Raj Vs. The State of Punjab  Insc 1016 (9 October 2007)
Thakker & Dalveer Bhandari
OUT OF SPECIAL LEAVE PETITION (CRL) NO. 1435 OF 2007 C.K. THAKKER, J.
present appeal is filed by the appellant-accused against the judgment and order
passed by the Sessions Judge, Amritsar on August 12, 2002 in Sessions Case No.
53 of 1999 convicting him for an offence punishable under Section 302 of the
Indian Penal Code (IPC) and confirmed by the High Court of Punjab and Haryana
at Chandigarh on August 10, 2005 in Criminal Appeal No. 789-DB of 2002.
case of the prosecution was that one Rajani BalaPW4 was married to appellant Gurdev
Raj before about one year of the incident which took place on July 5, 1999.
to the prosecution, relations between Rajani Bala and her husband Gurdev Raj
appellant herein were not cordial. The appellant was doing labour work. He,
however, used to pick up quarrels with his wife Rajani Bala over petty matters.
Because of frequent quarrels, Rajani Bala was taken by her father at her
parental home, Amritsar. An application was also made to
the Women Cell, Taran Taran against the appellant. 15 to 20 days prior to the
date of incident, because of intervention of Assistant Sub-InspectorRajwinder Kaur,
In- charge, Women Cell, a compromise was entered into between the parties, i.e.
the appellant- accused and the father of Rajani Bala. Pursuant to the said
compromise, Rajani Bala went back to her husbands house. Before about a
week of the incident, Rajani Bala had again gone to the house of her parents at
Amritsar with the consent of the appellant.
On July 5, 1999, a message was received by Rajani Bala
from her husband (appellant herein) that he was not well. PW4-Rajani Bala (wife
of the appellant- accused), PW1-Pooja (brothers wife of Rajani Bala) and Bhushan
Lata (mother of Rajani Bala and mother-in-law of the appellant-accused) (since
deceased) came to Taran Taran to enquire about the health of the appellant. It
was said that in the evening of that day, a quarrel ensued between Rajani Bala
and her mother Bhushan Lata on the one side and the appellant Gurdev Raj on the
other side. The appellant got angry and picked up an iron mungli lying inside
the room and administered blows on the head of Bhushan Lata (his
mother-in-law). As a result of those injuries, Bhushan Lata died. It was about 6.30 p.m.
According to the prosecution, both Rajani Bala and Pooja raised hue and cry,
but no body from the neighbourhood came to their rescue as they were aware of
strained relations between the husband and wife. Gurdev Raj, taking mungli with
him, fled away in the meanwhile. Both the ladies got frightened, they left the
dead body of Bhushan Lata in the house itself, locked the house and went back
to Amritsar to inform Janak Raj, husband of the
deceased Bhushan Lata, father of Rajani Bala and father-in-law of Pooja. They
reached Amritsar at night. Janak Raj was not in the
house at that time. He came back quite late at night and at that time he was
told about the incident by both the ladies. Since it was very late, they could
not come back to Taran Taran.
next day i.e. on July
6, 1999, Rajani Bala,
along with her father, went to Taran Taran in the morning. Rajani Balas
statement was recorded by PW9-Baldev Singh, Sub- Inspector/Station House
Officer, on the basis of which formal First Information Report (FIR), Ex.PD/2,
was registered at about 11.25
report was thereafter sent to Ilaka Magistrate which was received by the
Magistrate at about 1.00
investigation was made. The case was committed to the Sessions Court. Charge
for an offence punishable under Section 302, IPC was framed. The accused
pleaded not guilty and claimed to be tried.
prosecution, in order to establish the guilt of the accused, inter alia,
examined PW4-Rajani Bala, wife of appellant accused, as eye-witness. She was
also the informant as well as the complainant. PW1-Pooja was another eye-
witness. PW5-Dr. Tejwant Singh, Medical Officer, Civil Hospital, Taran Taran proved injuries
sustained by the deceased. He had performed post mortem. Other police witnesses
were also examined.
6. In defence,
the appellant examined one Naresh Kumar Soni, Advocate as DW1, Rajesh Sharma, Tehsildar
as DW2 and Amarjit Singh, Reader to Tehsildar as DW3.
trial Court, on the basis of evidence of PW4-Rajani Bala and PW1-Pooja, eye-
witnesses to the incident, came to the conclusion that both the witnesses were
reliable and truthful witnesses and they had seen the incident. In their
presence, the appellant-accused caused injuries to deceased Bhushan Lata which were
proved fatal and she died of those injuries. There was no reason to disbelieve
them. The Court also held that the injuries were proved by the evidence of PW5-Dr.
Singh. The deceased sustained three injuries. Injury Nos. 1 and 2 were
sufficient in the ordinary course of nature to cause death. The weapon used was
an iron mungli. The appellant was responsible for causing death of deceased Bhushan
Lata. He thereby committed an offence punishable under Section 302, IPC.
Court also held that it was not proved that affidavits were filed by PW4-Rajani
Bala (Ex. DC) and PW1-Pooja (Ex. DB) that the appellant- accused had not
committed the offence in question and hence defence version and the evidence of
DW1-Naresh Kumar Soni, Advocate practising in District Court, Amritsar, DW2-
Rajesh Sharma, Tehsildar, Amritsar and DW3- Amarjit Singh, Reader to Tehsildar
was of no help to the appellant. Accordingly, the appellant was held
responsible for causing death of deceased Bhushan Lata. After recording an
order of conviction, an opportunity was afforded to the appellant on the
question of sentence and after hearing the parties, the Court observed that the
accused was a poor man and was the only bread winner in the family. He prayed
for mercy and keeping in view the entirety of facts, the Court felt that it was
appropriate if the accused would be ordered to undergo imprisonment for life
and to pay fine of Rs.500/- and in default of payment of fine to further
undergo rigorous imprisonment for a period of three months. Accordingly, an
order was passed by the trial Court.
Being aggrieved by the order of the trial Court, the appellant preferred appeal
before the High Court of Punjab and Haryana and the Division Bench of the High
Court upheld the order observing that no illegality was committed by the trial
Court in convicting the appellant and sentencing him. Accordingly, the appeal
was dismissed by the High Court.
was issued by this Court on March 9, 2007
and we have heard learned counsel for both the sides.
The learned counsel for appellant submitted that both the Courts were in error
in holding the appellant guilty of an offence punishable under Section 302,
IPC. It was submitted that there was gross and unexplained delay in filing the
FIR which went to the root of the matter and the appellant was entitled to
acquittal. It was also submitted that neither Rajani Bala-PW4 nor Pooja-PW1
could be said to be an eye-witness. They were subsequently brought by the
prosecution to give evidence to support the case against the appellant. There
were material contradictions in their evidence which went to show that they had
not seen the incident and their evidence, therefore, could not have been relied
upon. It was also urged that according to the prosecution case, the incident
took place at about 6.30
p.m. in a locality
where several houses were there and neighbours were staying in those houses. In
spite of that, no independent witness had been examined by the prosecution and
two closely related persons, one being daughter of the deceased and the other
being daughter-in-law of the deceased, were brought before the Court.
evidence could not have been relied upon by the Courts below in absence of
material corroboration from independent witnesses, particularly when such
evidence could have been adduced by the prosecution. A grievance was also made
that both the Courts were in error in not relying upon the affidavits said to
have been sworn by PW4-Rajani Bala and PW1-Pooja.
Courts ought to have considered those affidavits, particularly, when in support
of such affidavits, the appellant examined three witnesses who were not in any
way connected with the appellant-accused; DW1-Naresh Kumar Soni, an Advocate,
DW2-Rajesh Sharma and DW3- Amarjit Singh, Tehsildar and Reader to Tehsildar
respectively. They were neither relatives of the accused nor they had any axe
to grind against the prosecution. Their evidence, therefore, ought to have been
relied upon. By not doing so, the Courts had acted illegally and were in error
in convicting the appellant. Finally, it was submitted that even according to
the prosecution, relations between Rajani Bala and the appellant, (husband and
wife), were strained. There were frequent quarrels. The Assistant Sub-Inspector
of Women Cell had to intervene and a compromise was arrived at. Even on July 5, 1999, there was altercation between Rajani
Bala and the deceased on the one side and the appellant on the other side. In
the circumstances, the case could not be said to be covered by Section 302, IPC
and at the most, it would fall within Section 304, Part II or Part I, IPC and
to that extent, the appeal deserves to be allowed.
The learned counsel for the respondent-State, on the other hand, supported the
order passed by the trial Court. He submitted that both the Courts were right
in holding the appellant guilty of offence of murder and no interference is
called for. He also submitted that all the contentions raised by the appellant
in this Court had been raised before both the Courts and were negatived by
them. He, therefore, submitted that the appeal deserves to be dismissed.
Having heard learned counsel for the parties, in our opinion, the appeal
deserves to be partly allowed. So far as the incident is concerned, it cannot
be said that by believing evidence of PW4-Rajani Bala and PW1-Pooja, either the
trial Court or the High Court had committed any error of fact or of law. Both
the witnesses had stated that pursuant to information received from the
appellant on July 5,
1999 that he was not
keeping good health, they proceeded from Amritsar to Taran Taran along with deceased Bhushan Lata. Both of them deposed
that quarrel ensued between Rajani Bala and Bhushan Lata on one side and the
appellant- accused on the other side and appellant-accused caused injuries to Bhushan
far as delay in lodging FIR, both the Courts, in our opinion, were right in
holding that delay had been properly explained.
incident took place at about 6.30 p.m. at Taran
Taran. Both the ladies were obviously very much frightened. They raised hue and
cry but no body from the neighbouring locality came there. The accused ran
away. They, in the circumstances, locked the house and went to Amritsar to inform Janak Raj but he was not
available. He came back late at night and it was not possible thereafter to go
to Police Station. Obviously, therefore, on the next day morning i.e. on 6th July, 1999, they went to the Police Station
and lodged FIR at about 11.25
a.m. In our opinion,
therefore, it could not be said that there was unexplained delay on the part of
the prosecution in lodging FIR. It was immediately forwarded to the Magistrate.
not a case wherein independent witnesses were present who had seen the incident
and yet they were kept back by the prosecution and were not examined. The
evidence clearly shows that hue and cry was raised by both the ladies but no
body came forward, presumably because they were aware of frequent quarrels
between husband and wife. Moreover, they did not want to unnecessarily indulge
in the matter. If it is so, obviously there was no question of non examination
of witnesses. In any view of the matter, no body was present at the time of
incident. Therefore, the prosecution cannot be blamed for not examining an
independent witness from the neighbourhood so far as the actual incident is
also cannot be said that since Rajani Bala and Pooja were closely related to deceased
Bhushan Lata, their version could not have been believed. In our opinion, the
trial Court was wholly right in holding that Rajani Bala and Pooja were no
doubt relatives of the deceased but they could not be termed as
interested witnesses. The Court was also right in further stating
that close relatives would be most reluctant to spare the real assailant and
would falsely implicate an innocent person. After seeing the demeanour of
witnesses, the trial Court believed both of them. The High Court again
considered their evidence and confirmed the finding recorded by the trial
Court. We see no infirmity in the approach of the trial Court as well as of the
High Court. It, therefore, cannot be said that by believing these two
witnesses, any illegality was committed by the Courts below.
are also not impressed by the argument of the learned counsel for the appellant
that the so called affidavits said to have been filed by Rajani Bala and Pooja
could have been relied upon for acquitting the appellant-accused. Both the
Courts have considered this aspect and negatived the argument advanced on
behalf of the appellant- accused. From the evidence of all the three defence
witnesses, it was clearly established that they had not identified that the
affidavits were sworn by PW4-Rajani Bala and PW1-Pooja. The Courts were also
right in holding that the affidavits were sworn on May 22, 2000 whereas the substantive evidence of both the witnesses was
recorded on oath in Court on August 17, 2000
(PW1-Pooja) and April 11,
2001 (PW4-Rajani Bala).
The alleged affidavits were thus prior in point of time.
were said to have been executed outside the Court. Substantive evidence of
these witnesses in Court subsequent to the date of affidavits was rightly
referred to and relied upon by the Courts. Even that aspect, therefore, does
not help the appellant.
But so far as the nature of offence is concerned, in our opinion, there is
substance in what the learned counsel for the appellant urged. As is clear,
even according to the prosecution, there were frequent quarrels between the
husband and wife. Rajani Bala had left matrimonial home and was staying with
her parents. An application was filed with Women Cell and due to intervention
of Rajwinder Kaur, Assistant Sub-Inspector, In-charge of Women Cell, compromise
had been recorded and Rajani Bala had gone to matrimonial home. Thereafter, she
had again gone to her parental home and on the date of incident, because of
telephonic call by the appellant that he was not well that she along with her
mother and brothers wife, went to see the appellant-accused. There also
there was altercation between the parties.
to the evidence of PW5-Dr. Tejwant Singh, three injuries were sustained by the
deceased. Out of three injuries, injury Nos. 1 and 2 were sufficient in the
ordinary course of nature to cause death. The High Court, in the impugned
judgment, has observed that both the injuries could be caused with one
blow. If it is so, in our opinion, taking into account totality of facts
and circumstances, it can be said that the appellant had committed an offence
punishable under Section 304, Part I, IPC. His conviction, therefore, ought to
have been under the said provision and not for an offence of murder, punishable
under Section 302, IPC.
For the foregoing reasons, the appeal deserves to be partly allowed. So far as
conviction recorded against the appellant for causing death of deceased Bhushan
Lata is concerned, there is no infirmity and both the Courts were right in coming
to the conclusion that it was the appellant who had caused the death of the
deceased. But, in view of totality of circumstances, in our opinion, the
appellant ought to have been convicted by the Courts below for an offence
punishable under Section 304, Part I and not under Section 302, IPC. The appeal
is, therefore, partly allowed and conviction of the appellant for an offence
punishable under Section 302, IPC is converted to an offence punishable under
Section 304, Part I, IPC and he is, therefore, ordered to undergo rigorous
imprisonment for ten years.
The appeal is accordingly allowed to the extent indicated above.