Punjab-Haryana High Court
Malkit Kaur vs State Of Haryana on 14 May, 2014
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Kuldip Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. A. No. D-505-DB of 2014 ( O&M )
DATE OF DECISION : 14.05.2014
Malkit Kaur
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE KULDIP SINGH
Present: Mr. Ashwani Bhardwaj, Advocate,
for the appellant.
Mr. Dhruv Dayal, DAG, Haryana.
***
SATISH KUMAR MITTAL , J.
1. Malkit Kaur has filed this appeal against the judgment dated 11.11.2010 and the order 12.11.2010, passed by the court of Sessions Judge, Sirsa, whereby she along with her co-accused Sohan Singh alias Charanjit Singh has been convicted and sentenced to undergo imprisonment for life and to pay a fine of ` 10,000/-, in default of payment of fine to undergo further simple imprisonment for four months under Section 302 read with Section 34 IPC for committing the murder of her son Sukha Singh; and to undergo rigorous imprisonment for three years and to pay a fine of ` 5,000/-, in default of payment of fine to undergo further simple Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -2- imprisonment for two months under Section 210 IPC. Both the substantive sentences have been ordered to run concurrently. However, vide the impugned judgment, Jagmeet Singh (son of the appellant) has been acquitted of the charges framed against him.
2. It is pertinent to mention here that the appeal (Crl. A. No. D-52- DB of 2011), filed by Sohan Singh alias Charanjit Singh (co-accused of the appellant) challenging his conviction and sentence vide the impugned judgment and order passed by the trial court, has been allowed by a Co- ordinate Bench of this Court vide judgment dated May 17, 2013, and he has been acquitted of the charges framed against him, by giving him benefit of doubt.
3. After the decision of the aforesaid appeal filed by Sohan Singh alias Charanjit Singh, the appellant filed the instant appeal with an application (Crl. Misc. No. 9868 of 2014) for condonation of delay in filing the appeal. The application was allowed and the appeal was admitted on 26.3.2014. Subsequently, on 24.4.2014, during the course of hearing arguments on an application (Crl. Misc. No. 12112 of 2014) for suspension of sentence during the pendency of appeal, when the fact regarding the decision of the aforesaid appeal of Sohan Singh alias Charanjit Singh was brought to the notice of this Court, the instant appeal was ordered to be listed for regular hearing.
4. The case of the prosecution is based upon the statement Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -3- (Ex.PG) made by Sujan Kaur (PW.9), grand-mother of deceased Sukha Singh and mother-in-law of the appellant. Her aforesaid statement was recorded by Inspector Heera Singh (PW.15) on 12.9.2009, wherein she stated that she had three sons, namely Darshan Singh, Balbir and Mahender Singh, out of whom Darshan Singh and Mahender Singh had expired. Darshan Singh was having two sons, namely Jagmeet Singh and Sukha Singh. Jagmeet Singh was married and was living separately, whereas Sukha Singh was residing with his mother Malkit Kaur. He was addicted to intoxicant. Sohan Singh alias Charanjit Singh, a resident of village Naurang, was on visiting terms with Sukha Singh. They were doing business together. The complainant further stated that Malkit Kaur was a lady of loose character. One month prior to the occurrence, the complainant had gone to the house of her daughter Guddi in village Malikpura. On 12.9.2009 at about 8.00 AM, on receiving information regarding the death of her grand- son Sukha Singh, she returned to her village and went to her house, where Sukha Singh was lying dead and preparation of his cremation had already been done. When she enquired about the cause of death from her daughter- in-law Malkit Kaur, she told that Sukha Singh was suffering from brain fever in the night, because of which he had died. She further stated that by taking all the family members in confidence, Malkit Kaur got conducted funeral ceremony of Sukha Singh. The complainant and other family members had gone in the deep grief because of the death. After about four Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -4- hours, when the complainant gained consciousness, she enquired from Malkit Kaur about the ligature marks on the neck of Sukha Singh, but she could not give any reply and by making pretext, she suddenly left the house. Thereafter, when the complainant enquired from her grand-son Jagmeet Singh, she came to know that on the last night, Sohan Singh alias Charanjit Singh had come to the house of Sukha Singh and both of them took liquor till late night. Sohan Singh alias Charanjit Singh was having illicit relations with Malkit Kaur and on this account, Sukha Singh used to quarrel with his mother. For this reason, Sohan Singh alias Charanjit Singh and Malkit Kaur had killed Sukha Singh by throttling his neck. The complainant stated that action be taken against Malkit Kaur and Sohan Singh alias Charanjit Singh. On the basis of the said statement, FIR (Ex.PH) was registered.
5. Immediately after recording the aforesaid statement, the police reached the cremation ground of village Chormar, where the dead body of Sukha Singh was being burnt and the fire was extinguished. Thereafter, the police visited the place of occurrence. The wet earth was lifted from the spot, which was taken into possession vide memo Ex.PAA. Rough site plan (Ex.PBB) of the place of occurrence was prepared. Thereafter, the police again went to the cremation ground. The partially burnt bones and ash were taken into possession vide memo Ex.PCC. Rough site plan of the said place was prepared.
6. As per the prosecution case, on the day of cremation itself, i.e. Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -5- on 12.9.2009, Malkit Kaur and Sohan Singh alias Charanjit Singh jointly made an extra judicial confession before Leela Singh (PW.11) that since Sukha Singh was an obstacle in their illicit relations, therefore, they both had committed his murder. They disclosed that Malkit Kaur had caught both arms of Sukha Singh, whereas Sohan Singh alias Charanjit Singh had pressed his neck with a Chunni.
7. On the next day, i.e. on 13.9.2009, both the accused were produced before the police. They were arrested. During interrogation, appellant Malkit Kaur suffered disclosure statement (Ex.PN) to the effect that in the evening of 11.9.2009, accused Sohan Singh alias Charanjit Singh had come to her house. She was having illicit relations with him. Sukha Singh was a hurdle in their way. In the night of that day, she had handed over a pesticide bottle, already kept in the house, to Sohan Singh alias Charanjit Singh for administering it to Sukha Singh. Sohan Singh alias Charanjit Singh and Sukha Singh took liquor while sitting together and Sohan Singh alias Charanjit Singh clandestinely made Sukha Singh to drink the liquor in which pesticide was mixed. Thereupon, Sukha Singh became unconscious. When he was struggling for life, appellant Malkit Kaur caught hold his legs and Sohan Singh alias Charanjit Singh killed him by throttling his neck. Thereafter, Sohan Singh alias Charanjit Singh left her house before sun rise. She further disclosed that after taking her son Jagmeet Singh and other family members in confidence that Sukha Singh had died due to Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -6- sudden severe brain fever in the night, he was cremated and the empty bottle of pesticide was kept concealed by her underneath the woods in the kitchen. In pursuance of her said disclosure statement, the appellant got recovered the empty bottle of pesticide which was taken into possession vide memo Ex.PQ. Rough site plan (Ex.PQ/1) of the place of recovery was prepared. Accused Sohan Singh alias Charanjit Singh suffered disclosure statement (Ex.PO) regarding demarcation of the place of occurrence. The demarcation memo (Ex.PR) was prepared at the instance of both the accused.
8. On 14.9.2009, the appellant suffered second disclosure statement (Ex.PS), wherein she stated that in her earlier disclosure statement recorded on 13.9.2009, she had not disclosed the true facts in order to save her son Jagmeet Singh who was also involved in the crime. She stated that she along with her son Jagmeet Singh had planned to kill Sukha Singh. Jagmeet Singh had brought the pesticide bottle which was kept in the house to kill Sukha Singh. She stated that she and her son Jagmeet Singh had conspired to kill Sukha Singh along with Sohan Singh alias Charanjit Singh. She alleged that when after consuming liquor, which contained pesticide, Sukha Singh did not die, then she caught hold his feet, Jagmeet Singh lifted Chunni from the clothes, wrapped the same in the neck of Sukha Singh, one side of which was held by Jagmeet Singh and the other by Sohan Singh alias Charanjit Singh and they strangulated Sukha Singh. In pursuance of the said statement, the appellant got recovered Chunni which was taken into Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -7- possession vide memo Ex.PX. Rough site plan (Ex.PX/1) of the place of recovery was prepared. The inquest report (Ex.PEE) was prepared.
9. On 14.9.2009 itself, Jagmeet Singh was produced before the police by Teja Singh (PW.12), before whom he made extra judicial confession. He was arrested. During interrogation, he suffered disclosure statement (Ex.PU) regarding his involvement in the crime. In pursuance of his disclosure statement, he demarcated the place in the fields of Jagan Singh (PW.14) from where he had lifted the bottle of pesticide, as he was working as labourer in the construction of the house of Jagan Singh in his fields. Rough site plan (Ex.PFF) of that place was prepared.
10. On 15.9.2009, post mortem of the remnants of the deceased was got conducted. Viscera, bones and burnt clothes of the deceased were made into separate parcels, and were taken into possession vide memo Ex.PM. All the parcels were sent to the Forensic Science Laboratory, Madhubna, for chemical analysis. On 9.12.2009, on an application (Ex.PE), the Doctor gave his opinion (Ex.PE/1) that the cause of death could not be ascertained due to described condition of the body.
11. After completion of investigation, the police filed challan against all the three accused. They were charge sheeted for the offences under Sections 302/34 and 201 IPC, to which they did not plead guilty and claimed trial.
12. In support of its case, the prosecution examined fifteen Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -8- witnesses. The report of the Forensic Science Laboratory, Haryana, Madhuban, was tendered into evidence as Ex.PD.
13. PW.1 Dr. Sunil Gambhir, Resident Doctor, Department of Forensic Medicine, PGIMS, Rohtak, who conducted post mortem examination on the dead body of Sukha Singh, proved the Post Mortem Report Ex.PA and his opinion Ex.PE/1 on the police application Ex.PE.
14. PW.2 Dr. Sunil Kumar, Medical Officer, General Hospital, Sirsa deposed that on 15.9.2009, he along with Dr. Virender Deep being the members of the Board of Doctors received one sealed parcel containing unidentified burnt parts of the dead body of Sukha Singh and since exact opinion regarding this case could not be given by the Board of Doctors at that time, they resealed the parcel and referred it to the Forensic Department, PGIMS Rohtak for examination vide referral slip Ex.PF/1.
15. PW.3 ASI Nihal Singh, PW.4 HC Jaivir Singh, PW.5 E/ASI Bhagat Ram, PW.6 HC Radhey Sham, Draftsman, and PW.7 ASI Hansa Raj are the formal witnesses.
16. PW8 ASI Subhash Chander, who remained associated in the investigation of this case with the Investigating Officer, fully supported the case of the prosecution.
17. PW9 Sujan Kaur, complainant, reiterated her entire version stated by her before the police in her statement (Ex.PG).
18. PW.10 Gurcharan Singh is a witness of last seen. He deposed Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -9- that on 11.9.2009 or 12.9.2009 at about 10.30 PM he was called by the wife of Pappu Singh, his God brother to bring a doctor as her daughter Kali was to deliver a child and on the way to the house of Dr. Major Singh, when he reached near the house of Darshan Singh, he saw Malkit Kaur and Sohan Singh standing in the court-yard and talking with each other that Sukha Singh was obstacle in their relations and therefore he be done away and Malkit Kaur asked Sohan Singh to take Sukha Singh inside the room for eliminating him and then he went to call the doctor. On the next morning he came to know that Sukha Singh had been murdered by Sohan Singh and Malkit Kaur.
19. PW.11 Leela Singh stated regarding the extra judicial confession made before him by the appellant and Sohan Singh alias Charanjit Singh.
20. PW.12 Teja Singh, before whom accused Jagmeet Singh allegedly suffered extra judicial confession, and PW.14 Jagan Singh, with whom accused Jagmeet Singh was allegedly working as labourer in the construction of house in his fields, did not support the case of the prosecution.
21. PW.13 HC Rajinder Singh, who delivered copies of FIR to the Illaqa Magistrate, SP and DSP, is a formal witness.
22. PW.15 Inspector Heera Singh, the Investigating Officer of the case, fully supported the case of the prosecution and proved the documents Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -10- prepared during the investigation conducted by him.
23. In their statements recorded under Section 313 Cr.P.C., all the accused denied the incriminating evidence appearing against them in the evidence and pleaded innocence. The appellant stated that at the time of occurrence, she was not present in the village and had already gone to the house of her parents. On coming to know about the occurrence through telephone message, she had come there. She further stated that she has been falsely implicated in this case at the instance of her mother-in-law Sujan Kaur. The remaining two accused also stated that they were falsely implicated in this case.
24. After hearing learned counsel for the parties, while relying upon the extra judicial confession made before PW.11 Leela Singh by the appellant and her co-accused Sohan Singh alias Charanjit Singh, statement of PW.9 Sujan Kaur (complainant), evidence of last seen by PW.10 Gurcharan Singh, and while disbelieving the defence version of the appellant and her co-accused Sohan Singh alias Charanjit Singh, the trial court convicted and sentenced them, as indicated in the first para of this judgment. However, while disbelieving the extra-judicial confession allegedly suffered by accused Jagmeet Singh, the trial court observed that no overt act has been attributed to accused Jagmeet Singh, and the prosecution has not been able to prove his involvement in the murder of Sukha Singh. Accused Jagmeet Singh was, accordingly, acquitted of the Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -11- charges framed against him.
25. No appeal has been filed against the acquittal of accused Jagmeet Singh. However, as stated in the earlier part of this judgment, accused Sohan Singh alias Charanjit Singh filed appeal (Crl. A. No. D-52- DB of 2011) against his conviction and sentence, which has been allowed by a Co-ordinate Bench of this Court vide judgment dated May 17, 2013, and he has been acquitted of the charges framed against him, by giving him benefit of doubt.
26. The case of the prosecution is based upon the circumstantial evidence. The circumstantial evidence led by the prosecution in this case, i.e. the evidence of last seen of the deceased in the company of the appellant and her co-accused Sohan Singh alias Charanjit Singh, joint extra judicial confession made by them before PW.11 Leela Singh, recovery at the instance of accused Sohan Singh alias Charanjit Singh in pursuance of his disclosure statement, and the motive, was scanned by the Co-ordinate Bench of this Court, while considering and deciding the appeal filed by accused Sohan Singh alias Charanjit Singh. Vide judgment dated May 17, 2013, by recording detailed reasons, the aforesaid circumstantial evidence were disbelieved. With regard to the evidence of extra judicial confession, the Co-ordinate Bench observed as under :
"21. Scanning the evidence with respect to extra judicial confession, reference inevitably shall have to be made to the statement of Leela Singh (PW11) before whom the alleged confession was stated to have been made.Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -12-
Leela Singh in his statement had admitted that he did not know Sohan Singh. There was retraction in the statement of Sohan Singh made under Section 313 Code of Criminal Procedure. Leela Singh was a labourer who had no connection with the police or could have provided any assistance or help to the accused. Thus, the reason for making extra judicial confession before Leela Singh remains unexplained. Further, the alleged extra judicial confession is stated to have been made on 13.9.2009 whereas according to Sujan Kaur (PW9), the accused Sohan Singh was arrested by the police from his Village around 6 PM on the same day on which her statement was recorded by the police. The statement of Sujan Kaur, complainant was recorded on 12.9.2009 on the basis of which FIR (Ex.PH) was registered on that day at 5.50 PM. Leela Singh, PW11 deposed that both the accused were produced by him on next day after the cremation. He further deposed that police had recorded his statement only once on the day of cremation of Sukha Singh. Though Heera Singh (PW15) deposed that Malkiat Kaur and Sohan Singh were arrested on 13.9.2009, but the statement of Leela Singh, is not in conformity with the version of Sujan Kaur. This leaves doubt about the testimony of the prosecution witness, Leela Singh. Taking totality of circumstances noticed above, no reliance can be placed on the extra judicial confession alleged to have been made before Leela Singh (PW11)."
Regarding the evidence of last seen, the Co-ordinate Bench made the following observations :
"25. The motive and circumstantial evidence has to be strong to prevent any other conclusion being possible on the basis of material on record to hold a person guilty of commission of a heinous crime under Section 302 IPC. Noticing the evidence relating to circumstantial and last seen evidence of Gurcharan Singh (PW10), it may be noticed that it has been deposed by him that he had seen Malkiat Kaur and Sohan Singh in the compound of Malkiat Kaur on 11.9.2009 or 12.9.2009 at 10.30 PM when they were conspiring to eliminate deceased Sukha Singh. Gurcharan Singh has failed to clear the doubts regarding his having heard the accused at such an odd hour who according to him were narrating their plans loudly Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -13- in the compound of the house. He was not sure about the date of occurrence. The witness had stated that it was raining at that time when he went to the house of Pappu and, therefore, the presence of the accused in the open compound becomes doubtful. He did not disclose the conversation of both the accused to anybody in the Village. It was stated for the first time while appearing as a witness in the Court which was explained by stating that it was narrated to the police in his statement. No explanation had been given for not bringing this to the notice of the villagers at the earliest opportunity. The doubts in his statement render the reliability of his statement of no evidentiary value. Thus, the appellant Sohan Singh could not have been held guilty on the basis of circumstantial and last seen evidence of Shri Gurcharan Singh (PW10). xxx
29. In addition to the above, certain additional circumstances and aspects of the case need to be examined. According to the prosecution version, the motive for committing the offence was to eliminate Sukha Singh who had known about the illicit relationship of his mother with Sohan Singh. It has come in the evidence that Malkiat Kaur was about 45 years of age whereas Sohan Singh was about 22 years. In such a situation, to give acceptability to such a version, it was required of the prosecution to have produced cogent and reliable evidence by way of independent witnesses who could have supported the prosecution version. Failure to do so raises doubts about the motive imputed for commission of the offence. Further, the prosecution had failed to join any independent witness during investigation of the case. No recovery of the empty liquor bottle had been made. The prosecution had failed to examine any witness who had bathed the dead body to prove alleged strangulation marks on the neck of the deceased. No poison had been detected in the post mortem report. There was unexplained delay in lodging the FIR. The FSL report did not show cause of the death of deceased Sukha Singh. Furthermore, It is commonly known that the pesticide is readily available in the house of the farmers in the village. In the absence of any mention of poison found in the post mortem report, it could not be concluded that death was due to giving pesticides to Sukha Singh and there was only suspicion in the mind of the Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -14- complainant-Sujan Kaur. Dr. Sunil Gambhir (PW1) who conducted the post mortem on the body of the deceased Sukha Singh had recorded that the scalp, skull, brain and the thoracic organs were missing. He further deposed that after going through the FSL report (Ex.PD) and the PMR (Post Mortem Report) Ex.PA/PC, the cause of death could not be ascertained in this case due to described condition of the body. The deceased was a drug addict and appears to have died due to over intoxication. The pesticide bottle at the instance of Malkiat Kaur was not sent for FSL examination. These circumstances create doubt in the mind of the court regarding commission of offence by the appellant - Sohan Singh which the learned State counsel on the basis of evidence on record has failed to clear."
While discarding the evidence of disclosure statement and recovery, the Co- ordinate Bench of this Court observed as under :-
"28. In the present case, the alleged disclosure statement of Sohan Singh would rather be hit by the provisions of Section 25 of the Evidence Act and would not be governed by Section 27 thereof as no recovery in pursuance thereof was effected. Thus, the same in the facts and circumstances of the case could not be read against the accused."
27. The allegations and evidence against the appellant and her co- accused Sohan Singh alias Charanjit Singh are almost similar. The evidence led against them is also the same. Once the evidence against co-accused Sohan Singh alias Charanjit Singh has been disbelieved by a Co-ordinate Bench of this Court, the same evidence cannot be believed against the appellant. The only additional evidence against the appellant is the recovery of empty pesticide bottle and the Chunni allegedly used in the crime at her instance.
28. So far as recovery of the empty pesticide bottle at the instance Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -15- of the appellant is concerned, we are of the opinion that the prosecution has failed to prove the same beyond shadow of reasonable doubt. As per the prosecution case, a pesticide bottle was brought by accused Jagmeet Singh from the fields of PW.14 Jagan Singh, which was kept by him in his house and was later on handed over by the appellant to her co-accused Sohan Singh alias Charanjit Singh for administering the pesticide to Sukha Singh after mixing the same in the liquor. PW.14 Jagan Singh, while appearing in the witness box, did not support the case of the prosecution and he specifically stated that accused Jagmeet Singh never worked as labour in the construction of house in his field at any point of time nor he ever took any bottle of pesticide. Thus, the question of recovery of any such empty bottle at the instance of the appellant does not arise. The recovery of Chunni at the instance of the appellant is doubtful, as this recovery was allegedly effected in pursuance of the second disclosure statement (Ex.PS) suffered by the appellant.
29. On evaluation of the case, the Co-ordinate Bench of this Court, vide judgment dated May 17, 2013, while allowing the appeal filed by co- accused Sohan Singh alias Charanjit Singh, reached the conclusion that the prosecution has failed to establish the circumstantial evidence, and Sohan Singh alias Charanjit Singh was entitled to benefit of doubt. We are of the opinion that at that time, the same benefit should have been extended to Malkit Kaur (the appellant herein), who is similarly situated, though by that Dass Narotam 2014.05.20 13:41 I attest to the accuracy and integrity of this document Crl. A. No. D-505-DB of 2014 ( O&M ) -16- time she had not challenged the order by way of an appeal. In this regard, reference can be made to Bijoy Singh and another v. State of Bihar, 2003 SCC (Criminal) 1093.
30. In view of the above, and for the reasons recorded by the Co- ordinate Bench of this Court, while allowing Criminal Appeal No. D-52-DB of 2011, filed by Sohan Singh alias Charanjit Singh, the instant appeal is also allowed, and the impugned judgment of conviction as well as the order of sentence qua appellant is set aside. Appellant Malkit Kaur, who is in custody, be set at liberty forthwith, if not required in any other case.
( SATISH KUMAR MITTAL )
JUDGE
May 14, 2014 ( KULDIP SINGH )
ndj JUDGE
Dass Narotam
2014.05.20 13:41
I attest to the accuracy and
integrity of this document