Crl. A. No.865-DB of 2006 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. A. No.865-DB of 2006
DATE OF DECISION: MARCH 17, 2009
Nishabar Singh and others
.....APPELLANTS
Versus
State of Haryana
....RESPONDENT
Present: Mr.R.S. Rai, Senior Advocate
with Mr.Gautam Dutt, Advocate,
for the appellants.
Mr.Partap Singh, Addl.Advocate
General, Haryana.
..
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
---
SATISH KUMAR MITTAL, J.
This criminal appeal has been filed by five accused, namely,
Nishabar Singh, Puran Singh alias Kalu (both brothers), Gurmit Singh alias
Ghelu, Gurprit Singh alias Sonu and Paramjit Singh (sister’s sons of accused
Nos.1 and 2) against their conviction under Section 302 read with Section
149 IPC for committing the murder of Kulwinder Kaur wife of accused
No.1 and sentence to undergo life imprisonment with a fine of Rs.10,000/-,
in default of payment of which, they were directed to further undergo
rigorous imprisonment for a period of six months; and also against their
conviction under Section 148 IPC and sentence to undergo rigorous
imprisonment for a period of one year. However, both the sentences were
Crl. A. No.865-DB of 2006 -2-
ordered to run concurrently. Sixth accused, namely, Nazar Singh, brother of
accused Nos.1 and 2, has been acquitted by the trial Court.
2. In brief, the prosecution version is that deceased Kulwinder
Kaur was married with accused Nishabar Singh on 14.2.1999. Soon after the
marriage, accused Nishabar Singh and his family members started teasing
and giving beating to deceased Kulwinder Kaur for bringing less dowry. On
that account, in the year 1999 itself, Kulwinder Kaur left her matrimonial
home and started residing at her parents house in Karnal. Thereafter, she got
registered a criminal case against accused Nishabar Singh and his family
members under Sections 406, 420, 498-A and 506 IPC. In that case only
Nishabar Singh was challaned. During the pendency of the said case,
deceased Kulwinder Kaur also filed a petition for dissolution of marriage
on the ground of cruelty and harassment by her husband. Subsequently, the
said petition was converted into a petition under Section 13-B of the Hindu
Marriage Act for seeking decree of divorce by mutual consent. Accordingly
on 13.10.2001, on the statement of both the parties, the marriage was
dissolved by a decree of divorce with mutual consent. But the criminal case
got registered by deceased Kulwinder Kaur still remained pending. On
24.5.2002 the alleged occurrence had taken place in which Kulwinder Kaur
was alleged to have been murdered by the aforesaid six accused. In this
case, FIR No.246 was got registered on 24.5.2002 at Police Station City,
Karnal under Sections 148, 302/149 IPC on the statement (Ex.P11) made by
Gurmeet Singh (PW2), brother of deceased Kulwinder Kaur.
3. In his statement, PW2-Gurmeet Singh, in addition to the afore-
stated facts with regard to the previous litigation, stated that on 24.5.2002 at
about 6.00 p.m. he had gone to the market along with his sister Kulwinder
Crl. A. No.865-DB of 2006 -3-
Kaur on the motor-cycle from where they had returned to their house after
half-an-hour after purchasing some household articles. At that time his
mother Pritpal Kaur (PW3), his wife Gagandip Kaur, who was examined by
the accused as DW8, were present at his house. At about 6.45 p.m., his
sister Kulwinder Kaur went to toilet constructed outside the house. When
she reached the middle of the street, in the meantime, they heard the cries of
his sister Kulwinder Kaur, upon which he, his wife and his mother came
out of the house and saw that Nishabar Singh (accused No.1) armed with
sword, Nazar Singh, armed with iron Datra, Puran Singh alias Kalu
(accused No.2) armed with sword, Gurmit Singh alias Ghelu, armed with
Gandasi, Gurprit Singh alias Sonu armed with knife and Pammu son of
Jasbir Singh, armed with knife were attacking his sister Kulwinder Kaur
with their respective weapons. When they raised raula “Mar-Dia Mar-Dia”,
the accused after giving injuries to his sister, chased them in the lane along
with their weapons. Due to fear, they went inside the room of their house
and bolted the door from inside. Thereafter, the accused tried to break open
the door but they could not succeed. On hearing the noise of neighbourers,
the aforesaid accused ran away along with their respective weapons.
Thereafter they came in the lane and found that Kulwinder Kaur was lying
dead. She had received injuries on her arm, neck, head, right cheek and
right leg with sharp edged weapons. It was also stated that the assailants had
also taken away one gold necklace, earrings and a ring from the body of his
sister, which were worn by her, therefore, action be taken against the
aforesaid accused for committing the murder of his sister.
4. After registration of the case, the police visited the spot,
prepared the inquest report and sent the dead body of Kulwinder Kaur to
Crl. A. No.865-DB of 2006 -4-
General Hospital, Karnal for post mortem. On 25.5.2002, Dr.Rakesh
Girdhar, Medical Officer, General Hospital, Karnal conducted post mortem
of deceased Kulwinder Kaur. In his post mortem report (Ex.PA) which he
had proved in the Court, he found the following injuries on the person of
deceased Kulwinder Kaur:-
“1. 3 cm x 1.2 cm bone deep incised wound with fractured
fragment coming out of wound with partial skin thickness
deep incised wound extending 6 cm. medially.
2. 5 cm x 1 mm skin deep incised wound on anterior aspect
of right shoulder.
3. 12 cm x 3 mm skin deep incised wound on right upper
breast.
4. 8 cm x 5 mm skin deep incised wound on right breast just
below injury No.3, 6 cm above the right nipple.
5. 11 cm x 4 cm x skull deep incised wound on left parital
region of scalp in coronal plain in line with pinna. There
is fracture of the underlying skull bone with disruption of
membranes and brain matter was coming out of wound.
Brain matter was disrupted up to 2 cm deep.
6. 13 cm x 4 cm incised wound just below mandible with cut
pharynx and posterior angles of mendible up to mouth
cavity deep.
7. 2 cm x 5 mm incised wound on front of mid part of neck.
Exploration of the wound revealed through and through
cut of trachea and esophagus with food contents coming
out of the wound.
8. 7 cm x 5 mm x skin deep incised wound on the left side
of neck vertically placed.
9. 2 cm x 2 mm incised wound on the left ear lobule.
10. 2 cm x 5 mm incised wound just lateral to left eyebrow.
11. 5 cm x 2.5 cm incised wound and on the anterior aspect
of left shoulder with fracture of the humerus with 12 cm
partial skin deep extension downwards which was 2 mm
Crl. A. No.865-DB of 2006 -5-wide.
12. 5 cm x 2 mm incised wound skin deep on medical side of
mid arm.
13. 5 cm x 2 cm incised wound on posterior aspect of left arm
7 cm above the left elbow with fracture of the humerus.
14. 8 cm skin deep incised wound on posterior aspect of the
left arm.
15. 7 cm x 2 cm incised wound skin deep 2 cm distal to the
elbow joint.
16. 4 cm x 2 cm bluish contusion on the back of left elbow
joint.”
In his opinion, the cause of death of the deceased was due to shock and
haemorrhage as a result of injuries to vital organs. All the injuries were
found ante-mortem in nature and sufficient to cause death in ordinary course
of nature. This witness in cross-examination has stated that possibilities of
all the injuries having been caused with gandasi (Ex.P8), cannot be ruled
out. He further stated that the possibility of the injuries caused on the person
of deceased with gandasi is more than a sword.
5. During investigation, accused Nishabar Singh was arrested on
1.6.2002 and from his possession the gandasi (Ex.P8) was recovered vide
recovery memo Ex.P24. On 2.6.2002, on his disclosure statement, his
clothes, which he was wearing at the time of the occurrence, were got
recovered vide recovery memo Ex.P25. In the investigation, no other
recovery was effected from any of the other accused. Further, during the
investigation, which was also conducted by DSP and got verified by SP, all
the other accused except Nishabar Singh were found innocent. Therefore,
the challan was filed only against accused Nishabar Singh.
6. After commitment of the case against accused Nishabar Singh,
Crl. A. No.865-DB of 2006 -6-
he was charge-sheeted for the offence under Section 302 IPC to which he
pleaded not guilty. After examination-in-chief of three witnesses, namely,
PW1-Dr.Rakesh Girdhar, PW2-Gurmeet Singh (complainant) and PW3-
Pritpal Kaur, the prosecution filed an application under Section 319 Cr.P.C.
for summoning the aforesaid five accused, who were found innocent during
the investigation. Initially, the said application was dismissed by the trial
Court, but this Court, on a revision petition filed by the complainant against
the said order, allowed the same vide order dated October 27, 2005 and
ordered for summoning the aforesaid five accused to face the trial.
7. After appearance of the summoned accused, all the six accused
including accused Nishabar Singh were charge-sheeted for the commission
of offence punishable under Sections 148 and 302 read with Section 149
IPC to which they pleaded not guilty and claimed trial.
8. In support of its case, the prosecution examined 11 witnesses,
including PW1-Dr.Rakesh Girdhar, who conducted post mortem of the
deceased; PW2-Gurmeet Singh (complainant), who fully supported the case
of the prosecution. However, in his examination-in-chief before the court
he stated that Nishabar Singh was armed with gandasa and other accused
were armed with gandasis and swords etc.; PW3-Pritpal Kaur, mother of the
deceased. She has also fully supported the prosecution version; PW4-
Constable Vir Shakti Singh, Draftsman, (a formal witness); PW5-Sat Pal,
Photographer (a formal witness); PW6-Constable Nirmal Kumar, a witness
of delivery of special report to Illaqa Magistrate, which was delivered at
about 1.35 a.m. on 24/25.5.2002; PW7-EHC Lakhwant Singh, (a formal
witness),who proved his affidavit Ex.P20; PW8-Constable Balwan Singh (a
formal witness), who proved his affidavit Ex.P21; PW9-Vipin Kumar,
Crl. A. No.865-DB of 2006 -7-
Additional Ahlmad in the Court of JMIC, Karnal, who proved on record
about the pendency of the criminal case under Sections 406/420/498-A and
506 IPC against accused Nishabar Singh. PW10-Mohinder Kumar,
Inspector, who partly investigated the case and before whom accused
Nishabar Singh was produced and a gandasi (Ex.P8) was recovered from
him vide recovery memo Ex.P24 and before whom on the disclosure
statement of Nishabar Singh, the clothes were got recovered. PW11-SI
Jagan Nath, who after the occurrence went to the spot and got recorded the
statement of the complainant and got registered the FIR in question. This
witness also partly investigated the matter.
9. In his statement under Section 313 Cr.P.C., accused Nishabar
Singh pleaded that he was innocent and was falsely implicated. He had
taken the defence that his marriage with deceased Kulwinder Kaur was a
simple marriage and no dowry was given and taken in the marriage. After
the marriage, he came to know that his wife Kulwinder Kaur was of loose
character and she had illicit relations with many people. He stated that
before his marriage, his wife left her parents house with one Teji Pandit
resident of Shiv Colony, Karnal and remained with him for 15 days, and
thereafter, the matter was compromised, but this fact was not disclosed to
him before his marriage. When this fact came to his knowledge, the
differences occurred between him and his wife. Since she could not face the
circumstances, therefore, she left the matrimonial home. Thereafter he tried
to sort out the differences by convening a Panchayat and to bring back his
wife, but she did not return. Thereafter, a criminal case was got registered
by her against him, but after some time, the matter was compromised and a
consent decree of divorce was passed on 13.10.2001. Since then he did not
Crl. A. No.865-DB of 2006 -8-
have any connection with his wife Kulwinder Kaur. He further took the
stand that thereafter he came to know that Kulwinder Kaur left her parents
house and remained with said Teji Pandit for a period of ten days. When she
came back to her parents house, she was given beating by the complainant
party with the sharp edged weapons due to which she died on 24.5.2002.
When the complainant party was in the process of throwing the dead body
of Kulwinder Kaur in Yamuna Canal, which was just adjacent to their
residential house, they apprehended that they were noticed by someone,
therefore, they left the dead body in the street and raised alarm that their
son-in-law committed the murder of their daughter. He further stated that he
had neither any motive to commit the murder of Kulwinder Kaur nor
committed her murder.
10. The other accused in their statements have pleaded innocence
and had taken the stand that they were neither present at the spot nor
participated in the alleged occurrence. Accused Nazar Singh pleaded that he
was innocent and was neither present at the spot nor participated in the
occurrence. Rather, he was on his duty and posted at Jind in police
department.
11. In defence, the accused examined eight witnesses. DW1-DSP
Om Parkash Narwal was examined in order to prove that during
investigation of the case except accused Nishabar Singh, he found the
remaining five accused, namely, Nazar Singh, Puran Singh alias Kalu,
Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh alias
Pammu as innocent. DW2-HC Narender Singh, Police Line, Jind was
examined to prove the plea of alibi taken by accused Nazar Singh. This
witness has proved that on the date of occurrence, accused Nazar Singh was
Crl. A. No.865-DB of 2006 -9-
present and posted at Police Station Sadar, Jind and on 24.5.2002 at 11.00
a.m., he reported for duty vide DDR No.18 dated 24.5.2002. DW3-Mukesh
Kumar, Miscellaneous Clerk, Tehsil Office, Karnal, who proved various
affidavits, which have been exhibited as Mark DC to Mark DP, given by
various persons to the effect that other five accused were innocent and they
were falsely implicated. DW4-Ram Lubhaya, who was neighbourer and
who went to the spot immediately after the occurrence, had stated that when
he reached the spot, Ranjit Singh, his wife, his daughter-in-law and his son
were already present at the spot. But they did not disclose to him as to who
had committed the murder of Kulwinder Kaur. He further stated that a
Panchayat was convened in which he had also participated and as per their
verification, five accused, namely, Nazar Singh, Puran Singh alias Kalu,
Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh alias
Pammu were innocent. DW5-Ranjit Singh, father of the deceased in his
statement, which was recorded on 1.2.2006, stated that on 24.5.2002 he
reached his house at about 7.15 p.m., i.e., after the alleged occurrence, but
none of his family members told him that they had witnessed the
occurrence nor any other person had narrated him about having seen the
occurrence. He did not tell the police about the name of culprit as he was
not present at the spot at the time of the occurrence. However, in cross-
examination, he has admitted that the inquest report Ex.P3 bears his
signatures as well as signatures of his brother Tirlochan Singh. He further
admitted that he moved an application before the trial Court for providing
police protection to the witnesses as the accused were threatening them. He
also admitted that he moved such application on 5.12.2005. On that
application, the police help was provided to them. He stated that they were
Crl. A. No.865-DB of 2006 -10-
apprehending danger to their lives while coming to the court. He further
stated that he left Karnal and shifted to village Gorgarh because his
daughter was murdered and also apprehending danger to their lives. He had
further stated that after the statement of Pritpal Kaur (PW3) in the court,
accused Gurmit Singh alias Ghelu moved an application to CIA Staff,
Karnal against them for the murder of his daughter Rajwinder Kaur alias
Babli, who died due to heart attack. On that application, they were called by
the police of CIA Staff, Karnal, though he had denied the suggestion that
under the threat of accused they have compromised with the accused outside
the court. DW6-ASI Ram Kishan, CID Unit, Fatehabad and DW7-KHC
Ravinder Kumar, Police Lines, Jind were also examined to establish the
plea of alibi taken by accused Nazar Singh. DW7 had stated that as per
record, on the date of the occurrence, he had delivered the arms to
Constable Nazar accused at about 8.00 p.m. after obtaining his signatures
on the arms distribution register. DW8-Gagandeep Kaur is wife of the
complainant. Though she was the eye-witness, but has not supported the
prosecution version. She had stated that she had not seen the occurrence.
Her statement was recorded on 10.2.2006.
12. In defence, the accused have also placed on record the
statements Ex.D10 and Ex.D11 made by Pritpal Kaur, mother of the
deceased and complainant Gurmeet Singh, respectively, in the criminal case
registered under Sections 406, 420, 498-A and 506 IPC. In those statements,
these witnesses have stated that there was no demand of dowry by accused
Nishabar Singh and there was no dispute between the married couple and
the deceased was never harassed, beaten or tortured by her husband. It was
further stated that Kulwinder Kaur was murdered, but they did not know
Crl. A. No.865-DB of 2006 -11-
who had murdered Kulwinder Kaur. They have specifically stated that
neither accused Nishabar Singh nor his relatives murdered Kulwinder Kaur.
13. It is pertinent to mention here one more fact which is very
relevant that after the examination of Gurmeet Singh (complainant) and
Pritpal Kaur , the accused moved an application under Section 311 Cr.P.C.
for re-examination of Gurmeet Singh (PW2) and Pritpal Kaur (PW3) on the
ground that those witnesses had not truly stated the facts to the court under
the pressure of the police. The said application was dismissed on 10.2.2006.
Thereafter on 20.2.2006 another application was filed by complainant
Gurmeet Singh (PW2) and Pritpal Kaur (PW3) for their re-examination on
the same ground. The said application was also dismissed by the trial Court
while observing as under:-
“12. It appears that after making the statements by these
witnesses, some development has taken place outside the court
and due to that development, it appears that the present
application has been moved by the complainant just to wash
out their earlier statements. So far as the plea that earlier
statements have been made by these witnesses under police
pressure is totally without any substance. Ranjit Singh, father
of the present complainant and husband of PW3 Smt. Pritpal
Kaur has appeared as DW5 and in the cross-examination he has
categorically admitted that he has moved an application before
this court that prosecution witnesses should be provided the
police protection as the accused were threatening them. He
further admitted that on the basis of that application they were
provided police protection. He further admitted that the said
application was moved by him on 5.12.2005. He further
categorically admitted that they apprehended danger while
coming in the court and they left Karnal and shifted to village
Gorgarh, because their daughter was murdered and they were
Crl. A. No.865-DB of 2006 -12-apprehending the danger to their life. These admissions of the
father of the complainant show that they were having the threat
not from the police, but from the accused that is why he has
sought police protection for the prosecution witnesses.
13. This witness has further admitted that Rajwinder alias
Babli, his daughter has died due to heart attack. He further
categorically admitted that after the statement of PW3 Pritpal
Kaur in the present case, one of the accused Gurmit alias Ghelu
moved an application to CIA Staff, Karnal against them for the
murder of their daughter Rajwinder Kaur alias Babli and they
were called by the police to CIA Staff, Karnal. It prima facie
appears that due to this pressure as they were got summoned by
the CIA Staff, Karnal by one of the accused by moving an
application for the murder of their own daughter, they want to
wriggle out from their statements made in the court and want to
oblige the accused persons.
14. It is further pertinent to mention that on the last date of
hearing i.e. 10.2.2006, an application was filed by the accused
for recalling these witnesses namely PW2 Gurmit Singh PW3
Pritpal Kaur on the similar grounds that they have not
supported the prosecution version in their statements recorded
in the court of Sh.Devender Singh, learned Judicial Magistrate
Ist Class, Karnal, in case under Sections 406/420/498A/506 of
the Indian Penal Code, which was lodged against accused
Nishabar Singh, his father and family members and copies of
the said statements are Ex.D10 and Ex.D11. The said
application of accused was dismissed by this Court on the same
day i.e. 10.2.2006 by passing a detailed order on merits. After
dismissal of the said application, the present application has
been moved by complainant Gurmit Singh to achieve the same
motive i.e. to re-summon and re-examine PW2 i.e. Applicant
Gurmit Singh himself and his mother PW3 Pritpal Kaur. I
found substance in the plea of learned Public Prosecutor that
this action of complainant clearly shows the collusion between
Crl. A. No.865-DB of 2006 -13-
the accused and these prosecution witnesses. Thus, in these
circumstances, the application in question is not bona fide and
it appears that the said application has only been filed to help
the accused as a result of some later development. There is no
substance in the plea mentioned in the application that the
statements made by these witnesses on 13.12.2005 and
2.1.2006 were the result of pressure by the police. So, this
Court cannot act as a tool in the hands of the complainant who
appears to have colluded with the accused.”
14. The trial Court after considering the evidence led by both the
parties and hearing the arguments of the learned counsel for the parties, and
while relying upon the version given by the two prosecution witnesses i.e.
Gurmeet Singh (PW2) and Pritpal Kaur (PW3), convicted and sentenced the
five accused, as indicated above, and acquitted accused Nazar Singh while
giving him the benefit of doubt.
15. Learned counsel for the appellants argued that there was
absolutely no motive either with Nishabar Singh or other five accused for
committing the murder of Kulwinder Kaur. Prior to the date of alleged
occurrence, the marriage between Nishabar Singh and Kulwinder Kaur was
dissolved by a decree of divorce by mutual consent vide judgment and
decree dated 13.10.2001, and thereafter, Nishabar Singh and his family
members were having no connection with deceased Kulwinder Kaur. As far
as other accused are concerned, they are residents of Karnal and were not
the accused in dowry harassment case registered on the complaint made by
the deceased. Therefore, there was no motive for them to commit the murder
of Kulwinder Kaur, as alleged by the prosecution witnesses.
16. Secondly, learned counsel submitted that the two prosecution
witnesses, i.e., complainant Pritpal Kaur (PW3) and Gurmeet Singh (PW2)
Crl. A. No.865-DB of 2006 -14-
made contradictory statements Ex.D10 and Ex.D11 in a criminal case
registered against accused Nishabar Singh under Sections 406, 420, 498-A
and 506 IPC where they had stated that no demand of dowry was made by
accused Nishabar Singh and his family members; there was no dispute
between the married couple; and the deceased was never harassed or beaten
by her husband. They had further stated that the deceased was not murdered
by Nishabar Singh and his relatives. Learned counsel further stated that
these very two witnesses moved an application under Section 311 Cr.P.C.
for their re-examination as they could not disclose the true facts under the
pressure of the police. Therefore, he submitted that merely on the basis of
statements of these two prosecution witnesses, who are highly interested
and whose testimony is not reliable, the prosecution cannot be said to have
proved the guilt against all the accused, including Nishabar Singh, beyond
reasonable doubt.
17. Thirdly, learned counsel argued that during the police
investigation, all the five accused except Nishabar Singh were found
innocent. He submitted that a detailed investigation was conducted by the
Investigating Officer and by DW1-DSP Om Parkash Narwal, which was
duly verified by the Superintendent of Police. In the investigation, all the
five accused had undergone Polygraph (Lie-Detector) Test. In that test, they
were not found involved in the alleged crime. He further stated that during
investigation the police had collected various affidavits (Mark DC to Mark
DP) from various prominent persons of the Mohalla and the city. He further
submitted that no recovery was effected from any of the five accused and
the documents regarding a Panchnama was also taken into consideration
and after the detailed investigation these accused were found innocent.
Crl. A. No.865-DB of 2006 -15-
18. Fourthly, learned counsel submitted that the oral version given
by PW3-Pritpal Kaur does not corroborate the medical evidence available
on the record. Dr.Rakesh Girdhar (PW1) in his statement has stated that all
the sixteen injuries found on the person of deceased could have been caused
by one weapon, i.e., Gandasi (Ex.P8). The said witness in his cross-
examination stated that the possibility of the injuries caused on the person
of deceased with gandasi is more than a sword. This fact also establishes
that the five accused were falsely implicated.
19. Learned counsel further argued that in support of its case the
prosecution has examined the complainant Gurmeet Singh (PW2) and
Pritpal Kaur (PW3), who are members of one family and are highly
interested witnesses. He submitted that the testimony of these two witnesses
is not trustworthy in view of the fact that other two members of the family,
namely, Ranjit Singh (DW5) and Gagandeep Kaur (DW8), who were
allegedly very much present at the time of the alleged occurrence, had
appeared as defence witnesses, but have not supported the version given by
Gurmeet Singh (PW2) and Pritpal Kaur (PW3). According to them, neither
they had witnessed the occurrence nor any of their neighbourers in the
street had witnessed the occurrence. They did not tell the police about the
name of culprit as they had not witnessed the murder of Kulwinder Kaur.
20. Learned counsel further argued that the trial Court has accepted
the plea of alibi taken by accused Nazar Singh. In defence, he had led
sufficient evidence to prove that on the date of the occurrence he was on his
duty and posted at Jind in Police Department, and was neither present at the
spot nor participated in the occurrence. DW2-HC Narender Singh, Police
Line, Jind was also examined to prove the plea of alibi. This witness has
Crl. A. No.865-DB of 2006 -16-
also proved that on the date of occurrence, accused Nazar Singh was present
and posted at Police Station Sadar, Jind and on 24.5.2002 at 11.00 a.m., he
reported for duty. Counsel states that this fact establishes that the statements
made by Gurmeet Singh (PW2) and Pritpal Kaur (PW3) regarding
participation of accused Nazar Singh in the alleged occurrence, which has
been disbelieved by the trial Court, creates a doubt in the entire version
given by these two witnesses, and in that situation the possibility of false
implication of other four persons, namely, Puran Singh alias Kalu, Gurmit
Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh, cannot be
ruled out. He further submitted that as far as three accused, namely, Gurmit
Singh alias Ghelu, Gurprit Singh alias Sonu and Paramjit Singh, who are
sister’s sons of accused Nishabar Singh and Puran Singh alias Kalu are
concerned, their participation in the occurrence is highly improbable and
unbelievable because there was no motive for them to commit the murder of
Kulwinder Kaur.
21. On the other hand, learned counsel for the respondent-State
submitted that Gurmeet Singh (PW2) and Pritpal Kaur (PW3), who had
witnessed the alleged occurrence, have categorically supported the
prosecution version when their statements were recorded in the Court on
13.12.2005, but after 2.1.2006 these two witnesses have taken U Turn under
some out of court agreement/understanding. On 31.1.2006, Gurmeet Singh
(PW2) and Pritpal Kaur (PW3) had to appear as witnesses in a criminal case
registered under Sections 406/420/498-A and 506 IPC on the complaint of
Kulwinder Kaur, but on that date they did not support the prosecution case
under the said agreement. Before that, father of the deceased Ranjit Singh
(DW5) and sister-in-law of the deceased Gagandeep Kaur (DW8) moved an
Crl. A. No.865-DB of 2006 -17-
application before the trial Court that the witnesses should be provided the
police protection as the accused were threatening them. In that application,
it was stated that they apprehended danger to their life while coming to the
Court and due to that danger, they had left Karnal and shifted to village
Gorgarh. He further admitted that after the statement of Pritpal Kaur (PW3)
in the Court, accused Gurmit Singh alias Ghelu moved an application to
CIA Staff, Karnal for the murder of his daughter Rajwinder Kaur alias
Babli, who died due to heart attack. On that application, they were called by
the police of CIA Staff, Karnal. Learned counsel submitted that it appears
that in view of the said harassment and threat, the prosecution witnesses
resile from their earlier statements made before the police and the Court and
some of them appeared as defence witnesses. Therefore, no credential can
be given to the statements of DW5-Ranjit Singh and DW8-Gagandeep Kaur,
and also the statements Ex.D10 and Ex.D11 made by Pritpal Kaur and
Gurmeet Singh, respectively. He submitted that in view of these facts,
circumstances and evidence led by the prosecution, the trial Court has
rightly convicted the appellants for the alleged offence and no interference
is required in their conviction and sentence.
22. After considering various submissions made by the learned
counsel for the parties and going through the evidence led by the
prosecution as well as defence, it appears that on 24.5.2002 deceased
Kulwinder Kaur, who was married with accused Nishabar Singh in the year
1999, was inflicted sixteen injuries on her vital organs, as a result of those
injuries, she had died. In the opinion of Dr.Rakesh Girdhar (PW1), who
conducted post mortem of the deceased, all those injuries were found ante-
mortem in nature and sufficient to cause death in ordinary course of nature.
Crl. A. No.865-DB of 2006 -18-
He further opined that the possibility of all the injuries having been caused
with gandasi (Ex.P8), recovered from accused Nishabar Singh, cannot be
ruled out. As per the prosecution version, the aforesaid injuries were caused
to the deceased at about 6.45 p.m. on 24.5.2002 by six accused, namely,
Nishabar Singh (husband of the deceased), Nazar Singh, Puran Singh alias
Kalu (both brothers of Nishabar Singh), Gurmit Singh alias Ghelu, Gurprit
Singh alias Sonu and Paramjit Singh (sister’s sons of accused No.1), when
deceased Kulwinder Kaur went to toilet existing outside the house of the
complainant. The said occurrence was allegedly seen by three witnesses,
namely, Gurmeet Singh, complainant (brother of the deceased), Pritpal Kaur
(mother of the deceased) and Gagandip Kaur (sister-in-law of the deceased).
PW2-Gurmeet Singh while appearing in the Court stated that after the
marriage of his sister with accused Nishabar Singh, he started giving
beatings to her on account of insufficient dowry. He raised the demand of
cash, buffalo and motor-cycle. On that account, his sister got registered a
criminal case against him and his family members under Sections 406, 420,
498-A and 506 IPC. He further stated that his sister had filed a divorce
petition which was allowed and the divorce was granted to her by the Court.
After the divorce, his sister started living with him at Karnal. According to
him, on 24.5.2002 at about 6.30 p.m. when he along with his mother Pritpal
Kaur and wife Gagandip Kaur was present in the house and his sister went
to toilet existing outside their house across the street, they heard the cries of
his sister. On hearing the cries, they came out of their house and saw that six
persons, namely, Nishabar Singh, Nazar Singh, Puran Singh alias Kalu,
Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and Pammu were
causing injuries to his sister with their respective weapons. On seeing them,
Crl. A. No.865-DB of 2006 -19-
one of the accused asked to catch them also. Thereupon, they entered in
their house and bolted the door from inside. According to them, accused
tried to open the door, but they could not succeed as the door was bolted
from inside. According to them, thereafter their neighbourers raised lalkara
and all the accused ran away with their respective weapons. Similar is the
statement of PW3-Pritpal Kaur. The third eye-witness, namely, Gagandip
Kaur was not examined by the prosecution and later on she had appeared as
defence witness as DW8. During investigation, only a gandasi (Ex.P8) was
got recovered from accused Nishabar Singh vide recovery memo Ex.P24.
Further, on the basis of his disclosure statement, the blood stain clothes,
which he was wearing at the time of the alleged occurrence were also got
recovered vide recovery memo Ex.P26. However, no other alleged weapon
was got recovered from any of the other accused. During investigation,
except Nishabar Singh, all other accused were found innocent. As per the
statement of DW1-DSP Om Parkash Narwal, a detailed investigation was
conducted which was also duly verified by the Superintendent of Police. In
that investigation, all five accused had undergone Polygraph (Lie-Detector)
Test and the affidavits of various prominent persons of the locality were
taken, and after taking into consideration all those facts, all the other
accused, except Nishabar Singh, were found innocent. As per the statements
of Gurmeet Singh (PW2) and Pritpal Kaur (PW3), when they bolted
themselves inside their house in order to save themselves, the neighbourers
raised the noise and on that all the accused ran away with their respective
weapons. But, undisputedly, not a single neighbourer or any other
independent witness, who corroborates the participation of six persons in
the said alleged occurrence, has been examined. Further it appears to us that
Crl. A. No.865-DB of 2006 -20-
the oral version given by Gurmeet Singh (PW2) and Pritpal Kaur (PW3)
does not corroborate the medical evidence available on the record. As per
the opinion of the doctor, all the sixteen injuries found on the person of the
deceased could have been caused only by one weapon, i.e. gandasi (Ex.P8).
In cross-examination, PW1- Dr.Rakesh Girdhar had stated that the
possibility of the injuries caused on the person of deceased with gandasi is
more than a sword, whereas, on the other hand, as per the statements of
Gurmeet Singh (PW2) and Pritpal Kaur (PW3), most of the accused were
armed with sword and knife. All these factors indicate to us that Gurmeet
Singh (PW2) and Pritpal Kaur (PW3) have not stated the true and correct
version about the occurrence. The trial Court has also partly not accepted
their version while acquitting accused Nazar Singh on the ground that at the
time of the alleged occurrence he was not present and actually he was doing
his duty in Jind. This fact further strengthen our opinion that these two
prosecution witnesses, who are related witnesses, have not correctly stated
the facts about the participation of six accused in the alleged occurrence.
Equally, it is also not possible to discard totally the prosecution version on
the ground that the testimonies of these two witnesses are wholly
untrustworthy and unreliable. We are also not inclined to accept the
contention of the learned counsel for the appellants that in view of the
statements of DW5-Ranjit Singh and DW8-Gagandip Kaur as defence
witnesses and the statements of PW2-Gurmeet Singh and PW3-Pritpal Kaur,
which are Ex.D11 and Ex.D10, respectively, in the criminal case registered
against accused Nishabar Singh where they had stated that Kulwinder Kaur
was not murdered by her husband, the testimony of Gurmeet Singh (PW2)
and Pritpal Kaur (PW3) is not trustworthy and the same has to be discarded
Crl. A. No.865-DB of 2006 -21-
as such. In our opinion, both the prosecution witnesses, namely, Gurmeet
Singh (PW2) and Pritpal Kaur (PW3) had supported the prosecution version
when their statements were recorded in the Court on 13.12.2005, but only
after 2.1.2006 both these witnesses and other family members had taken `U’
Turn under some out of court understanding with accused Nishabar Singh.
This fact is clear from the statement of Ranjit Singh (DW5) in the Court
where he admitted that he had moved an application before the trial Court
for providing police protection as the accused were threatening them. In that
application, it was also stated by him that they had shifted their house from
Karnal to village Gorgarh as they were apprehending danger to their life. It
appears to us that under the said threat or under other circumstances, an out
of court understanding was arrived at between the parties and in that
understanding, Ranjit Singh, father of the deceased and Gagandip Kaur,
sister-in-law of the deceased did appear as defence witnesses and deposed
contrary to the prosecution version. In view of the same understanding,
Gurmeet Singh (PW2) and Pritpal Kaur (PW3) made contrary statements
(Ex.D11 and Ex.D10) in the criminal case got registered by deceased
Kulwinder Kaur against accused Nishabar Singh. In those statements, they
had stated that there was no demand of dowry by accused Nishabar Singh
and there was no dispute between the married couple and the deceased was
never harassed, tortured or beaten by her husband. In our opinion, the trial
Court has rightly discarded those evidence led by these persons in defence.
23. In view of the above facts and circumstances, thus, neither we
are in a position to discard the whole prosecution version nor we are
inclined to accept that in the alleged occurrence six accused had caused
injuries to the deceased, as stated by Gurmeet Singh (PW2) and Pritpal Kaur
Crl. A. No.865-DB of 2006 -22-
(PW3), for various reasons indicated above. In such situation, we have to
attempt to separate the chaff from the grain in order to reach the truth.
Though the instant case may be baffling, but it cannot be said that it is so
confusing and conflicting that the process of separating the chaff from the
grain cannot be reasonably carried out. Firstly, before carefully and
minutely analyzing the prosecution and defence evidence and other
probabilities, it is to be examined what was the motive of the alleged crime.
According to the prosecution version, accused Nishabar Singh and his
family members were greedy persons and they used to give beatings to
Kulwinder Kaur (deceased) on account of bringing insufficient dowry.
Soon after the marriage, they demanded buffalo, cash and motor-cycle and
on that account deceased Kulwinder Kaur got registered a criminal case
against them in which only accused Nishabar Singh was challaned.
Admittedly, after lodging of that criminal case, deceased Kulwinder Kaur
had filed a petition for divorce and that petition was converted into a
petition under Section 13-B of the Hindu Marriage Act and on the statement
of both the parties, the marriage was dissolved by a decree of divorce with
mutual consent vide judgment and decree dated 13.10.2001, much before
the date of occurrence. Only that criminal case was pending in which only
Nishabar Singh was the accused. While examining this motive, it does not
stand to reason why two brothers of Nishabar Singh and three sister’s sons
of Nishabar Singh, who were not parties in that criminal case, would have
participated in the alleged occurrence. There would have been reason for
Nishabar Singh for causing the alleged occurrence because even after the
decree of divorce, criminal case was not withdrawn against Nishabar Singh
and he was being harassed. But as far as other accused were concerned, they
Crl. A. No.865-DB of 2006 -23-
were not accused in the criminal case. Therefore, the alleged participation of
the other accused in the occurrence except Nishabar Singh, in our view, was
doubtful. Further, if we carefully examine the statements of Gurmeet Singh
(PW2) and Pritpal Kaur (PW3), then it appears that these witnesses levelled
omnibus allegations against all the six accused, though they had put the
specific weapons in the hand of particular accused, but both the witnesses
without describing the separate role attributed to each of the accused stated
that all the accused caused injuries to the deceased by their respective
weapons. Further, the oral version given by these two witnesses is not being
corroborated by the medical evidence. PW1-Dr.Rakesh Girdhar in his cross-
examination has stated that possibility of all the injuries having been caused
with gandasi (Ex.P8), cannot be ruled out. He further stated that the
possibility of the injuries caused on the person of deceased with gandasi is
more than a sword. These facts also create a doubt about the alleged
participation of six accused in the occurrence.
24. We have further examined certain undeniable facts and
circumstances. In this case, as per the statements of Gurmeet Singh (PW2)
and Pritpal Kaur (PW3), accused Nazar Singh was alleged to have been
present at the time of the occurrence. He was allegedly armed with iron
Datra and also inflicted injuries to deceased Kulwinder Kaur. In defence,
Nazar Singh has led more than sufficient evidence and has established that
on the date of the alleged occurrence he was not present at the spot. Rather,
he was on his duty and posted at Jind in police department. The trial Court
has also believed his defence and acquitted him of the charge. This fact, in
our opinion, creates a doubt about the presence of other four accused, who
were having no motive whatsoever to commit the alleged crime. Further, in
Crl. A. No.865-DB of 2006 -24-
our opinion, the trial Court has not properly appreciated one more important
factor. In this case, no independent person from the locality was examined
as a prosecution witness to corroborate the participation of six accused in
the alleged crime. As per the statements of Gurmeet Singh (PW2) and
Pritpal Kaur (PW3), only on the noise raised by their neighbourers, the
accused ran away from the scene with their respective weapons. But none of
the neighbourer was examined by the prosecution. Further, the trial Court
has not properly appreciated various affidavits of respectables of the locality
taken during the investigation. PW10-Inspector Mohinder Kumar,
Investigating Officer stated that he had taken into consideration all those
affidavits and thereafter came to the conclusion about the innocence of
remaining five accused. The Investigating Officer was an independent
person and all those affidavits are available on the record in which it has
been clearly stated that the five accused did not participate in the alleged
occurrence as stated by Gurmeet Singh (PW2) and Pritpal Kaur (PW3).
Thus, in our opinion, those affidavits, particularly in the facts and
circumstances of the case, cannot be overlooked. Keeping in view these
factors, we are of the opinion that the participation of the five accused,
namely, Nazar Singh, Puran Singh alias Kalu, Gurmit Singh alias Ghelu,
Gurprit Singh alias Sonu and Paramjit Singh, except Nishabar Singh, was
highly doubtful. Therefore, all of them should have been given the said
benefit of doubt, whereas the trial Court has given the said benefit to only
accused Nazar Singh. Thus, in our opinion, the prosecution has failed to
prove the guilt against the remaining four accused except Nishabar Singh.
As far as Nishabar Singh is concerned, we are of the opinion that there is
sufficient evidence which prove his guilt beyond a reasonable doubt and he
Crl. A. No.865-DB of 2006 -25-
is liable to be convicted for the offence under Section 302 IPC.
25. In view of the above, the appeal is partly allowed. Except
appellant Nishabar Singh, all the remaining four appellants, namely, Puran
Singh alias Kalu, Gurmit Singh alias Ghelu, Gurprit Singh alias Sonu and
Paramjit Singh are acquitted of the charges levelled against them. Appellant
Nishabar Singh is convicted under Section 302 IPC and sentenced for life
imprisonment with a fine of Rs.10,000/-, in default of payment of fine, he
shall further undergo rigorous imprisonment for a period of six months.
Except appellant Nishabar Singh, all the remaining four appellants, who are
in custody, be set at liberty forthwith, if not required in any other case.
(SATISH KUMAR MITTAL)
JUDGE
March 17, 2009 ( DAYA CHAUDHARY )
vkg JUDGE