Dismissed

State of Punjab v. Ajay Kumar and Anr.

Punjab & Haryana HC17 Sept 2012CRM-A/385/2011

Case brief

AI extract

What is this about?

The High Court rejected the State of Punjab's special leave to appeal against the acquittal of the respondent in a murder case. The court held the first information given by the deceased's husband was trustworthy compared to the delay and lack of corroboration in the complainant's testimony, affirming the trial court's verdict.

What did the court decide?

Special leave to appeal is declined and the dismissal of CRM No. A-376-MA of 2011 is affirmed.

State of Punjab Vs Ajay Kumar and Anr. — Murder and Culpable Homicide | Punjab & Haryana HC (2012)

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CRM NO.A-385-MA of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM NO.A-385-MA of 2011 DECIDED ON: September 17,2012

State of Punjab

........Applicant

Versus

Prem Sheela wife of Ajay Kumar Singh, resident of Gali No. 4, New Ram Nagar, Sua Road, Giaspura, Ludhiana

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..........Respondent

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CORAM HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH

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Present Mr.S.S.Dhaliwal, Additional Advocate General, Punjab for the applicant.

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S.P.BANGARH, J

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Applicant - State of Punjab has filed CRM No.A-385-MA of 2011 seeking special leave to file appeal under Section 378(4) of the Code of Criminal Procedure ('Cr.P.C' for short) against the judgment of acquittal of respondent dated 26.11.2010, for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code ('IPC' for short), passed by learned Additional Sessions Judge, Ludhiana.

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It is the case of the prosecution that Munna Yadav along with his brother Ram Narain Yadav (deceased) had been living in

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CRM NO.A-385-MA of 2011 2

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tenanted house in Mohalla Shanti Nagar, Sua road Giaspura, Ludhiana. Earlier the deceased was living with his uncle Ram Kishan. House of Ajay Kumar Singh (accomplice and husband of the respondent) was situated opposite to the house of Ram Shankar. Complainant learnt that his brother i.e the deceased had developed illicit relations with Prem Sheela( respondent), who is the wife of Ajay Kumar Singh. On 19.06.2007, the deceased did not come to his house uptill 01:00 a.m. Thereupon, complainant went in his search to the house of his uncle Ram Shankar. There, he saw the door of house of Ajay Kumar Singh (accomplice and husband of the respondent) opened and he heard shrieks coming from the said house. He went at the gate of house of Ajay Kumar Singh and saw latter having a stone in his hand and his wife Prem Sheela (respondent) armed with an iron pipe and both beating his brother i.e the deceased. He (complainant) then raised alarm. Ajay Kumar Singh (accomplice and husband of the respondent) hit stone while Prem Sheela (respondent) hit the pipe on the head of his brother, the deceased. As a result, he fell down on the ground. The complainant proceeded towards the spot and raised an alarm, thereupon, both respondent and her accomplice fled away from the place of occurrence. Ram Shankar, uncle of the complainant, also reached at the spot.

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Aforementioned statement Ex.PA of Munna Yadav (PW1) was recorded by PW4 Ramji SI, who sent the same to the Police Station, where formal FIR Ex.PW/B was recorded by Somnath ASI. He also prepared rough site plan Ex.PW4/P and seized iron pipe, stained with blood, vide memo Ex.PD, after sealing that pipe into a

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CRM NO.A-385-MA of 2011

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parcel with his seal bearing impression 'RJ'. He also lifted one stone, lying near the dead body of the deceased, which was stained with blood, and prepared parcel, thereof, and sealed that parcel with his seal bearing impression 'RJ' and that parcel was taken into possession vide memo Ex.PC. He also lifted the blood, lying near the dead body of the deceased on the floor and put that in a small box and prepared a parcel, which was sealed with his seal bearing impression 'RJ' and that parcel was seized vide memo Ex.PB

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PW4 Ramji SI, also prepared inquest report Ex.PW4/C of the dead body of the deceased and sent the same to the mortuary for autopsy along with application Ex.PW4/F through Harjang Singh ASI and the latter after autopsy handed over the dead body to PW1 Munna Yadav, brother of the deceased, vide receipt Ex.P4. PW4 Ramji SI arrested Ajay Kumar Singh (accomplice and husband of the respondent) vide memo Ex.PW4/G and respondent vide memo Ex.PH.

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After completion of investigation, Station House Officer of Police Station Focal Point, Ludhiana, instituted police report under Section 173 Cr.P.C against respondent and her accomplice Ajay Kumar Singh, before the Court of Illaqa Magistrate, to the effect that it appeared that respondent and her accomplice Ajay Kumar Singh had committed offence punishable under Section 302 read with Section 34 IPC.

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On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were supplied to the respondent and her accomplice Ajay Kumar Singh and the case was committed to the Court of Session, which was entrusted to learned Additional

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Sessions Judge, Ludhiana, where charge under Section 302 read with Section 34 IPC was framed against them, whereto, they pleaded not guilty and claimed trial. Consequently, the prosecution evidence was summoned.

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At the trial, applicant State of Punjab examined complainant Munna Yadav as PW1, Ram Yash as PW2, Dr.G.P.Mangla as PW3, Ramji SI as PW4, Malkit Singh HC as PW5, Balwinder Singh HC as PW6, Rama Shankar Yadav as PW7, Ram Saran,HC as PW8, Dalip Kumar, SI as PW9 and Randhir Singh HC as PW10 and closed the evidence.

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After closure of the prosecution evidence, respondent and her accomplice Ajay Kumar Singh were examined under Section 313, Cr.PC, wherein, they denied the allegations of prosecution, pleaded innocence and false implication in this case. Respondent gave her own version, which is as under:-

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“The deceased himself committed house tress-pass on the midnight of the said date in the sleeping room. There was quite dark. I could not identify the deceased, but deceased suddenly intruded in bed room where I was sleeping with my spouse along with the children. The deceased was armed with an Iron dang and he had tried to commit some crime, may be theft or robbery or having any other evil design to commit the crime. He intruded in my bed room while coming from the roof side of the house scaling the wall of the adjoining house, but on raising our alarm observing presence of the neighbourers namely Suresh and Abhey Kumar and Sanjay, Umesh, he tried to run away from the bed room, but fell down on the ground on hard surface during scuffle when we tried to save ourselves from the attack of the deceased who

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received injuries on his person on his head accidentally and he died at the spot. An information was given telephonically by us through our telephone installed in our house i.e PCO. The local police men of PCRO reached there. Mr. Dalip Bedi SI had also reached there subsequently but no statement was recorded to that effect of ourselves or the persons mentioned above collected at the spot. The representation given by the witnesses had also not been inquired by the Investigating Officer. But the charge sheet was presented in the Court arbitrary illegally having ex-parte version of the complainant only. I am innocent. I had never committed the alleged offence. I am law abiding citizen of India, never convicted by any court of law, but commands good respect in esteem of the society. The investigation is illegal and not believable. The alleged recovery of the articles is illegal which was never recovered as alleged from me. I was present in the bed room along with my children on the day of alleged incident and my husband was also present at that time in my bed room. The local police did not join us for investigation. They did not record the statement of the persons of the locality gathered there. They have not investigated the case properly.”

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Respondent and her accomplice Ajay Kumar Singh were called upon to enter in defence, and they examined Sanjay Kumar as DW1, Abhay Kumar as DW2, Lal Singh, Constable as DW3, Satbir Singh, HC as DW4, Suresh Parshad as DW5, Harjit Singh, Constable as DW6, Parbhat Saxena as DW7, Itwar Singh HC as DW8 and Varinder Pal Singh HC as DW9 and closed the defence evidence, later.

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After hearing both sides, learned trial Court vide

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impugned judgment, acquitted the respondent of the charge framed against her, while convicted her accomplice Ajay Kumar Singh for commission of offence punishable under Section 304-II IPC and sentenced him to undergo rigorous imprisonment for a period of three and half years and to pay fine of `5,000/- and in default of payment of fine to further undergo rigorous imprisonment for two months

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Aggrieved against the acquittal of respondent, applicant has filed special leave to appeal with prayer for acceptance, thereof, and for convicting and sentencing respondent for the commission of offence punishable under Section 302 IPC.

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Learned Additional Advocate General for the applicant contended that the latter had been able to establish its case against the respondent before the learned trial Court and albeit she was acquitted. He also contended that complainant Munna Yadav (PW1) candidly testified that he saw the respondent giving blow of iron pipe on the head of the deceased and his statement is also corroborated by the testimony of PW2 Ram Yash Chaudhary. He also contended that the motive for murder of the deceased was that he was having illicit relations with respondent. So, he contended that the application may be allowed and the appeal be heard on merit.

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We have given our considerable thought to the contentions raised by the learned Additional Advocate General for the applicant and perused the record of the case with his assistance but find no merit, therein, as the defence version is believable.

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Leaned trial Court rightly placed reliance upon testimony

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of DW8 Itwar Singh, HC, who testified that information regarding this occurrence was received from telephone No.5005775 on 19.06.2007 at about 02:15 am from one Ajay, resident of House No. B/29/458, New Ram Nagar Gali No.4, Sua road, Durga Mandir, Ludhiana, Police Post Sherpur, which was recorded at page no.54 of book no.1017 of 17.06.2007 and was noted down by Mahender Singh, HC and the same was sent to Incharge Police Post Sherpur for immediate action with regard to the said incident. This entry was entered as Ex.DW8/B.

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DW8 Itwar Singh, HC further testified that phone call was attended by him at 02:15 a.m from Ajay (supra), which was noted down by him in the book. Learned trial Court observed that this entry Ex.DW8/B candidly spoke that it was informed by Ajay (husband of the respondent) to the control room that one man intruded into his house in order to attack him and he hit him on his head with a pipe and that man was lying there in his house itself.

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Both documents Ex.DW8/A and Ex.DW8/B were duly proved on the record of the learned trial Court and the latter rightly observed that the testimony of DW8 Itwar Singh HC goes to the root of the case and upsets the entire case of the prosecution. Statement of PW1 Munna Yadav, which formed the basis of FIR Ex.PW/B, was received by police control room after receipt of information of the death of Ram Narain Yadav at 02:15 a.m. In this manner, the information given by PW1 Munna Yadav became second information and the first information regarding occurrence was given by Ajay Kumar Singh (husband of the respondent), who informed the police that he hit the deceased on his head with an iron pipe. We fail to

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understand as to why this version should not be believed and why a contrary view then taken by the learned trial Court should be taken in this case.

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The version given by the accomplice of respondent is more probable. The dead body of the deceased was found in the house of the respondent. The deceased himself intruded into the house of the respondent for the reasons best known to him and on his intrusion, Ajay Kumr Singh (accomplice and husband of the respondent) gave blow on his head with iron pipe, which proved fatal and he succumbed to the injuries at the place of occurrence itself and he(Ajay Kumar Singh) informed the police, as can be seen from the testimony of DW8 Itwar Singh HC, as mentioned (supra).

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There was no street light and there would have been no

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occasion for PW1 Munna Yadav to come present at the place of occurrence. Even if he would have been present, he could not see the occurrence because there was no street light in the area, where the occurrence took place, as can be seen from the testimony of PW1 Munna Yadav. Even he did not depose as to what was the source of light in the mid night.

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Indeed, the deceased tresspassed into the house of respondent and her accomplice Ajay Kumar Singh, who is her husband, during midnight, when she was sleeping with her husband and children, obviously, to commit some offence, and as a sudden provocation, husband of the respondent lifted iron pipe and caused injuries to him. As per the post mortem report Ex.PW4/C, the death of the deceased was caused by injuries on his temporal and mandibular region by blunt weapon, as those were lacerated wounds.

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The first information regarding the occurrence, which was given by Ajay Kumar Singh, husband of the respondent is most trustworthy and this was rightly relied upon by the learned trial Court for coming to the conclusion that the respondent was not guilty, as according to defence version, the injury was caused on the head of the deceased by her husband with iron pipe. The presence of PW1 Munna Yadav at the place of occurrence is not established and it is arduous to believe his testimony to the effect that the respondent was carrying iron pipe at the time of occurrence and she caused injuries there with on the head of the deceased.

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So, the presence of PW1 Munna Yadav by the learned trial Court was rightly not believed who rightly believed that out of sudden provocation, husband of respondent caused the death of Ram Narain Yadav (deceased) by giving pipe blow on his head.

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Second information, which formed the basis of formal FIR Ex.PW/B, according to the learned trial Court was received at 07:30 a.m in the morning. If brother of the deceased i.e PW1 Munna Yadav would have been present at the spot, in that event, he would have informed the police regarding the murder of his brother before the information of his death given by husband of the respondent, which already observed was given at 02:15 a.m.

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Indeed, deceased tresspassed into the house of the husband of the respondent during midnight when he was sleeping with his wife and children in order to molest respondent, and the husband of the respondent namely Ajay Kumar Singh hit iron pipe on the head of the deceased, who later succumbed to the injuries caused by him. Prosecution case is that respondent was armed with

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iron pipe and she caused injuries, therewith,1 on the head of the deceased. Defence version falsifies the prosecution version so far as respondent being armed with iron pipe. It was husband of the respondent, who was armed with iron pipe and he alone caused injuries, therewith, resulting into death of the deceased and respondent did not cause any injury to the deceased. Even post mortem report Ex.PW4/C, regarding injuries received, more or less makes it clear that his death was caused by injuries on his temporal and mandibular region by blunt weapon, as those were lacerated wounds.

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Learned trial Court, thus, rightly acquitted respondent vide impugned judgment. It is well settled that when two views are possible, the appellate Court should not reverse the judgment of acquittal merely because the other view is possible. So, the impugned judgment is neither perverse nor suffer from any infirmity or illegality. Therefore, the reversal thereof is not justified and the same is, hereby, up-held and affirmed.

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Resultantly, special leave to appeal is declined to the applicant and CRM No. A-376-MA of 2011 is dismissed.

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( S.P.BANGARH ) ( S.S.SARON) JUDGE JUDGE

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September 17, 2012

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mamta

State of Punjab v. Ajay Kumar and Anr.

Case brief

What is this about?

What did the court decide?

State of Punjab v. Ajay Kumar and Anr.

Case brief

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