Punjab-Haryana High Court
Malkiat Singh vs State Of Punjab on 1 March, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision 1.3.2011
(i) Crl. Appeal No. 449-DB of 2001
Malkiat Singh .....Appellant
Versus
State of Punjab .....Respondent
Present: Shri H.S. Sandhu, Senior Advocate, with
Shri Varun Wadhera, Advocate, for the appellant.
Shri D.S. Brar, DAG, Punjab.
(ii) Crl. Appeal No. 659-DB of 2001
Balwinder Singh .....Appellant
Versus
State of Punjab .....Respondent
Present: Mrs. Baljit Kaur Mann, Advocate, for the appellant.
Shri Varun Wadhera, Advocate, for the appellant.
Shri D.S. Brar, DAG, Punjab.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE ARVIND KUMAR
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Hemant Gupta, J.
Malkiat Singh son of Piara Singh and Balwinder Singh son of Surjit Singh are in appeal, aggrieved against the judgment and Crl. Appeal No. 449-DB of 2001 [ 2] order dated 8.8.2001, whereby the appellants have been convicted for the offence under Sections 364, 302, 201 read with Section 34 IPC and sentenced to undergo RI for five years and to pay a fine of Rs.5000/- each under Section 364 IPC; RI for life and to pay fine of Rs.10,000/- each under Section 302 IPC and RI for seven years and to pay a fine of Rs.5000/- each under Section 201 IPC.
Asha, deceased daughter of Kishan Singh was married to Balwinder Singh. Malkiat Singh is the son of the maternal uncle of Balwinder Singh. The prosecution case was set in motion on the basis of the statement of Kishan Singh (father of deceased-Asha), Exhibit PA, who stated that his daughter Asha was married to accused Balwinder Singh 13-14 years ago. She had one daughter and no son. Her husband Balwinder Singh, used to beat her and did not treat her properly as she had no son. His daughter Asha and son-in- law, were residing in America and came to India about a year back and they were residing at Hargobind Nagar, Phagwara, after purchasing a kothi. Malkiat Singh, son of the maternal uncle of Balwinder Singh, used to reside with him. The relations of his son-in- law with his daughter were not cordial and they used to quarrel with each other on petty matters. He came to Punjab from U.P. to see his daughter on 9.11.1998. He did not find his daughter at house, which was locked. He searched for his daughter from the neighbours, but did not succeed. He apprehended that Balwinder Singh in connivance with Malkiat Singh with their common intention has murdered his daughter or confined her at some unknown place. The said statement was given to Shri Raj Balwinder Singh, Sub Inspector, Police Station, City Phagwara on 19.11.1998 at 2.15 p.m. On the basis of the said complaint, a ruqa was sent to the Police Station and an FIR under Sections 364/302/201/34 IPC, Exhibit PA/2, was recorded.
Crl. Appeal No. 449-DB of 2001 [
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Malkiat Singh was arrested on 19.11.1998. In police custody, he suffered a disclosure statement Exhibit-PB that he and Balwinder Singh have murdered Asha wife of Balwinder Singh, about one and half months ago in the night hours with sharp-edged weapon and after strangulation, at village Kakowal on the kachha road leading to Panchat from Kakowal. The dead body was dubbed in the pit in the nearby fields. He and Balwinder Singh only know about the dead body and can recover the same after demarcation. After the said disclosure statement, the Investigating Officer sought an order from the District Magistrate for deputing an Officer and a Doctor to witness the recovery of the dead body. The District Magistrate issued an order on 19.11.1998 (Exhibit PM) to the Naib Tehsildar (Executive Magistrate), Phagwara and Senior Medical Officer, Civil Hospital, Phagwara, to witness the process to recover the buried dead body. It was thereafter, in the presence of PW3-Dr. Rajesh Sood and PW6-Mulakh Raj, the dead body was recovered vide recovery memo Exhibit PC, from the potato fields of Balbir. At the time of recovery of dead body on 19.11.1998, certain gold ornaments i.e. one gold locket, one gold ring and one pair of silver anklets (Paijeb) all marked `A', were taken into possession vide recovery memo Exhibit PQ. Such dead body was identified by PW1-Kishan Singh, father of the deceased and Budh Singh, relation of the deceased. The inquest proceedings were completed by the Investigating Officer and the dead body sent for post mortem examination to the Civil Hospital, Phagwara. The post mortem was conducted by the Board of Doctors, consisting of Dr. Baldev Raj; Dr. Gurdit Singh and Dr. (Mrs.) Sarika Duggal.
Malkiat Singh also suffered a disclosure statement Exhibit-PR on 22.11.1998, to the effect that he had kept concealed Crl. Appeal No. 449-DB of 2001 [ 4] one datar, near the place of occurrence on kacha path towards eastern side in the fields of potato crop and that he could get the same recovered. In pursuance of the said statement, Datar, Exhibit PR/1, kept concealed under the grass from the corner towards the southern side of the place of occurrence, was recovered.
Photographs of the recovery of the dead body were taken by PW8-Rajeshwar Dutt. The said witness has produced photographs Exhibits P.1 to P.11, whereas the negatives are Exhibit P.13 to P.22. PW3- Dr. Rajesh Sood and PW6-Mulakh Raj, Naib Tehsildar, can be seen in the photographs as well. PW5-Dr. Baldev Raj, who conducted the post mortem examination, found gold ornaments i.e. one ring, one bangle and one chain on the dead body of Asha, which were handed over to the police. Such articles were taken into possession by the Investigating Officer vide Exhibit PK.
Accused-Balwinder Singh was arrested on 7.4.1999 and on the basis of the supplementary report under Section 173 of the Code of Criminal Procedure, he was made to stand trial with accused Malkiat Singh. The prosecution sought to prove the charges for an offence under Sections 364, 302, 201 all read with Section 34 of the IPC, by examining Kishan Singh as PW1, father of the deceased-Asha PW2-Piara Singh and PW4-Tarlochan Singh, as the evidence of last seen. Apart from the said witnesses, the prosecution also examined PW3-Dr. Rajesh Sood and PW6-Mulakh Raj, Executive Magistrate, who were associated in the process of recovery of the dead body. The prosecution also completed chain of events including examination of PW8-Rajeshwar Dutt, the photographer. On the basis of the evidence led, the learned trial Court convicted the appellants, as mentioned above.
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PW1-Kishan Singh, supported the version given in Exhibit PA to SI Raj Balwinder Singh on 19.11.1998 at 2.15 p.m. He has deposed that Jagdip Kaur alias Jaini, daughter of Asha and that of accused Balwinder Singh, is now aged 8/9 years and is in his custody. He has deposed that no other child was born to Asha. He has deposed that he went to village Narur, to which the accused Balwinder Singh belong. He made inquiry about accused Balwinder Singh, his daughter and Jaini, from the relations of the accused as well as from his relatives about their whereabouts, but he could not know about the same. He spent 9/10 days in their search and then went to his sister's husband Budh Singh, resident of Nadala and when on his way, he gave his statement. He has further deposed that the police arrested Malkiat Singh, when he was accompanying the police party for going to village Narur on the turn leading to village Panchat, and interrogated him. He stated that Malkiat Singh said to the police that they should not beat him and he can point out the dead body of the deceased-Asha and could get the same recovered from the fields of village Panchat. The statement of accused Malkiat Singh was recorded, which was attested by him (PW1-Kishan Singh) and Budh Singh and the same is Exhibit PB. Thereafter, the dead body of Asha was dug from the place pointed out by Malkiat Singh, in the presence of the Doctor and Tehsildar, Budh Singh and the police officials. He identified the dead body, which was taken into possession vide the recovery memo Exhibit PC. He identified the dead body from its sides; face and from yellow suit, which was given by him on the occasion of marriage of his son and from her ornaments. There was a gold chain around her neck on which her name was inscribed by the goldsmith. The dead body was recovered in the light of two tractors. In cross-examination, the witness has admitted that the deceased-Asha was matriculate and used to write in Hindi and Crl. Appeal No. 449-DB of 2001 [ 6] Punjabi. She has not written any letter from USA or while residing at Phagwara, complaining about the maltreatment given to her by accused Balwinder Singh. The witness was confronted with his statement under Section 161 of the Code of Criminal Procedure in respect of the clothes given to his daughter on the occasion of marriage of his son; ornaments and that deceased-Asha used to tell him on telephone from USA that accused Balwinder Singh was maltreating her and that there is also no reference in statement Exhibit PA that he searched for Balwinder Singh and Asha in the house of accused Balwinder Singh. He has deposed that he reached the fields of village Panchat from where the dead body was recovered at 5.00 p.m., whereas Tehsildar and Doctor reached the spot at 6/7 p.m. They came in their own cars. He denied that accused Malkiat Singh did not make any statement regarding recovery of the dead body of Asha. He denied the suggestion that the dead body was in a highly de-composed condition and was beyond recognition or that the dead body was not wearing any chain on which name of Asha was inscribed.
In the cross-examination conducted on behalf of the counsel for Balwinder Singh, he stated that Balwinder Singh earlier went alone to USA after 3-4 years of marriage and two years thereafter, Balwinder Singh took Asha to USA. After 2-3 months of going of Asha to USA, his son Bishan Singh also went to USA. He denied the suggestion that Balwinder Singh sponsored his son and Joga Singh son of Niranjan Singh for their entry in the USA and bore their traveling expenses. He searched for Balwinder Singh and Asha, and found the kothi, near Hargobind Nagar, locked. He further deposed that the distance between the place, where Malkiat Singh accused met them and the place of recovery of dead body is 3 to 4 Crl. Appeal No. 449-DB of 2001 [ 7] kilometres, again said 7 to 8 kilometres. He admitted that his son Bishan Singh, returned to India last year and got married in 4.9.1998. He further deposed that Balwinder Singh, Asha and their daughter stayed for 6-7 days on the eve of marriage celebrated at Jalandhar. He further deposed that after marriage, Balwinder Singh and Malkiat Singh accused, deceased Asha and Jaini, went to Bajpur, U.P., where he is residing and stayed there for 6-7 days and then returned to Phagwara. He admitted that Balwinder Singh accused had met with an accident after the marriage of his son Bishan Singh and was admitted in hospital at Ludhiana. He (Kishan Singh) was told by his daughter that the condition of Balwinder Singh was not serious and he need not come to see him. Bishan Singh had left for USA, when he came to Phagwara on 9.11.1998. He denied the suggestion that the accused Balwinder Singh spent Rs.86 lacs on his son and Joga Singh son of Naranjan Singh, for their going to USA and for their stay there.
PW2-Piara Singh, is resident of village Nadalon. He stated that on 2.10.1998, when he was going to village Kakowal at 9/9.30 p.m., on his scooter, he saw accused Balwinder Singh and Malkiat Singh. They had a scooter with them. Malkiat Singh accused was digging a pit. He had a spade with him and Balwinder Singh was standing near the scooter. His village is about 7-8 kilometres from the place where Balwinder Singh and Malkiat Singh met him. In the cross-examination, he has admitted that village Kakowal does not fall on way, if one has to come to Phagwara directly from Nadalon. He stated that he had met Billu Commission Agent at Phagwara, who has been paid a sum of Rs.1,50,000/- by his relative, who was to go abroad.
Crl. Appeal No. 449-DB of 2001 [
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PW4-Tarlochan Singh has deposed that on 2.10.1998, he saw Balwinder Singh accused driving the scooter towards his village Narur. His wife Asha and accused Malkiat Singh were riding the pillion seat of the scooter. Daughter of Balwinder Singh was standing in between the legs of Balwinder Singh. Balwinder Singh did not stop his scooter, when the witness had given a signal to him. In the cross- examination, he has deposed that he is son-in-law of Budh Singh, who is sister's husband of Kishan Singh. He further stated that his statement was recorded by the police on 31.1.1999 and that he has not disclosed the fact of having seen Asha and her daughter to anybody on 2.10.1998 and he has not come to know about the death of Asha, as she has gone to Delhi and returned in December, 1998.
PW3-Dr. Rajesh Sood, was posted as Medical Officer in the Civil Hospital, Phagwara, when he was deputed by Dr. HPS Sandhu, Senior Medical Officer in the Civil Hospital, Phagwara at about 7.30 p.m. on 19.11.1998 to witness the digging of the dead body from the area of village Panchat. Naib Tehsildar, Mulakh Raj also accompanied him. At about 8.30 p.m. during night, SHO has brought two tractors under whose lights two hired workers were made to dig the spot. The dead body was not found at the digging spot. But Malkiat Singh pointed out the spot, which was nearby. The spot was then dug out by those hired labourers. Foul smell was coming. The workers refused to further dig out the earth. Then the police instructed Malkiat Singh to dig the earth. He then dug the dead body. The dead body was giving foul smell, but it was identifiable. Kishan Singh, identified the dead body to be that of his daughter Asha. In the cross-examination, he has deposed that the dead body was lying in layer from 5 to 10 feet deep under earth. He has deposed Crl. Appeal No. 449-DB of 2001 [ 9] that the police has taken him and Mulakh Raj, Naib Tehsildar in a Government Vehicle and they were at the spot for about 1-1/2 hours.
PW5-Dr. Baldev Raj, along with the members of the Board i.e. Dr. Gurdit Singh and Dr. (Mrs.) Sarika Duggal, conducted the post mortem examination on the dead body of Asha deceased on 20.11.1998. This witness stated that apart from the clothes, the deceased was found wearing a ring of yellow metal on right ring finger and yellow metallic chain around neck and a black bangle on the left arm. On the neck region, yellow colour dupatta from the suit and kesari parna was tied tightly. He found that the skin above the ligature face was congested, tongue protruding between teeth incomplete. Rigor mortis was absent. He found 18 x 25 cm ligature marks around neck more on the front of neck interrupted at the knots region. It was situated on the lower half of the neck. He further found that the uterus was in advance stage of putrefaction not distinguishable fetal bony parts about fetal age between 5th to 6th months were found. As per the Doctor, the cause of death was asphyxia due to strangulation of neck leading to shock and death which was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The deceased was pregnant at the time of death. The probable time between injuries and death was immediate and between death and post mortem was within 4 to 8 weeks. The witness denied that the body was not identifiable due to advance stage of putrefaction and also stated to the following effect:-
"Question:- What are the differences in the period of putrefaction of the dead body exposed to the air and buried under the ground in wet condition?
Answer:- When a body is exposed to air it decomposes early and when it is buried deeply in Crl. Appeal No. 449-DB of 2001 [ 1 wet condition changes of decomposition are delayed as there are little chances of bacterial.
Question:- Do the wet condition act as catalytic agent?
Answer:- Wet condition delays the changes of putrefaction because for decomposition hot air is necessary.
Question:- whether a body under the water would decompose and float faster than one outside the water?
Answer:- No. The body outside the water
decomposes earlier.
Question:- The Board has mentioned probable
time between death and post mortem four to eight weeks. Whether it could be ten weeks?
Answer:- It could be.
Question:- Could it be three weeks?
Answer:- No, because the nails and the tips of the fingers peel of easily or could be detached easily after 6 to 8 weeks."
I have mentioned the period of four weeks because of the late changes of petrefaction in the viscera that is the mortem size of the stomach and the shrunken size of the kidneys which could be found in the period."
PW6-Mulakh Raj, is the Executive Magistrate, deputed by the Deputy Commissioner, Kapurthala, to accompany the police for recovery of the dead body. He deposed that the accused was directed to dig the earth from the field, but the dead body was not recovered.
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Then the accused dug the earth from 3/4 feets from the earlier
place. The earth was dug 6/7 feets deep and then the dead body was recovered. The father of the deceased identified the dead body. The photographs of the dead body were taken in his presence. In the cross-examination, he admitted that he joined the police party from Phagwara at 6.30 p.m. and there were two vehicles of the police party, one was his and Doctor Rajesh Sood accompanied him in his vehicle. He has further deposed that the dead body was identifiable and not putrefied. The dead body was identified from the place. The organs were intact. He denied the suggestion that due to the fact that the dead body was buried under earth, it was decomposed and not identifiable. The prosecution has also proved on record Exhibit PM, a communication of the District Magistrate to Naib Tehsildar, Executive Magistrate and SMO, Civil Hospital, dated 19.11.1998 directing them to recover the buried dead body immediately.
Learned counsel for the appellant-Malkiat Singh has vehemently argued that the prosecution witnesses have contradicted themselves in the manner of alleged recovery of dead body at the instance of Malkiat Singh. PW1-Kishan Singh stated that Tehsildar and the Doctor arrived in their cars. The said statement is contradicted by PW3-Dr. Rajesh Sood, as he deposed that he went to the place of recovery that the police has taken him and Mulakh Raj, Naib Tehsildar in a Government vehicle, whereas PW6-Mulakh Raj, deposed that there were two vehicles of the police party and one was of his.
We do not find any contradiction in the statements of the witnesses regarding mode of reaching the place of recovery of the dead body. PW6-Mulakh Raj, has deposed that there were two vehicles of the police party and one was his. That statement does not Crl. Appeal No. 449-DB of 2001 [ 1 necessarily imply that he was in his private car. The description of the vehicles as a Government vehicle or a police vehicle, is immaterial as the presence of either PW3-Dr. Rajesh Sood or PW6-Mulakh Raj, at the time of recovery of dead body, is proved on record. Such witnesses have no enmity to depose against the accused. The testimony of both the witnesses corroborates each other in material particulars. Such is the stand of PW1-Kishan Singh, in respect of recovery of dead body as per the disclosure statement made by Malkiat Singh stands corroborated by independent and responsible witnesses, namely, PW3-Dr. Rajesh Sood and PW6-Mulakh Raj. The dead body was lying quite deep in the earth and the process of digging has to be shifted at the pointing out of the accused Malkiat Singh. The concealment of the dead body in such depth and in a remote area is a very strong incriminating circumstance in respect of the culpability of Malkiat Singh. Since the ornaments were found on the dead body, therefore, the motive of robbery is excluded. Even if the statement of Tarlochan Singh is not relied upon, the recovery of the dead body as per the disclosure statement suffered by the accused Malkiat Singh, a relation of the accused Balwinder Singh, stands proved by the prosecution. The recovery of datar on the basis of disclosure statement of Malkiat Singh from another place embedded in earth also corroborates the prosecution case.
Shri Sandhu, has relied upon the Hon'ble Supreme Court judgment in State of Bombay v. Kathi Kalu Oghad, AIR 1961 Supreme Court 1808, to contend that the statement of Malkiat Singh was due to compulsion in police custody. Therefore, such statement is not admissible.
We do not find any merit in the said argument. Though PW1-Kishan has stated that Malkiat Singh stated that he is ready to Crl. Appeal No. 449-DB of 2001 [ 1 disclose the place, where the dead body is concealed, provided he was not given beating, but that does not mean that such statement was given under compulsion. There is no positive evidence of any threat to the accused Malkiat Singh, which led to the disclosure statement Exhibit PM. As per Kishan Singh, the accused-Malkiat Singh offered to disclose the place of concealment of the dead body, provided he is not given beatings. In fact, not even a suggestion has been put to the Investigating Officer, PW10-Raj Balwinder Singh that any threat was given to Malkiat Singh, before he suffered disclosure statement.
Learned counsel for the appellants relied upon another judgment in Bakhshish Singh v. State of Punjab, (1971) 3 SCC 182, to contend that the recovery of the dead body is not conclusive to return a finding of guilt against the appellants. In the aforesaid case, the dead body was thrown into a river. The recovery of broken teeth and parts of her body from the bank of the river, was not considered as incriminating circumstance for proving the charge of murder against the accused in the aforesaid case.
Learned counsel for the accused Balwinder Singh argued that the motive given in the statement Exhibit PA that Balwinder Singh was maltreating Asha for the reason that she had not given birth to any male child, is not made out. It is argued that Asha was 5/6 months pregnant and, therefore, it is impossible to imagine that Balwinder Singh would kill his wife, especially when he has sponsored brother of Asha and another relative of Asha i.e Jora Singh, to USA. It is argued that in fact, Balwinder Singh has met with an accident and was admitted in a hospital and was discharged on 24.9.1998 and, therefore, commission of crime on 2.10.1988 is not believable.
Crl. Appeal No. 449-DB of 2001 [ 1 We do not find any substance in the argument raised by the learned counsel for the appellant-Balwinder Singh as well. From the evidence of PW1-Kishan Singh, it has come on record that Balwinder Singh and Asha visited his house in UP in September, 1998. From the evidence on record, Balwinder Singh has met with an accident and was admitted in the Christian Medical College in September, 1998. From the said fact, it stands proved that the deceased was living at Phagwara in the matrimonial home with Balwinder Singh at the time of her alleged disappearance in October, 1998. Balwinder Singh has not reported her disappearance either to the police or to the near relations, including her father PW1-Kishan. On the other hand, he did not associate in the investigation process and was in fact, declared a proclaimed offender. He could be arrested about five months later in April, 1999. Since Asha has died, while living with Balwinder Singh, therefore, in terms of Section 106 of the Indian Evidence Act, 1872, the onus is on Balwinder Singh to explain her disappearance. The conduct of Balwinder Singh, around the time of her disappearance and after lodging of the FIR supports the prosecution case. The proximity of relationship between the accused and manner of occurrence, lack of intention to rob and other evidence led by the prosecution, prove the commission of crime by the appellants and the appellants alone.
Learned counsel for the appellants also placed reliance upon Chhotu Singh v. State of Rajasthan, 1999 SCC (Crl.) 461, to contend that the recovery of dead body from the pit is not proved the commission of crime by the accused. In the said case, the recovery of the dead body from the pit was on the basis of disclosure statement of the accused. It was held that it is not conclusively proved that the accused committed the murder. The recovery of a dead body from a Crl. Appeal No. 449-DB of 2001 [ 1 concealed place; relationship of the accused with the deceased; the surrounding circumstances of the maltreatment and lack of any intention of robbery, are the circumstances, which prove the commission of crime by the appellants.
In view of the said fact, we find that no case for interference is made by this Court in the present appeals.
Hence, both the appeals are dismissed.
(Hemant Gupta) Judge (Arvind Kumar) Judge 1.3.2011 ds