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2014 DIGILAW 228 (PNJ)

Ishwar Singh v. State of Haryana

2014-01-29

JASPAL SINGH, RAJIVE BHALLA

body2014
Judgment JASPAL SINGH, J. Appellant-Ishwar has preferred the instant appeal feeling dissatisfied against the judgment of conviction dated October 20, 2008 and order of sentence dated October 23, 2008 passed by learned Sessions Judge, Sirsa in case FIR No. 46 dated 17.03.2007, registered at Police Station Nathusari Chopta, under Section 302 of the IPC whereby he has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/and in default of payment of fine, to undergo further simple imprisonment for one month. 2. Succinctly, the case of the prosecution as contained in the report under Section 173(2) Cr.P.C. is that Gauri Shankar son of Mukand Singh, resident of Nathusari Kalan, disclosed to the police that on March 17, 2007 at about 1:00 p.m., his sisterinlaw namely Pushpa @ Champa, who has been running a grocery shop in the house, returned after collecting some fodder from the fields. His brother Ishwar Singh asked her to prepare tea for him but she parried that she would prepare tea after having supplied items to a customer. His brother became furious and dealt 23 spade (kassi) blows from its reverse side on her head. On sustaining injuries, she fell down. On hearing commotion, his uncle Rameshwar was attracted to the spot. When she was being rushed to hospital at Sirsa, they got her checkedup at Sigma Hospital, where she was declared dead. Her dead body was brought back to the house. Statement of Gauri Shankar Ex.P2, was sent to Police Station NS Chopta by making an endorsement Ex.P2/B, by SI/SHO Joginder Singh, on the basis of which, formal FIR Ex.P2/A was put into black and white by ASI Jagdish Prahad. Thereafter, the Investigating Officer visited the spot, prepared inquest report in respect of the dead body of Pushpa @ Champa, prepared the visual site plan of the place of occurrence Ex.P18, took into possession blood stained earth and towel after converting the same into sealed parcels vide memo Ex.P12, deputed ASI Ranjit Singh for getting conducted autopsy on the dead body of Pushpa @ Champa and recorded the statements of the witnesses under Section 161 Cr.P.C. During the intervening night of March 17/18, 2007, Hari Singh, resident of Nathu Sari Kalan, produced the accused along with spade (kassi) before SI Joginder Singh. After preparation of sketch of spade (kassi) Ex.P16, it was converted into sealed parcel, which was taken into possession vide memo Ex.P15. Seal after use was entrusted to ASI Ram Bhaj. While he was returning to police station, ASI Ranjit Singh met him near the Bus Stand Sirsa, who produced before him a copy of PMR and parcel containing clothes of the deceased, which were taken into possession vide memo Ex.P17. He recorded the statements of the witnesses under Section 161 Cr.P.C. and also got prepared scaled site plan of the place of occurrence by Radhey Sham, Draftsman. After completion of the investigation, report under Section 173 (2) Cr.P.C. was presented before ld. Jurisdictional Magistrate. It was committed to the Court of Sessions after having complied with the provisions contained in Section 207 Cr.P.C. by ld. Additional Chief Judicial Magistrate, Sirsa vide order dated May 11, 2007. 3. Since a prima facie case was made out under Section 302 of the IPC from the contents of the report under Section 173 (2) Cr.P.C. and the documents annexed with it, appellant was charged to face trial under Section 302 of the IPC. He did not plead guilty to the charge and claimed trial. 4. In order to substantiate the charge framed against the appellant, prosecution examined as many as 12 witnesses. Radhey Sham, Draftsman PW1 prepared the scaled site plan Ex. P1, ASI Jadgish Parshad PW2 put into black and white FIR Ex.P2/A, Constable Kapil Dev PW3, Head Constable Rai Sahab PW4 and Constable Subhash Chander PW5 handled the case property at different stages and submitted their sworn affidavits Ex.P3 to P5, respectively. Dr. Archna Aggarwal PW6 conducted autopsy on the dead body of Pushpa @ Champa on March 18, 2007 at 11:45 a.m. and found following injuries as under: 1. “Incised wound of size 10 cm x 2 cm cranial cavity deep over temporo parietal region 6 cm above and behind to the left ear and it was oblique in direction. Clotted blood was present in and around the wound. On dissection there was subcutaneous infiltration of blood. Multiple fractures of the parietal bone were present. Laceration of brain tissue with intracranial haemorrhage. 2. Diffuse haematoma of size 10 cm x 8 cm over left side of face. On dissection subcutaneous infiltration of blood was present and on further dissection fracture of underlying bone was present. On dissection there was subcutaneous infiltration of blood. Multiple fractures of the parietal bone were present. Laceration of brain tissue with intracranial haemorrhage. 2. Diffuse haematoma of size 10 cm x 8 cm over left side of face. On dissection subcutaneous infiltration of blood was present and on further dissection fracture of underlying bone was present. On further dissection there was blood in trachea. Lungs were slightly congested and there was blood in mouth and oesophagus and liver and spleen were partially congested and rest of the organs were healthy.” She opined the cause of death of Pushpa @ Champa was due to injuries to vital organs and their complications, which were antemortem in nature and sufficient to cause death in the ordinary course of nature. It was further opined by her that the time elapsed between injuries and death could be within a few minutes whereas between death and postmortem could be 12 to 24 hours and proved copy of PMR Ex.P7. Gauri Shankar, complainant and author of FIR appeared as PW7 but did not support the case of prosecution and resiled from the contents of his statement made to police. PW8 Rameshwar and PW9 Hari Singh also did not toe the line of prosecution and were declared hostile. ASI Ranjit Singh PW10 got conducted the autopsy on the dead body of Pushpa @ Champa and handed over the sealed parcel, containing belongings of the deceased and a copy of PMR to SI/SHO Joginder Singh and has proved memo Ex.P17. SI/SHO Joginder Singh PW11 conducted investigation of this case. He recorded statements of the witnesses, took into possession simple soil and blood stained soil, blood stained towel, clothes of the deceased, recovered spade (kassi) stained with blood, arrested the accused, prepared and presented the challan. Mahabir PW12, father of deceased Pushpa @ Champa denied that accused-Ishwar was present at his in-laws house at the time of alleged occurrence. Thereafter, prosecution closed its evidence after placing on record reports of the Forensic Science Laboratory Ex.P19 and P20. 5. When the incriminating circumstances, appearing in prosecution evidence were put to the accused for eliciting his explanation as required under Section 313 Cr.P.C., he denied all of them and pleaded innocence. Plea taken by the accused-appellant runs as under: “I am innocent. I did not commit any crime. 5. When the incriminating circumstances, appearing in prosecution evidence were put to the accused for eliciting his explanation as required under Section 313 Cr.P.C., he denied all of them and pleaded innocence. Plea taken by the accused-appellant runs as under: “I am innocent. I did not commit any crime. I was not present in my house at the time of alleged occurrence and was away to my in laws to bring my son and a quarrel took place between me and my in-laws. When I returned I found my wife Pushpa @ Champa lying murdered. I do not know who had caused her murder. I have been falsely implicated in this case by my in-laws due to strained relations.” 6. He adduced evidence in defence and examined Inder Singh DW1 and Pawar Singh DW2 to prove that he was not present at the time of the alleged occurrence and had gone to village Baiyen, (his in-laws house) in the State of Rajasthan. 7. After hearing learned counsel for the State as well as the defence counsel and appraisal of the evidence, Ishwar Singh was convicted under Section 302 IPC and sentenced as fully described in para No.1 of this judgment. 8. Feeling aggrieved, the appellant has preferred the instant appeal, challenging his conviction and sentence imposed vide impugned judgment dated October 20, 2008/October 23, 2008, which was admitted for hearing by this Court vide order dated January 22, 2009. Lower court's record was requisitioned and received. 9. While assailing conviction and sentence imposed upon the appellant, it has been ebulliently argued by learned counsel for the appellant that the same are absolutely against evidence available on file and settled canons of law. Mis-appreciation of evidence has resulted into miscarriage of justice. In fact, there is not an iota of evidence to prove the guilt of the appellant. Instant case was registered on the basis of statement Ex.P2, alleged to have been made by Gauri Shankar, who appeared in the witness box as PW7 and categorically stated that accused-appellant did not inflict any injury to deceased Pushpa @ Champa on March 17, 2007 in his presence. He was declared hostile and subjected to a thorough and probing cross-examination and confronted with the contents of his alleged statement Ex.P2 but nothing fruitful to the prosecution could be elicited from him. He was declared hostile and subjected to a thorough and probing cross-examination and confronted with the contents of his alleged statement Ex.P2 but nothing fruitful to the prosecution could be elicited from him. Similarly, PW8 Rameshwar as well as PW9 Hari Singh did not toe the line of the prosecution. They were also declared hostile. PW8 Rameshwar has specifically deposed that he was not present at the time of alleged occurrence and further that Gauri Shankar PW7 had told about the occurrence to him. PW9 Hari Singh is alleged to have produced the accused along with a spade before SI/SHO Joginder Singh but he has also stated in clear words that neither the appellant suffered any confession of his involvement in the commission of the murder of his wife nor produced the accused before the police. So in view of the testimony of the above referred witnesses, it is not established that the accused was responsible for the murder of his wife Pushpa @ Champa. Moreover, when there is no positive/cogent evidence to establish commission of an offence, no presumption could be raised against the appellant that he has committed the murder of his wife Pushpa @ Champa. To buttress his contention, he has placed reliance upon “Manjunath Chennabasapa Madalli vs. State of Karnatka, 2007 (2) RCR 84 and Dhanwant Singh vs. Union Territory, Chandigarh 2007(2) RCR (Criminal) 868. 10. While concluding arguments, it has been submitted by ld. counsel for the appellant that in the given circumstances, the impugned judgment of conviction dated 20.10.2008 and order of sentence dated 23.10.2008, being manifestly erroneous and against the settled principles of law, are not sustainable in the eyes of law. As such, the same are liable to be set aside by way of acceptance of the instant appeal and appellant deserves to be acquitted. 11. On the other hand, these arguments have been controverted by ld. counsel for the State submitting that there is no illegality or infirmity in the impugned judgment of conviction and order of sentence. The mere fact that author of the FIR PW7 Gauri Shankar and PW8 Rameshwar have resiled from their statements made to the police, their evidence is not liable to be totally rejected. It can be subjected to a close scrutiny and portion of evidence which is consistent with the case of prosecution may be accepted. The mere fact that author of the FIR PW7 Gauri Shankar and PW8 Rameshwar have resiled from their statements made to the police, their evidence is not liable to be totally rejected. It can be subjected to a close scrutiny and portion of evidence which is consistent with the case of prosecution may be accepted. Though witnesses have been declared hostile but they have admitted their signatures on recovery memo Ex.P12, vide which, blood stained soil and blood stained towel were taken into possession by SI/SHO Joginder Singh. They have simply stated that their signatures were obtained by the police on blank papers but did not furnish any cogent explanation in this regard. The recovery of blood stained spade coupled with the positive result of the Forensic Science Laboratory Ex.P20 further connects the appellant with the crime. Moreover, appellant has also failed to establish his plea of alibi. Mere statement of the accused that he was not present at the spot is not sufficient to prove his plea of alibi. DW1 and DW2 have simply deposed that Ishwar Singh took a lift on their tractor and scooter, respectively while going to the house of his father-in-law Mahabir Singh. Their testimonies in this regard are not sufficient to establish the plea of alibi, especially, in view of the testimony of Mahabir Singh PW12, who has deposed that on receipt of information with regard to the commission of murder of his daughter Pushpa @ Champa by Ishwar Singh, he accompanied by Subhash, Gobind, Rana, Suresh and his nephew Deepu Singh, came to Nathu Sari Kalan but prior to their reaching the village, the dead body of his daughter Pushpa @ Champa had been taken to Government Hospital, Sirsa. So his plea of alibi is not proved. The motive of his alleged false implication also could not be established. Therefore, instant appeal being without merits is liable to be dismissed. 12. We have seriously bestowed our consideration to the arguments addressed by ld. counsel for the parties and have perused the record. 13. As per the case of the prosecution, investigation of this case was put into motion by Gauri Shankar PW7, while making statement Ex.P2, on the basis of which, formal FIR Ex.P2/A was jotted down by ASI Jagdish Parsad PW2. counsel for the parties and have perused the record. 13. As per the case of the prosecution, investigation of this case was put into motion by Gauri Shankar PW7, while making statement Ex.P2, on the basis of which, formal FIR Ex.P2/A was jotted down by ASI Jagdish Parsad PW2. PW7 Gauri Shankar and PW8 Rameshwar were the star witnesses of the instant case but while appearing in the witness box, they did not support the prosecution version and resiled from their statements made to police. But, it is pretty settled that the evidence of such witnesses cannot be treated as effaced or washed off. In case Khujji @ Surendra Tiwari vs. State of Madhya Pardesh, AIR 1991 S.C., 1853, the following observation was made by the Hon'ble Apex Court: “It seems to be well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.” 14. It is also well settled that the principle “falsus in uno falsus in omnibus” (false in one thing false in everything), does not apply to the criminal trial and it is the duty of Court to disengage the truth from falsehood and to sift the grain from the chaff, instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of some infirmities. 15. Adverting to the facts of the case in hand, the entire case of the prosecution cannot be thrown away just on the ground that PW7 Gaurishankar, PW8 Rameshwar and PW9 Hari Singh have been declared hostile or they did not support the case of the prosecution. If their statements are scrutinized with caution and care, it emerges that PW7 Gauri Shankar reported the matter to the police and it was only, thereafter, PW11 SI/SHO Joginder Singh visited the spot. PW7 Gauri Shankar though declared hostile but his statement Ex.P2, which is foundation of this case admittedly bears his signatures. Apart from it, he has also admitted his signatures on memo Ex.P12 though hastened to add that police had obtained his signatures on blank papers. PW7 Gauri Shankar though declared hostile but his statement Ex.P2, which is foundation of this case admittedly bears his signatures. Apart from it, he has also admitted his signatures on memo Ex.P12 though hastened to add that police had obtained his signatures on blank papers. He did not lodge any protest for obtaining his signatures by the police at any point of time. PW9 Hari Singh though did not support the case of prosecution with regard to suffering of an extrajudicial confession by appellant-accused and his production of appellant and blood stained spade before SHO/SI Joginder Singh but during cross-examination conducted by learned Public Prosecutor, he has admitted his signatures on recovery memo Ex.P15 as well as sketch of spade Ex.P16. No explanation has been furnished by him regarding obtaining of his signatures by the police on blank papers. None of these PWs ever lodged any complaint with senior officers of the police or to any other authority. Silence on their part in this context is suggestive of the fact that they were part of the investigation and subsequently for reasons close to their chest and to save accused-appellant, who is closely related to them have resiled. PW7 is the brother of appellant whereas PW8 Rameshwar is his uncle and PW9 Hari Singh is a covillager. Even in the absence of resiled witness PW7 Gauri Shankar and PW8 Rameshwar, the eye witnesses, it cannot be disputed that a person can be convicted on circumstantial evidence provided the links in the chain of circumstances connects the accused with the crime beyond reasonable doubt. In the case in hand, recovery of blood stained spade (kassi) from appellant is fully established. It was sent to Forensic Science Laboratory for analysis and vide reports Ex.P19 and P20, it was found to be stained with human blood. 16. It is an undisputed fact that murder of Smt. Pushpa @ Champa has taken place in broad day light at about 1:00 p.m. in the house of the accused, she was none else but the wife of appellant. As per medical evidence, cause of death opined in this case was injuries to vital organs and their complications, which were antemortem in nature and sufficient to cause death in ordinary course of nature. There is nothing on record to suggest that these injuries could not be caused with a spade. As per medical evidence, cause of death opined in this case was injuries to vital organs and their complications, which were antemortem in nature and sufficient to cause death in ordinary course of nature. There is nothing on record to suggest that these injuries could not be caused with a spade. Statement of the accused was recorded under Section 313 Cr.P.C. The defence pleaded by him is to the effect that he was not present in his house at the time of alleged occurrence and was away to his inlaws house at village Baiyen in the State of Rajasthan to bring his son where a quarrel took place in between him and his inlaws. On return from his inlaws, he found his wife Pushpa @ Champa lying murdered and further that he does not know who has committed her murder. So far as the plea of alibi is concerned, he has examined DW2 Bhanwar Singh of his village, who has deposed that on March 17, 2007 at about 8:00/8:15 a.m., appellant took lift on his motorcycle and he dropped him at Bus Stand of village Chopta for going to Rajasthan and another witness Inder Singh DW1 belongs to village Sahawa, Tehsil Tara Nagar, District Churu, Rajasthan, who has stated that on March 17, 2007, he was present at his house where accused Ishwar Singh came at about 1:00/1:30 p.m. and stayed with him for sometime and at the time, appellant-accused told to him that he had gone to village Baiyen, Rajasthan to his inlaws house and he took the accused-appellant to drop him at Bus Stand on a tractor. The statements of both these witnesses do not inspire confidence and stood belied in view of the testimony of his father-in-law Mahabir Singh, who appeared in the witness box as PW12. As per his deposition, he came to the house of appellant on receipt of information that his daughter Pushpa @ Champa has been done to death by her husband i.e. appellant, thereby belying the defence version. Even otherwise, appellant was produced by PW9 Hari Singh along with spade used in the crime at about mid night intervening March 17/18, 2007. Recovery memo of blood stained spade Ex.P15 was prepared by PW11 SI/SHO Joginder Singh after preparation of sketch of spade (kassi) Ex.P16. 17. Even otherwise, appellant was produced by PW9 Hari Singh along with spade used in the crime at about mid night intervening March 17/18, 2007. Recovery memo of blood stained spade Ex.P15 was prepared by PW11 SI/SHO Joginder Singh after preparation of sketch of spade (kassi) Ex.P16. 17. It would also not be out of place to mention here that though occurrence had taken place at the house of appellant but he had feigned ignorance. He is supposed to have specific knowledge as to how, in what manner and who has committed murder of his wife. Since the accused has failed to discharge such onus placed upon him under Section 106 of the Evidence Act, he cannot escape liability. The prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of factors, which can be said to be with the special knowledge of the husband-accused and as he has failed to offer any explanation for these facts, it compells us to draw an inference against him. It would be useful to extract a portion of the observation made by the Hon'ble Apex Court in para No.18, Sucha Singh vs. State of Punjab 2001 (2) RCR (criminal) 298, which reads as under: “We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.” 18. One thing is evident from the statements of various witnesses and the Investigating Officer that incident took place at the residential house of the appellant, who must be aware of certain facts leading to the death of his wife by virtue of special knowledge but he has miserably failed to furnish any explanation what to say a plausible explanation. His plea of alibi is not acceptable and stand belied in view of the above discussion. 19. His plea of alibi is not acceptable and stand belied in view of the above discussion. 19. As has also been discussed above, the prosecution has succeeded in connecting the accused to the crime and further the accused has also failed to discharge the burden placed upon him under Section 106 of the Evidence Act. 17. In our opinion, learned trial Court has given cogent reasons for convicting the appellant and we see no reason to discard its verdict as there is sufficient evidence to show that the accused committed the murder of his wife. 18. In the light of above discussion, we find no force in this appeal and it is dismissed.