High Court of Punjab and Haryana, Chandigarh
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Dharminder Kumar v. State of Punjab - CRA-D-361-1997  RD-P&H 4570 (21 July 2006)
Criminal Appeal No. 361-DB of 1997
Date of decision:31.7.2006
Dharminder Kumar ..Appellant
State of Punjab ...Respondent
CORAM: HON'BLE MR.JUSTICE AMAR DUTT
HON'BLE MR.JUSTICE A.N.JINDAL
Present: Mrs.Baljit K. Mann, Advocate for the appellant.
Mr.M.S.Sidhu, Senior Deputy Advocate General, Punjab ****
Amar Dutt, J.
Dharminder Kumar has filed the present appeal to challenge the conviction and sentence imposed upon him by the Sessions Judge, Jalandhar on 1.2.1997.
Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that about 5-1/2 years prior to 22.11.1995, Renu, sister of Harish Kumar PW 2, was married with the appellant. Two years prior to the date of incident, relations between the husband and wife had become strained as he had developed illicit relations with his sister-in-law Meena Joshi alias Pinki wife of his brother Arun Joshi.
In view of this, Harish Kumar PW 2 had been trying to persuade the appellant, who was a father of two children, to put an end to his extra marital relations. At 9.00 P.M. on 22.11.1995, Harish Kumar PW 2 had received a telephonic message from his sister requesting him to come to her house as the appellant was quarreling with her. After receipt of the message, Harish Kumar PW 2 had apprised his uncle Mohan Lal PW 3 of the telephonic message and together they had gone to the house of the appellant and ****
reached there at about 10.00 P.M. When they reached there, they found that Renu was weeping in the drawing room because appellant Dharminder Kumar was beating her. She had told them that appellant Dharminder Kumar, despite her persuasion, had not put an end to the relations maintained by him with his sister-in-law. This statement had further infuriated appellant Dharminder Kumar, who started abusing his brother-in- law Harish Kumar PW 2 and Mohan Lal PW 3. He had also stated that Renu should be done to death and when she had gone into bath room, appellant brought out his revolver and after following her to the bath room fired a shot at her, which bullet struck her left cheek. He then ran away from the spot taking the revolver with him. Renu, who was bleeding profusely died at the spot. Harish Kumar PW 2 after leaving Mohan Lal PW 3 at the spot proceeded towards Police Station Division No.6, Jalandhar to lodge the report and on the way, he met officials of that Police Station at the chowk of Cool Road. There the statement of Harish Kumar PW 2 was recorded in which he indicated the above circumstances which had led to the killing of Renu. This statement, which is Ex.PF formed the basis of formal FIR Ex.PF/2. After completion of the FIR, SI Wazir Singh PW 5 accompanied Harish Kumar PW 2 to the house of appellant Dharminder Kumar and on reaching there prepared inquest report Ex. PC and injury statement Ex.PL. He also lifted blood from the spot with cotton swab and after making it into parcel took the same into possession through memo Ex.PG. Dead body of Renu was forwarded to the Civil Hospital, Jalandhar for conducting post-mortem examination, which was performed by Dr.Jasbir Singh PW 1, who incorporated results thereof in his report Ex.PA.
On 23.11.1995, after receipt of secret information, appellant Dharminder Kumar was arrested in front of workshop of Punjab Roadways, Jalandhar. During interrogation, appellant Dharminder Kumar in the presence of Dharam Pal and Surinder Pal Singh, had made a disclosure statement indicating that he had kept concealed the revolver in a vacant plot near Punjab and Sind Bank, which he could got discovered. His statement Ex.PQ was reduced into writing and pursuant to the disclosure statement, he got recovered revolver Ex.P1, which is taken into possession along with five live and one empty cartridges, which were recovered after unloading the revolver, vide recovery memo Ex.PQ/2. The sketch of revolver Ex.PQ/1 was prepared. The clothes worn by the deceased and the revolver were forwarded to the Forensic Science Laboratory, Punjab, Chandigarh and after receipt of the report Ex.PS, a challan was presented against the appellant before the Illaqa Magistrate, who committed the same to the Court of Sessions for trial as offence disclosed therein was exclusively triable by that Court.
On going through the papers sent up with the challan, the trial Court found that prima facie a case was made out against the appellant under Section 302 IPC and, accordingly, framed the charge under that Section and when the appellant pleaded not guilty to the charge, the prosecution was called upon to lead its evidence.
To bring home the charge, the prosecution examined Dr.Jasbir Singh as PW 1, Harish Kumar as PW 2, Mohan Lal as PW 3, Jagtar Singh as PW 4 and SI Wazir Singh as PW 5.
After completion of the prosecution evidence, when the incriminating circumstances were put to the appellant, he denied all of them and asserted as under:-
"I am innocent. I had good relations with my wife. I have two children who are mentally retarded. At the time of occurrence, I was not present at the house and when I came back I saw my wife lying dead. I informed my in-laws and also suspected Harish Kumar PW and his other relations as my wife was having dispute with them as she was demanding her share from the property after the death of her father. I had informed the police and the police detained me and kept me in illegal custody and thereafter I have been falsely implicated in connivance with the complainant."
In defence, appellant examined Arun Joshi as DW1.
After hearing the arguments, the trial Court came to the conclusion that the prosecution by leading cogent and reliable evidence has been able to connect the accused with the commission of offence and as such proved its case against the accused beyond all reasonable doubts and, accordingly, convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1000/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for three months. Hence, the present appeal.
We have heard Mrs.Baljit K.Mann, learned counsel appearing on behalf of the appellant and Mr.M.S.Sidhu, learned Senior Deputy Advocate General, Punjab.
On behalf of the appellant, it was submitted that the presence of Harish Kumar PW 2 and Mohan Lal PW 3 at the place of occurrence is highly doubtful as both of them reside about 6 Kilometers away from the place of occurrence and no explanation is forth coming as to why only Mohan Lal PW3 was chosen to accompany Harish Kumar PW 2 to Renu's matrimonial home ignoring the other brothers of Harish Kumar PW 2, who would be first persons to be called upon by him to accompany him to the house of the appellant Dharminder Kumar. It was also submitted that there was no cogent evidence to prove the story that alleged affairs had existed between appellant Dharminder Kumar and his sister-in-law Meena Joshi alias Pinki. It was also submitted that in any case witnesses being related, possibility of their trying to eliminate the appellant-accused from a possible race for succession to the property cannot be ruled out as after the occurrence no one was called from the vicinity and there is no independent corroboration of the evidence which makes the prosecution case highly doubtful and, therefore, the appellant should be given benefit of doubt and acquitted of the charge framed against him.
On behalf of the State, it was urged that the objections sought to be raised by the appellant's counsel are without force as the story about the desire to eliminate the appellant from the succession of the property is too far away to be accepted. According to the learned Senior Deputy Advocate General, Punjab there is no reason as to why the testimonies of two witnesses are not believed and, therefore, in the absence of any visible dent having been made in the credibility of the prosecution witnesses, the prosecution case cannot be held to be unacceptable.
We have given our thoughtful consideration to the rival contentions and have perused the record with the assistance of learned counsel for the parties.
The main ground on which the testimony of Harish Kumar PW 2 and his uncle Mohan Lal PW 3 is sought to be assailed is improbability of their responding so promptly to a telephonic message from the deceased.
The house of Harish Kumar PW 2 is 6 Kilometers away from the house of the deceased. Although there is no indication as to where the house of Mohan Lal PW 3 was situated but evidence on record shows that it was at a distance of about 1 Kilometer from the house of Harish Kumar PW 2. The behaviour of Harish Kumar PW 2 after the receipt of telephonic message of his sister including his anxiety to have another person to accompany him to the house of appellant Dharminder Kumar is natural. It is in these circumstances that both the witnesses have rushed to the house of appellant Dharminder Kumar only to find themselves that they had reached there in the midst of quarrel between the husband and wife which ultimately culminated in fatal injury being caused to the deceased. The objections sought to be raised, in our view, are not weighty enough to reject the testimony of the two eye witnesses, namely, Harish Kumar PW 2 and Mohan Lal PW 3, who though are related to one and another have no animus against the appellant, which would impel them to support the prosecution case by implicating appellant.
The submission that to eliminate the appellant-accused from a possible race for succession to the property may be plausible but there is no material, which would suggest that testimony of Harish Kumar PW 2 and ****
Mohan Lal PW 3 was motivated by desire to implicate appellant Dharminder Kumar in order to eliminate him from the succession to the property owned by the family. As a matter of fact, there is nothing on record, which would indicate or enable us to infer that the value of the property involved was so high that it would be tempting enough for any person to motivate their staking a claim thereto. There being no such material on record, we have no option but to reject the suggested possibility that appellant Dharminder Kumar has been implicated in the case only with a view to dis-entitle him to the inheritance and, therefore, the prosecution case should be rejected. In the absence of any such evidence, we have no option but to accept the version put forth by the Harish Kumar PW 2 and Mohan Lal PW 3.
For the reasons recorded above, the present appeal fails and the same is dismissed.
July 31,2006 (A.N.Jindal)
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