Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 278 (PNJ)

Sucha Singh v. State of Punjab

2003-02-13

S.S.SARON, SWATANTER KUMAR

body2003
JUDGMENT Swatanter Kumar, J. - The question that arises for consideration before us in this appeal is whether in a case of circumstantial evidence, where the accused fails to render a probable explanation in his statement under Section 313 of the Code of Criminal Procedure (Criminal Procedure Code for short), the Court would be justified in holding the accused guilty with reference to the facts and circumstances of the present case. 2. The learned counsel appearing for the appellant-accused while impugning the judgment under appeal, contended that it was a case of no evidence. Thus, even the principle of controlling conviction in cases of circumstantial evidence would not be applicable. According to him, all the witnesses who appeared in the Court turned hostile, the material witnesses including Makhan Singh before whom the accused is alleged to have made an extra-judicial confession was not examined. The acquittal of co-accused Jeet Singh rendered the prosecution case entirely baseless. As such the appellant is also entitled to the benefit of doubt. 3. On the other hand, learned counsel appearing on behalf of the State contends that in view of principle enunciated by the Honble Apex Court in Jagjit Singh v. State of H.P., 1994 SCC (Cri.) 176 and Vasa Chandrasekhar Rao v. Ponna Satyanarayana, 2000(3) RCR(Criminal) 96, in a case based on circumstantial evidence, and where the prosecution is able to provide a link to the crime, failure of the accused to render proper explanation in relation to murder of this wife in his house would lean towards the guilt of the accused and the judgment of the trial Court is thus liable to be affirmed. 4. The case of the prosecution can be noticed as recorded in the FIR itself. FIR Ex. PI/B was recorded at 3.05 PM on 7th August, 1998 in relation to an occurrence that took place in the intervening night of 6/7.8.198. The FIR was registered on the statement of Smt. Jaswinder Kaur, sister of the deceased for an offence under Section 302 read with Section 34 of the Indian Penal Code against Sucha Singh appellant and Jeet Singh his brother. Statement of complaint Jaswinder Kaur PW-1 reads as under :- "I have been married to Malkiat Singh son of Mohinder Singh, Bazigar resident of Mehar Singhwala for the last about one and half year ago. My parents have expired. We are three real sisters. Statement of complaint Jaswinder Kaur PW-1 reads as under :- "I have been married to Malkiat Singh son of Mohinder Singh, Bazigar resident of Mehar Singhwala for the last about one and half year ago. My parents have expired. We are three real sisters. Out of them, the eldest is Manjit Kaur @ Bholi who was married to Sucha Singh son of Chanan Singh, Bazigar, resident of Malsian Kalan for the last bout 6/7 years. My other sister Beero was married to Maru son of Mohinder, Bazigar resident of Rampur District Hoshiarpur for the last about 8 years. My engagement was settled by my sister Manjit Kaur. My brother-in-law (sisters husband) Sucha Singh wa suspicious about the character of my sister Manjit Kaur. Due to this reason, quarrel remained in their family. Yesterday i.e. on 6.8.98 on Thursday, I had come to Malsian Kalan to see my sister Manjit Kaur. My brother-in-law Sucha Singh started quarrelling with my sister that she was of immoral character. I made them understand that they should not spoil their family life. Saying so that tomorrow I will come alongwith my husband Malkiat Singh and settled their dispute, I had come to my village Mehar Singhwala. Today, in the morning at 12.00 Oclock, I alongwith my husband Malkiat Singh reached Malsian Kalan in the house of my sister and came to know that last night, my brother-in-law Sucha Singh and his brother Jita Singh have strangulated my sister Manjit Kaur to death. My brother-in-law and his family members were preparing for cremation. In the meanwhile, my brother-in-law Sucha Singh and his brother Jita Singh came alongwith Panchayat and started saying that they had committed the mistake. I and my husband raised a raula and both of them slipped away from there. The cause of grudge is that my brother-in-law Sucha Singh and his brother Jita Singh used to beat my sister and turn her out of the house. My brother-in-law Sucha Singh used to follow the instructions of his brother Jita Singh. On the previous night, my brother-in-law Sucha Singh and his brother Jita Singh have strangulated my sister Manjit Kaur to death. Leaving my husband to guard the dead body, I have come to lodge a report that you have met me. Action may be taken." 5. The body of the deceased was subjected to post mortem examination which was performed by Dr. Leaving my husband to guard the dead body, I have come to lodge a report that you have met me. Action may be taken." 5. The body of the deceased was subjected to post mortem examination which was performed by Dr. Baldev Raj Arora who was examined as PW-3. The injury noticed on the body of the deceased and the opinion of the doctor in relation to cause of death can usefully be noticed as under :- "The Chuni was encircling the neck all around with knot on left side. On its removal there was well defined slightly depressed mark about 3 cm wide situated low down in neck below the thyroid cartilage and encircling the neck horizontally and completely. The base of the groove were pale, with reddish margin. On dissection there was extravasation of the blood into subcutaneous tissue under the ligature mark also in the underlying muscle. There was no fracture of larynx or tracheal rings. xxx xxx xxx In my opinion, the cause of death in this case was strangulation leading to asphyxia and death which was sufficient to cause death in the normal course of nature. xxxx xxxx xxxx Probable time that elapsed between injury and death was within few minutes, and that between death and post mortem was between 24 hours to 36 hours." 6. The investigating officer after recording the statement of various witnesses, including the PWs who appeared in the Court, filed challan before the Court of competent jurisdiction. Vide order dated 17.10.1998, the learned Magistrate committed both the accused to face trial under Section 302/34 of the Indian Penal Code before the Court of Sessions. The prosecution examined eight PWs and produced various documents including recovery memos on record. 7. In their statements under Section 313 Criminal Procedure Code, both the accused denied their involvement in the case. According to Jeet Singh, he was residing separately from Sucha Singh accused and stated that he has no concern with him. While Sucha Singh appellant stated that he has been falsely implicated and when he woke up in the morning he found the house articles lying scattered and theft was committed and his wife was lying dead on the cot. Despite opportunity, no defence was led on behalf of the accused. They closed their evidence on 7.8.2001. 8. While Sucha Singh appellant stated that he has been falsely implicated and when he woke up in the morning he found the house articles lying scattered and theft was committed and his wife was lying dead on the cot. Despite opportunity, no defence was led on behalf of the accused. They closed their evidence on 7.8.2001. 8. The learned trial Court vide its judgment dated 7.8.2001 acquitted Jeet Singh accused and convicted Sucha Singh accused-appellant under Section 302 of the Indian Penal Code. After hearing the accused on the quantum of sentence vide its order of sentence dated 8.8.2001, awarded Sucha Singh accused sentence to undergo rigourous imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo imprisonment for six months. 9. The appellant challenges this judgment of conviction and order of sentence of the trial Court before this Court in the present appeal. We have already noticed that the entire prosecution case rests primarily on the statement of PW-1 Jaswinder Kaur sister of the deceased who also lodged FIR, her husband Malkiat Singh and Makhan Singh Chowkidar, before whom extra judicial confession was made by both the accused and the medical evidence. 10. It is true that in the extended principles of criminal jurisdiction as approved by the Honble Apex Court, a conviction can result even in case of circumstantial evidence. A case of circumstantial evidence must necessarily provide a complete link between the various factors controlling conviction of an accused. In other words, motive, intention, circumstances indicating a complete link in the partication of the accused in commission of the crime, the weapon or such other attending circumstances which would on the face of it indicate involvement of the accused in the commission of crime. Such circumstantial evidence must be corroborated as a whole by the other evidence adduced by the prosecution. Such circumstantial evidence must be corroborated as a whole by the other evidence adduced by the prosecution. If the basic ingredients in that behalf are satisfied then an obligation is placed on an accused to render an explanation to the crime committed and not merely to deny the case of the prosecution in his statement under Section 313 Criminal Procedure Code In the case of Vasa Chandrasekhar Rao (supra) as well as in Jagjit Singhs case (supra), the Honble Apex Court has enunciated the principle that where the prosecution wants to prove the guilt of the accused by circumstantial evidence, it is necessary to establish that the circumstances from which a conclusion is drawn, should be fully proved; the circumstances should be conclusive in nature; all the facts so established, should be consistent with the innocence; and the circumstances should exclude the possibility of guilt of any person other than the accused. In order to justify an establishment of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence against the accused beyond any reasonable doubt. Where accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. 11. The above dictum of the Honble Apex Court clearly indicates that prosecution is essentially to prove the commission of crime beyond reasonable doubt. The prosecution is not entitled to give a go by to this principle even in case of circumstantial evidence. Jaswinder Kaur appeared as PW-1 before the Court and after two sentences of her statement, in examination-in-chief, were recorded she was declared hostile. She was cross-examined. In her examination as well as in cross-examination she only stated one fact that her brother-in- law i.e. accused Sucha Singh used to quarrel with her sister. However, she specifically denied the instance that happened on the evening of 6th August 1998 at Sucha Singhs house. She completely retracted from her statement recorded under Section 161 Criminal Procedure Code by the police. However, she specifically denied the instance that happened on the evening of 6th August 1998 at Sucha Singhs house. She completely retracted from her statement recorded under Section 161 Criminal Procedure Code by the police. Not only this, Mukhtiar Singh PW-4 before whom Jeet Singh co-accused was alleged to have made an extra judicial confession also, turned the table on the prosecution. In Court, he stated that no such confessional statement was made before him. On the other hand, he stated :- "Sucha Singh accused was working as Siri with one Harjit Singh Fauji. On that day the paddy crop was requiring lot of water, and on that season the people were irrigating their fields with the help of electric motors. The electric light was in proper order and electric motors were running on the intervening night of 6/7.8.98. There was electric shortage in day time, Sucha Singh had gone to irrigate the fields on that night of said Harjit Singh Fauji." 12. Makhan Singh Chowkidar was the person to whom, as per prosecution version, accused Sucha Singh has made extra judicial confession. He was not examined. Malkiat Singh was also not examined by the prosecution and they were given up by the prosecution as having been won over by the accused as recorded in the order of the Court dated 20th April 1999. Non-production of these two material witnesses along with the fact that a number of other witnesses were given up in the case, cannot lend any inference favourable to the case of the prosecution. 13. Another interesting feature of this case is that a photographer was engaged by the investigating officer for taking the photographs of the deceased. The photographs were not even exhibited or record. They were only marked even though their negatives were produced on record. The photographs on the record do not go alongwith the story of the prosecution that the deceased was strangulated by the accused to death. In fact, the Photographer PW-2 besides his professional role, also made a statement which was quite damaging to the case of the prosecution. In his cross-examination, he stated :- "When I had taken the photographs at that time the scarf round the neck of the lady was loose. I had not stated to police that I had got developed the positives from the negatives from Sood Laboratory Ludhiana as I was not asked so. In his cross-examination, he stated :- "When I had taken the photographs at that time the scarf round the neck of the lady was loose. I had not stated to police that I had got developed the positives from the negatives from Sood Laboratory Ludhiana as I was not asked so. I had fixed the numbers on the reel (film) and those numbers are clearly visible from the negatives. I had not maintained any register and had not entered the numbers in any register. I had sent the negatives in a tied container to the laboratory. It is wrong to suggest that I am deposing falsely." 14. Now we proceed to discuss the medical evidence adduced by the prosecution in the present case. PW-3 Dr. Baldev Raj Arora gave his opinion as already noticed. It is clear from his statement in Court as well as from the post- mortem report Ex.PM that there were no injuries of any kind on the body of the deceased except the ligature mark on the neck. He in his cross-examination conceded that in a case of strangulation the victim always struggles to save himself/herself. No marks of hanging were noticed on the neck of the deceased and if the version of PW-2 is to be believed and the Chuni (scarf) was loose around the neck, it will hardly by possible for the Court to conclude that it was a death by strangulation in which the accused was involved. 15. At this stage, we may also refer to Modis Medical Jurisprudence & Toxicology, Twenty-Second Edition, Edited by B.V. Subrahmanyam, where while specifying the distinction, based on Medical Jurisprudence, between hanging and strangulation, it was specified as under :- HANGING STRANGULATION. 1. Mostly suicidal. 1. Mostly homicidal. xxx xxx xxx xxx 10. Injury to the muscles of the neck-Rare 10. Injury to the muscles of the neck-Common. 11. xxxx xxxx 12. Fracture of the larynx and trachea - Very rare and that too in judicial hanging. 12. Fracture of the larynx and trachea - Often found also hyoid bone. xxx xxx 16. The factum of death is hardly in question. What is material is who committed the crime. It is for the prosecution to establish this by leading cogent and reliable evidence which will form a complete link in the case of prosecution. The evidence may be direct or circumstantial. xxx xxx 16. The factum of death is hardly in question. What is material is who committed the crime. It is for the prosecution to establish this by leading cogent and reliable evidence which will form a complete link in the case of prosecution. The evidence may be direct or circumstantial. In the present case there is no link and any circumstances, as stated by the prosecution have not been proved. The present is a case where there is no link and any of the circumstances as stated by the prosecution have not been proved. The present case is not a case of missing link but is of no link. It is a case where each and every witness of the prosecution except the police has turned hostile. They have not only retracted from their statements recorded under Section 161 Criminal Procedure Code but have also given a version which is believable and is more favourable to the accused. The factum of acquittal of Jeet Singh, against which the State has not come up in appeal, is bound to have its own effect on the present appeal. Even if the original story of Jaswinder Kaur PW-1 was to be taken as the basis of the prosecution case, then Jeet Singh may not have been left. The fact that Jeet Singh has been found not guilty, it adversely affects the entire cases of the prosecution. 17. The learned counsel appearing for the State has placed great emphasis on the fact that the accused has not rendered a plausible explanation in relation to the death of his wife in his statement under Section 313 Criminal Procedure Code For this purpose he relied upon the observations of the Honble Apex Court in case State of U.P. v. Brahma Das, AIR 1986 Supreme Court 1769. The principle of law, as argued, cannot be disputed. Such principle is not more res integra and has been repeatedly affirmed by the Courts of the country. Merely because an accused has not given a reasonably good answer and has denied the allegation is no ground for holding the accused guilty of offence under Section 302 Indian Penal Code. The prosecution must establish its case by direct or circumstantial evidence and then alone a responsibility is cast on the accused to explain the incriminating factor particularly in such cases. The prosecution cannot shift its burden. The prosecution must establish its case by direct or circumstantial evidence and then alone a responsibility is cast on the accused to explain the incriminating factor particularly in such cases. The prosecution cannot shift its burden. Its failure to discharge its primary onus cannot be sustained on the weakness of an accused. 18. The accused is in jail since 1998 and has suffered the rigour not only of prosecution but even of conviction under the judgment of the trial Court which we find no reason to sustain. 19. For the reasons afore-stated, we accept this appeal, set aside the judgment of conviction and order of sentence of the learned trial Court and hold that the accused is not guilty of an offence under Section 302 of the Indian Penal Code. The accused-appellant shall be set at liberty forthwith if not needed in nay other case. Appeal allowed.