Full Judgment
Crl. Appeal No.911-DB of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: January 17, 2013 Crl. Appeal No.911-DB of 2007 Ashok Kumar ...Appellant Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON’BLE MS. JUSTICE RITU BAHRI Present: Ms. Bindu Goyal, Advocate Amicus Curiae. Mr. Saurabh Mohunta, DAG Haryana 1 To be referred to the Reporters or not?. 2 Whether the Judgment should be reported in the . Digest RITU BAHRI, J.The instant criminal appeal is directed against judgment dated 06.08.2007 passed by Additional Sessions Judge, Rewari convicting Ashok Kumar-appellant under Section 302 IPC and the order dated 07.08.2007 sentencing the appellant for life and also imposed a fine of ` 5,000/-. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of six months. FIR-Ex.PB was registered on 09.11.2005 at about 11:35 am at Village Gudyani. Complainant is Phool Chand son of Bhana Ram resident of Village Gaji Gopalpur. Ashok Kumar appellant is his son-in-law. Phool Chand has three daughters and six sons. His eldest daughter is Nirmla @ Bindo. He married his three daughters with the sons of Lilaram at village Crl. Appeal No.911-DB of 2007 -2- Raiwana, P.S. Mandhan (Raj.). Nirmla @ Bindo was married with Dharambir son of Lilaram in the year 1996. She had one son aged about 5-6 years. In the year 2001 after the death of Dharmbir, Nirmla @ Bindo performed Kareva marriage with her brother-in-law Ashok Kumar son of Lilaram. Two daughters were born out of this wedlock. About four months prior to this incident, Ashok Kumar and Nirmla @ Bindo with their two daughters were residing in village Gudyani in the house of Roshni widow of Ved Parkash, as a tenant. Ashok Kumar was a labourer. On 08.11.2005, Ashok and Nirmla @ Bindo came to see the complainant in the village with their children. Nirmla @ Bindo had told the complainant that Ashok used to quarrel with her and would eliminate her at any time. However, the complainant sent back the accused and his daughter after persuasion. On November 9, 2005, the complainant was told by one Bhagwana, son-in-law of his brother that when he was going to Sabji Mandi Gudyani, he saw Ashok Kumar going towards Bus Stand in perturbed condition. On receipt of this information, the complainant and his brother Mahabir went to village Gudyani to meet his daughter Nirmla @ Bindo. On reaching the house, he saw that his daughter was lying dead on a cot in the Chobara of the house, having many injuries caused by sharp weapon on her body and that the blood had been oozing from her body. The complainant doubted that his son-in-law had murdered his daughter after inflicting injuries. After recording such statement, the same was sent to the Crl. Appeal No.911-DB of 2007 -3- Police Station by Niranjan Lal ASI and special report was sent to Illaqa Magistrate through Special Constable Satpal No.40. On receipt of such statement, FIR was registered and investigation team proceeded for spot inspection. The dead body was recovered from the old abandoned house of Roshni Devi widow of Ved Parkash. The post mortem on the dead body of Nirmal @ Bindo was conducted by Dr. T.C. Tanwar on 09.11.2005 and the following injuries were found:
“1. There was dried abrasion of size 1 X 0.5 c.m. below the right eye.
2. Contusion of dark red colour on right side of nose. No bone injury.
3. There was incised wound going deep upto metacarpals on the 4th interdiginal space of left hand. Little finger was hanging and bent abnormally Muscle and tissues were congested and showing bleeding.
4. There was incised wound going deep into 1st interdiginal space of right hand. Tissues cut sharply, showing heamorrhage and congestion.
5. 1.5.x 0.3 cm skin deep incised wound on the palm of right hand.
6. There was 4 x 2 cm. elliptical obliquely placed incised wound over the sterno clavicular joint on the right side. Wound was going medially and downwards. On opening the chest, there found injury to large vessels of mediastinum and right lung. Right thoracic cavity was filled with blood and clots. Mediastinal structures were congested and showing area of congestion and hemorrhage. Crl. Appeal No.911-DB of 2007 -4- 7. 3 x 1 cm. elliptical skin deep incised wound on the left breast in lower part.
8. 2.5 x 1 cm. elliptical skin deep incised wound just below the left breast obliquely placed.
9. 2.5 x 0.8 cm skin deep incised wound on the anterior aspect of right arm 10. 1.5 x 0.5 cm muscle deep incised elliptical wound on the anterior aspect of right arm.
11. 3.5 x 1.5 cm vertically placed elliptical incised wound on the medial aspect of left thigh in middle region with congestion of muscles. Muscles were cut sharply.
12. There was 5 x 1.5 c.m vertically placed elliptical muscle deep incised wound on outer aspect of right thigh with bleeding in the muscles.
13. 5 x 1.5 cm obliquely placed incised would muscle deep on medial aspect of left knee.
14. Multiple incised wound of variable size and shape varying from 4 x 1.5 to 2 x 0.5 cm all around the left calf and just below the knee joint. Haemorrhage was present.
15. 4 x 1.5 cm elliptical obliquely placed incised wound bone deep on the right shin of leg with evidence of antimortem congestion and bleeding.
16. There was irregular shaped lacerated wound in the wrist of left hand on ulna and dorsal aspect leaving to exposure of underlying bones and muscle. Abdominal organs were pale and healthy. Uterus was non-gravid on cutting. It was showing menstrual blood.”
. The post mortem report is Ex.PC. As per the opinion of the Medical Officer, the cause of death was due to chest injury and injury to vital organs and excessive bleeding. Crl. Appeal No.911-DB of 2007 -5- To prove its case, the prosecution has examined PW-1 Prithvi Singh, PW-2 Phool Chand-complainant, PW-3 Dr. T.C. Tanwar, PW-4 Phool Chand EHC, PW 5 Mahender Singh, PW-6 Bhagwana, PW-7 Niranjan Lal ASI, PW 8 C. Satpal, PW9 Khushi Ram, PW10 Rajender Singh, PW11 Narender Kumar MHC, PW12 C. Dharmpal, PW13 ASI Karan Singh and PW 1.Ami Lal SI apart from tendering certain documents. After the closure of prosecution evidence by learned Public Prosecutor, the accused was examined under Section 313 Cr.P.C. to explain the indictment, flung against him. He has vehemently pleaded that he is innocent and the case in hand has been foisted against him. However, he did not lead any evidence in defence. The trial Court after going through the entire evidence came to the conclusion that as per post mortem report Ex.PC and evidence given by PW-3 Dr. T.C. Tanwar, the death was due to chest injury and injury to vital organs and excessive bleeding. PW 4 Phool Chand EHC (retired) is a formal witness and proved the fact that on 09.11.2005 the Doctor had delivered him a sealed parcel containing clothes of the deceased, which he entrusted to Amit Lal. PW 5 Mahender Singh appeared in the witness box and proved the extra- judicial confession made by accused before him. He deposed that on 09.11.2005 the accused came to him and told that he had murdered his wife with knife and requested to take him to Crl. Appeal No.911-DB of 2007 -6- the Police Station. He further deposed that on interrogation in his presence, the accused suffered a disclosure statement Ex.PG and in pursuance of such statement, got recovered the knife used in commission of offence from his house. Ms. Bindu Goyal, Amicus Curiae, appearing for the appellant sought acquittal of the appellant on the ground that extra-judicial confession made before PW-5 cannot be made basis for convicting the appellant. She has referred to the judgment passed by Hon'ble the Supreme Court in the case of Usman Mian v. State of Bihar (2004) 4 S.C.C.
786. Hon'ble the Supreme Court while referring to the judgment in the case of Hanumant Govind Nargundkar v. State of M.P. AIR 195.SC 34.held as under: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
. Learned counsel for the State on the other hand Crl. Appeal No.911-DB of 2007 -7- argued that judgment of trial Court is not liable to be set aside as all the circumstances and events of crime lead to a conclusion that it was the accused who was guilty of crime. The extra judicial confession made by the accused before PW-5 -Mahender Singh is admissible in evidence. In cross examination, he has stated that when the accused made statement, his clothes were stained with blood. He has further stated that the accused is married in their village. Except suggestions, there is no circumstance brought on record to disbelieve such statement. The disclosure statement (EX PG) was also made by the accused in his presence, which led to the recovery of blood stained knife and clothes. The statement of the complainant Phool Chand while appearing as PW-2 was that he was informed by one of the neighbourer, namely, Bhagwana, that he had seen Ashok Kumar when he was going to Sabji Mandi Gudyani. Ashok Kumar was going towards Bus Stand in perturbed condition. On 09.11.2005, the complainant was informed by one of the neighbourers, namely, Bhagwana, that his daughter had been killed. He rushed to the house of Ashok along with his brother Mahabir. On 08.11.2005 his daughter had complained about the maltreatment being given by her husband. The evidence given by Phool Chand has not been shattered in cross- examination. PW-6 Bhagwana has appeared as witness and stated that on 09.11.2005 accused along with his children was going towards Kosli side in perturbed condition. Bhagwana Crl. Appeal No.911-DB of 2007 -8- went to the house of the complainant Phool Chand and informed him that there may be some quarrel with his wife Nirmala @ Bindo. The appellant was present in the house when the murder was committed. The weapon used i.e. Knife has been recovered from his house in pursuance of the disclosure statement Ex.PG along with blood stained earth. In terms of Section 106 of the Evidence Act, the fact of cause of death of his wife when she was in her matrimonial home is within his knowledge. The appellant has mercilessly inflicted 16 injuries on the deceased with knife on vital parts of the body, which led to loss of blood and death of Nirmla @ Bindo. The evidence on record and the recoveries made in pursuance of the disclosure statement made, prove that the the appellant is the person for taking life of his wife. Learned Additional Sessions Judge, Rewari was correct in holding the present appellant guilty under Sections 302 IPC. The sentence awarded to the appellant does not require any interference. We have no hesitation in dismissing the appeal. For the foregoing reasons, there is no merit in this appeal. The judgment of conviction and the order of sentence recorded by the learned Additional Sessions Judge are upheld. The appeal is, consequently, dismissed. (HEMANT GUPTA) (RITU BAHRI) JUDGE JUDGE 17 01.2013 Atul/Vimal