{"id":15973,"date":"2009-02-16T00:00:00","date_gmt":"2009-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ishwar-chand-vs-state-of-haryana-on-16-february-2009"},"modified":"2017-02-05T06:55:56","modified_gmt":"2017-02-05T01:25:56","slug":"ishwar-chand-vs-state-of-haryana-on-16-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ishwar-chand-vs-state-of-haryana-on-16-february-2009","title":{"rendered":"Ishwar Chand vs State Of Haryana on 16 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Ishwar Chand vs State Of Haryana on 16 February, 2009<\/div>\n
              IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n\n                               CHANDIGARH\n\n\n\n                                       Criminal Appeal No.18-DB of 2000\n                                            Date of Decision: 16.02.2009\n\n\n\nIshwar Chand\n                                                                  Appellant\n                                  Versus\nState of Haryana\n                                                                 Respondent\n\n\n\nCORAM:- HON'BLE MR. JUSTICE JASBIR SINGH\n        HON'BLE MR. JUSTICE JORA SINGH\n\n\n\nPresent:    Mr.H.S.Jaswal, Advocate for the appellant-amicus curiae\n            Mr.S.S.Randhawa, Addl.A.G. Haryana for the respondent-State\n                             ....\n\n\n\nJasbir Singh, J.\n<\/pre>\n
            On 2.12.1999, the appellant was convicted for commission of an<\/p>\n
offence punishable under Section 302 IPC and vide order dated 3.12.1999, he<\/p>\n
was sentenced to undergo imprisonment for life.\n<\/p>\n
            It was allegation against the appellant that on 25.8.1998, he had<\/p>\n
committed murder of his wife namely, Birmati and his minor son, namely,<\/p>\n
Manoj by strangulating them.\n<\/p>\n
 Criminal Appeal No.18-DB of 2000                              2<\/span><\/p>\n
            Process of law was set in motion at the instance of Miya Singh<\/p>\n
(PW1), father of the deceased, on whose statement (Ex.PA), formal FIR<\/p>\n
(Ex.PA\/1) was recorded on 26.8.1998 at 1.00 AM in police station Sadar<\/p>\n
Kaithal.\n<\/p>\n
            The prosecution’s case, as noticed by the trial Court, in<\/p>\n
paragraph Nos.3 to 6 of its judgment, reads thus:-\n<\/p>\n
            “3.    According to Miya Singh complainant, he is resident of<\/p>\n
                   village Bopur, District Sangrur (Punjab)          and is<\/p>\n
                   agriculturist; he married his daughter Birmati with<\/p>\n
                   Ishwar son of Devia, resident of village Guhna (accused)<\/p>\n
                   about 11 years ago as per Hindu rites and ceremonies;<\/p>\n
                   two sons were born out of wedlock namely Manoj<\/p>\n
                   (deceased) six years and Sohna aged 4 years. About 3-4<\/p>\n
                   months before death, Ishwar accused started harassing<\/p>\n
                   Birmati and started giving her beating; about 2 \u00bd months<\/p>\n
                   before death, Birmati had visited village Bopur and told<\/p>\n
                   the complainant that her husband was to purchase a plot<\/p>\n
                   and for that purpose, he used to say her to bring<\/p>\n
                   Rs.50,000\/- and used to harass her on that count; that<\/p>\n
                   Miya Singh told his daughter that he should await till<\/p>\n
                   harvesting of paddy crop and that he would give the<\/p>\n
                   requisite money after harvesting of paddy crop.<\/p>\n<\/blockquote>\n
            4.     It is further averred that Smt.Sunheri, mother of Ishwar<\/p>\n
                   accused visited village Bopur and told Miya Singh that he<\/p>\n
                   should sent Birmati with her and hence, Birmati was sent
\n Criminal Appeal No.18-DB of 2000                           3<\/span><\/p>\n
                to the matrimonial home with her mother-in-law; that<\/p>\n
                however, after few days Shamsher Singh, younger brother<\/p>\n
                of accused visited village Bopur and told Miya Singh that<\/p>\n
                Ishwar accused used to harass Birmati and that he should<\/p>\n
                bring her and hence, Miya Singh accompanied Shamsher<\/p>\n
                to village Guhna and reasoned with Ishwar accused and<\/p>\n
                however, accused assured Miya Singh that he would not<\/p>\n
                give beatings and would not harass Birmati and hence,<\/p>\n
                Miya Singh returned to his village.\n<\/p><\/blockquote>\n
          5.    On 25.8.1998 at about 4.00 P.M. Birbhan son of Risal<\/p>\n
                Singh and Ganesha son of Miya Ram, resident of village<\/p>\n
                Guhna visited the complainant in village Bopur and told<\/p>\n
                him that Ishwar accused committed murder of Birmati<\/p>\n
                and her son Manoj in the tubewell kotha of his fields<\/p>\n
                when she had gone to the fields to serve food at about<\/p>\n
                12.30 P.M. and that he ran away after killing both of<\/p>\n
                them.\n<\/p><\/blockquote>\n
          6.    It was also averred that his son Balwan and Rajbir son of<\/p>\n
                Sherjang, Goldmith, resident of village Bopur were<\/p>\n
                already sent by him to village Guhna two days ago to<\/p>\n
                enquire about the welfare of Birmati. After hearing news<\/p>\n
                of death of Birmati and Manoj, Miya Singh alongwith<\/p>\n
                Raghbir Singh son of Ishwar resident of village Banarsi.<\/p>\n
                Man Singh son of Nath Ram, Ram Chander son of Malli,<\/p>\n
                resident of village Bopur reached village Guhna and
\n Criminal Appeal No.18-DB of 2000                                 4<\/span><\/p>\n
                     enquired about the occurrence. His son Balwan told him<\/p>\n
                     that he and Rajbir alongwith Ishwar were watering paddy<\/p>\n
                     fields when at about 12.30 P.M. Birmati along with<\/p>\n
                     Manoj had visited the fields to serve food and that<\/p>\n
                     however, Ishwar strangulated her with a plastic pipe in<\/p>\n
                     the tubewell kotha. He further told him that he along with<\/p>\n
                     Rajbir ran towards tubewell Kotha after hearing cries<\/p>\n
                     and that however in their sight, he strangulated Manoj<\/p>\n
                     Kumar as well with the said plastic pipe. He also found<\/p>\n
                     both Birmati and Manoj lying dead in the tubewell kotha.<\/p>\n
                     He left Raghbir Singh and Ram Chander with the dead<\/p>\n
                     body and proceeded to lodge report with the police.”<\/p><\/blockquote>\n
            The statement of Miya Singh was recorded by SI Suresh Chand<\/p>\n
(PW8). On intimation sent by him, FIR was registered against the appellant.<\/p>\n
SI Suresh Chand went to the place of occurrence, prepared inquest report<\/p>\n
regarding dead bodies of Birmati and Manoj and sent both the dead bodies<\/p>\n
for post-mortem examination. Appellant-accused was arrested on 28.8.1998.<\/p>\n
On 29.8.1998, he suffered a disclosure statement, in response to which, he<\/p>\n
got recovered plastic pipe which he used for strangulating his wife and son.<\/p>\n
The investigating officer got prepared rough site plan of the place of<\/p>\n
occurrence and also got photographs of that place. He recorded statements of<\/p>\n
the eye witnesses.\n<\/p>\n
            On completion of investigation, final report was put in Court for<\/p>\n
trial. The appellant- accused was charge sheeted on 9.12.1998, to which he
\n Criminal Appeal No.18-DB of 2000                                5<\/span><\/p>\n
pleaded not guilty and claimed trial. The prosecution produced ten witnesses<\/p>\n
and also brought on record documentary evidence to prove its case.<\/p>\n
            On conclusion of prosecution’s evidence, statement of the<\/p>\n
appellant-accused was recorded under Section 313 Cr.P.C. Incriminating<\/p>\n
material existing on record was put to him which he denied, pleaded<\/p>\n
innocence and false implication, however, he led no evidence in defence.<\/p>\n
            Mr.H.S.Jaswal, Advocate appearing for the appellant has<\/p>\n
vehemently contended that the trial Court was not justified in convicting and<\/p>\n
sentencing the appellant vide the impugned judgment and order. He argued<\/p>\n
that the FIR was recoded after a gap of about 12 hours. The intervening<\/p>\n
period was used to concoct a false story against the appellant. He further<\/p>\n
argued that presence of so called eye witnesses, namely, Rajbir (PW2) and<\/p>\n
Balwan Singh (PW3) was not plausible at the spot. If both of them were<\/p>\n
there, they would have been in a position to save the deceased. He further<\/p>\n
stated that it was a case of blind murder and the appellant was introduced as<\/p>\n
an accused, because of strained relations with his in-laws. There was no<\/p>\n
motive to commit the crime. By making reference to minor contradictions in<\/p>\n
the statements made by PW2 and PW3, he argued that they were not present<\/p>\n
at the spot, rather they were introduced later on to strengthen case of the<\/p>\n
prosecution. He further by stating that the investigation was tainted, prayed<\/p>\n
that appeal be allowed, judgment and order under challenge be set aside and<\/p>\n
the appellant be acquitted of the charges framed against him.<\/p>\n
            Prayer made has vehemently been opposed by the State counsel.<\/p>\n
He by taking us through the statements made by the complainant Miya Singh<\/p>\n
(PW1) and other witnesses, namely, Rajbir (PW2) and Balwan Singh (PW3),
\n Criminal Appeal No.18-DB of 2000                                6<\/span><\/p>\n
stated that the guilt of the appellant-accused was proved on record, as such,<\/p>\n
the trial Court was justified in convicting him. He has further argued that<\/p>\n
both the deceased were residing with the appellant, they were found dead in<\/p>\n
‘tube-well’ room of the appellant. In such like circumstances, the appellant<\/p>\n
cannot escape liability simply by saying that he was falsely implicated in the<\/p>\n
present criminal case.    He prayed that appeal having no substance be<\/p>\n
dismissed.\n<\/p>\n
             In this case, death is by strangulation. Post-mortem on the dead<\/p>\n
bodies was conducted by Dr.R.K.Grover (PW10) on 26.8.1998 at 11.15 AM.<\/p>\n
On the body of Birmati, the witness found “19 x 1.5 cm blackish transverse<\/p>\n
ligature mark over left side and back of neck just below the thyroid cartilage.<\/p>\n
Petechial haemmorahages around seen.            Ligature mark was slightly<\/p>\n
depressed and base was dry, hard and parchment like. The subcutaneous<\/p>\n
tissue was ecchymosed under mark.          Thyroid cartilage was fractured.<\/p>\n
Trachea was compressed and two rings were broken.” Following injuries<\/p>\n
were also found on the person of Birmati:-\n<\/p>\n
             1.    A 4.5 x 1.5 cm black abrasion over the left cheek. On<\/p>\n
                   dissection brain was found to be congested. Larynax and<\/p>\n
                   trachea    were    compressed      and    congested    with<\/p>\n
                   haemorrhage seen inside. Both lungs were congested.<\/p>\n
                   Liver, spleen and kidney were congested. Uterus was<\/p>\n
                   empty. All other organs were healthy.”\n<\/p><\/blockquote>\n
             Cause of death was asphyxia due to stragulatin which was ante-<\/p>\n<\/blockquote>\n
mortem in nature and sufficient to cause death in ordinary course of nature.
\n Criminal Appeal No.18-DB of 2000                               7<\/span><\/p>\n
            Regarding    dead    body   of   deceased    Manoj,    following<\/p>\n
observations were made by the above said witness:-\n<\/p>\n
                  “found a 14 x 1.5 cm black transverse ligature mark over<\/p>\n
            right side and back of neck, just below the thyroid cartilage.<\/p>\n
            Peticial haemorrhage around was seen. Ligature mark was<\/p>\n
            slightly depressed and base was dry hard and parchment like.<\/p>\n
            The subcutaneous tissue was ecchymosed under mark. Thyroid<\/p>\n
            cartilage was fractured. Trachea was compressed and rings<\/p>\n
            broken.”<\/p><\/blockquote>\n
            Following injuries were also noticed on the dead body of<\/p>\n
Manoj:-\n<\/p>\n
            “1.   A 3 x 2.2 cm black abrasion over the right cheek. On<\/p>\n
            dissection brain was found congested. Trachea and larynx were<\/p>\n
            compressed and blood was seen in the trachea. Both the lungs<\/p>\n
            were congested.     Liver, spleen and kidneys were congested.<\/p>\n
            Rest of the organs were healthy.”<\/p><\/blockquote>\n
            Cause of death was asphyxia due to strangulation which was<\/p>\n
ante-mortem in nature and sufficient to cause death. This witness has further<\/p>\n
stated that black plastic pipe which was shown to him could have been used<\/p>\n
for strangulation of the deceased by the accused.          The witness has<\/p>\n
specifically denied that if some iron rod falls on neck of Birmati from the<\/p>\n
roof, ligature mark of the kind, found on her body, can not be possible. This<\/p>\n
witness has also ruled out death by strangulation by hanging. Miya Singh<\/p>\n
(PW1) is father-in-law of the appellant. He has specifically stated that the<\/p>\n
appellant had been teasing the deceased Birmati, to bring money from her
\n Criminal Appeal No.18-DB of 2000                                 8<\/span><\/p>\n
parents. Miya Singh (PW1) has further stated that he promised to make<\/p>\n
payment after cutting his crop and further that he sent his son Balwan Singh<\/p>\n
and Rajbir, his friend, to persuade the appellant-accused not to harass his<\/p>\n
daughter. Both the persons named above were present when unfortunate<\/p>\n
incident has happened. Vivid description of the crime, committed by the<\/p>\n
appellant was given by Rajbir (PW2) and Balwan Singh (PW3). Both have<\/p>\n
stated that on 25.8.1998, they were available in the fields owned by the<\/p>\n
appellant and were helping him in watering the rice crop. Birmati along with<\/p>\n
Manoj came to serve food to them. Appellant-accused first went to take<\/p>\n
food. Both the witnesses were busy in doing their work. On hearing cries,<\/p>\n
they were attracted to a small room near the tube-well and saw the appellant<\/p>\n
strangulating small child namely Manoj. The appellant escaped from the spot<\/p>\n
and when both of them reached inside the room, they saw Birmati also lying<\/p>\n
dead. PW3 has stated that thereafter, he sent somebody to intimate his father<\/p>\n
Miya Singh (PW1) and after his arrival, FIR was got registered. Taking note<\/p>\n
of the distance between the village of the appellant-accused and his in-laws<\/p>\n
and the police station, we feel that recording of FIR was not delayed.<\/p>\n
Otherwise also, delay in recording FIR will be fatal only if there existed some<\/p>\n
evidence on record that the intervening period was used to falsely implicate<\/p>\n
the accused. It has come on record that Sohna son of the deceased is alive<\/p>\n
and was residing with the appellant-accused. It is most unexpected that in<\/p>\n
such like situation, father of the deceased Miya Singh (PW1) will leave out<\/p>\n
the real culprit and instead, get involved his son-in-law (the appellant) in the<\/p>\n
murder of his daughter and grand son. The facts are such, that we believe the<\/p>\n
presence of Rajbir (PW2) and Balwan Singh (PW3) at the place of
\n Criminal Appeal No.18-DB of 2000                                 9<\/span><\/p>\n
occurrence when incident had happened. On the basis of minor discrepancies<\/p>\n
in their statements, which are not very material, benefit can not be given to<\/p>\n
the appellant-accused.\n<\/p>\n
             The investigating officer has proved on record that plastic pipe<\/p>\n
used for strangulating the deceased, was got recovered by the appellant from<\/p>\n
his house.   The defence has failed to shatter credibility of the witness,<\/p>\n
mentioned above.\n<\/p>\n
             It is an admitted fact on record that both the deceased were<\/p>\n
living with the appellant-accused. They were found dead in a small room,<\/p>\n
near tube-well, owned by the appellant. In such like situation, it was for the<\/p>\n
appellant to show that how death has occurred.         To support above said<\/p>\n
proposition, reliance can be placed on a Division Bench judgment of this<\/p>\n
Court in Amarjit Singh and others v. State of Punjab, Recent Criminal<\/p>\n
Reports<\/a> 1989(1) 18. Above said case was a dowry death case. By taking<\/p>\n
note of the provisions of Sections 105 and 106 of the Evidence Act, 1872, it<\/p>\n
was observed as under:-\n<\/p>\n
             “21. It is well recognized in criminal law of breach of trust<\/p>\n
             that where property is entrusted to another, it is the duty of that<\/p>\n
             other to give the true account of what he did with the property<\/p>\n
             so entrusted to him and his failure to do so raises under Section<\/p>\n
             105 a presumption that he had criminally misappropriated the<\/p>\n
             property so entrusted to him. We view that the position of a<\/p>\n
             bride cannot be worse. Her welfare and physical protection is<\/p>\n
             also in trust with the people in whose cases she has been put in<\/p>\n
             and if she has been deprived of her life, the person to whom she
\n Criminal Appeal No.18-DB of 2000                                  10<\/span><\/p>\n
                stood entrusted must necessarily account for as he or she alone<\/p>\n
                is supposed to have a special knowledge about the crime<\/p>\n
                especially when he or she was the last person to be seen<\/p>\n
                together or expected to be together with the deceased.”<\/p><\/blockquote>\n
                It was further observed that it was for the husband to prove and<\/p>\n
explain how did the bride with whom he was last seen together or expected to<\/p>\n
be together last, turn into a course as that fact would be presumed to be<\/p>\n
especially within his knowledge.\n<\/p>\n
                In the present case, the appellant has failed to give any<\/p>\n
explanation worth the name as to how his wife and son had died.<\/p>\n
                In view of facts mentioned above, no case is made out for<\/p>\n
interference.\n<\/p>\n
                Dismissed.<\/p>\n
\n\n                                               (Jasbir Singh)\n                                                  Judge\n\n\n\n16.02.2009                                      (Jora Singh)\ngk                                                 Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Ishwar Chand vs State Of Haryana on 16 February, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-15973","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nIshwar Chand vs State Of Haryana on 16 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ishwar-chand-vs-state-of-haryana-on-16-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ishwar Chand vs State Of Haryana on 16 February, 2009 - 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