003 was reached.
3. On 26.7.2003 at about 5 00 a.m. Darshan Singh (PW 3) son of the complainant, received a telephonic message from Surinder Kumar, member panchayat of village Manakpur, that Surjit Kaur is suspected to have been killed by the accused-appellants and their mother, and that the dead body was being taken for the cremation in a three-wheeler bearing registration No.PIP-6957. Mohinder Singh along with his son Jagjit Singh immediately started towards the village of the accused i.e. Manakpur on a motor-bike and on reaching there, saw the pyre of his daughter in flames. Both the accused-appellants were sitting near the pyre. There was a three- wheeler parked nearby. Mohinder Singh and his son, tried to put off the pyre, but the appellants prevented them from doing so. When Mohinder Singh tried to attack them with a gandasi, with which he was armed, the accused fled from there in the auto-rickshaw. The complainant and his son then extinguished the fire, that in the meantime, Darshan Singh the other son of the complainant, Bhajan Singh Sarpanch, Kashmir Singh Lambardar and some other residents of the village of the complainant reached there.
4. It was also reported by Mohinder Singh in his statement Ex.PA that Gulab Singh accused-appellant incurred a grudge against his wife, because she was employed in Anganwari School, and her husband used to stop her from continuing with the job. Leaving Jagjit Singh his son, and other residents of his village at the spot Criminal Appeal No.682-DB of 2005 4 Mohinder Singh, left for lodging report to the Police along with his son Darshan Singh. Inspector Ramphal, S.H.O. of Police Station, Banur, accompanied by other Police officials, was present in connection with patrol duty met him at the Bus Stand of village Hoolka and recorded the statement of the complainant on the basis of which FIR Ex.PA/2 was registered at the Police Station.
5. The Police party visited the spot and recovered plastic Can of five litres smelling kerosene oil and also a match box lying nearby, vide memo Ex.PA. Half burnt dead body of the deceased, wooden pieces, cow dung cakes and some ash were also taken into possession by a separate memo Ex.PC. The inquest proceedings were conducted and the inquest report Ex.PH was prepared. The dead body was sent through HC Shamsher Singh with the application Ex.PH/1 for the post mortem examination.
6. The photographs of the site where the dead body was being cremated were also taken and the Investigating Officer also prepared the rough site plan Ex.PL. The auto-rickshaw PIP-5975 was recovered from the house of accused, on the same day for which memo Ex.PK was prepared. It has appeared in the testimony of PW8 ASI Amar Singh who was member of the police party headed by Inspector Ramphal that the auto-rickshaw was recovered from the house of the accused on the same day.
7. Dr. Kuldip Singh, Medical Officer, Department of Forensic Medicine, Rajindra Hospital, Patiala, conducted the post mortem examination on the dead body and, in his opinion, the cause of death was haemorrhage and shock due to injury found on the dead body Criminal Appeal No.682-DB of 2005 5 of the deceased, which was ante mortem and sufficient to cause death in the ordinary course of nature.
8. All the three accused were arrested by the Police on 28.7.2003 and on interrogation, Gulab Singh accused-appellant made a disclosure statement, in pursuance whereof, he got recovered head gear (Chunni) belonging to the deceased. On the completion of investigation, the accused were challaned.
9. The case was committed to the Sessions Court for trial by the Area Magistrate, Rajpura.
10. The prosecution examined 10 witnesses to support its case. Thereafter, the accused were examined under Section 313 Cr.P.C. It is admitted by them that marriage of Gulab Singh,accused and Surjit Kaur, deceased, was solemnized about 13 years ago. They, however, denied all the incriminating circumstances appearing in the prosecution evidence against them. Gulab Singh pleaded that his wife Surjit Kaur died a natural death. He sent a message to her parents but they did not come. When he and his family members started cremation of the dead body in the presence of many residents of the village, that the complainant party reached there and got registered a false case against him. Other accused pleaded innocence. The accused also examined five witnesses in defence.
11. Learned Additional Sessions Judge (Adhoc) Fast Track Court, Patiala convicted both the appellants and sentenced them to under imprisonment as aforesaid. Gian Kaur, their mother, however, was acquitted.
12. We have heard the learned Counsel for the parties and Criminal Appeal No.682-DB of 2005 6 have gone through the evidence and record of the case, carefully.
13. We would first briefly describe the evidence produced by the parties.
14. PW1 Mohinder Singh, father of the deceased has deposed that there was a minor quarrel between his daughter and son-in-law, namely, Gulab Singh accused-appellant. About 13 days before the occurrence Surinder Kumar, Panch and his son Darshan Singh had taken his daughter to the house of accused and she was left there. He then stated about the telephonic message received from Surinder Kumar, member Panchayat and proceeding to the cremation ground. When they reached near the cremation ground, they saw both Sarban Singh and Gulab Singh accused-appellants present near the pyre of the deceased whereas Gian Kaur and Babli were hiding themselves behind the auto-rickshaw. All of them fled from there in the auto-rickshaw. During his examination the plastic Can Ex.P/1, Match Box Ex.P2, Cow Dung Cakes Ex.P3, half burnt wooden pieces Ex.P4 and parcel of ash Ex.P5 were also brought. In the examination-in-chief, the witness had stated that on receiving telephonic message about the death of his daughter, he went to the village of the accused along with his son Darshan Singh, but in the cross-examination the witness clarified that his son Jagjit Singh accompanied him, which is in consonance with the prosecution story.
15. PW2 Surinder Kumar, the member panchayat of village Manakpur of the accused, similarly stated that he had got effected a compromise between Gulab Singh accused-appellant and his wife Suirjit Kaur, deceased on 13.7.2003 and 10/15 days thereafter he Criminal Appeal No.682-DB of 2005 7 made telephone call at the house of Mohinder Singh, complainant that his daughter is being taken to the hospital at Rajpura. Then at about 7/7.30 am, the witness went to the cremation ground, where about 500/700 people were present and he saw the daughter of Mohinder Singh being cremated. The compromise which the witness had got effected between the accused and his wife is mark 'A' dated 13.7.2003, upon which the witness identified his own signatures and that of Gulab Singh, accused-appellant, Surjit Kaur, deceased and Balkar Singh.
16. PW3 Darshan Singh is the son of Mohinder Singh, complainant. He also stated that Gulab Singh accused had been beating his wife. The matter was compromised in the Panchayat many a times. On 12.7.2003 also, his sister was given beating and she came to her parents' house. The Panchayat of village Mankapur of the accused came and a compromise was effected. The witness also stated that he received a telephonic message from Surinder Kumar, member Panchayat of village Manakpur that his sister has been murdered and her dead body was being taken for cremation. His father and brother went on a motor cycle to the cremation ground. He also followed them along with co-villagers. When he reached there, none of the accused was present there.
17. PW4 Dr. Kuldip Singh conducted autopsy on the dead body of the deceased on 27.7.2003. The doctor noted one injury on the neck of the deceased, which was in the form of incised wound, horizontally placed measuring 4.2 x 0.5 cm, present below the thyroid artillery, cutting the trachea muscles and the regional blood vessels. Criminal Appeal No.682-DB of 2005 8 The edges of the wound were showing infiltration of blood. Lower part of the trachea bronchi and oesophagus were showing blood. In his opinion, the cause of death was haemorrhage and shock due to injury described above, which was ante mortem and sufficient to cause death in the ordinary course of nature. The doctor also found burns present on the body as ante mortem in nature. Ex.PD is copy of the post mortem report. The doctor also stated that the time gap between the injury and death was immediate and between the death and post mortem examination about 36 to 48 hours.
18. PW5 Pawan Kumar, photographer, went to the cremation ground of village Manakpur on 26.7.2003 on the message received from the Police and took photographs of the half burnt dead body of the deceased and of the people gathered there. Photographs are Ex.P6 to Ex.P10 developed from the negatives Ex.P11 to Ex.P15.
19. PW6 Gurbachan Singh,C.D.P.O. from the office of Social Security Women and Children Welfare Department, produced the record of posting of the deceased, as Anganwari Worker in Anganwari Centre at Manakpur on 26.3.1997. According to the office record, the deceased remained present till 25.7.2003. He issued a certificate Ex.PE in this regard.
20. PW7 is SI Bhagwan Singh, who was posted as Additional S.H.O.,Police Station, Banur and got prepared the scaled plan from Madan Lal, Draftsman on 10.9.2003.
21. PW8 ASI Amar Singh, Police Line, Patiala joined the investigation headed by Inspector Ramphal on 26.7.2003 and preliminary investigation was conducted in his presence. He was also Criminal Appeal No.682-DB of 2005 9 associated in the investigation on 28.7.2003 when all the three accused were arrested, and about recovery of head gear of the deceased in pursuance to the disclosure statement made by Gulab Singh, accused.
22. PW9 SI Ramphal, the Investigation Officer had recorded the statement of Mohinder Singh, complainant on 26.7.2003 when he was present at Bus Stand, Hoolka along-with other Police officials. He stated that the police party went to the cremation ground of village Manakpur where about 5/6 relatives of Mohinder Singh were present. The witness narrated the proceedings conducted by him, at the spot. He also prepared the rough site plan Ex.PI. He went to the house of the accused and prepared the rough sketch Ex.PI and also recovered the three-wheeler bearing registration No.PIP-6957. According to him, the accused were arrested on 28.7.2003 and on 30.7.2003 Gulab Singh, accused-appellant made disclosure statement, in pursuance whereof, the recovery of the head gear of the deceased was made and the site plan Ex.PM of the place of recovery was also prepared by him.
23. PW10 Madan Lal Verma, approved Draftsman stated that on 15.8.2003 he prepared the scaled plan of the house of Gulab Singh,accused-appellant Ex.PO and also that of the site of the cremation ground Ex.PO/1.
24. The accused also led evidence in their defence. It may be mentioned here that Mohinder Singh PW1 in his cross-examination had totally denied that any criminal case was registered against him in any Police Station. He also stated that he never remained confined Criminal Appeal No.682-DB of 2005 10 in jail in any criminal case or that he is history sheeter of Police Station Rajpura. The evidence in defence has also been led to show that Mohinder Singh, complainant has a criminal record.
25. DW1 Constable Baldev Singh brought the record of FIRs No.29 and 30 of 31.1.1997, registered against Mohinder Singh for offences under Sections 9 of the Opium Act and 25 of the Arms Act. The copies of the FIRs are Ex.D2 and D3 respectively. As per record, Mohinder Singh was convicted by the Judicial Magistrate,Rajpaura. This witness also brought copy of FIR No.127 dated 7.6.1969 under the Excise Act which is Ex.D4. The witness also knows Mohinder Singh PW1, who is entered as Bad Character "A" ( BC "A") of the relevant register of the Police Station, copy of which is Ex.D1. According to him, there are FIRs against Mohinder Singh at Police Station Sadar Rajpura and at other Police Stations in India.
26. DW4 HC Jagtar Singh brought the original FIR No.323 dated 25.3.1964, under Section 9 of the Opium Act, Police Station Divn. No.4, Ludhiana, registered against the complainant. The copy of FIR is Ex.D6. The Chief Judicial Magistrate, Ludhiana convicted and sentenced him to two months imprisonment and a fine of Rs.50/-
27. DW2 Rulda Singh, Junior Assistant Social Security Women & Children Department, Rajpura brought the original attendance register of village Mankpur Centre and Surjit Kaur deceased was working as Anganwari Worker. She was present on duty on 12.7.2003. Copy of the entry is Ex.D5.
28. DW3 Ramesh Kumar, is the member panchayat of village Manakpur and he stated that Gulab Singh accused, had arranged Criminal Appeal No.682-DB of 2005 11 the job for his wife. He had never heard of any quarrel between the husband and wife. On 25.7.2003 Gulab Singh accused told him about illness of his wife and on the next day he heard that his wife had died a natural death. The witness also stated that while he was present at his house at 8.15 am on 26.7.2003, he saw many villagers going to the cremation ground for cremation of the deceased and when he reached at the cremation ground at about 8.45 a.m., he saw there burning pyre of Surjit Kaur and 10 minutes thereafter Mohinder Singh PW came and used gandasi on the pyre to extinguish the fire. Mohinder Singh also poured water to control the fire. He also tried to inflict gandasi blow to Gulab Singh, accused. There were about 400/500 villagers.
29. DW5 Sucha Singh is the brother-in-law of Balkar Singh father of the accused. He stated that about 1-1/3 years ago he received a message about the death of the wife of Gulab Singh accused. He went to the house of Balkar Singh where all the relatives were present. The dead body of Surjit Kaur was not cremated on that day because father-in-law of Gulab Singh had not reached there. Some of the villagers sent message to the house of Mohinder Singh. On the next day, all the family members and panchayat of village Manakpur after waiting for Mohinder Singh and his family members to come, decided to cremate the dead body at about 8.30 am. At about 9.30 am in the presence of 500/600 persons, the dead body was cremated. After about 15/20 minutes, Mohinder Singh reached there armed with gandasi, and hurled 15/20 blows with gandasi on the pyre and then chased Gulab Singh, Criminal Appeal No.682-DB of 2005 12 accused for causing him injury. After one and half hour, the Police reached there and they took into possession the dead body and also took away some family members of the accused.
30. Learned Additional Sessions Judge(Adhoc), Fast Track Court, Patiala convicted the appellants for offences under Sections 302 read with Section 34 and 201 of the Indian Penal Code and sentenced them as aforesaid.
31. Learned Counsel for the appellants has attacked the prosecution story inter alia on the following grounds:
(i) That Mohinder Singh, father of the deceased is not a witness, worthy of credit;
(ii) that the deceased died a natural death; (iii) that the prosecution case depends upon the
circumstantial evidence but the chain of events in the link is not complete and even the credible evidence to prove the circumstances has not been adduced.
(iv) that there are material contradictions in the evidence of the prosecution witnesses,making the whole version suspicious.
32. On the other hand the learned State Counsel submits that apart from the proved case of homicidal death, there was also motive for the accused to commit the crime.
33. In the cases based on circumstantial evidence, the settled principle of law based on a catena of authorities is that where the case rests squarely on circumstantial evidence relied upon by the prosecution, the inference of guilt can be justified only when all the Criminal Appeal No.682-DB of 2005 13 incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances, from which, an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circumstances. Where the case depends upon the conclusion drawn from circumstances, cumulative effect of the circumstances must be as to negative the innocence of the accused and bring the offence home beyond any reasonable doubt. The principle on the subject has been elaborately summed up by the Hon'ble Supreme Court in Kusum Ankama Rao V. State of Andhra Pradesh ( 2008) 13 SCC 257.
34. The prominent question would be, whether it was a case of homicidal death. The deceased was taken to the hospital from the cremation ground. after the dead body was removed from the pyre, which was in flames. PW9 SI Ramphal, the Investigating Officer was present at Bus Stand Hoolka, where PW1 Mohinder Singh, father of the deceased met him and recorded his statement Ex.PA. The police party then reached the site along with Mohinder Singh, complainant and saw 5/6 relatives of Mohinder Singh present, who were controlling the fire. The dead body was removed from the pyre. The inquest report Ex.PH was prepared and the dead body was sent for post mortem examination to the Hospital.
35. The most important evidence on the subject is the testimony of Dr.Kuldip Singh. In his opinion, the cause of death was haemorrhage and shock due to injury found on the dead body of the Criminal Appeal No.682-DB of 2005 14 deceased. The injury was ante mortem and sufficient to cause death in the ordinary course of nature. An attempt was made to suggest that this incised wound could be with the Gandasi which Mohinder Singh, complainant used for extinguishing the fire, but the doctor has ruled out any such possibility, because in that event such a cut would be post mortem and not ante mortem. The doctor stated in the cross-examination that there was swelling around the injury on the neck and also the blood clotting, on the basis of which, he described that the injury was ante mortem. Otherwise, there were 100% burns which according to the doctor were post mortem. That was bound to be so as the dead body was removed from the burning pyre.
36. It was also vehemently contended by the learned Counsel for the appellants that the prosecution allegedly effected recovery of head gear from the possession of the accused about three days after he was arrested on 28.7.2003 in this case, in order to bring evidence that the head gear was used for strangulating the deceased, whereas the medical evidence shows that the incised wound found on the dead body was the cause of death. This is absolutely insignificant factor for determining whether it was a case of homicidal death.
37. An attempt was made to suggest that the deceased was suffering from some ailment. PW1 Mohinder Singh stated in the cross-examination that he is a patient of high blood pressure for the past 4/5 years. However, he does not know if his sons and daughter were also suffering from high blood pressure. DW5 Sucha Singh, brother-in-law of Balkar Singh, father of the accused, who allegedly Criminal Appeal No.682-DB of 2005 15 reached village Manakpur the previous night on receiving message about death of the wife of Gulab Singh accused did not utter a word about any ailment with which Surjit Kaur,deceased was suffering. The record brought by Gurbachan Singh, from Social Security Women & Children shows that the deceased had attended her duty on 25.7.2003.These facts would establish that the deceased was quite hale and hearty before her death. From the above discussion, we unhesitatingly find that the death of Surjit Kaur was homicidal.
38. The important circumstance relied upon by the prosecution is that the dead body of the deceased was taken for cremation, without waiting for her relatives to reach and that too, in the early morning hours, for which there could not be any plausible explanation. The prosecution story is that Darshan Singh son of Mohinder Singh, complainant received a telephonic from Surinder Kumar, member panchayat of the village at 5.00 am on 26.7.2003, suspecting his sister to have been killed. Darshan Singh told his father and they immediately rushed to the village of the accused on motor-bike. According to Mohinder Singh PW1, the distance between the village of the accused from his village, is about 3 kilometers. Mohinder Singh (PW1) stated in the cross-examination that they started at about 4.45 am on getting the message from Surinder Kumar, member panchayat (PW2). His co-villagers reached there by 5.15 am. An attempt was made by the defence to suggest that the cremation has taken place at about 10.00 am and not so early, as suggested by the prosecution witnesses, in order to contend that they waited for the relatives of Surjit Kaur,deceased for long and then Criminal Appeal No.682-DB of 2005 16 decided to cremate the dead body. This contention does not find support from record and must be, thus, rejected. PW2 Surinder Kumar, member panchayat of the village of the accused stated that he came to know that Surjit Kaur,deceased, was taken to the hospital and he went to the house of the accused but none was present in the house. Then he gave a telephonic call to village Kharola at the house of Mohinder Singh,complainant. At about 7.00/7.30 am, on that day, he went to the cremation ground where 500/700 persons were present and the pyre of daughter of Mohinder Singh was in flames. The witness ultimately left the cremation ground at about 9.00 am. No question was put to the witness in order to challenge the prosecution version that he sent message early in the morning about what had happened to the daughter of Mohinder Singh, complainant. The witness stated in the cross-examination that when he reached the cremation ground the Police was present. It has appeared in the statement of PW9 SI Ramphal that they had reached village Manakpur at about 8.45 am. It was, of course, after the statement of Mohinder Singh, complainant was recorded by him at Bus Stand Hoolka, where the Police party was present for checking. ASI Amar Singh PW-8, who was member of the Police party, in cross-examination, stated that the complainant met them at about 7 am. According to him, the distance between village Hoolka where Mohinder Singh, complainant met, and village Manakpur of the accused is about 7/8 kms. The accused examined Sucha Singh (DW 5) their relative to state that the dead body was cremated at 9.30 am after they waited till 8.30 am for the relatives of deceased to Criminal Appeal No.682-DB of 2005 17 come. The above defence is totally unreliable particularly when the parents and brother of the deceased belong to the village ,which was just about 3 kilometers away. They were bound to wait, especially when the relations between the couple were strained. No such suggestion was even put to PW2 Surinder Kumar that the panchayat had decided to cremate the dead body. This witness himself is the member panchayat and his wife is the Sarpanch. Even DW3 Ramesh Kumar, member panchayat of the village, examined in defence, does not state that the panchayat of the village decided to cremate the dead body without waiting for the relatives of the girl to come. Therefore, the cremation of the dead body, so early in the morning, without waiting for the presence of father and brothers of the deceased, living at a short distance, is extremely important incriminating circumstance to be considered against the accused.
39. The defence tried to attack the testimony of Mohinder Singh ( PW 1) on the ground that he has tainted antecedents. By examining DW1 Constable Baldev Singh from Police Station Sadar, Rajpura and DW4 HC Jagtar Singh from Police Station Division No.4, Ludhiana, four FIRs against him under Opium Act, 25 of the Arms Act and Excise Act have been proved as Ex.D2 to Ex.D4 and Ex.D6. Those are of the years 1969 and 1964. In the statement of DW1 Constable Baldev Singh,it has also been proved that Mohinder Singh is entered as a Bad Character 'A' (B.C.'A') in the record of the Police Station and the copy of the entry is Ex.D1. Mohinder Singh (PW1) had denied that there was any case registered against him nor was he ever arrested in any criminal case.Such a record of the FIRs Criminal Appeal No.682-DB of 2005 18 registered, so many years before the present occurrence, cannot shatter the sworn testimony of the witness relating to the circumstance, in which his daughter had died.
40. Another circumstance relied upon by the prosecution is about the stained relationship between the husband and wife. There is statement of PW3 Surinder Kumar, member panchayat of the village of the accused, that he got effected written compromise dated 13.7.2003 mark 'A', between Gulab Singh accused and his deceased-wife. The witness has put his own signature on the document apart from the signatures of the accused and his wife. Nothing appeared in the cross-examination of the witness to challenge the veracity of this document. The suggestion put to the witness that the signatures of accused on this document were obtained at the Police Station is denied. Apart from that there is also consistent statement of PW1 Mohinder Singh, father and PW3 Darshan Singh brother of the deceased. According to Darshan Singh, PW3 his sister came to her parental house on 12.7.2003 after she was given beating by the accused. The contents of compromise dated 13.7.2003 would show that the accused Gulab Singh assured that he will not physically assault his wife in future and that if his wife has to go elsewhere except for the duty hours, she would go only with the consent of her husband. The accused did examine DW2 Rulda, Junior Assistant, Social Security Women & Children Department, Rajpura, who brought the original attendance register of the workers of Anganwari Centre at Mankpur, to show that the deceased was present on duty on 12.7.2003. Copy of the entry is Criminal Appeal No.682-DB of 2005 19 Ex.D5. It has appeared in the cross-examination of Gurbachan Singh (PW6) who brought the record of attendance of Surjit Kaur, deceased, showing that she attended duty upon 25.7.2003, stated that the duty hours of Anganwari Workers, during summer, were from 8.00 am to 12 O' Clock in the noon. Therefore, the prosecution story that the deceased was given beating by the accused on 12.7.2003 could not be successfully challenged. It is the prosecution story that the accused wanted the deceased not to attend the Anganwari School. The accused rather tried to bring on record that it was he, who helped his wife to get the job of Anganwari Worker, by examining DW3 Ramesh Kumar, the member panchayat of village Mankpur, whoas already found is un-reliable witness. There is nothing suggested in the cross-examination of PW6 Gurbachan Singh that the deceased remained constantly on long leave to show that she was suffering from any ailment. It is clear that the deceased was hale and hearty on 25.7.2003 and, therefore, the statement of DW3 Ramesh kumar that Gulab Singh told him on 25.7.2003 about the ailment of his wife is absolutely false. DW3 Ramesh Kumar stated in the cross-examination that accused Gulab Singh told him a day before about ailment of his wife, but did not inform him about the nature of ailment.
41. In fact the accused had taken up a plea during cross- examination of Mohinder Singh (PW 1) and his son Darshan Singh (PW 3) that they had borrowed an amount of Rs,50,000/- from the accused through Surjit Kaur,deceased undertaking to return the amount at the earliest which the witnesses have categorically denied. Criminal Appeal No.682-DB of 2005 20 It is further suggested to them that the wife of Gulab Singh had died a natural death and in order to usurp the aforesaid amount they did not care to go to the house of the accused despite the information of death of Surjit Kaur having taken place, due to heart ailment, with which she was suffering. There is no suggestion as to when that amount was borrowed and even there is no evidence in order to substantiate this plea. Even otherwise question of taking such a huge amount from the son-in-law does not arise, especially when the relation between the couple was strained. Even this plea was not reiterated by the accused during their examination under Section 313 Cr.P.C.
42. It was for the accused to furnish the explanation about the manner, in which, his wife died because of the injury on her person.
43. In Trimukh Maoti Kirkan V. State of Maharashtra (2006) 10 SCC 681 the prosecution story regarding the allegation of committing murder of his wife by the appellant, was also based on circumstantial evidence. It was observed therein that the normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and Criminal Appeal No.682-DB of 2005 21 inconsistent with their innocence. In paragraphs 14 and 15 of the judgment, it was held as under:-
"14. if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland V. Director of Public Prosecution, 1994 AC 315 : (1944) 2 All ER 13 (HL)? Quoted with approval by Arijit Pasayat, J. in State of Punjab V. Karnail Singh, (2003) 11 SCC 271 :
2004 SCC (Cri) 135.) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to Criminal Appeal No.682-DB of 2005 22 his section throws some light on the content and scope of this provision and it reads:-
"(b) A is charged with travelling on a railway without ticket. The burden of providing that he had a ticket is on him.
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
44. The prosecution story is that when Mohinder Singh, complainant (PW1) reached the cremation ground he found both the appellants sitting near the pyre and a three-wheeler was also parked nearby. They tried to put off the fire but the accused prevented them Criminal Appeal No.682-DB of 2005 23 from doing so. Mohinder Singh wielded gandasi blow towards them and then put off the fire and the matter was reported to the Police. Mohinder Singh,PW-1 while appearing in the witness box, did improve the version a little bit that Gian Kaur, mother of the accused and Babli had hidden themselves behind the three-wheeler and all of them fled away from there in the three-wheeler. The witness was confronted, on this aspect, with the statement made before the Police about presence of Gian Kaur and Babli, but on that account, the whole version cannot be disbelieved, especially when the matter was reported to the Police on coming to know the death of the daughter of Mohinder Singh instantly. The doctrine of "falsus in uno falsus in omnibus" has no application in India and the witnesses, cannot on that account be rendered, as a liar. It is merely a rule of caution as held by Supreme Court in Smt. Shakila Abdul Gafar Khan V. Vasant Raghunath Dhoble and another Criminal Appeal No.857 of 1996 reported as 2004(1) RCR ( Criminal) 283. On that account Gian Kaur, accused, has already been given the benefit of doubt.
45. Otherwise carrying the dead body, in a three-wheeler, cannot be handi work of one person. The registration number of the three wheeler was mentioned in the FIR. According to the Investigating Officer, the same was recovered from the house of the accused on the same day. In fact, the presence of Gulab Singh, accused-appellant in the cremation ground is not challenged. Ramesh Kumar, DW3, member panchayat of the village of the accused stated that Mohinder Singh, complainant tried to give Criminal Appeal No.682-DB of 2005 24 gandasi blow to Gulab Singh accused, at the cremation ground.
46. More than that the role to Sarban Singh accused, in the act of committing murder of wife of Gulab Singh accused, cannot be attributed. He is six years younger to Gulab Singh,accused. It is clearly established that accused-appellants Gulab Singh and Sarban Singh both had taken the dead body for cremation in order to cause the evidence of murder to disappear. Surinder Kumar PW2 the member panchayat of village Manakpur of the accused, who is found to be a trust-worthy person stated in the cross-examination that Gulab Singh and Sarban Singh,accused are residing separately and their work is also separate. There cannot be any exception to his conviction under Section 201 IPC but for the offence under Section 302 IPC, it is difficult to hold Sarban Singh guilty in view of the sole injury found on the dead body of the deceased.
47. In view of the above discussion, it is held that the judgment of conviction and sentence against Gulab Singh, accused- appellant is based on the correct appreciation of evidence and law and the charges framed against him on both the counts have been rightly held to be proved, whereas charge against Sarban Singh accused, for the offence punishable under Section 302 read with Section 34 IPC cannot be said to be beyond reasonable doubt. Accordingly, he is acquitted of the said charge but his conviction under Section 201 IPC, being based on correct appreciation of evidence and law, is maintained. So far as the quantum of sentence under Section 201 IPC is concerned, he has already undergone more than 4 years and 5 months of actual sentence which, in the Criminal Appeal No.682-DB of 2005 25 facts and circumstances of this case, is considered to be sufficient to meet the ends of justice. Accordingly, he is sentenced to undergo imprisonment for the period already undergone by him.
48. In respect of Gulab Singh, appellant-accused, it has been held by the trial Court that sentence awarded under Section 201 IPC would run consecutively with the sentence of imprisonment for life. Gulab Singh, accused-appellant, is himself found to be main offender under Section 302 IPC and the fact of cremating the dead body of Surjit Kaur deceased in a case of homicidal death has been considered as important factor in the chain of circumstances to find him guilty of the offence under the main offence. Therefore, in the circumstances, it would be in the fitness of things, if the sentence awarded under Section 201 IPC is ordered to run concurrently with the sentence for life imprisonment. We order accordingly.
49. For the reasons recorded above, the appeal qua Sarban Singh, appellant is partly allowed,setting aside his conviction under Section 302 IPC read with Section 34 of the Indian Penal Code. His conviction under Section 201 IPC is maintained with the modification in the quantum of sentence as mentioned above. He is on bail. He shall stand discharged of his bail bonds. The appeal of Gulab Singh, appellant is dismissed, except with the modification in the application of sentence in the above terms.
( Surya Kant ) ( R.P. Nagrath )
Judge Judge
July 16 ,2012
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