Punjab-Haryana High Court
Vikas @ Vicky vs State Of Haryana on 15 September, 2014
Author: Surinder Gupta
Bench: Rajive Bhalla, Surinder Gupta
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No.D-1042-DB of 2009
Date of decision : September 15, 2014
Vikas @ Vicky
... Appellant
vs.
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Bijender Dhankar, Advocate
for the appellant.
Mr. Baldev Singh, Addl. A.G. Haryana
for the respondent-State.
Surinder Gupta, J
1. This is an appeal against the judgment dated 30.10.2009
passed by Sessions Judge, Ambala in Sessions Case No.19 of 2009,
convicting and sentencing the appellant for imprisonment for life and to pay
fine of `5,000 for offence punishable under Section 302 IPC and in default
of payment of fine to further undergo rigorous imprisonment for six months.
2. As per the prosecution case, on 26.3.2009, SI/SHO Harish
Chander, Police Station Sadar, Ambala was present with his police party at
Ghel Road, Heera Nagar, Ambala City for patrol duty on Government
vehicle No.HR-37C-0345, where complainant Budh Ram along with his
mother Saroj Bala and uncle Pawan Kumar met him and got recorded their
statement (Ex.P2), English translation of which is as follows :-
"I am resident of aforesaid address and do labour work. We
are two brothers and three sisters. My elder sister Suman was
married to Anil Kumar son of Om Parkash caste Kumhar, r/o
Heera Nagar, Ambala City about fifteen years back. My sister
Suman has two sons and two daughters. Today, on
26.3.2009, I had come to Ghel Road, Heera Nagar, Ambala
City along with my aunt Smt. Sunita wife of Prem Chand caste
DEEPAK KUMAR
2014.11.18 12:01
I attest to the accuracy and
integrity of this document
Crl. Appeal No.D-1042-DB of 2009 -2-
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Kumhar r/o H.No.112 Ward No.9, Kurali, Punjab to see my sister Suman. At about 7.00 p.m. when we reached the house of my sister Suman, we saw that Vikas @ Vicky son of Mam Raj caste Kumhar, r/o Heera Nagar, Ghel Road, Ambala City, who is the son of real uncle of my brother-in-law (Jija) Anil Kumar, was giving repeated blows on the body of my sister Suman with a churri type weapon, which he was holding in his right hand. On seeing us, he ran away from the spot by scaling the wall of his house along with his weapon. My sister died at the spot due to the injuries received by her. I went to my village to bring other members of my family after leaving my aunt Sunita Devi at the spot. Now I have got recorded my statement after coming along with my mother Saroj Bala and uncle Pawan Kumar son of Charan Dass r/o Morinda. I was told by my sister on telephone that Vikas @ Vicky used to keep grudge against her due to some reason. Vikas @ Vicky has murdered my sister Suman by causing her injuries with chhuri type weapon. Legal action be taken against Vikas @ Vicky son of Mam Raj."
3. After recording statement of Budh Ram, SI/SHO Harish Chander made an endorsement Ex.P23 and forwarded the statement to the Police Station Sadar, Ambala City where FIR No.46 dated 27.3.2009 for offence punishable under Section 302 IPC was registered.
4. SI/SHO Harish Chander visited the spot, inspected the dead body and the place of occurrence. A photographer was called to take photographs of the dead body and information was sent to the Deputy Superintendent of Police concerned who also reached the spot.
5. SI/SHO Harish Chander lifted blood from near the dead body of Suman with the help of cotton and put the same in a plastic container which was sealed with the seal bearing impression "HC" and was taken into possession vide recovery memo Ex.P9. Rough site plan of the place of occurrence Ex.P24 was prepared. Death report Ex.P19 was prepared DEEPAK KUMAR 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -3- *** and the dead body was sent to the Civil Hospital, Ambala for postmortem examination with the request application Ex.P17.
6. The postmortem examination was conducted by Dr. T.S. Sahni PW-8 and he found the following injuries on the person of the deceased :-
1. Incised wound present on left side of upper neck measuring 13 cm in length and 2 cm in width at centre and width was tapering from sides. Wound was extending from below chin and up to the anterior border of sterno cleido mastoid. Cut blood vessel, sub cutaneous tissue and muscle were exposed and on bed contained clotted blood.
2. An oblique oval shaped sized wound measuring 1 cm x .
8 cm x depth upto bone (sternum) was present on the centre of chest just left of midline and 8 cm above the xiphisternum.
3. Two oblique abrasions present on the right side of mid line of chest, 1 cm and 1.5 cm in length respectively, dermis deep.
4. Slightly oblique stab incised wound 5 cm x .8 cm in length and breath was present on left lower part of breast, going deep into the chest in the fourth inter costal space. Oozing of blood was present. On dissection sub cutaneous tissues showed extra vasation of blood. On further dissection of chest wall wound in fourth inter costal space corresponding to this was present on the anterior surface of left ventricle of heart just above the apex. Blood was present in left thorax cavity. Medial border of the wound was 8 cm from mid line and 5 cm below nipple.
5. Horizontal hole shaped stabwound with incised margin was present in the epigastic region in the centre about 11.5 cm below xiphisternum just left to mid line and going deep into the abomenal cavity. On dissection, sub cutaneous tissue was extra-vasated, peritoneum was cut and mesentery was cut.DEEPAK KUMAR 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -4-
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6. L shaped incised wound was present on the posterio lateral aspect of posterior wall of left fore arm about 5 cm x 3 cm.
7. In the opinion of the doctor, the injury in the heart as a result of penetrating stab wound, as described in injury No.4 was sufficient to cause death in the ordinary course of event. The clothes on the dead body were put in a sealed parcel which were taken into possession vide recovery memo Ex.P10. The dead body was handed over to the relatives of the deceased vide receipt Ex.P11.
8. On 27.3.2009, the appellant was found near Railway Station, Ambala Cantt and arrested. There were blood stains on his shirt, which was taken into possession vide recovery memo Ex.P12. During interrogation, the appellant suffered a disclosure statement Ex.P14, that he had kept concealed the knife used in the crime at Ghel Road, Heera Nagar, Ambala. The appellant led the police party and got the knife (Ex.MO-5) recovered. A rough sketch of the knife, Ex.P16, was prepared. The knife was put in a parcel, sealed with the seal and taken into possession vide recovery memo Ex.P15.
9. On 31.3.2009, SI/SHO Harish Chander moved application Ex.P26 to the Cyber Cell, Ambala for securing the call details of the mobile phone of the deceased Suman and Swarna. The call details Ex.P27 was obtained and taken into possession vide recovery memo Ex.P28.
10. The blood taken from the spot, clothes of the deceased and shirt of the appellant were sent to the Forensic Science Laboratory, which were found to be blood stained vide FSL report Ex.P7 and blood on the shirt and salwar of the deceased and shirt of the appellant were found to be of group "O" vide report Ex.P8.
DEEPAK KUMAR 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -5-
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11. On 12.5.2009, SI Harish Chander moved application Ex.P21 to take opinion of the doctors as to whether injuries on the person of deceased could be caused with knife (Ex.MO-5). The doctors gave their opinion (Ex.P22) that possibility of injury No.4 on the person of deceased being caused by this knife or this kind of weapon cannot be ruled out.
12. On completion of investigation, final report under Section 173 (2) Cr.P.C. was presented in the Court. Copies of the report and documents relied upon by the prosecution were supplied to the appellant. Additional Chief Judicial Magistrate, Ambala, vide order dated 10.7.2009 committed the case for trial to the court of Sessions and the trial was conducted by the Sessions Judge, Ambala.
13. On finding a prima facie case for offence punishable under Section 302 IPC, appellant was charge sheeted vide order dated 22.7.2009 to which he pleaded not guilty and claimed trial.
14. In support of its case, the prosecution examined 11 witnesses which included the complainant who appeared as PW-5, Anil Kumar husband of the deceased PW-9, Sunita Rani eye witness of the occurrence PW-10 and SI/SHO Harish Chander Investigating Officer as PW-11.
15. On completion of the prosecution evidence, statement of the appellant under Section 313 Cr.P.C. was recorded and he was confronted with the entire incriminating evidence produced against him by the prosecution which he denied and stated in his defence as follows :-
"I am innocent. I have not committed any offence. I had not caused any injury to deceased Suman with knife. I have been implicated falsely. I have not suffered any disclosure statement and had not got recovered any knife. My signatures were obtained on blank papers by the police which were DEEPAK KUMAR converted into disclosures and memos later on. I was never 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -6- *** annoyed with the relations of Suman and Swarna. Moreover, there was no relationship of any kind between Suman and Swarna."
16. The appellant examined Balbir Singh DW-1, in his defence.
17. After completion of trial, arguments were heard and appellant was convicted and sentenced as narrated in para No.1 above.
18. Learned counsel for the appellant has argued that the entire version of the occurrence as put forth by the prosecution is highly improbable. There is delay in reporting the matter to the police. As per prosecution version, the occurrence had taken place at about 7.00 p.m. on 26.3.2009. The statement of the complainant (Ex.P2) was recorded by the police at 11.55 p.m. and was recorded in the Daily Diary Register of the Police Station Sadar, Ambala at 12.30 a.m. on 27.3.2009. This delay has not been explained.
19. Learned counsel for appellant has further argued that version of the occurrence as put forth by the prosecution is quite unnatural. Budh Ram PW-5 had not acted like an ordinary man of common prudence. He has stated that after the occurrence he went to his village Morinda by leaving his aunt Sunita Rani at the spot instead of rushing to the police. The presence of the complainant and his aunt Sunita Rani at the spot is also doubtful as they never intervened to save the deceased or tried to nab the appellant. In case they were present at the spot while the appellant was stabbing the deceased, they would have intervened and in the process would have received some injuries. To prove its case, the Investigating Agency has padded the evidence like showing the recovery of knife from the appellant on the basis of the disclosure statement and recovery of his blood stained shirt. The motive as alleged by the prosecution for the crime has not been proved. Learned counsel for the appellant has argued that in DEEPAK KUMAR 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -7- *** view of the above facts and circumstances, the appellant deserves to be acquitted.
20. Learned State counsel has argued that it is a case of an eye witness account of the occurrence and circumstantial evidence also proves that the appellant had murdered the deceased. The police has recovered the knife used in the occurrence from the appellant. It was also shown to the Board of Doctors who have opined that injury No.4 on the person of the deceased was possible with this knife. At the time of his arrest, the appellant was wearing a blood stained shirt which was also sent to the Forensic Science Laboratory and the blood group of the stains of the blood on the shirt of appellant tallied with the blood group of the deceased. It is no where the case of the appellant or suggested to prosecution witnesses that the shirt recovered did not belong to the appellant. The complainant along with his aunt had gone to Ambala for shopping as marriage of the complainant had been fixed and Ambala is a shopping centre for clothes and jewellery. The complainant was a young boy of the age of 24-25 years at the time of occurrence. The way he acted after the occurrence shows his natural reaction. He left his aunt Sunita Rani at the spot and immediately rushed to his house at Morinda and called his mother and other relatives to the spot. After the occurrence it was not expected from the complainant to act in a mechanical manner. It took some time for him to re-concile and compose himself and then to report the matter to the police. There is no substantial delay in reporting the matter to the police. The complainant and eye witness have absolutely no animus against the appellant for his false implication. They have categorically stated that when they reached the house of the deceased, the appellant was causing her injuries and on witnessing them, he ran away after scaling the wall. This explains as to why the complainant and his aunt could not react to save the DEEPAK KUMAR 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -8- *** deceased or catch the appellant at the spot. The medical evidence produced by the prosecution corroborate the testimony of the complainant and eye witnesses. Eye witness account of the occurrence read with medical and circumstantial evidence fully prove the case of the prosecution.
21. We have heard the submissions of the learned counsel for the appellant, learned State counsel and have carefully perused the record.
22. The deceased was married to Anil Kumar PW-9. The appellant is the cousin of Anil Kumar. The motive for the occurrence has been explained by Anil Kumar while appearing as PW-9. He has stated that his wife (deceased) was having illicit relation with one Sonu @ Swarna resident Bari Ghel for last about 4-5 years. He tried to impress upon her to mend her ways. A panchayat was also convened but she threatened to commit suicide. Anil Kumar PW-9 has stated that he is a man of weak heart and remained mum but the appellant committed the murder of his wife as he was annoyed due to her relationship with Sonu @ Swarna.
23. Anil Kumar PW-9 is not an eye witness of the occurrence but was apprised of the manner in which his wife was killed, by Budh Ram complainant and Sunita Rani. He was employed as delivery man with Hindustan Gas Agency, Ambala City. He has stated that Budh Ram complainant informed him about the murder of his wife at 8.15 p.m. and thereafter he reached his house on motor cycle. Budh Ram had gone to his village. On reaching his house, he found Sunita, parents of the accused and the children present there. The statement of this witness is relevant to prove the motive of murder of his wife by the appellant. This witness is otherwise related to the appellant. He had no animus against him rather his grievance was against the deceased. His testimony that appellant was annoyed due to relationship of the deceased with Sonu @ Swarna and DEEPAK KUMAR 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -9- *** murdered her, has not been rebutted in cross examination.
24. Budh Ram complainant while appearing as PW-5 has stated that on the day of occurrence, they have gone to the house of the deceased to meet her and witnessed the appellant giving stabs to the deceased. He has stated that deceased was married with Anil Kumar PW- 9 about 15 years back. The youngest daughter of the deceased Suman is living with the family of the appellant. The deceased and her husband had faith in the accused and have given their youngest daughter to him. Even after the crime she is still with the family of the appellant. The appellant was known and had met the complainant 4-5 times, at his residence, thereby ruling out possibility of confusion regarding identity of the appellant. Budh Ram has also explained his reason for visiting Ambala. He had gone to Ambala with his aunt for shopping in connection with his marriage which was fixed for 18.4.2009. He got his marriage card printed from Ambala. He has stated that after the incident he did not chase the appellant as his sister had already died. Sunita Rani PW-10 has supported and corroborated the testimony of complainant Budh Ram.
25. Now the question that arises in this case is whether the conduct of the complainant and Sunita Rani is improbable or unnatural and whether their testimony as eye witnesses can be believed?
26. The facts and circumstances of the case show that the complainant was present at the time of occurrence with Sunita Rani his aunt. It is the complainant who gave information of the murder of the deceased to Anil Kumar, her husband. The statement by Anil Kumar that when he reached his house at about 8.30 p.m. Sunita Rani PW-10 was present is unrebutted. After such a tragic incident, a human being does not act like a machine or follow a particular pattern. The complainant rushed to his village Morinda which was at a distance of 60 kms. He returned with DEEPAK KUMAR 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -10- *** his mother and other relatives and then reported the matter to police. There is delay of about 4/5 hours in reporting the matter to police but the same is not material. In this case, the complainant instead of rushing to police rushed to his village to call his mother and other relatives. During this period, Sunita Rani PW-10 remained at the spot. The manner in which the complainant, a young boy of 24 years of age and Sunita Rani, acted after the incident cannot be termed as either suspicious or abnormal. The complainant informed husband of deceased, left his aunt near the dead body of his sister and rushed to call his mother and other relative. This shows that he acted in normal and prudent manner to the best of his wisdom.
27. The testimony by eye witnesses finds corroboration from two other circumstances. The shirt which the appellant was wearing at the time of his arrest was blood stained and stains of blood on the shirt were found to be of the blood group of the deceased. The appellant has not explained as to how the blood of the group "O" which was found on the clothes of the deceased was also found on his shirt. He could not explain as to how his shirt received blood stains. It is not disputed that youngest daughter of the deceased is living with family of the appellant. This fact rather shows that complainant had no reason to depose against the appellant or to falsely implicate him. From the statement of complainant Budh Ram PW-5, Sunita Rani PW-10 and Anil Kumar husband PW-9, it was clearly made out that appellant could not bear the relationship of the deceased with a person named Sonu @ Swarna and murdered her.
28. The statement of DW-1 Balbir Singh that he informed the husband of the deceased about the incident who reached the spot at 6.30 p.m. and then on his asking Anil Kumar informed his in-laws is not reliable as no such suggestion was given to Anil Kumar when he appeared as PW- DEEPAK KUMAR 2014.11.18 12:01 I attest to the accuracy and integrity of this document Crl. Appeal No.D-1042-DB of 2009 -11-
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9. The version given by this witness appears to be an after thought. The weapon used while committing the crime was recovered from the appellant. Though no blood was found on the weapon still the medical opinion that possibility of injury No.4 on the person of the deceased which proved fatal, having been caused with this weapon cannot be ruled out, connects the weapon with the crime. It has to be kept in mind that the occurrence took place on 26.3.2009 and the weapon was recovered on 29.3.2009, as per disclosure statement of the appellant. There was enough time and opportunity available with the appellant to wash the weapon of offence. The testimony of the complainant supported by Sunita Rani PW-10 find further corroboration from the testimony of Anil Kumar PW-9 coupled with the recovery of weapon of offence, shirt with blood stains of the group which was found on the clothes of the deceased, read along with the motive for crime, proves commission of the offence of murder by the appellant. The testimony of the prosecution witnesses, documents on record, fact and circumstances are worthy of reliance.
29. In view of which has been recorded here-in-above, we find no legal or factual infirmity in the judgment and order of sentence of trial court, calling for any interference and dismiss the appeal.
(Rajive Bhalla) (Surinder Gupta)
Judge Judge
September 15, 2014
deepak
DEEPAK KUMAR
2014.11.18 12:01
I attest to the accuracy and
integrity of this document