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2013 DIGILAW 907 (PNJ)

Gauri Shankar v. State of Punjab

2013-07-23

ANITA CHAUDHRY, M.JEYAPAUL

body2013
JUDGMENT Anita Chaudhry, J.(Oral) The present appeal is directed against the judgment of conviction and order of sentence dated 12.09.2006 passed by the Addl. Sessions Judge, Patiala vide which the appellants-accused – Gauri Shankar and Meena @ Manjit Kaur have been convicted under Sections 302 and 34 IPC in case FIR No.256 dated 27.06.2003 registered at Police Station Samana, District Patiala. Both the accused were sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-each under Section 302 IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of three months. Aggrieved by the judgment, the appellants have preferred this appeal. The facts as deduced from the evidence are that Karnail Singh got married very late in his life to Meena @ Manjit Kaur (appellant No.2). Karnail Singh worked for Dev Raj and used to look after the buffaloes and was living in the sheller. Gauri Shankar-appellant No.1 used to meet Meena @ Manjit Kaur. They had illicit relations to which Karnail Singh objected. Karnail Singh had asked Gauri Shankar not to come to his house over which Meena @ Manjit Kaur often used to quarrel and had beaten Karnail Singh. On 26.06.2003 Puran Singh, brother of Karnail Singh accompanied by Jeet Singh, Numberdar went to the sheller to hand over the lease money to Karnail Singh. They found Karnail Singh and Gauri Shankar taking liquor, Meena @ Manjit Kaur was preparing meat. Gauri Shankar put liquor in two glasses and offered it to the complainant and the Numberdar, which they refused. As night fell, Gauri Shankar opened the second nip and poured it in two glasses. On the pretext of adding ice, he went near the tubewell. The complainant saw Gauri Shankar removing poison from a black polythene, which was handed over by Meena @ Manjit Kaur. It was added in the liquor and it was later served to Karnail Singh. The complainant asked the appellants as to what was added from the envelop, Meena had replied that they had added ice water. The liquor was consumed by Karnail Singh. Few minutes later, he started vomiting and got loose motions. Meantime, Dev Raj, owner of the sheller also arrived. The condition of Karnail Singh started deteriorating. The complainant-Puran Singh and Jeet Singh removed Karnail Singh to Goyal Hospital, Samana on the scooter and Dev Raj accompanied them. The liquor was consumed by Karnail Singh. Few minutes later, he started vomiting and got loose motions. Meantime, Dev Raj, owner of the sheller also arrived. The condition of Karnail Singh started deteriorating. The complainant-Puran Singh and Jeet Singh removed Karnail Singh to Goyal Hospital, Samana on the scooter and Dev Raj accompanied them. Karnail Singh died in the hospital at about 10.00 pm on 26.06.2003. The report was lodged in the police the next day at 10.00 am. The police visited the spot and collected incriminating material. Both the accused were interrogated. Gauri Shankar disclosed that he had purchased pesticides from M/s Sidhu Pesticides Stores vide bill Ex.P-25. Meena @ Manjit Kaur made a separate disclosure statement that she had concealed the container, in the heap of wood and could get it recovered. The viscera was sent to the Chemical Examiner and ethyl alcohol and choloro compound group of insecticide was detected in Ex.I, II, III and IV. The cause of death was stated to be Ethyl alcohol and the insecticide detected in the Exhibits containing viscera. Puran Singh – PW-2, Jeet Singh Numberdar and Dev Raj – PW-11 supported the prosecution version. Besides them, the prosecution examined the medical officers and the investigating officer. In the statement of the accused, both the accused pleaded innocent and examined Manjit Kaur – appellant No.2 by way of defence evidence. She deposed that Puran Singh had a grudge against her and wanted to grab her husband's property and often used to threaten her and she was a foreigner and there were quarrels and she did not know Gauri Shankar and a false case has been registered against them. We have heard learned counsel for the parties and with their assistance minutely perused the record of the case. The contention of the appellant was that there was a delay in lodging the FIR and the death had taken place around 10.00 pm and if the complainant and Numberdar, who was an influential person, were in the hospital, there was no reason why the matter was not reported to the police the same night. It was urged that the record from the Goyal Hospital was not summoned nor any doctor from that hospital was examined and this is a major lacuna in the prosecution case as that record would have revealed the names of persons who had accompanied Karnail Singh to the hospital. It was urged that the record from the Goyal Hospital was not summoned nor any doctor from that hospital was examined and this is a major lacuna in the prosecution case as that record would have revealed the names of persons who had accompanied Karnail Singh to the hospital. It was urged that normally when suspected case of poison is reported in the hospital, the hospital informs the police but in this case no intimation was sent. It was urged that the accused would not be so naïve that they would mix poison in the presence of witnesses and the prosecution case is improbable and the police has got a bill prepared showing that the purchaser had put his thumb impression on the bill but the thumb impressions were not got compared. It was urged that according to the time given by the witnesses, the viscera was taken 2/3 hours before the death. It was urged that there was a discrepancy as to when the viscera was sent in the office of the Chemical Examiner and different dates have appeared in the statements of Constable Kala Singh-PW-8 and the investigating officer. It was urged that according to the Constable Kala Singh he had started from the police station on 01.07.2003 at 10.00 am and the parcels were deposited on the same day whereas the FSL report states they were dispatched on 03.06.2003 and were received in the office on 03.07.2003. It was urged that the recovery shown by the police officials is their own creation and recovery was made from an open area, which is accessible to all and the accused would not retain a box with them so as to be caught subsequently. It was urged that there is a discrepancy about the type of glass that was offered to Karnail Singh. Learned counsel for the State had urged that there were eye-witnesses and both Meena @ Manjit Kaur and Gauri Shankar executed a plan to remove Karnail Singh from the scene as they were in illicit relationship and the discrepancies pointed out by the appellants are insignificant and the judgment passed by the trial court should be affirmed. The settled principle of law is that delay in filing the FIR by itself cannot be a ground to doubt the prosecution case. The settled principle of law is that delay in filing the FIR by itself cannot be a ground to doubt the prosecution case. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory or not. At this juncture, it would be relevant to note some of the judgments of the Hon'ble Apex Court. In State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71 , the Hon'ble Apex Court had observed as follows: "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case." In Ravinder Kumar and Another v. State of Punjab, (2001) 7 SCC 690 , it was observed as under: "When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.” In Amar Singh v. Balwinder Singh & Ors., (2003) 2 SCC 518 , the Apex Court had held that: "There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR." Having noted the principles laid down in various judgments, the facts of the present case have to be examined. The incident took place at about 6.30 pm on 26.06.2003 in the courtyard of the sheller, which was occupied by Karnail Singh. Gauri Shankar and Karnail Singh were taking liquor when Puran Singh-complainant and Jeet Singh, Numberdar arrived. Puran Singh had to hand over some lease money to his brother. There are discrepant statements regarding the lease money. The police had failed to collect evidence to show that Karnail Singh had landed property or that he had leased out any property. The arrival of Puran Singh on the spot was important evidence as there was no reason for him to come and meet his brother. There are discrepant statements regarding the lease money. The police had failed to collect evidence to show that Karnail Singh had landed property or that he had leased out any property. The arrival of Puran Singh on the spot was important evidence as there was no reason for him to come and meet his brother. It has come in evidence that Karnail Singh had come to stay in this property only a month ago and the prosecution witnesses have stated that Gauri Shankar used to meet Meena @ Manjit Kaur often and it was objected to by Karnail Singh as Meena and Gauri Shankar were in a relationship. Both the witnesses have deposed that Meena handed over a polythene bag and accused Gauri Shankar mixed poison in the liquor on the pretext that he was putting ice and the poison laced drink was given to Karnail Singh and he started vomiting after some time. According to the prosecution, Puran Singh and Jeet Singh took Karnail Singh on a scooter to a nearby hospital and they were categoric that they reached the hospital at 8.00 pm. Their presence in the hospital would have been noted. The history would have found a mention in the hospital records. For reasons only known to the prosecution that evidence was kept away from the Court. No ruqa was sent from that hospital. Karnail Singh is stated to have died on the same day at 10.00 pm. Puran Singh had stated that the police was informed and his statement was recorded in that hospital but as per FIR, intimation was sent from Goyal Hospital very late and the FIR was lodged on the next day at 10.30 am on 27.06.2003. The special report reached the Magistrate at 11.25 am. The prosecution had failed to lead evidence to show as to when ruqa was sent. They were required to explain that it was the police, who delayed the action. The argument put-forth on behalf of the appellants was that eye-witnesses were not present on the spot and therefore, time was taken to report the incident. It is settled that if the prosecution fails to satisfactorily explain the delay there is possibility of embellishment in the prosecution case and the Court has to be very conscious in examining the facts. A delayed FIR causes a doubt about the veracity of the prosecution case. The FIR is delayed. It is settled that if the prosecution fails to satisfactorily explain the delay there is possibility of embellishment in the prosecution case and the Court has to be very conscious in examining the facts. A delayed FIR causes a doubt about the veracity of the prosecution case. The FIR is delayed. No explanation has been put-forth. As per the prosecution version, poison that was administered to Karnail Singh had been purchased by Gauri Shankar from a shop. The accused had suffered a disclosure and the police had collected the bill and it was their case that the bill of purchase bore the thumb impressions of the accused. The original bill and the second copy are available on record. The prosecution did not bother to get the thumb impressions of the accused compared with the thumb impressions available on Ex.P-25. It is strange that the thumb impressions are taken on the bill of purchase. It is not usual to take thumb impressions or signatures on the sale memo. It is interesting to note that when Meena @ Manjit Kaur stepped into witness box, the suggestion that was given to her was that Gauri Shankar had given the money and she had gone to the shop to purchase the pesticide. In the light of this suggestion for the prosecution to say that the thumb impressions of Gauri Shankar were on the cash memo gets totally belied. The prosecution was not sure of the stand they had taken. The prosecution had also set up a disclosure and recovery but the recovery is doubtful as no person would keep incriminating material with themselves. The recovery was effected from an open area which was accessible to all. There is a discrepancy with respect to the date on which the viscera was sent to the Chemical Examiner. The report of the Chemical Examiner states that it was received by them on 03.07.2003 and it had been dispatched on 30.06.2003 whereas Constable Kala Singh had deposed that it was taken by him on 01.07.2003 and it was delivered the same day. For the prosecution to succeed they had to prove the case beyond reasonable doubt. The burden of proof lies heavily on the prosecution and they must discharge the same by leading evidence, which is cogent and convincing. In the present case, the prosecution has not been able to prove the case beyond reasonable doubt. For the prosecution to succeed they had to prove the case beyond reasonable doubt. The burden of proof lies heavily on the prosecution and they must discharge the same by leading evidence, which is cogent and convincing. In the present case, the prosecution has not been able to prove the case beyond reasonable doubt. There is a great delay in lodging the FIR. The prosecution has held back important material. The story put forward by them is improbable. It is held that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, the appellants are entitled to benefit of doubt and are acquitted. The appeal is allowed.