Appeal by husband convicted of murdering wife. High Court rejected defence pleas regarding minor witness reliability, weapon recovery, and prior quarrel. Held premeditation proved, appeal dismissed.
The impugned judgment of conviction and the order of sentence are upheld. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. A. No. 761-DB of 2004
DATE OF DECISION : 21.04.2010
Dharam Pal
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH
Present: Ms. Archna Sharma, Advocate, for the appellant.
Mr. S.S. Randhawa, Addl. A.G., Haryana.
SATISH KUMAR MITTAL , J.
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District Panipat. Their marriage had taken place 26 years before the alleged occurrence. The couple was having two sons and two daughters. At the time of the occurrence, the younger son Sombir (PW.7) was 11 years old. On the day of the occurrence, he was present in the house. On 19.6.2002, at about 9.00/ 10.00 p.m., his father (appellant) came and asked his mother (deceased) why she had not prepared vegetable in the meal. She replied that she was having no money to purchase the vegetable and that is why she had prepared _Chatni'_ . Thereupon, a dispute arose between them and his father put all the Chapatis' before the dogs and pigs. Thereafter, his mother slept on a cot and he along with his father slept on a separate cot. At about 2.00/3.00 a.m., his father (appellant) hit ` Mussal ' on the head of his mother Darshna Devi (deceased). He tried to raise alarm, but his father threatened him and started beating him. In the morning, he found his mother dead and his father left the house.
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AM, the formal FIR (Ex.PL/2) was registered against the appellant.
He opined that the cause of death was the injury to vital organ i.e. brain, leading to shock, haemorrhage and death. The injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. He proved the post mortem report (Ex.PA).
_Mussal'_ (Ex.P1) from the heap of fire wood lying in kotha of Turi in his village, which was taken into possession vide memo Ex.PJ. On 25.7.2002, Dr. Jai Parkash (PW.1) and Dr. V.P. Gupta gave the opinion (Ex.PC/1) that injury No.2 on the body of the deceased could have been caused by _Mussal'_ (Ex.P1) recovered at the instance of the appellant.Crl. A. No. 761-DB of 2004
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on account of fall from the roof, as told to him by his neighbour Ram Niwas. However, he did not examine any witness. Even in order to prove the plea of alibi,he did not examine his younger brother Rajbir.
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Even many residents of the village had gathered there and the police came on the spot, but the police did not register the case against the appellant and only after arrival of Jagdish (PW.11), brother of the deceased, the FIR (Ex.PL/2) was registered by the police on 20.6.2002 at 11.40 AM, on the basis of his statement (Ex.PL) recorded at 11.15 AM. According to the learned counsel, by taking the benefit of delay in registration of the FIR, the appellant was falsely implicated on the basis of the statement of Sombir (PW.7) minor son of the deceased. Learned counsel argued that possibility of tutoring Sombir by his maternal uncle Jagdish (PW.11) can not be ruled out, therefore, conviction of the appellant solely on the basis of the statements of PW.7 Sombir (minor son), PW.9 Ram Singh and PW.11 Jagdish, father and brother of the deceased, is not safe. Learned counsel further argued that in the instant case, the recovery of _Mussal_ ' (Ex.P1) at the instance of the appellant is highly doubtful. PW.9 Ram Singh, in his statement, has stated that when they visited the spot, the police was present there and the police had shown them the Mussal ', which was used in the crime. Secondly, learned counsel referred to the statement of PW.12 SI Jaipal, the Investigating Officer of the case, who stated that the recovered _Mussal_ ' was having no blood stains. It was also argued that at the time of recovery, no independent witness was associated, though recovery of Mussal ' was effected from a place in the village. Learned counsel further argued that there was no motive for the appellant to commit the murder of his wife. It is highly improbable that on a small issue, like not preparing
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vegetable in meal, a husband will kill his wife. In the last, learned counsel argued that in the instant case, the appellant is alleged to have given only one blow, that too without any intention to cause death of his wife, therefore, in the instant case, the culpable homicide of deceased Darshna Devi does not amount to murder and the appellant, at the most, can be convicted for the offence under Section 304 IPC, thus the trial court was not justified in convicting the appellant under Section 302 IPC.
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the injury was caused to the deceased by the appellant by giving a ` Mussal ' blow on her head at about 3.00 a.m. and the said occurrence was witnessed by Sombir, the minor son of the appellant and the deceased. In support of its case, the prosecution has examined PW.7 Sombir, PW.9 Ram Singh and PW.11 Jagdish, who are minor son, father and brother of the deceased. All these witnesses have fully supported the prosecution case. Learned counsel for the appellant could not point out any contradiction in their statements. The presence of PW.7 Sombir in the house at the time of the alleged occurrence was most natural. Even his presence in the house has been proved by PW.6 Sher Singh, cousin of the appellant. Before recording the statement of Sombir, the trial court fully satisfied itself about the competence of the witness to depose in the case and thereafter, his statement was recorded. Though the fact that after seeing the occurrence, the witness neither raised hue and cry nor called any body from the neighbourhood and slept, apparently seems to be improbable, but in his cross-examination, he has categorically stated that when he tried to raise alarm, his father threatened him and started beating him. If late in the night, after the occurrence, 11 years old child slept, it cannot be looked as improbable to make his deposition as unreliable. In the instant case, we do not find any reason that this child witness will depose against his father only at the instance of his maternal uncle Jagdish (PW.11). Not only this witness has deposed against his father, but PW.10 Ashok Kumar, another son of the appellant, has also deposed in the court that at the time of the alleged
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occurrence, his father was present in the house and his brother Sombir was also present there. Though Sombir had not told him any thing, but the villagers had told him that his father had killed his mother. If his mother would have died due to fall from roof, then there was no reason for this witness to depose falsely against his father, by stating that the villagers had told him that his father had murdered his wife. Statement of this witness further corroborates the statement of PW.7 Sombir. Statements of PW.9 Ram Singh and PW.11 Jagdish further support the prosecution version. Their statements are fully reliable and trust-worthy. Merely because the police registered the case against the appellant only on the basis of statement of PW.11 Jagdish, who came on the spot lateron at 11 AM, the prosecution case cannot be held to be doubtful or concocted, only on the ground that the police could have registered the case on the basis of the statement of the Sarpanch of the village or the minor witness, namely Sombir. In his statement (Ex.PL) before the police, Jagdish told that after reaching the village, when he enquired from Sombir, who was present in the house, he told that his mother was killed by his father at 3.00 AM, when she was sleeping on the cot. Sombir, while appearing in the court as PW.7, has supported the prosecution version and stated that on the issue of not preparing vegetable in the meal, his mother was killed by his father, while she was sleeping on the cot at 3.00 AM.
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the court is satisfied that his testimony is reliable. In such cases, the court must be cautious enough, while considering and scrutinizing the testimony of a child witness. The court must satisfy that such witness was not tutored and he/she has given the true account of what he/she had seen. On applying these tests, if the court reaches to the conclusion that testimony of the child witness inspires confidence, then the conviction of an accused can be recorded upon the testimony of such witness. After carefully examining the testimony of PW.7 Sombir (child witness) and the other evidence led by the prosecution, we have come to the conclusion that in the instant case, the version given by Sombir fully inspires confidence, which was quite natural and consistent with the medical evidence. In this case, nothing could be elicited in the evidence of this minor witness, so as to render his version unworthy of placing credence. We also do not find any plausible reason for him to falsely depose against his father. He was 11 years old at the time of the occurrence and was fully competent to understand the things. His presence in the house at the time of the alleged occurrence was most natural. Therefore, in our opinion, the trial court was fully justified while convicting the appellant by relying upon the testimony of this child witness.
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the husband at the time of the occurrence has been proved by his two sons, namely Sombir (PW.7) and Ashok Kumar (PW.10). If the husband does not offer any explanation as to the manner in which his wife died or received injuries or if his explanation is found false, then it gives strong circumstance indicating that he has committed the crime. Section 106 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If an offence takes place inside the privacy of a house where the accused has all the opportunity to plan and commit the offence at the time and in the circumstances of his choice, it is extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the court. It is the duty of the court to see that no innocent person is punished. It is equally also duty of the court to see that a guilty person does not escape. Both are the public duties. In the present case, in his statement under Section 313 Cr.P.C., the husband has taken the plea of alibi. He has stated that much prior to the day of occurrence i.e. on 10.6.2002, he had gone to Nangloi (Delhi), where he lived with his younger brother till 19.7.2002. However, in order to establish this plea of alibi, he did not lead any evidence. He did not examine his brother, with whom he claims to have stayed during the said period. Another explanation given by the appellant is that his neighbour Ram Niwas had told him that his wife, who was a patient of epilepsy, died on account of fall from the roof. This explanation also does not seem to be plausible. Firstly, the appellant did not
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examine Ram Niwas, who allegedly told that his wife had received injury due to fall from the roof. Secondly, this version does not find support from the medical evidence, because as per the post mortem report, there was only one injury on the body of the deceased. If a person falls from the roof of a house, then it will result into multiple injuries. Thirdly, the dead body was not found on the floor, but it was lying on the cot. It is improbable that if a person falls from the roof, then he/she will fall on the cot. Further, the appellant has not produced on record any medical record to show that his wife was a patient of epilepsy and was getting any treatment for the same. Therefore, the explanation, furnished by the appellant, palpably appears to be false.
_Mussal_ ' was shown to them, but recovery of Mussal ' (Ex.P1) cannot be said to be doubtful on that account. Undisputedly, the appellant was arrested on 20.7.2002 and immediately thereafter, in pursuance of his disclosure statement (Ex.PG), the _Mussal_ ' was recovered. The possibility of showing the Mussal ' to the said witness after the recovery can not be ruled out. Further, merely because the _Mussal_ ' was not having blood stains, it cannot be presumed that the said Mussal ' was not used in the crime. Not only Dr. Jai Parkash (PW.1) in his statement has stated that injury No.2 could have been caused by the recovered _Mussal_ ' (Ex.P1), but PW.7 Sombir, the sole eye witness, has categorically stated that his father gave Mussal ' blow on the head of his mother, while she was sleeping, due toCrl. A. No. 761-DB of 2004
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which she had died lateron. Therefore, we do not find any infirmity in the evidence of the prosecution with regard to the recovery of ` Mussal ', which was used in the crime.
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time, there was no fight between them. This clearly indicates that the appellant has caused injury with premeditation. The causing of injuries by the appellant, when the deceased was sleeping on the cot, also amounts to taking of undue advantage of the situation. Therefore, in the instant case, Exception 4 is not attracted at all. On the other hand, case of the appellant squarely falls under Section 300 IPC, 2ndly and 3rdly, as the appellant caused ` Mussal ' blow to Darshna Devi with the intention of causing such bodily injury as the appellant knew to be likely to cause the death in the ordinary course of nature. Dr. Jai Parkash has categorically stated that the said injury was sufficient to cause death in the ordinary course of nature. Therefore, the present case is a clear case of murder and not a case of culpable homicide not amounting to murder. Thus, the trial court has rightly convicted the appellant for the offence under Section 302 IPC.
( SATISH KUMAR MITTAL ) JUDGE
April 21, 2010 ( JORA SINGH ) ndj JUDGE
3 issues framed by the court
Whether the conviction under Section 302 IPC should be reduced to Section 304 IPC due to alleged lack of intention to cause death.
Whether the testimony of a minor child witness and the recovered weapon establish guilt beyond reasonable doubt.
Whether the delay in FIR registration and lack of motive render the prosecution case unreliable.
4 provisions across 2 enactments
Dharam Pal
State of Haryana
SATISH KUMAR MITTAL
JORA SINGH
As recorded by the court registry
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