High Court of Punjab and Haryana, Chandigarh
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Malkiat Singh v. The State of Punjab - CRA-D-302-2003  RD-P&H 5011 (31 July 2006)
Criminal Appeal No. 302-DB-2003
Date of Decision:- August 10, 2006.
Malkiat Singh ....APPELLANT
The State of Punjab ....RESPONDENT
CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL
HON'BLE MR. JUSTICE BALDEV SINGH
Present::- Mrs. Vandana Malhotra, Advocate for the appellant.
Mr. S.S.Randhawa, Senior DAG, Punjab.
MEHTAB S.GILL, J.
This is an appeal against the judgment dated 25.11.2002 of the Sessions Judge, Ferozepur whereby he convicted Malkiat Singh son of Mohinder Singh under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- and in default of payment of fine, to further undergo rigorous imprisonment for six months.
The case of the prosecution is unfolded by the statement of Mohinder Singh made to Major Singh, SHO, Police Station Mallanwala at Mallanwala Chowk on 4.10.1997 at 6.35 AM. Mohinder Singh stated that he is resident of Village Langeana Purana and does labour work. His daughter Bamber Kaur was married to Malkiat Singh son of Mohinder Singh, resident of Kohala about 13/14 years back. She gave birth to three sons. Malkiat Singh had suspicion regarding the character of his daughter. They both quarreled with each other due to this. Earlier compromise had been effected by the Panchayat, two-three times. On 3.10.1997 in the morning, his daughter Bamber Kaur came to Village Langeana and told him that her husband picked up fights with her and he should accompany her to stop her husband from quarrelling with her. She (daughter) thereafter went to Village Kohala. In the evening, Mohinder Singh along with his cousin brother Chand Singh son of Munshi Singh, the son of his Taiya (father's elder brother), reached the house of his daughter. On reaching, they came to know that Malkiat Singh had gone to do labour work on a combine harvester.
At night after taking meals, he and Chand Singh went to sleep inside the Kotha. Bamber Kaur along with her children was sleeping in the courtyard, outside. At about 3.00 A.M., Bamber Kaur's husband Malkiat Singh came to the house and started quarrelling with her, saying that she had illicit relations with Baljit Singh @ Banta. On hearing a noise, he and his brother Chand Singh came out of the Kotha. They saw that Malkit Singh, who was armed with a Kahi, giving a blow, in a straight manner on the head of Bamber Kaur. Bamber Kaur fell down. Malkiat Singh gave another Kahi blow, which hit on her neck and face. Bamber Kaur died on the spot.
Thereafter Malkiat Singh ran away, taking his Kahi along with him.
The prosecution to prove its case, brought into the witness-box Dr. Jaswant Singh as PW1, MHC Jaswant Singh as PW2, LC Harbhajan Singh as PW3, Constable Resham Singh as PW4, Mohinder Singh as PW5, Iqbal Singh as PW6, ASI Darshan Singh as PW7, Ravinder Singh PW8 and SI Major Singh as PW9.
Learned counsel for the appellant has argued, that the medical evidence does not corroborate the ocular account. The place of injury as shown in the diagram and as also stated by Dr. Jaswant Singh PW1, show that both the injuries which allegedly have been given by a Kahi by the appellant, are parallel to each other. Dr. Jaswant Singh, PW1 has opined that this type of injury could be given when the deceased was lying on her cot on the right side and her left side was exposed. As per the testimony of Mohinder Singh PW5, when he woke up he saw the appellant and deceased quarelling. Appellant thereafter gave blow on the head of the deceased with his Kahi. Deceased fell down and a second blow was given on the neck and face. If there was a quarrel before the injuries were inflicted, it was natural for Mohinder Singh PW5 and his brother Chand Singh to confront the appellant. They did not make any effort to go forward to save the deceased apart from being silent spectators. Bamber Kaur was no other person than the daughter of Mohinder Singh PW5. If deceased had put up a resistance, she would have suffered some sort of injury on her hand or some other part of her body. At that time she was also in an aggressive mood and would have defended herself, as she was quarreling with the appellant.
As per Dr. Jaswant Singh PW1, the stomach and bladder of the deceased were empty. Occurrence had taken place at 3.00 A.M., which is the most unlikely time, that a person's stomach and bladder are empty.
Mohinder Singh PW5, the father of the deceased, is an implanted witness.. He lived in Village Langeana, which was at a distance of 40 to 45 K.Ms. from the place of occurrence i.e. Village Kohala. He was called after the occurrence had taken place and it is thereafter his statement Ex.P7 was recorded. The other eye witness Chand Singh could not be produced in Court as he had died. The sons of the deceased aged 10, 9 and 4 years were sleeping next to her as per the prosecution version. If a quarrel had taken place, the children would have also got up. The two sons i.e. one 9 years and other 10 years old, would have been the best witnesses for the prosecution to testify against the appellant. They were natural witnesses and their testimony could not have been disbelieved by the Court. The prosecution for the reasons best known to it, did not cite the sons of the deceased as witnesses, nor did they produce them in the Court. Occurrence had taken place in the first week of October. It becomes cold at night in the month of October. Deceased, in fact, should have been sleeping inside the house as she had three small children to protect from the cold, one of which was only 4 years old. The other male members in the house i.e. Mohinder Singh PW5 and Chand Singh, the father and the uncle of the deceased should have slept in the verandah. It has come in evidence of Mohinder Singh PW5 that the father and brother of the appellant were sleeping in the next room.
Strangely they also did not come out to save the deceased.
There is a delay in lodging of the FIR. Occurrence had taken place at 3 A.M. Statement of Mohinder Singh PW5 was recorded at 6.35 AM at Mallanwala Chowk by SI Major Singh PW9. FIR Ex.P7/B was recorded on the same day at 6.40 AM and the special report reached the SDJM, Zira at 12.05 Noon. No explanation has come forward from the side of the prosecution as to why the special report reached the SDJM, Zira at 12.05 Noon. The distance between Police Station Mallanwala and Zira is only 10 to 15 K.Ms. Statement Ex.P7 and FIR Ex.P7/B is ante-timed.
Statement of Mohinder Singh PW5 was recorded after he was called from his Village Langeana. SI Major Singh PW9 has stated in his testimony that Langeana is about 40 to 45 K.Ms. from Village Kohala. Mohinder Singh PW5 along with Chand Singh must have reached at about 9 A.M. and it is thereafter statement Ex.P7 was recorded. Police came to know about the murder much before the FIR Ex.P7/B was recorded. Inquest report Ex.P2 in column No.3 where date and hour of discovery is mentioned is shown as as 4.10.1997 at 5 A.M. Occurrence had taken place at 3 A.M. and by 5 A.M.
the police knew about the body of the deceased lying in the house of the appellant. It is clear from the inquest report Ex.P2 that the police came into action before the FIR Ex.P7/B came into existence. All these facts only conclude that the murder of Bamber Kaur was a blind murder. Appellant has been falsely implicated.
The motive of the commission of the offence is very weak.
Baljit Singh, the paramour of the deceased, has not been cited as a witness nor had he been joined in the investigation by the police. SI Major Singh PW9, the Investigating Officer has stated, that the chowkidar told him that the deceased was having illicit relations with Baljit Singh. Apart from this statement, no other statement has been recorded of anyone qua the motive.
The chowkidar has not been produced by the prosecution. Mohinder Singh PW5, the father of the deceased, in his testimony has stated that Baljit Singh used to visit the house of his daughter in the absence of the appellant. Both the chowkidar and Baljit Singh were the witnesses who could have thrown a lot of light on the motive aspect of the case.
On the fateful day, appellant, in fact, was working with Ranjit Singh DW1 on his combine. Mohinder Singh PW5 has stated that appellant earned his livelihood by working on a combine as a driver. Ranjit Singh DW1 has come into the witness box and stated that appellant worked for him and on the fateful day, his combine was working 200 K.Ms. away from the place of occurrence.
Learned counsel for the State has argued that there is no delay in lodging of the FIR. Occurrence had taken place at 3 A.M. and by 6.40 A.M.
FIR Ex.P7/B had come into existence. The inquest report Ex.P/2 only shows that the police came to know about the body at 5 A.M., but they did not go to the spot till Mohinder Singh PW5 recorded his statement at 6.35 A.M. and it is thereafter that they started investigating the case. Dr. Jaswant Singh PW1, has stated in the post mortem report Ex.P3/A that he received the dead body of Bamber Kaur on 4.10.1997 at 11.30 A.M. The medical evidence corroborates the ocular account. Two incised wounds, the dimensions of which are approximately the same, show that the injuries were inflicted with the same weapon i.e. Kahi. Both the injuries were inflicted simultaneously.
After receiving the injury on the head, Bamber Kaur fell down on her right side and it is thereafter the second injury was given by the appellant on her neck and face region. The motive for commission of the offence is very strong. Baljit Singh was a cousin of the appellant, who used to visit the deceased. This was not liked by the appellant. Even if for argument sake it is taken that appellant was working on a combine, he could have easily come in the night and after committing the murder of his wife, gone back to his work. Mohinder Singh PW5 would not falsely implicate his own son-in- law for the murder of his daughter and let the actual culprits go scot free.
As per Jaswant Singh PW1 though the stomach and bladder of the Bamber Kaur was empty but faecal matter was present in the intestines, showing that the deceased had her meals earlier and she had gone to sleep.
We have heard learned counsel for the parties and perused the record with their assistance.
Mohinder Singh PW5 is the sole eye witness to the occurrence.
The other eye witness Chand Singh could not be produced, as before his evidence could be recorded, he died. Mohinder Singh PW5 has stated, that his daughter Bamber Kaur had come to his house and told him that her husband appellant Malkiat Singh quarrels with her on the ground that she was a woman of bad character. On 3.10.1997 Mohinder Singh PW5, along with his cousin brother Chand Singh went to the house of Bamber Kaur to meet her. They reached there at about 5 P.M. Appellant was not present in the house. Bamber Kaur told them that appellant had gone to do labour work on a combine machine. They stayed for the night. Mohinder Singh PW5 and Chand Singh slept in one room while Bamber Kaur along with her children slept in the courtyard. At about 3 A.M. on 4.10.1997 they heard appellant Malkiat Singh and Bamber Kaur quarrelling. Malkiat Singh was accusing Bamber Kaur of having illicit relations with Baljit Singh. They got up on hearing the quarrel. Thereafter they saw Malkiat Singh giving a Kahi blow on the head of Bamber Kaur. Bamber Kaur fell down and appellant gave a second Kahi blow on the neck of the deceased. Thereafter he ran away taking the Kahi along with him. This they saw in electric light. Thereafter Mohinder Singh PW5 along with the father of the appellant went to lodge a report in the Police Station. The police met them at Village Mallanwala Chowk and statement Ex.P7 of Mohinder Singh was recorded. From the testimony of this witness, it comes out that a quarrel had taken place between the appellant and the deceased. Mohinder Singh PW5 and Chand Singh got up. It is strange that no effort was made by both Mohinder Singh PW5 and Chand Singh to stop appellant and deceased from quarrelling. The quarrel must have gone on for some time as appellant was accusing Bamber Kaur of having illicit relations with Baljit Singh. In fact Mohinder Singh PW5 and Chand Singh were silent spectators of his (PW5) daughter being accused of being a woman of loose character. They did not intervene even after appellant Malkiat Singh inflicted injuries to the deceased. In the natural course of events, he and Chand Singh would have gone forward to save her.
Nothing has come in evidence that the three sons of the deceased, who were sleeping next to her, aged 10, 9 and 4 years got up. It was night time and if Mohinder Singh PW5 and Chand Singh could hear the quarrel which woke them up, the children would have also got up. The natural witnesses to the occurrence were the two sons of the deceased, who were aged 10 years and 9 years. They have not been cited as witnesses by the prosecution, for the reasons best known to it.
Mohinder Singh PW5 has stated in his testimony that Baljit Singh, the paramour of Bamber Kaur, visited the house of his daughter in the absence of the appellant. Learned counsel for the appellant has rightly argued that the needle of suspicion by Investigating agency should have also gone towards Baljit Singh. Baljit Singh has neither been cited as a witness nor had he been brought into the witness box. The Investigating Officer in his wisdom did not even join him in the investigation. Baljit Singh also was one of the interested parties who could have also committed the murder of Bamber Kaur.
Medical evidence does not corroborate the ocular account.
Mohinder Singh PW5 has in his testimony stated, that appellant inflicted a Kahi blow on the head of the deceased, on which she fell down and thereafter he gave another Kahi blow. Apart from the two head injuries on the person of the deceased, there are no other injuries on any part of her body. As per the prosecution case, deceased was quarrelling with the appellant, if she was quarreling with the appellant and appellant had attacked the deceased, then she would have definitely put up a resistance of some sort, whether a weak one or strong one, in the process, she would have been inflicted some injuries on some part of her body, while protecting herself. This is not so.
As per Dr. Jaswant Singh PW1, the injuries on the person of the deceased were parallel to each other and had a slight curve. Both the injuries were on the left side of the head and face of the deceased. The doctor opined, probability of these injuries having been caused on the person of the deceased while she was lying on the ground or bed with the left side upward there. He has further opined that it is easy to inflict a Kahi blow from upward, downward then from side-wise. The first injury as per the medical report i.e. injury No.2 was given side-wise, but this injury is on the left parietal region of head. The second injury strangely is parallel to the first injury. It seems, in fact when the injuries were inflicted, Bamber Kaur was lying on her cot asleep. The assailant gave a Kahi blow on her head, whereby she must have lost conscious and thereafter gave her another Kahi blow, which is parallel to the first one. The way Mohinder Singh PW5 depicted the occurrence, the two parallel injuries found on the person of Bamber Kaur could not have been given by the appellant. Mohinder Singh PW5, in fact, did not see the occurrence. He was brought on to the scene at a later stage. He is an implanted witness. The best witnesses of the occurrence were the two sons of the deceased. The prosecution had something to hide, that they were not brought into the witness box though two of them were 10 and 9 years old. It being their house where the occurrence had taken place, they were natural witnesses.
In the case in hand, Baljit Singh, the paramour of the deceased, could have committed the murder of Bamber Kaur as he had illicit relations with her. He could have also had a grudge against her either to leave the appellant or for some other reason, could have committed the murder. The Investigating Officer SI Major Singh PW9 did not join Baljit Singh in the investigation. His statement under Section 161 Cr.P.C. was not recorded.
He only recorded the statement of the village chowkidar. But the chowkidar to substantiate the motive aspect of the case, was not brought into the witness box. SI Major Singh PW9 has stated in his testimony, that he did not record the statement of any other witness, regarding the illicit relations of the deceased.
SI Major Singh PW9 has stated in his testimony before the Court that where the body was found, there was no boundary wall around that place. Mohinder Singh PW5 in his statement, has stated that he along with Chand Singh slept in a room and Bamber Kaur along with her three sons slept outside in the courtyard. In the first week of October it becomes cold.
Strangely the two men i.e. Mohinder Singh PW5 and Chand Singh slept in a room and Bamber Kaur slept in the courtyard which did not have any boundary wall, with her small children, one of them was of 4 years old.
Learned counsel for the State has vehemently argued that there is no delay in lodging of the FIR. This itself goes a long way in proving the case of the prosecution. Occurrence had taken place at 3 A.M. on 4.10.1997.
Statement of Mohinder Singh PW5 was recorded at 6.35 AM at Mallanwala Chowk. FIR Ex.P7/B was recorded at 6.40 AM. Special report reached the SDJM, Zira at 12.05 Noon. The Investigating Officer has stated that Mohinder Singh PW5, the father of the deceased, lived in Village Langeana which was about 40 to 45 K.Ms. away from Village Kohala. In column No.3 of the inquest report Ex.P2 the date and hour of the discovery of the dead body is mentioned as 4.10.1997 at 5 A.M. There is a ring of truth in this entry. After the recovery of the body at 5 AM, Mohinder Singh PW5 was sent for. On his reaching Village Koahala, his statement Ex.P7 was recorded.
If the Investigating Officer had come to know of the body at 5 A.M. as per the inquest report, there was no need for him to send the body for post mortem examination at 11.30 A.M. The body could have been sent much earlier and the special report also could have been sent much earlier than 12.05 Noon. It seems the statement Ex.P7 of Mohinder Singh PW5 and FIR Ex.P7/B are ante-timed.
It has come in evidence of Mohinder Singh PW5 that appellant worked on a combine as a driver, he was attending to his duties on the combine in the harvesting season, he had to go out to far of places, his daughter had told him that appellant was remaining out of the house for a number of days. In his statement under Section 313 Cr.P.C., appellant has stated that he has been falsely implicated. He had gone for his duty as driver of combine and was brought from the combine and involved in this case, falsely at the instance of Mohinder Singh PW5, complainant. To prove his innocence, appellant brought into the witness box Ranjit Singh for whom he was working. Ranjit Singh DW1, has stated that he owns a combine harvester and Malkiat Singh appellant is his driver. Malkiat Singh was taken by the police on 4.10.1997 at 2.30 P.M. from Village Rattoke, Tehsil Patti where the combine was in operation. Malkiat Singh was with him on the day of occurrence. There was no need for Ranjit Singh DW1 to come into the witness box for the defence of the appellant, as the appellant worked with him seasonally, at the time of harvesting of the paddy crop. He, in fact, is a trustworthy and truthful witness. He has stated that appellant was working on his combine on the day of occurrence. Hon'ble Supreme Court in State of Haryana Vs. Ram Singh, 2002(1) R.C.R. (Criminal) 443 has stated, that the issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.
With the above discussions and observations, it comes out that the murder of Bamber Kaur was a blind murder. A doubt has been created in our mind as to whether the appellant had committed the murder or some one else, the benefit of which goes to the appellant. Appeal is allowed. His conviction and sentence is set aside. Appellant, if in custody, is directed to be released forthwith.
August 10, 2006
WHETHER TO BE REFERRED TO REPORTER? YES/NO
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