IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.18-DB of 2000
Date of Decision: 16.02.2009
Ishwar Chand
Appellant
Versus
State of Haryana
Respondent
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr.H.S.Jaswal, Advocate for the appellant-amicus curiae
Mr.S.S.Randhawa, Addl.A.G. Haryana for the respondent-State
....
Jasbir Singh, J.
On 2.12.1999, the appellant was convicted for commission of an
offence punishable under Section 302 IPC and vide order dated 3.12.1999, he
was sentenced to undergo imprisonment for life.
It was allegation against the appellant that on 25.8.1998, he had
committed murder of his wife namely, Birmati and his minor son, namely,
Manoj by strangulating them.
Criminal Appeal No.18-DB of 2000 2
Process of law was set in motion at the instance of Miya Singh
(PW1), father of the deceased, on whose statement (Ex.PA), formal FIR
(Ex.PA/1) was recorded on 26.8.1998 at 1.00 AM in police station Sadar
Kaithal.
The prosecution’s case, as noticed by the trial Court, in
paragraph Nos.3 to 6 of its judgment, reads thus:-
“3. According to Miya Singh complainant, he is resident of
village Bopur, District Sangrur (Punjab) and is
agriculturist; he married his daughter Birmati with
Ishwar son of Devia, resident of village Guhna (accused)
about 11 years ago as per Hindu rites and ceremonies;
two sons were born out of wedlock namely Manoj
(deceased) six years and Sohna aged 4 years. About 3-4
months before death, Ishwar accused started harassing
Birmati and started giving her beating; about 2 ½ months
before death, Birmati had visited village Bopur and told
the complainant that her husband was to purchase a plot
and for that purpose, he used to say her to bring
Rs.50,000/- and used to harass her on that count; that
Miya Singh told his daughter that he should await till
harvesting of paddy crop and that he would give the
requisite money after harvesting of paddy crop.
4. It is further averred that Smt.Sunheri, mother of Ishwar
accused visited village Bopur and told Miya Singh that he
should sent Birmati with her and hence, Birmati was sent
Criminal Appeal No.18-DB of 2000 3to the matrimonial home with her mother-in-law; that
however, after few days Shamsher Singh, younger brother
of accused visited village Bopur and told Miya Singh that
Ishwar accused used to harass Birmati and that he should
bring her and hence, Miya Singh accompanied Shamsher
to village Guhna and reasoned with Ishwar accused and
however, accused assured Miya Singh that he would not
give beatings and would not harass Birmati and hence,
Miya Singh returned to his village.
5. On 25.8.1998 at about 4.00 P.M. Birbhan son of Risal
Singh and Ganesha son of Miya Ram, resident of village
Guhna visited the complainant in village Bopur and told
him that Ishwar accused committed murder of Birmati
and her son Manoj in the tubewell kotha of his fields
when she had gone to the fields to serve food at about
12.30 P.M. and that he ran away after killing both of
them.
6. It was also averred that his son Balwan and Rajbir son of
Sherjang, Goldmith, resident of village Bopur were
already sent by him to village Guhna two days ago to
enquire about the welfare of Birmati. After hearing news
of death of Birmati and Manoj, Miya Singh alongwith
Raghbir Singh son of Ishwar resident of village Banarsi.
Man Singh son of Nath Ram, Ram Chander son of Malli,
resident of village Bopur reached village Guhna and
Criminal Appeal No.18-DB of 2000 4enquired about the occurrence. His son Balwan told him
that he and Rajbir alongwith Ishwar were watering paddy
fields when at about 12.30 P.M. Birmati along with
Manoj had visited the fields to serve food and that
however, Ishwar strangulated her with a plastic pipe in
the tubewell kotha. He further told him that he along with
Rajbir ran towards tubewell Kotha after hearing cries
and that however in their sight, he strangulated Manoj
Kumar as well with the said plastic pipe. He also found
both Birmati and Manoj lying dead in the tubewell kotha.
He left Raghbir Singh and Ram Chander with the dead
body and proceeded to lodge report with the police.”
The statement of Miya Singh was recorded by SI Suresh Chand
(PW8). On intimation sent by him, FIR was registered against the appellant.
SI Suresh Chand went to the place of occurrence, prepared inquest report
regarding dead bodies of Birmati and Manoj and sent both the dead bodies
for post-mortem examination. Appellant-accused was arrested on 28.8.1998.
On 29.8.1998, he suffered a disclosure statement, in response to which, he
got recovered plastic pipe which he used for strangulating his wife and son.
The investigating officer got prepared rough site plan of the place of
occurrence and also got photographs of that place. He recorded statements of
the eye witnesses.
On completion of investigation, final report was put in Court for
trial. The appellant- accused was charge sheeted on 9.12.1998, to which he
Criminal Appeal No.18-DB of 2000 5
pleaded not guilty and claimed trial. The prosecution produced ten witnesses
and also brought on record documentary evidence to prove its case.
On conclusion of prosecution’s evidence, statement of the
appellant-accused was recorded under Section 313 Cr.P.C. Incriminating
material existing on record was put to him which he denied, pleaded
innocence and false implication, however, he led no evidence in defence.
Mr.H.S.Jaswal, Advocate appearing for the appellant has
vehemently contended that the trial Court was not justified in convicting and
sentencing the appellant vide the impugned judgment and order. He argued
that the FIR was recoded after a gap of about 12 hours. The intervening
period was used to concoct a false story against the appellant. He further
argued that presence of so called eye witnesses, namely, Rajbir (PW2) and
Balwan Singh (PW3) was not plausible at the spot. If both of them were
there, they would have been in a position to save the deceased. He further
stated that it was a case of blind murder and the appellant was introduced as
an accused, because of strained relations with his in-laws. There was no
motive to commit the crime. By making reference to minor contradictions in
the statements made by PW2 and PW3, he argued that they were not present
at the spot, rather they were introduced later on to strengthen case of the
prosecution. He further by stating that the investigation was tainted, prayed
that appeal be allowed, judgment and order under challenge be set aside and
the appellant be acquitted of the charges framed against him.
Prayer made has vehemently been opposed by the State counsel.
He by taking us through the statements made by the complainant Miya Singh
(PW1) and other witnesses, namely, Rajbir (PW2) and Balwan Singh (PW3),
Criminal Appeal No.18-DB of 2000 6
stated that the guilt of the appellant-accused was proved on record, as such,
the trial Court was justified in convicting him. He has further argued that
both the deceased were residing with the appellant, they were found dead in
‘tube-well’ room of the appellant. In such like circumstances, the appellant
cannot escape liability simply by saying that he was falsely implicated in the
present criminal case. He prayed that appeal having no substance be
dismissed.
In this case, death is by strangulation. Post-mortem on the dead
bodies was conducted by Dr.R.K.Grover (PW10) on 26.8.1998 at 11.15 AM.
On the body of Birmati, the witness found “19 x 1.5 cm blackish transverse
ligature mark over left side and back of neck just below the thyroid cartilage.
Petechial haemmorahages around seen. Ligature mark was slightly
depressed and base was dry, hard and parchment like. The subcutaneous
tissue was ecchymosed under mark. Thyroid cartilage was fractured.
Trachea was compressed and two rings were broken.” Following injuries
were also found on the person of Birmati:-
1. A 4.5 x 1.5 cm black abrasion over the left cheek. On
dissection brain was found to be congested. Larynax and
trachea were compressed and congested with
haemorrhage seen inside. Both lungs were congested.
Liver, spleen and kidney were congested. Uterus was
empty. All other organs were healthy.”
Cause of death was asphyxia due to stragulatin which was ante-
mortem in nature and sufficient to cause death in ordinary course of nature.
Criminal Appeal No.18-DB of 2000 7
Regarding dead body of deceased Manoj, following
observations were made by the above said witness:-
“found a 14 x 1.5 cm black transverse ligature mark over
right side and back of neck, just below the thyroid cartilage.
Peticial haemorrhage around was seen. Ligature mark was
slightly depressed and base was dry hard and parchment like.
The subcutaneous tissue was ecchymosed under mark. Thyroid
cartilage was fractured. Trachea was compressed and rings
broken.”
Following injuries were also noticed on the dead body of
Manoj:-
“1. A 3 x 2.2 cm black abrasion over the right cheek. On
dissection brain was found congested. Trachea and larynx were
compressed and blood was seen in the trachea. Both the lungs
were congested. Liver, spleen and kidneys were congested.
Rest of the organs were healthy.”
Cause of death was asphyxia due to strangulation which was
ante-mortem in nature and sufficient to cause death. This witness has further
stated that black plastic pipe which was shown to him could have been used
for strangulation of the deceased by the accused. The witness has
specifically denied that if some iron rod falls on neck of Birmati from the
roof, ligature mark of the kind, found on her body, can not be possible. This
witness has also ruled out death by strangulation by hanging. Miya Singh
(PW1) is father-in-law of the appellant. He has specifically stated that the
appellant had been teasing the deceased Birmati, to bring money from her
Criminal Appeal No.18-DB of 2000 8
parents. Miya Singh (PW1) has further stated that he promised to make
payment after cutting his crop and further that he sent his son Balwan Singh
and Rajbir, his friend, to persuade the appellant-accused not to harass his
daughter. Both the persons named above were present when unfortunate
incident has happened. Vivid description of the crime, committed by the
appellant was given by Rajbir (PW2) and Balwan Singh (PW3). Both have
stated that on 25.8.1998, they were available in the fields owned by the
appellant and were helping him in watering the rice crop. Birmati along with
Manoj came to serve food to them. Appellant-accused first went to take
food. Both the witnesses were busy in doing their work. On hearing cries,
they were attracted to a small room near the tube-well and saw the appellant
strangulating small child namely Manoj. The appellant escaped from the spot
and when both of them reached inside the room, they saw Birmati also lying
dead. PW3 has stated that thereafter, he sent somebody to intimate his father
Miya Singh (PW1) and after his arrival, FIR was got registered. Taking note
of the distance between the village of the appellant-accused and his in-laws
and the police station, we feel that recording of FIR was not delayed.
Otherwise also, delay in recording FIR will be fatal only if there existed some
evidence on record that the intervening period was used to falsely implicate
the accused. It has come on record that Sohna son of the deceased is alive
and was residing with the appellant-accused. It is most unexpected that in
such like situation, father of the deceased Miya Singh (PW1) will leave out
the real culprit and instead, get involved his son-in-law (the appellant) in the
murder of his daughter and grand son. The facts are such, that we believe the
presence of Rajbir (PW2) and Balwan Singh (PW3) at the place of
Criminal Appeal No.18-DB of 2000 9
occurrence when incident had happened. On the basis of minor discrepancies
in their statements, which are not very material, benefit can not be given to
the appellant-accused.
The investigating officer has proved on record that plastic pipe
used for strangulating the deceased, was got recovered by the appellant from
his house. The defence has failed to shatter credibility of the witness,
mentioned above.
It is an admitted fact on record that both the deceased were
living with the appellant-accused. They were found dead in a small room,
near tube-well, owned by the appellant. In such like situation, it was for the
appellant to show that how death has occurred. To support above said
proposition, reliance can be placed on a Division Bench judgment of this
Court in Amarjit Singh and others v. State of Punjab, Recent Criminal
Reports 1989(1) 18. Above said case was a dowry death case. By taking
note of the provisions of Sections 105 and 106 of the Evidence Act, 1872, it
was observed as under:-
“21. It is well recognized in criminal law of breach of trust
that where property is entrusted to another, it is the duty of that
other to give the true account of what he did with the property
so entrusted to him and his failure to do so raises under Section
105 a presumption that he had criminally misappropriated the
property so entrusted to him. We view that the position of a
bride cannot be worse. Her welfare and physical protection is
also in trust with the people in whose cases she has been put in
and if she has been deprived of her life, the person to whom she
Criminal Appeal No.18-DB of 2000 10stood entrusted must necessarily account for as he or she alone
is supposed to have a special knowledge about the crime
especially when he or she was the last person to be seen
together or expected to be together with the deceased.”
It was further observed that it was for the husband to prove and
explain how did the bride with whom he was last seen together or expected to
be together last, turn into a course as that fact would be presumed to be
especially within his knowledge.
In the present case, the appellant has failed to give any
explanation worth the name as to how his wife and son had died.
In view of facts mentioned above, no case is made out for
interference.
Dismissed.
(Jasbir Singh)
Judge
16.02.2009 (Jora Singh)
gk Judge