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2014 DIGILAW 895 (PNJ)

CHAND SINGH v. STATE OF HARYANA

2014-05-21

KULDIP SINGH, SATISH KUMAR MITTAL

body2014
JUDGMENT : Satish Kumar Mittal, J. Chand Singh has filed this appeal against the judgment and order 5.9.2009, passed by the court of Sessions Judge, Fatehabad, whereby he has been convicted under Section 302 IPC for committing the murder of his real sister Gurmail Kaur and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default to pay fine, to further undergo rigorous imprisonment for a period of three years. 2. Briefly, the case of the prosecution, which is based upon the statement (Ex.P2) made by Gurmail Singh (PW.3), brother of the appellant, before the police on 15.3.2009 at 9.05 PM, is that the complainant and his elder brother Chand Singh were residing separately from their parents. Their sister Gurmail Kaur (deceased) was married to Jagraj Singh. Out of this wed-lock, two sons, namely Jeewan Jot Singh (PW.4), aged about 12 years and Bharpur Singh, aged about 10 years, were born. It was stated that earlier, Gurmail Kaur was married to Jagraj Singh. Later on, about 10 years ago, he had died and thereafter, Gurmail Kaur along with her sons started residing with her parents. Subsequently, her parents had solemnised her marriage with Misri Singh, but their relations were not cordial. About three months ago, she (Gurmail Kaur) along with her sons again started residing with her parents. The complainant further stated that his sister Gurmail Kaur was ill for many days, due to which on 12.3.2009, his another sister Charanjeet Kaur had taken her to her village Bareta for providing her medicine. On 14.3.2009, the complainant and his mother Gurnam Kaur had gone to Bareta to bring back Gurmail Kaur. On the day of occurrence, i.e. on 15.3.2009 at about 7.30 AM, the complainant had taken her to his house and thereafter, he went for labour work. In the evening, at about 5.30 PM, after doing the labour work, when he was returning back to his house and reached near the house of Bawaria Singh, he heard the voice of his sister Gurmail Kaur saying "Mar Di -Mar Di" and his nephew Jeewan Jot Singh was crying that his mother was being beaten by the appellant, his maternal uncle. Thereupon, the complainant saw that the appellant, his real brother, was inflicting injuries on the neck and mouth of his sister with an iron "Dattar". Thereupon, the complainant saw that the appellant, his real brother, was inflicting injuries on the neck and mouth of his sister with an iron "Dattar". On seeing the complainant, the appellant along with the "Dattar" ran away from the spot. On hearing the noise, his mother had reached at the spot. It was further stated that the blood was oozing and there were signs of injuries on the neck and mouth of Gurmail Kaur. She was crying and telling that she was given injuries by the appellant. She was taken to the house of her parents so that she may be got treated. But after some time, she succumbed to her injuries. Later on, several people of the village reached there. The complainant along with Pohla Singh (PW.1) went to the police to lodge the report and in the way, in the area of village Jamalpur Shekhan, the police met them, where statement (Ex.P2) of the complainant was recorded. It was also stated by the complainant that his brother had committed the murder of his sister having suspicion on her character. 3. On the basis of the aforesaid statement, formal FIR (Ex.P29) was registered against the appellant on the same day at 9.35 PM. Thereafter, the police reached the house of parents of the deceased, took photographs (Ex.P34 to Ex.P41) of the dead body. After spot inspection, the blood stained earth was lifted from the place of occurrence, which was taken into possession vide memo Ex.P4. The blood stained earth was also lifted from the place where the dead body was lying and the same was taken into possession vide memo Ex.P5. The rough site plan (Ex.P43) of both these places was prepared. The inquest report (Ex.P13) was prepared. The dead body was sent to Civil Hospital, Tohana for post mortem examination. 4. On 16.3.2009, Dr. Satish Garg (PW.7) and Dr. Kusam Gupta conducted postmortem examination on the dead body of Gurmail Kaur. They found that the larynx was cut having incised wound and incised wound of size 3 x cm on both sides of the mouth and an incised wound cutting the oesophagus was present. It was opined that injury to the neck was the cause of death in this case. The injuries were found to be ante mortem in nature and sufficient to cause death in the ordinary course of nature. It was opined that injury to the neck was the cause of death in this case. The injuries were found to be ante mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was instantaneous and between death and postmortem examination was within 24 hours. Thereafter, two parcels, duly sealed with the seal of the Doctor, one containing clothes of the deceased and the other containing her bangles and ornaments, which were removed by the doctor during postmortem examination of the deceased, were taken into possession vide memo Ex.P3. On return to the Police Station, the case property was deposited with the MHC. 5. On 17.3.2009, the appellant was arrested in this case. During interrogation, he suffered disclosure statement (Ex.P6) and in pursuance of the same, he led the police party to a store of his residential house and got recovered a bag containing blood stained iron "Dattar", (used in the crime), blood stained jacket of black colour and blood stained white coloured shirt (worn by the appellant at the time of occurrence). Rough sketch (Ex.P7) of the said "Dattar" was prepared. The aforesaid "Dattar", jacket and shirt were taken into possession vide memo Ex.P8. Rough site plan (Ex.P44) of the place of recovery was prepared. On return to the Police Station, the aforesaid case property was deposited with the MHC. 6. On 25.3.2009, on an application (Ex.P46) moved by Inspector Hawa Singh (PW.13), Dr. Satish Garg vide his opinion (Ex.P46/A) opined that the injuries mentioned in the Post-Mortem Report of the deceased could be due to the iron "Dattar", recovered from the appellant. 7. After completion of investigation, challan against the appellant was filed. Charge under Section 302 was framed, to which the appellant did not plead guilty and claimed trial. 8. In support of its case, the prosecution examined thirteen witnesses. 9. As per the prosecution, PW.1 Pohla Singh accompanied the complainant to lodge report to the police and had made statement (Ex.P1) before the police under Section 161 Cr.P.C. However, he did not support the prosecution case at all. 10. PW.2, who had joined the inquest proceedings of the dead body, is a formal witness. 11. PW.3 Gurmail Singh (complainant), and PW.4 Jovan Jeet Singh, real brother and son of the deceased, respectively, are the material witnesses. 10. PW.2, who had joined the inquest proceedings of the dead body, is a formal witness. 11. PW.3 Gurmail Singh (complainant), and PW.4 Jovan Jeet Singh, real brother and son of the deceased, respectively, are the material witnesses. They fully supported the case of the prosecution with regard to the occurrence witnessed by them. PW.4 Jovan Jeet Singh is a child witness, aged about 12-13 years and before recording his statement, the trial court satisfied itself regarding his competency to depose. 12. PW.5 EHC Makhan Singh and PW.6 SI Madan Lal, who joined the investigation in this case, are the formal witnesses. 13. PW.7 Dr. Satish Garg, who along with Dr. Kusam Gupta conducted post mortem examination on the dead body of Gurmail Kaur, proved the Post Mortem Report (Ex.P10) and the diagrams (Ex.P11 and Ex.P12). 14. PW.8 Shri Krishan SI, PW.9 Balwant Singh, Draftsman, PW.10 HC Jagdish Ram, PW.11 Constable Raja Ram and PW.12 E/ASI Rohtash Kumar are the formal witnesses. 15. PW.13 Inspector Hawa Singh, the Investigating Officer of the case, proved all the proceedings conducted and the documents prepared by him during the investigation of this case. 16. The reports of the Forensic Science Laboratory, Haryana, Madhuban, Karnal (Ex.P51 and Ex.P52) were tendered into evidence. According to these reports, the earth lifted from the place of occurrence, as well as from the place where the dead body of Gurmail Kaur was lying, clothes of the deceased, "Dattar", shirt and jacket of the appellant, were stained with the human blood. 17. In his statement recorded under Section 313 Cr.P.C., the appellant denied all the incriminating evidence appearing against him in the prosecution evidence and pleaded his innocence. He stated that he and his brother Gurmail Singh (complainant) have strained relations with each other, therefore, he has been got falsely implicated in this case by his brother Gurmail Singh. However, he did not lead any evidence in his defence. 18. He stated that he and his brother Gurmail Singh (complainant) have strained relations with each other, therefore, he has been got falsely implicated in this case by his brother Gurmail Singh. However, he did not lead any evidence in his defence. 18. The trial court, after hearing learned counsel for the parties, while relying upon the statements of PW.4 Jovan Jeet Singh (son of the deceased), PW.3 Gurmail Singh (real brother of the deceased), the medical evidence, recovery of the blood stained "Dattar", as well as blood stained jacket and shirt of the appellant, and while disbelieving the defence version of the appellant that he has been falsely implicated at the instance of his brother Gurmail Singh, convicted and sentenced the appellant, as indicated in the first para of this judgment. 19. Learned counsel for the appellant argued that statements of PW.3 Gurmail Singh and PW.4 Jovan Jeet Singh are not reliable and trustworthy. In this regard, he argued that Gurmail Singh, while appearing in the witness box, made a material improvement regarding the occurrence. In his initial statement (Ex.P2) before the police, he stated that he had seen that the appellant was inflicting injuries on the neck and mouth of his sister Gurmail Kaur with an iron "Dattar", whereas while appearing as PW.3 before the court, he stated that he had seen that the appellant was running away having a "Dattar" in his hand. He further argued that since the appellant is not on visiting terms with his brother Gurmail Singh, therefore, his brother has got him falsely implicated in this case. With regard to the statement of PW.4 Jovan Jeet Singh, learned counsel argued that this witness, who is a child witness aged about 12-13 years, was not present at the time of the occurrence and had not seen the occurrence at all. He has been tutored. In this regard, learned counsel has referred to the cross-examination of this witness, wherein he stated that one day prior to his deposition in the court, he had come to the court complex to understand the statement to be given by him in the court. A police officer had made him understand the statement, which he had to depose in the court. A police officer had made him understand the statement, which he had to depose in the court. According to the learned counsel, presence of both these witnesses at the time of the alleged occurrence is highly doubtful and the trial court has committed grave illegality while convicting the appellant on the basis of their statements. 20. On the other hand, learned Deputy Advocate General, Haryana, argued that the trial court has rightly convicted and sentenced the appellant on the basis of the consistent statements of PW.3 Gurmail Singh and PW.4 Jovan Jeet Singh, who are none else but real brother and nephew of the appellant. He further argued that statements of both these material witnesses are duly supported by the medical evidence, as well as recovery of the blood stained "Dattar" and blood stained jacket and shirt of the appellant from the store of his residential house. 21. We have considered the submissions made by learned counsel for the appellant and the respondent-State, and carefully gone through the record of the case. 22. From the medical evidence available on record, the homicidal death of Gurmail Kaur has been established. As per the Post Mortem Report (Ex.P10), conducted by a Medical Board, consisting of Dr. Satish Garg (PW.7) and Dr. Kusam Gupta, Gurmail Kaur had died due to incised wounds, which in the opinion of the Doctors were sufficient to cause death in the ordinary course of nature. According to the further opinion of Dr. Satish Garg, the injuries found on the body of the deceased could have been caused with the "Dattar" (Ex.P48), which was recovered from a store of the residential house of the appellant in pursuance of his disclosure statement. According to the prosecution, the injuries on the body of the deceased were caused by the appellant on 15.3.2009 at about 5.30 PM, and this occurrence was witnessed by PW.3 Gurmail Singh and PW.4 Jovan Jeet Singh. 23. Learned counsel for the appellant has questioned the trustworthiness of the statements made by both the eye witnesses. It has been argued that PW.3 Gurmail Singh was not having cordial relations with the appellant and for that reason, he could have deposed falsely against the appellant. 23. Learned counsel for the appellant has questioned the trustworthiness of the statements made by both the eye witnesses. It has been argued that PW.3 Gurmail Singh was not having cordial relations with the appellant and for that reason, he could have deposed falsely against the appellant. It has been further argued that in the initial version before the police, this witness had stated that he had seen that the appellant was inflicting injuries on the neck and mouth of Gurmail Kaur with an iron "Dattar", but later on, when he appeared as a witness in the court, he had stated that when he reached near the place of occurrence, he had seen that the appellant was running away having a "Dattar" in his hand. Therefore, according to the learned counsel for the appellant, it cannot be taken that this witness had witnessed the commission of murder of his sister by the appellant. 24. We have carefully examined the testimony of PW.3 Gurmail Singh and the aforesaid contention raised by learned counsel for the appellant. It is correct that Gurmail Singh while appearing in the court has not supported his initial version to the effect that in his presence, the injuries on the body of his sister Gurmail Kaur (deceased) were caused by the appellant. In his statement before the court, he had stated that when he reached near his house, he had heard the noise of his nephew Jovan Jeet Singh (PW.4) in the street that "Chand Mama has committed murder of my mother". On hearing this alarm, he reached near his sister Gurmail Kaur and the appellant was running away having a "Dattar" in his hand. He saw that there were injuries on the neck and mouth of his sister and at that time, she was breathing. On inquiry by this witness, his sister told him that the appellant had caused injuries to her with "Dattar". From the aforesaid statement of PW.3 Gurmail Singh, one thing has been established that when he reached the spot, his nephew Jovan Jeet Singh (minor son of the deceased) was crying and making a noise that the appellant had committed the murder of his mother. At that time, PW.3 Gurmail Singh had noticed that Gurmail Kaur was lying with injuries on her body and the appellant was running away from the spot with a "Dattar" in his hand. At that time, PW.3 Gurmail Singh had noticed that Gurmail Kaur was lying with injuries on her body and the appellant was running away from the spot with a "Dattar" in his hand. Immediately after the occurrence, the appellant was seen running away from the place of occurrence with "Dattar" in his hand, which was subsequently recovered from a store of his residential house in pursuance of his disclosure statement. This conduct of the appellant points towards his guilt. The testimony of PW.3 Gurmail Singh cannot be discarded on the ground that his relations with the appellant were not cordial. PW.3 Gurmail Singh and the appellant are real brothers. Due to non-cordial relations, no person will depose against his real brother, particularly for the commission of his real sister, while leaving away the real culprit. 25. The other argument raised by learned counsel for the appellant is with regard to the alleged oral dying declaration made by the deceased to PW.3 Gurmail Singh. In this regard, a reference has been made to a portion of the statement of PW.7 Dr. Satish Garg, where he stated that in view of the nature of injuries found on the body of Gurmail Kaur, it was not possible for her to speak after receiving the injury on her neck. If we examine the injuries found on the body of the deceased and the photographs available on record, the aforesaid opinion of Dr. Satish Garg appears to be true. Therefore, we are not putting much reliance upon the part of the statement of PW.3 Gurmail Singh with regard to the oral dying declaration made by the deceased to him. 26. The material witness in this case is PW.4 Jovan Jeet Singh, whose presence at the place of occurrence was most probable and natural. He was 12 years old at the time of the occurrence and was playing near his mother. In his statement before the court, he stated the entire occurrence sequence-wise. He stated as to how the appellant had caused injuries to the deceased in his presence. This witness was subjected to extensive cross-examination, but nothing material could be elicited to doubt his testimony. In his statement before the court, he stated the entire occurrence sequence-wise. He stated as to how the appellant had caused injuries to the deceased in his presence. This witness was subjected to extensive cross-examination, but nothing material could be elicited to doubt his testimony. The version given by him has been fully corroborated by the medical evidence available on record as well as recovery of the weapon of offence from a store of the residential house of the appellant in pursuance of his disclosure statement. In our opinion, the testimony of this witness cannot be discarded only on the ground that he is a child witness. In Panchhi v. State of U.P., (1998) 7 SCC 177 , it was held by the Hon'ble Supreme Court that it cannot be said that the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. In that case, while relying upon the statement of a child witness, the accused were convicted for the offence of murder. In Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 , while following the aforesaid judgment, the Supreme Court has held as under : "The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The fact that the witness being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not." 27. In the light of the aforesaid principle, we have carefully perused the statement of PW.4 Jovan Jeet Singh. The extent to which he was cross-examined by the defence counsel clearly reveals that this child witness has truly narrated all the facts to the court as to what actually happened at the spot. His testimony cannot be discarded merely on the ground that at one place, in his cross-examination, he stated that one day prior to his deposition in the court, he had come to the court complex to understand the statement to be given by him in the court. We do not find any reason to hold that he was tutored by any one before making statement in the court. He stood the test of searching cross-examination and even otherwise, his evidence is supported by the medical evidence as well as the recovery of "Dattar" at the instance of the appellant. We do not find any reason why the minor son deposed against his maternal uncle. We are unable to find any ground to doubt the veracity of the testimony of this witness. Therefore, the testimony of this child witness is credible enough. 28. An argument was raised by learned counsel for the appellant that as per the prosecution case, immediately after the occurrence, mother of the deceased had also reached at the spot, but she was not examined by the prosecution. We do not find any substance in this argument. Therefore, the testimony of this child witness is credible enough. 28. An argument was raised by learned counsel for the appellant that as per the prosecution case, immediately after the occurrence, mother of the deceased had also reached at the spot, but she was not examined by the prosecution. We do not find any substance in this argument. It has come in evidence that mother of the deceased was an old lady, who was hard of hearing and was not capable to see. Her non-examination as a witness cannot be said to be fatal to the prosecution case. 29. In view of the above, we do not find any illegality or perversity in the impugned judgment and order passed by the trial court. We also do not find any misreading or wrong appreciation of the prosecution evidence by the trial court. Thus, the impugned judgment of conviction and the order of sentence are upheld and the instant appeal is, accordingly, dismissed.