Full Judgment
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal not D-150-DB of 2008 Date of decision :
16. 01.2013 Abid .... Appellant VERSUS State of Haryana .... Respondent CORAM : HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE INDERJIT SINGH *** Present : Mr.Sukhdeep Singh Bhinder, Advocate, for the appellant. Mr.Pardeep Singh Poonia, Addl. Advocate General, Haryana, for the respondent-State. *** INDERJIT SINGH, J The appellant has preferred the present appeal against the judgment of conviction dated 22.01.2008 and order of sentence dated 24.01.2008, passed by the Addl. Sessions Judge, Panipat, vide which he has been held guilty for the offence punishable under Section 302 IPC and convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months. He has also been held guilty for the offence Criminal Appeal not D-150-DB of 2008 [2]. punishable under Section 25 of the Arms Act and convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month. Both the sentences were ordered to run concurrently. Brief facts of the prosecution case are that complainant Faruk got recorded his statement before ASI Ram Pal, Incharge, Police Post Quilla, on 27.09.2005 at 5:30 p.m. in which the complainant stated that he has three daughters and two sons. Elder daughter Gulshan was married with Abid accused about 1½ years back. Out of the said wedlock, Gulshan is having a three months old daughter. She had come to stay with them from her matrimonial house about 1½ months back. The complainant's son in law Abid visited the house of complainant on 25.09.2005 for taking back Gulshan. Complainant told him that he is maltreating Gulshan, therefore, they will not send Gulshan with him and asked him to come alongwith his parents after a couple of days. On the day of occurrence, at about 7:00 a.m., Abid visited their house and asked Gulshan to accompany him without the permission of her parents on which Gulshan refused and she disclosed this fact to the complainant. The complainant asked Abid why he has not come with his parents. Abid said that if he want Gulshan to accompany him then send her but the complainant refused to send her. The accused went away with this grudge. Again he came back with a dagger in Criminal Appeal not D-150-DB of 2008 [3]. his hand at about 3:00 p.m. at the house of complainant and asked to send Gulshan with him otherwise he will murder her on which they refused. In anger, accused Abid inflicted dagger blow towards the right side of the neck of Gulshan. When they tried to rescue her, Abid again inflicted other two dagger blows which caused injuries on the right elbow of Gulshan and fled away from the spot alongwith the dagger. Gulshan succumbed to the injuries at the spot. After leaving his wife Rahisa nearby the dead body, when the complainant was going to inform the police, police party met him in the way and his statement was recorded. Ruqa was sent to the police station on the basis of which formal FIR was registered. Then ASI Ram Pal alongwith other police officials reached the spot and conducted the proceedings under Section 174 Cr.P.C. Ex.PJ.Statements of witnesses were recorded. Dead body was sent for postmortem examination. Then Kamal Deep, Probationer DSP reached at the spot and investigation was handed over to him. Then he inspected the place of occurrence and prepared rough site plan of the place of occurrence. Blood stained earth was lifted from the place of occurrence. Statements of witnesses were recorded by the Investigating Officer. On 25.09.2005, accused was apprehended. During interrogation, accused suffered disclosure statement and in pursuance of disclosure statement, he got recovered knife and blood stained shirt which were taken into police possession after preparing sealed parcels. The medico legal report of PW Rahisa was also Criminal Appeal not D-150-DB of 2008 [4]. submitted to the Investigating Officer. After necessary investigation, challan against the accused was presented before the Court. On presentation of challan, copies of challan and other documents were supplied to accused under Section 207 Cr.P.C. Finding a prima facie case against the accused, he was charge- sheeted under Sections 302 IPC and 25 of the Arms Act to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Farukh, who mainly deposed as per prosecution version. He also stated in his chief examination that accused made disclosure statement Ex.PB and then got recovered knife (chhura) and the shirt having blood stains in pursuance of his disclosure statement which were taken into police possession after preparing khakha. He also deposed that while the accused was causing the injuries to deceased Gulshan, his wife Rahisa had tried to intervene and she also sustained injuries, caused by the accused. PW2 Rahisa also deposed the same facts as deposed by PW1 Farukh. PW3 EHC Satbir Singh mainly deposed regarding delivery of special report. PW4 Head Constable Dharam Pal is a formal witness who tendered into evidence his affidavit Ex.PE. He also proved the entries of register Nos.19 and 21. PW5 Constable Gulzar Singh is a formal witness who tendered into evidence his affidavit Ex.PG. PW6 Dr.J.P.Sethi deposed that he alongwith Dr.Alok Jain conducted the postmortem examination on the dead body of Gulshan on 28.09.2005 Criminal Appeal not D-150-DB of 2008 [5]. at 11:15 a.m. and found the following injuries:- 1. Incised wound 3 x 1 x 0.5 cm on left forearm near elbow was present. It was elliptical, muscle deep and clotted blood was present.
2. Incised wound 5 x 1 x 0.5 cm on left forearm posterior aspect, middle part and muscle deep was seen. Clotted blood was present.
3. Incised wound 10 x 3 x 1.0 cm muscle deep on left arm posterior aspect was seen. Clotted blood was present.
4. Incised wound near right outer canthus of eye 1 x 0.5 cm x 0.3 cm soft tissue deep was present.
5. 2 x 0.3 x 0.3 cm incised wound below injury No.4. It was soft tissue deep.
6. Incised wound right side of antero lateral aspect of neck 7.0 x 2.0 x muscle deep was present. Major vessels were seen to be clearly cut through the wound. Muscles were also clearly cut and clotted blood was present.
7. 3.0 x 1.0 x 0.5 cm incised wound over right clavical was seen. It was muscle deep and clotted blood was present.
8. Incised wound 4 x 1 x 2.5 cm over right breast. On dissection, the right lung was seen to be cut in the middle lobe with right himotherox. Criminal Appeal not D-150-DB of 2008 [6].
9. Incised wound 1.5 cm x 1.0 x 2.5 cm on left breast with injury to left lung and plural cavity containing blood was seen. 10.Incised wound 1.5 x 1.0 x 0.5 cm on right thigh lateral aspect lower part was seen. 11.Incised wound 2 x 0.7 x 0.3 cm on right leg lateral aspect upper part was seen. 12.Incised wound 7.0 x 1.5 x 0.5 cm on right leg antero- medial aspect of upper part. Clotted blood was present.
13. 2.0 x 1.0 x 0.5 incised wound on back of right thigh middle part with clotted blood. He also deposed that probable time that elapsed between injuries and death was instantaneous and between death and postmortem examination was within 24 hours. The cause of death in the opinion of the doctors was shock and haemorrhage due to injuries described above. The injuries were ante-mortem in nature and were sufficient to cause death in natural course of events. The weapon was also shown to the doctor and the doctor stated that possibility of all the injuries mentioned in the postmortem examination report to have been caused by this weapon cannot be ruled out. PW7 Dr.Anu Arora conducted the medico legal examination of Rahisa on 28.09.2005 at 1:30 p.m. and found the following injuries:- Criminal Appeal not D-150-DB of 2008 [7].
1. An oblique linear abrasion on left side of forehead about 2 cm long. Reddish in colour. Simple in nature. Weapon was blunt.
2. I/W about 2 cm by 0.05 cm skin deep at the base of right thumb on postero medial margin. Injury was simple and caused by sharp weapon. Probable duration was more than 12 hours.
3. Abrasion of about 1 cm on right palm. Injury was simple and blunt.
4. Linear abrasion of about 1 cm on left ring finger base on outer side. Simple and blunt. The doctor has also proved the copy of MLR Ex.PK. PW8 EHC Satbir Singh mainly deposed regarding delivery of special report. PW9 Constable Jagbir Singh mainly deposed regarding preparing of scaled site plan Ex.PL. PW10 Head Constable Rajbir Singh deposed regarding lifting of blood from the place of occurrence. He also deposed regarding arrest of accused; disclosure statement suffered by accused and recovery of churra and shirt from the accused in pursuance of his disclosure statement. PW11 ASI Ram Pal deposed regarding partly investigating the case. PW12 EHC Sham Lal deposed regarding handing over one sealed parcel containing clothes of the deceased by the doctor and the same was taken into police possession by Kamal Deep DSP Probationer vide memo Ex.PN. PW13 Kamal Deep, HPS, ACP Criminal Appeal not D-150-DB of 2008 [8]. Crime-I, is the Investigating Officer. He deposed regarding the investigation of the case. The Public Prosecutor, after tendering into evidence Forensic Science Laboratory report Ex.PX, closed the prosecution evidence. At the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of the evidence and pleaded himself as innocent. In defence, he has examined DW1 Afsar Ali, who deposed that he is tenant of Dr.Hari Chand in Halli Colony, Panipat situated at Babail road near Chhotu Ram Chowk. The doctor has constructed twelve labour rooms there. He has also deposed that he knows daughter of Farukh namely Gulshan, who had died. He knows Abid, husband of Gulshan. There is no dispute between Gulshan and Abid. Abid never committed murder of his wife Gulshan and he has been falsely implicated in this case. He also deposed that he had come to knot that she had been murdered but till date actual culprit has not been traced. In those 12 rooms, several other persons are also residing. They came to knot that Abid has been falsely implicated in this case. DW2 Nizamudin also deposed the same facts as deposed by DW1 Afsar Ali. The trial Court, after appreciation of evidence, convicted and sentenced the appellant-accused as stated above. At the time of arguments, learned counsel for the Criminal Appeal not D-150-DB of 2008 [9]. appellant contended that the prosecution has failed to prove its case by leading cogent evidence and a reasonable doubt exists in the prosecution version. As per FIR, accused gave three injuries with 'churra' to Gulshan (deceased). PW11 ASI Ram Pal, who partly investigated the case, has also stated in the inquest report that he found only three injuries. PW13 Kamal Deep, HPS, ACP Crime-I , who is Investigating Officer in this case, has also stated in cross examination that only three injuries were found on the dead body whereas, as per the postmortem report and the statement of PW6 Dr.J.P.Sethi, 13 injuries were found on the dead body of Gulshan which shows that PW1 Farukh, complainant and PW2 Rahisa were not present on the spot and that is why they have not given the correct number of injuries on the person of Gulshan. If they would have been present and seen the injuries given by the accused to Gulshan (deceased) then they might have told regarding all these injuries. Learned counsel for the appellant further contended that there is no mention regarding the injuries sustained by Rahisa during the occurrence. Further, Rahisa was not medico legally examined on the same day. Rather, she was examined at 1:30 p.m. on the next day i.e. after more than 22 hours. The nature of injuries on the person of Rahisa is abrasion and linear abrasion. Injuries were minot in nature and were on the right thumb, right palm and left ring finger. One injury linear abrasion was shown on the left side of the forehead. Three injuries were shown with blunt weapon and only one Criminal Appeal not D-150-DB of 2008 [10]. injury was incised wound which is on the right thumb. Learned counsel for the appellant contended that these injuries are fabricated lateron to make the prosecution case strong and to show the presence of Rahisa on the spot. He next contended that PW1 Farukh, complainant, even in the evidence, deposed regarding two injuries only. If he would have been present on the spot, such discrepancy cannot occur. Learned counsel for the appellant further contended that there were so many injuries on the person of Gulshan (deceased) but there is nothing in the evidence that there was any corresponding cut in her clothes. Learned counsel for the appellant contended that there was no motive for causing the murder of Gulshan in the present case. He further contended that no independent witness was joined or examined in the present case. There are twelve labourers' rooms in that building but no neighbour was examined in the Court. Learned counsel for the appellant also pointed out that PW1 Farukh has stated that accused was having knife in his pocket whereas the size of the churra was more than one feet which cannot be kept in the pocket. Therefore, learned counsel for the appellant contended that recoveries of weapon and shirt have been falsely planted upon the appellant and there is no independent witness to the recovery. Learned counsel for the appellant further pointed out the discrepancy that PW13 Kamal Deep, HPS, ACP Crime-I, has stated that he has lifted the blood stained earth from the place of occurrence whereas only swab blood was taken with the Criminal Appeal not D-150-DB of 2008 [11]. help of cotton which was sent to Forensic Science Laboratory. No blood stained earth was lifted not sent to Forensic Science Laboratory. Therefore, learned counsel for the appellant contended that appellant should be acquitted. On the other hand, learned Addl. Advocate General, Haryana, contended that case of the prosecution has been duly proved by the PWs beyond any reasonable doubt. The oral statements of the eye witnesses are duly supported by medical evidence and investigation of the case. Further, the recovery of blood stained 'chhura' and shirt of the accused also supports and corroborates the prosecution version. He contended that such type of discrepancy occurred in the statements of PWs being rustic villagers and illiterate persons. Therefore, appeal, having no merit, should be dismissed. We have heard learned counsel for the appellant and learned Addl. Advocate General, Haryana and with their assistance we have gone through the evidence on record minutely and carefully. From the evidence on record, we find merit in the contentions of learned counsel for the appellant. First of all, in the FIR, complainant Farukh (PW1) has not mentioned the injuries suffered by Rahisa. Secondly, he has mentioned only three injuries sustained by Gulshan (deceased) in the FIR. As per statement of PW6 Dr.J.P.Sethi, who conducted the postmortem examination on the dead body of Gulshan, thirteen injuries were found on the person Criminal Appeal not D-150-DB of 2008 [12]. of deceased Gulshan. This discrepancy is irreconcilable discrepancy between the ocular account and expert medical opinion and which is a fundamental defect in the case. PW2 Rahisa has also deposed regarding only two injuries sustained by Gulshan (deceased) at the hands of accused. She has stated that accused was having a knife and had caused knife blow on the neck as well as on the left arm of her daughter. She has further stated that when she and her husband tried to intervene, accused caused four injuries on her (Rahisa) right hand and forehead. We have gone through the inquest report where the Investigating Officer has also mentioned regarding three injuries. PW13 Kamal Deep, HPS, ACP Crime-I, who conducted the investigation in the present case has also stated that he also found only three injuries on the dead body of Gulshan. Even PW1 Farukh, complainant, while appearing in the Court has stated only regarding two injuries given by accused to Gulshan on her neck and left hand. There is no explanation of any type how this material discrepancy has occurred in the prosecution version. The only inference from the evidence on record is that both the PWs (PW1 Farukh and PW2 Rahisa) were not present on the spot and a reasonable doubt exists in the prosecution version regarding their presence. If they would have been present on the spot then such type of material discrepancy, which goes to the root of the case, cannot occur. Learned counsel for the appellant has placed reliance on the judgment delivered in case State of Punjab versus Bakhtawar Criminal Appeal not D-150-DB of 2008 [13]. Singh 1992 (2) R.C.R. (Criminal) 338 wherein this Court has held as under:- “Victim Jagbir Singh could recapitulate three injuries. Harbans Singh PW4 added another eight or nine, in all 12. PW1 Dr.Madan Mohan, SMO., Civil Hospital, Gidderbaha gives out the number of injuries found by him on the person of Jagbir Singh injured at 25. There is thus an irreconcilable discrepancy/inconsistency between the ocular account of the occurrence and the expert medical opinion. In Ram Narain v. State of Punjab, AIR 197.Supreme Court 1727 their lordships of the Supreme Court held, “where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonlessly explained it is sufficient to discredit the entire case, where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence.”
. The aforesaid judgment is fully applicable to the facts of the present case. Further, we find that there is no mention regarding the Criminal Appeal not D-150-DB of 2008 [14]. injuries sustained by PW2 Rahisa during the occurrence in the FIR but PW2 Rahisa has stated that she sustained four injuries on her person during the occurrence. We have gone through the medico legal report of PW2 Rahisa. Firstly, injuries are on non-vital part of the body. Three injuries are shown with blunt weapon and 4th injury with sharp weapon is shown only on thumb. It is nobody's case that accused had given injuries to Rahisa with some blunt weapon. Therefore, injuries on the person of Rahisa are doubtful and further creates reasonable doubt in the prosecution version. The fact that in the inquest report, PW11 ASI Ram Pal, who partly investigated the case, has noted down only three injuries and further the second Investigating Officer PW13 Kamal Deep, HPS, ACP Crime-I, who had taken over the investigation, also found three injuries on the person of deceased Gulshan creates further doubt in the prosecution version. There were no corresponding cuts in the clothes which the deceased wearing, creates doubt in the prosecution version. Giving thirteen injuries to Gulshan (deceased) with 'chhura' by the accused in the presence of her parents also looks unnatural. If the parents would have been present, they might have tried to intervene and they would have also suffered serious injuries from the hands of accused. Otherwise also, there is also no strong motive for causing death of Gulshan by the accused. As per cross-examination of PW2 Rahisa, in their absence, accused visited their house 2-3 times and no quarrel took place between Abid and Gulshan. Even as per Criminal Appeal not D-150-DB of 2008 [15]. statement of complainant, he (complainant) refused to send Gulshan with Abid. Therefore, the grievance must be against the complainant Farukh and not against Gulshan as accused himself wanted to take Gulshan with him. Again, if Rahisa (PW2) had suffered injuries at the time of occurrence then the natural course for her was to get her medically examined and treated the injuries immediately but she was medico legally examined after more than 22 hours of the occurrence. Further, we find that there are twelve labourers' rooms in the building where the occurrence took place but none of the labourer of adjoining rooms has been examined. Again, no blood stained earth has been taken from the place of occurrence though the Investigating Officer PW13 Kamal Deep, HPS, ACP Crime-I has stated that he has lifted the blood stained earth. Even as per Forensic Science Laboratory report, only swab blood was taken with the help of cotton on which material was found disintegrated. As regarding recovery of weapon and blood stained shirt of the accused, we find that no independent witness was joined not examined in the Court to prove the recovery and only on the basis of this evidence accused cannot be convicted. There is also discrepancy in the statement of PWs regarding the fact that the accused was having knife in his pocket etc. which also creates doubt in the prosecution version. Therefore, from the above, we find that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence giving benefit of doubt to the accused, he Criminal Appeal not D-150-DB of 2008 [16]. is acquitted of the charges framed against him. Therefore, from the aforesaid discussion, we find merit in the appeal and the same is allowed. Appellant Abid is acquitted of the charges framed against him. He be set at liberty forthwith if not required in any other case. (JASBIR SINGH) (INDERJIT SINGH) JUDGE JUDGE 16 01.2013 mamta