Crl. Appeal No. 24-DB of 2000 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 24-DB of 2000
DATE OF DECISION: 6.3.2009
Balbir Singh @ Anil ..........Appellant
Versus
State of Haryana ..........Respondent
CORAM:- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Shri N.K. Sanghi, Advocate
for the appellant.
Mr. Partap Singh, Sr. DAG, Haryana.
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DAYA CHAUDHARY, J.
The present appeal arises out of judgment of conviction and
order of sentence dated 18.12.1999 and 20.12.1999, respectively, passed
by Additional Sessions Judge (II), Faridabad, in Sessions Case No. 48,
whereby, the accused-appellant has been convicted under Section 302 IPC
and sentenced to undergo rigorous imprisonment for life and to pay a fine
of Rs. 5000/- and in default of payment of fine to further undergo RI for one
year.
Brief facts of the case, as put up by the prosecution, are that
on 14.3.1999, Daulat Ram (PW-1), brother of the deceased-Kamla, made a
report to the Incharge Police Post Bus Stand, Palwal stating that his sister-
Kamla contracted love marriage about seven years back with Baljeet @
Ballu @ Anil. His sister had two sons, one aged about six years and other
about two and a half years. His brother-in-law residing in front of Inder
Prastha Girls College, Delhi, used to harass and beat her sister-Kamla
Crl. Appeal No. 24-DB of 2000 (2)
since the time of her marriage. It was further stated by Daulat Ram (PW-1)
that his sister was also employed in some factory at Faridabad. On
13.3.1999, his sister and brother-in-law-Anil came to the house of his
mother and after taking dinner, they went on the roof of the house to sleep.
In the morning his mother Shanti went on the roof and saw his sister Kamla
lying dead whose nose was cut and there was strangulation mark on her
neck. His brother-in-law was not present as he left the house after
committing the murder of Kamla. Statement (Ex. PA) of Daulat Ram
recorded by Charan Singh, ASI (PW-3) was sent to the police Station, on
the basis of which a formal FIR (Ex.PB) under Section 302 IPC was
recorded.
Accused was apprehended and during the course of
investigation, it was found to be a case under Section 304-B IPC instead of
Section 302 IPC. . The accused was sent to face trial for the offence
punishable under Section 304-B IPC. On the basis of documents
produced by the prosecution, a prima facie case under Section 302 IPC
was made out against the accused, therefore, he was charge-sheeted
under Section 302 IPC, to which, he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined as
many as five witnesses. Daulat Ram (PW-1), complainant, real brother of
deceased-Kamla, reiterated the same version as has been stated by him in
the complaint, on which basis FIR was registered. Shanti (PW-2), mother
of deceased-Kamla stated that her daughter contracted love marriage with
accused-appellant about six years before the occurrence. The accused-
appellant used to harass her daughter with regard to demand of dowry and
expenses. On 13.3.1999 accused-appellant and Kamla came to her
house. She further stated that there was some altercation between them
but after taking dinner, both of them went to sleep on the roof and she
(Shanti) was sleeping in the house. In the morning, neither her son-in-law
Crl. Appeal No. 24-DB of 2000 (3)
nor daughter Kamla woke up. She along with her son Daulat Ram went on
the roof, where, Kamla was sleeping in the blanket. On removing blanket,
it was found that her nose was cut and there was strangulation mark on her
neck and she was dead. One piece of string and blade were also found
lying there. According to Shanti, mother of the deceased, accused-
appellant has committed murder of her daughter. Charan Singh (PW-3)
stated that on 14.3.1999 he was posted as Incharge, Police Post, Bus
Stand, Palwal. He recorded the statement of Daulat Ram and sent ruqa
(Ex. PA) on which basis formal FIR (Ex. PB) was registered. It was further
stated that he conducted proceedings under Section 174 Cr.P.C. and
recorded statements of the witnesses. On his application, postmortem of
the dead body was conducted. The accused-appellant was apprehended
on 4.4.1999 and after completion of the investigation, report under Section
173 Cr.P.C. was prepared. Ashok Kumar (PW-4) draftman, prepared the
scaled map EX.PF. Dr. Jagmohan Mittal (PW-5) Medical Officer,
Government Hospital, Palwal stated that on 14.3.1999, he conducted
postmortem on the dead body of deceased Kamla. There were ligature
mark on the body of the deceased. Margins of ligature was swollen.
Abrasion and sign of ecchymosil were present. On dissection
subcutaneous ecchymosis was present. As per his opinion, cause of
death was due to asphyxia as a result of strangulation, which was ante
mortem in nature and was sufficient to cause death in ordinary course of
nature. The injuries were ante mortem in nature and no sign of poisoning
was present. It was also stated by this witness in his cross-examination
that the strangulation could be caused by a rope of thickness about half
inch and no sign of rape was present.
After closure of the prosecution evidence, statement of
accused-appellant under Section 313 Cr.P.C. was recorded, wherein, he
denied the allegations of the prosecution and alleged his false implication.
Crl. Appeal No. 24-DB of 2000 (4)
After hearing the arguments of learned counsel for the parties
and relying upon the aforesaid prosecution witnesses, the trial Court
convicted and sentenced the accused-appellant under Section 302 IPC, as
mentioned in the first paragraph of this judgment.
Mr. N.K. Sanghi, learned counsel for the accused-appellant
argued that as per case of the prosecution, deceased died due to
strangulation but the trial Court has not taken into consideration the articles
found lying near the dead body, which are necessary for the just decision
of the case. Although, in column No. 23 of the inquest report, no article
was found to have been shown near the dead body but as per Shanti (PW-
2), mother of the deceased and other witnesses, blanket, blade, chunni and
gudri were also there. Mr. Sanghi further argues that in this case the
murder might have been committed by mother or brother of the deceased,
as it was a case of inter-caste love marriage and the family members did
not relish their marriage. He further argued that the manner and
circumstances in which the alleged murder was committed appear to be
doubtful. The husband could have adopted some other method to murder
his wife instead of killing her at her parental house and the accused-
appellant cannot be connected with the crime in any manner. Mr. Sanghi
also argued that there was no motive for the husband to commit murder of
his wife because they performed love marriage and the relation between
them was cordial. More so, it was not the case of the prosecution that
relationship between them were not cordial and were strained. . Mr.
Sanghi further argued that the accused-appellant cannot be connected with
the murder as he was not present at the time of occurrence and only the
dead body of the deceased was found on the roof of the house. Mr.
Sanghi further argued that the murder might have been committed by
somebody else because in the cross-examination Ashok Kumar (PW-4)
has stated that a wooden stair was also lying at the spot. To commit
Crl. Appeal No. 24-DB of 2000 (5)
murder in such a ruthless manner by cutting nose could not be expected
from the accused-appellant, who was the husband of the deceased. Mr.
Sanghi argued that if the statements of all the witnesses are taken into
consideration even then the accused cannot be connected with the alleged
murder. The prosecution has miserably failed to establish that the
accused-appellant had committed murder of deceased-Kamla, therefore,
the story of the prosecution becomes suspicious and highly doubtful. In
case of suspicious circumstances, it cannot be presumed that this is the
only and only possible view drawn by the prosecution and the benefit of
doubt should go to the accused-appellant. It is also well settled law that if
two views are possible then accused-appellant should not be held liable
Mr. Partap Singh, Sr. DAG, Haryana, argued that the
prosecution has fully proved its case beyond reasonable doubt on the basis
of theory of last seen and circumstantial evidence. It has been proved from
the statements of the witnesses that the accused-appellant took dinner and
went to sleep on the roof and at the time of occurrence, it was only the
accused-appellant, who was with the deceased. Moreover, the accused-
appellant has not been able to prove that he was not present at the time of
commission of murder or had left the spot before commission of offence.
We have heard the arguments of learned counsel for the
parties and perused the evidence available on record.
The case of the prosecution rests on the testimony of Daulat
Ram (PW-1), Shanti (PW-2) and Dr. Jagmohan Mittal (PW-5). It is clear
from the statements of PW-1 and PW-2 that accused-appellant was with
them at the time of taking food in the night and both accused as well as
deceased went on the roof to have a sleep and, therefore, murder was also
committed during night. The plea of accused-appellant that he was not
present at the time of commission of murder is not believable, as it has not
been proved that he had left the house or that he was not present at the
Crl. Appeal No. 24-DB of 2000 (6)
time of commission of the murder. The accused-appellant has also not
taken the plea in the statement recorded under Section 313 Cr.P.C. that he
had not slept on the roof or has left the house before commission of crime
during night. It has simply been stated by the accused-appellant in his
statement that he has falsely been implicated in this case.
Moreover, the case of the prosecution has been fully proved by
the medical evidence. As per opinion of Dr. Jagmohan Mittal (PW-5), the
cause of death was due to asphyxia as a result of strangulation and all the
injuries were ante mortem in nature and were sufficient to cause death in
ordinary course of nature. He further stated that there were ligature marks
on the neck of the deceased and margins of ligature were swollen.
Abrasion and sign of ecchymosil were present and on dissection
subcutaneous ecchymosil was present. In cross-examination Dr.
Jagmohan Mittal (PW-5) stated that injury was with any sharp weapon like
knife, darati and no sign of poisoning was there and it was not a case of
rape. It was further mentioned that strangulation was caused by a rope
having a thickness of about half inch and nose might have been cut before
strangulation.
The argument of learned counsel for accused-appellant that
the murder might have been committed by either mother or brother of the
deceased, as the inter-caste love marriage was not relished by them, does
not carry any weight. There is nothing on record to show that the parents
of the deceased were still angry with the marriage. The relations between
deceased and accused were cordial and both of them took dinner together
in the house of mother of the deceased and went on the roof of the house
to have a sleep. Even in the statement recorded under Section 313
Cr.P.C., the accused has not stated that the parents of the deceased were
not happy with their marriage.
The accused and deceased were lastly seen by mother and
Crl. Appeal No. 24-DB of 2000 (7)
brother of the deceased, as they all took dinner in the night and thereafter
accused and deceased went on the roof to have a sleep. The deceased
was found murdered in the morning and at that time accused-appellant was
not present there. It is not the case of the accused-appellant that he was
not present during night or left the house during night. It is for the accused-
appellant to prove that he was not present there. The presumption can be
drawn against the accused-appellant under Section 106 of the Indian
Evidence Act, 1872 (hereinafter referred to as ‘the Act’) that it is only he
who committed murder of the deceased as he was with the deceased while
they went on roof of the house to have a sleep but the accused has not
been able to prove his innocence. It is for the accused-appellant to prove
that he was not there and left the deceased alone during night. This view
has also been supported by Hon’ble Apex Court in State of Rajasthan Vs.
Kashi Ram, 2007 (1) RCR (Criminal) 131, wherein, it has been held that
under Section 106 of the Act, if a person is last seen with the deceased, he
must offer an explanation as to how and when he parted company of the
deceased. If the accused fails to offer a reasonable explanation in
discharge of burden placed on him, that itself provides an additional link in
the chain of circumstances proved against him. In the present case,
accused was with the deceased in the night and he was lastly seen by
mother and brother of the deceased and moreover he has not explained
how and when he parted company of the deceased or offered some
plausible explanation exculpating him. The accused-appellant has not
even pleaded alibi, nor has he given any explanation to support his
innocence. Even in the statement recorded under Section 313 Cr.P.C., the
accused-appellant has not given any explanation that he was not available
during night or at the time of commission of murder.
In view of the facts, circumstances as well as law position
discussed above, we are of the considered view that the prosecution has
Crl. Appeal No. 24-DB of 2000 (8)
fully proved its case beyond reasonable doubt and all the chains of
circumstances are complete and no link is missing. We do not find any
legal infirmity in the judgment of the trial Court, which requires any
interference by this Court. Accordingly, the appeal being devoid of any
merit is hereby dismissed and judgment and order of trial Court are upheld.
Appellant, Balbir Singh, who is on bail, is directed to surrender
to custody to serve the remainder of sentence.
(DAYA CHAUDHARY)
JUDGE
6.3.2009 (SATISH KUMAR MITTAL)
pooja JUDGE