Crl.A. No.643-DB of 2001 v. STATE OF HARYANA

Constable, on the basis which FIR (Ex.PB) was registered on 3.3.1999. The spot was inspected by S.I. Shiv Dan Singh (PW14). Blood stained earth and a pair of chappals were lifted from the spot. Rough site plan (Ex.PO) of the place of occurrence was prepared and the statemetns of the witnesses were recorded. The dead body of Sunita was sent to General Hospital, Hansi for post-mortem. On 7.3.1999, accused Prem Singh was arrested. On interrogation, he made a disclosure statement (Ex.PJ) on 8.3.1999 and in the presence of witnesses Subhash son of Balbir and Mahabir son of Chandgi Ram, he got recovered a pair of ear rings, one dhol of gold of the deceased which were taken into possession and were converted into a parcel. Accused Prem Singh also got recovered one blood stained sickle, which was also taken into possession after converting into a parcel. Both the parcels were sealed with the seal of 'SS'. On the same same date, i.e. on 8.3.1999, Balraj was also arrested. After completing necessary formalities, challan against the accused was presented in the Court and charge under Section 302, 404 and 354 IPC was framed against accused Prem Singh and charge under Section 109 IPC read with Section 302 IPC was framed against Balraj to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 13 witnesses. PW3 Dr.O.P.Charya, Medical Officer, General Hospital, Hansi who conducted the post mortem on the dead body of Sunita found the following injuries on the person of the deceased:- “1. There was present an incised wound on the neck Crl.A. No.643-DB of 2001 -4- anteriorly 10”x2.5” into muscle deep extending laterly on both the sides and more towards the left side. On further examination the trachea, oesophagas all the major vessels starno claido mastoid muscle on the left side was cut completely. Clotted blood was present in the wounds.

2. There was present a contusion mark of 3.5 x 3.5cm on the face right side oval in shape at places mark of indentation present on it. On deeper dissection blood was present in the subcutaneous tissue.

3. There was present multiple small abrasions on the forehead right side within an area of 3 x 5 cm. The Doctor opined the cause of death due to hemorrhage and shock. He further opined that injury No.1 was sufficient to cause death in due course of nature. PW3 Dr.O.P.Charaya on perusing the report of the Chemical Examiner Ex.PD and the report of Serologist Ex.PD/1 had further deposed that possibility of subjecting the victim to sexual intercourse before murder cannot be ruled out. This witness in his cross-examination had also deposed that as per report Ex.PD the semen was not detected on the pubic hair and swabs, but it is not necessary that in every case semen must be detected on the swabs and it depends on the discharge of semen. He further deposed that in the case in hand, the semen was discharged and it was detected on the salwar of the deceased and this witness further deposed that on the basis of reports of Chemical Examiner (Ex.PD) and Report of Serologist Ex.PD/1, possibility of victim having been subjected to sexual intercourse before Crl.A. No.643-DB of 2001 -5- murder cannot be ruled out. PW-8-Murti Devi W/o Sushil Kumar deposed that on the day of occurrence, at about 8/9 a.m. Sunita had gone to the fields to collect fodder for cattle with a sickle and a cloth, but did not return till 3/4 p.m. Thereupon, she proceeded towards the fields in her search and saw that Sunita murdered in the fields with a cut in her neck. The gold ear rings and dhol were missing from her body. She became perplexed on seeing the dead body and returned to her home and disclosed the incident to her father-in- law Jaibir (PW12) who immediately rushed to the fields. She further deposed that accused Prem and Balraj were keeping an evil eye at Sunita (deceased). They misbehaved with them earlier also. She further deposed that prior to the day of occurrence, accused Prem and Baljraj teased Sunita and she disclosed this fact to him. However, they decided to keep mum on account of family pride and feared that disclosure of this incident might lead to a fight within the men-folk. While recording her statement under Section 161 Cr.P.C. this witness made a statement that one day prior to Holi festival when Sunita (deceased) returned to the house after bringing fodder, she told her that accused Prem Singh was a bad person and he had winked his eyes towards her on that day while she was lifting fodder. Sunita (deceased) also disclosed to her that prior to this incident, it was happening every day. PW9 Sushil Kumar S/o Jaibir Singh (PW12) deposed that his sister Sunita had come to his house 8-9 days prior to the date of occurrence. The fields of Hoshiar Singh was near to his field which was being cultivated by accused Prem Singh and the accused used to operate tubewell of Hoshiar Singh. The fields of Balraj were also near his fields. On 3.3.1999, he had Crl.A. No.643-DB of 2001 -6- gone to his fields in the early morning and saw accused Prem and Balraj near his fields. Accused Prem Singh was operating the tubewell while Balraj was standing on the daul of the fields. On his return, he met his sister Sunita on the way. She was going towards his fields for collecting fodder while carrying darati and a palli. She was wearing clothes and was having pair of ear rings and a dhol made of gold. He asked Sunita to come back early to home after collecting fodder. He further deposed that only accused Prem Singh and Balraj were present there while Sunita was going to the fields. Thereafter, he left for his work of mason. On coming back to the house while finishing his work, Murti PW8 told him that Sunita had not returned from the fields and when she had gone to fields, she was found to have been murdered in the fodder crop and the ear rings and dhol were missing from her person. Thereafter, he saw the dead body of Sunita and found the golden ornaments missing from her body and a cut on her neck. Cut fodder tied in the cloth were lying near the dead body. The darati of Sunita wasnot found near her body. Thereupon, Murti (PW8) told him that accused Prem Singh and Balraj were keeping a bad eye on her and Sunita. PW10 Subhash son of Balbir Singh deposed that on 8.3.1999, he was present at bus stand of his village. Mahabir(PW13) was also present there. Police came to the bus stand in a jeep and accused Prem was in their custody. We were joined in the investigation and taken to the fields of Master Hoshiar Singh. Accused Prem Singh led the police to the place where he had concealed the golden ornaments. Near the tubewell, the Earth was dug by accused Prem Singh and got recovered two ear rings and a dhol made of gold which were taken into police possession. Accused Prem also got recovered darati from the nearby fodder fields which was also taken into Crl.A. No.643-DB of 2001 -7- police possession after converting the same into sealed parcels. Even in his cross-examination PW10 Subhash deposed that accused Prem Singh himself got recovered the sickle which was soiled with some sand and the gold ornaments, by digging the Earth and the whole process took only 15 minutes. PW12 Jaibir Singh who was also the complainant deposed that deceased Sunita had gone to collect fodder from the fields at about 12/12.30 p.m.. When Sunita did'nt came home till 3/4.00 p.m., then Murti PW8 proceeded for the fields in search of her. On her return, she told that dead body of Sunita was lying in the field with sharp edge injuries on her neck and also bite injury on her right cheek. Thereafter, I alongwith Mahabir and Chhaju Ram reached the fields where we saw the dead body of Sunita lying there with sharp edged injury on her neck. He further deposed that he suspected that someone tried to commit rape upon her and on her resistance she had been killed. Leaving Mahabir and Chhaju near the dead body of Sunita, he alongwith Ramdhari, Ex-Sarpanch and Hajari left for Police Station for reporting the matter. PW13 Mahabir S/o Chandgi Ram deposed same facts as deposed by PW12 Jaibir Singh regarding the occurrence. He further deposed that on 3.3.1999, he alongwith Subhash was present at Bus Stand Bhatla where police met them. Accused Prem was in the police custody. We accompanied the police and accused Prem took the jeep of Police in the fields of Hoshiar Singh and got recovered ear rings and one Dhol belonging to deceased Sunita after digging the Earth. Thereafter, accused Prem Singh got recovered a sickle from the field of fodder. Both the articles were taken into possession after making the same into separate sealed parcels, vide Crl.A. No.643-DB of 2001 -8- memo Ex.PL. In his cross-examination this witness also deposed that recovery proceedings took only 15/20 minutes. PW14 Inspector/SHO Shiv Dan Singh deposed that on

3.3.1999, he was posted as S.I./SHO P.S. Sadar Hansi and alongwith other police officials was present at Court Chowk, Hansi and was on patrolling. At the Court Chowk, Jaibir alongwith one Sarpanch and another person met him. Jaibir got recorded his statement Ex.PA which was endorsed by him vide Ex.PA/1 and sent the same for registration of a case. Thereafrer, he proceeded to village Bhatla and found dead body of Sunita. Place of occurrence was inspected by him. Blood stained earth and a pair of hawai chappal from the spot were taken into possession and were made into separate sealed parcels. Statements of the witnesses were recorded. Rough site plan was prepared and thereafter dead body of Sunita was sent for post mortem. The belongings of deceased, handed over by the Doctor, were also taken into possession vide memo Ex.PK. On 7.3.1999, accused Prem was arrested and on his disclosure statement on 8.3.1999, ear rings and one dhol made of gold and one sickle was got recovered. Apart from other witnesses, report of Forensic Science Laboratory, Haryana Madhuban, Karnal was also tendered into evidence as Ex.PD and Ex.PD/1, according to which, human blood was found on the clothes of the deceased as well as on the Earth. Semen was detected from Salwar of the deceased, however, no semen was detected from the swab and pubic hair of the deceased. Thereafter, the prosecution evidence was closed. After closure of the prosecution evidence, statement of the accused under Section 313 Crl.A. No.643-DB of 2001 -9- Cr.P.C. was recorded and all the incriminating evidence against them was put to them. They denied the allegations and pleaded innocence by stating that he has falsely been implicated in this case. The trial Court after considering all the aspects of the case, acquitted Balraj of the charges against him, while, accused Prem Singh was convicted for the offence under Section 302, 404 and 354 IPC and sentenced him as narrated in the opening paragraph. Learned counsel for the appellant has vehemently argued that there are statements of related witnesses i.e., Jaibir-complainant, Murti and Sunil Kumar who are interested in the case and in fact it was a blind murder of Sunita and appellant has been falsely implicated in this case. He further contended that the present case is one in which there is no eye-witness and the circumstantial evidence collected by the prosecution does not in any way connect the appellant-accused in the commission of the crime. Therefore, the appellant is entitled to the benefit of doubt and he may be acquitted of the charges. On the other hand, learned counsel for the State has controverted the aforesaid arguments raised by the learned counsel for the appellant, by contending that the FIR in this case was promptly recorded and there is no reason to falsely implicate the accused-appellant in this case because the prosecution has been able to connect the accused with the commission of the crime by the circumstantial evidence brought on record. Learned counsel for the State further contended that the appellant has not been able to create any dent in the prosecution case. Therefore, the learned trial Court has rightly convicted and sentenced the accused-appellant. We are conscious about the fact that Jaibir-complainant (PW- Crl.A. No.643-DB of 2001 -10- 12), Murti Devi (PW-8) and Sushil Kumar (PW-9) are related witnesses. When there is a evidence of related witnesses, the Court has to be careful in scrutinizing their evidence. If Court finds the evidence of related witnesses trustworthy and reliable, then their evidence cannot be discarded. The occurrence in this case had taken place on 03.03.1999 and thereafter immediately Jaibir-complainant (PW-12) lodged the report with the police on the same day i.e., 03.03.1999 at about 7.15 p.m. Copy of the FIR was sent to the Illaqa Magistrate on the same day at 9.00 p.m. The accused-appellant in this case was arrested on 07.03.1999 and on

08.03.1999, he made the following disclosure statement (Ex. PJ) before Shiv Dan Singh, the Investigating Officer in the presence of Head Constable Krishan Kumar and Constable Mahender Singh: “In the presence of the following witnesses, on making the inquiry again and again, Prem singh son of Inder Singh, Harijan, Cobbler, resident of village Bhatla disclosed that on

3.3.1999 at about 10.00 a.m., Sunita daughter of Jaibir carpenter, resident of Bhatla was cutting the Barseem in the Darwala fields and adjoining to it there is field of Balwant Master which has been taken by him on the share basis. On seeing Sunita all alone he went to her with bad intention and he had taken Sunita in his grip and he had bite on her right cheek. On raising alarm by her, he murdered her by inflicting sickle on the left side of her neck which was holding in his hand. About 5/6 days earlier, he winked eyes towards Sunita but she did not object it. He narrated this incident to Balraj son of Dharam Chand, blacksmith resident of Bhatla who Crl.A. No.643-DB of 2001 -11- advised him to do the work. After murdering Sunita, he removed the golder ear-ring and one folder dhol and after wrapping the same into a wax paper, he had kept concealed underneath the earth after digging in a pit in the onions fields (KAYARI) which was taken byhim on the share basis; and the sickle was thrown in the field of Barseem. No body else except him has the knowledge about it and he could get it be recovered after pointing out the same.” Though the aforesaid confession made before the police cannot be taken into consideration, still the recovery effected in pursuance of the disclosure statement is an important piece of evidence to link the accused with the commission of crime. In pursuance of the disclosure statement (Ex.PJ), the accused-appellant got recovered two ear-rings and dhol made of gold and also Darati (sickle) in the presence of Subhash (PW-10) and Mahavir (PW-13). PW-10-Subhash and PW-13-Mahavir have made consistent statement regarding the aforesaid recoveries got effected by the accused-appellant in pursuance of his disclosure statement. These statements further find corroboration from the statement of PW-14-Shiv Dan Singh, the Investigating Officer. The Investigating Officer also took into possession Parna, Shirt, Salwar, Dupatta, Brassier, Swabs and blood stained earth. Vide report (Ex. PD), Forensic Science Laboratory, opined that Parna, shirt, chunni, brassier and salwar were found to be blood stained. Further human semen was detected on the salwar. In this way, the recovery of the aforesaid articles had provided a link to the evidence to connect the accused. Dr. O.P. Charya (PW-3) opined that the cause of death was due to hemorrhage and shock and injury No.1 was sufficient to cause death in the Crl.A. No.643-DB of 2001 -12- ordinary course of nature. All the injuries were stated to be ante mortem in nature. This witness further opined that probable time that elapsed between injury and death was variable and the time between the death and postmortem was within 24 hours. The Doctor further stated that Salwar (Ex.-P-1) Parna (Ex.-P-2), Shirt (Ex.-P-3), Dupatta (Ex. P-4) and Bra (Ex. P-5) were removed from the dead body of Sunita. This witness further stated that on the basis of report (Ex.-PD) of chemical examiner and report (Ex.- PD/1) of Serologist, the possibility of victim having been subjected to sexual intercourse before murder cannot be ruled out. Murti Devi (PW-8) has categorically stated that Sunita (deceased) was the only sister of her husband-Sushil Kumar (PW-9). She was married in village Dhamtan with Rajesh and she was having two children. She further stated that about 1½ years ago her sister-in-law Sunita had come to their house to meet them. She further narrated that on the day of occurrence i.e., about 1½ years ago Sunita went from home to their fields to collect Barseen for cattle and she on that day left the house at about 8/9 a.m. with a sickle and a palli (a piece of cloth). When Sunita did not return after waiting upto 3/4 p.m., she went to the fields in search of Sunita and there she found that Sunita was lying murdered in their field of Barseen having a cut in her neck. She further found that ear-rings and dhol made of gold were missing from her body. On seeing the dead body, she got perplexed and thereafter, returned to her village and disclosed all the facts to her father-in-law-Jaibir (complainant). Jaibir (complainant) immediately left for the fields. She further deposed that thereafter she also narrated the facts to her husband-Sushil. This witness further testified that fields of Balraj adjoined their fields while Prem Singh-accused was cultivating the Crl.A. No.643-DB of 2001 -13- land of Master Hoshiar Singh. She has made categorical statement that Prem and Balraj were keeping an evil eye upon her and her sister-in-law Sunita and further that the accused misbehaved with them earlier also. She further stated that a day prior to the occurrence Prem and Balraj had teased Sunita who had told about this fact to her. However, she and Sunita remained quiet on account of the family pride and they also feared that if they disclosed these facts to their men then there would be a fight. The statement of Murti Devi finds corroboration from the statements of Sushil Kumar-PW-9 and Jaibir-complainant (PW-12). Regarding the injuries explained by the aforesaid three witnesses, Dr. O.P. Charya (PW-3) supported their ocular version. Murti Devi (PW-8) and Sushil Kumar (PW-9) clearly deposed that their statements were recorded by the Police on 04.03.1999, i.e. the next day of the occurrence. If there is any lapse on the part of the Investigating Officer, the complainant party cannot be allowed to suffer for that lapse. The fact that the accused- appellant had been keeping an evil eye on Sunita and also teased her earlier also has been specifically and consistently deposed by Jaibir-complainant (PW-12), Murti Devi (PW-8) and Sushil Kumar (PW-9). The presence of Prem Singh has also been established by the aforesaid three witnesses, as Murti Devi (PW8) stated that Prem Singh was cultivating the land of Master Hoshiar Singh and on that account Prem Singh-accused-appellant was residing in the fields of Hoshiar Singh. No suggestion has been put to Murti Devi that Prem Singh -accused-appellant was not present in the fields of Hoshiar Singh at the relevant time. Sushil Kumar (PW-9) also stated that he had seen Prem Singh- Crl.A. No.643-DB of 2001 -14- accused-appellant while he was cultivating the land of Hoshiar Singh and he also used to operate the tubewell of Hoshiar Singh. Sushil Kumar (PW-9) is a witness of last scene and he had seen the accused-appellant in the fields of Hoshiar Singh. This witness was narrated all the facts by his wife Murti Devi (PW-8). The statements of the aforesaid witnesses are consistent and, therefore, inspire confidence. Learned counsel for the accused-appellant has not been able to point out any contradiction which creates any doubt in the version set up by the prosecution. The motive for the crime was that accused Prem Singh was keeping an evil eye on the deceased. One day prior to the occurrence, he had teased the deceased and the incident of teasing was narrated by deceased Sunita to PW8 Murti Devi. This witness has deposed that not only did Prem Singh tease her one day prior to the occurrence, but even on an earlier occasion, he had winked at her while helping the deceased in lifting the fodder (Barseen) from the fields. Murti Devi has also deposed that earlier also on a number of occasions whenever she and deceased Sunita would go the fields for cutting fodder, then the accused would help them in lifting the bundle of fodder. It is thus clear that accused Prem Singh had an evil eye upon Sunita and had teased her on previous occasions also, the last one being a day prior to the occurrence. A perusal of the report of Forensic Science Laboratory (Ex.PD/1) shows that human semen was detected on the salwar of deceased Sunita. As per post mortem report there were marks on teeth bite on the right cheek of the deceased. The aforementioned circumstances also indicate that an attempt was made to commit rape upon the deceased. Thus, from the aforementioned discussion, it is clear that Crl.A. No.643-DB of 2001 -15- accused Prem Singh had cast an evil eye upon deceased Sunita. He had teased her, a day prior to the occurrence and had also winked at her on previous occasions. The report of post mortem report as well as the Forensic Science Laboratory (Ex.PD/1) shows that there was a teeth bite mark on the right cheek of the deceased and also human semen was detected on the salwar of the deceased. When the attempt to commit rape upon the deceased failed, the accused committed the murder of Sunita with the sickle which she was having for cutting fodder (Barseen). As per the FSL Report, human blood was detected on the sickle. As per the statement of PW9 Sushil Kumar, he had seen accused Prem Singh operating the tubewell of Hoshiar Singh which was near his fields. The deceased had gone to the fields of Hoshiar Singh to cut fodder. This witness had last seen the accused on the date of occurrence in the same fields where Sunita had gone for cutting fodder. Thus, the prosecution has been able to prove last seen evidence. Apart from the above, the recoveries of sickle and gold earrings which the deceased was wearing were effected upon a disclosure statement made by the accused. It was accused Prem Singh, who got recovered the earrings and dhol of gold by digging the Earth from the field of Hoshiar Singh Master. Thus, the prosecution has been able to establish that the recoveries were effected at the instance of accused Prem Singh, as per his disclosure statement and the same belonged to the deceased. The recoveries were effected in the presence on PW10 Subhash and Mahavir PW13. The post mortem report also corroborates the case of prosecution as according to Dr.O.P.Charaya (PW3), injury No.1 was sufficient to cause death in the ordinary course of nature. The Doctor had also noticed a bite mark on the Crl.A. No.643-DB of 2001 -16- cheek of the deceased. All the aforementioned circumstances clearly and unequivocally point towards the fact that it was Prem Singh who had firstly intended to outrage the modesty of Sunita and thereafter had committed her murder. The evidence of the prosecution witnesses is trustworthy and reliable and furthermore, all the links in the chain are complete which point to the guilt of the accused. In view of above discussion, we are of the considered view that the learned trial Court has rightly convicted and sentenced the accused- appellant under Sections 302, 404 and 354 IPC on the basis of the circumstances having the complete chain pointing to the guilt of the accused-appellant. The fine imposed by the learned trial Court is also maintained. In the result, this appeal being without any merit is dismissed. The accused-appellant is on bail and his bail/surety bonds stand cancelled and forfeited to the State and he be taken into custody to serve out the remaining part of the sentence. (ASHUTOSH MOHUNTA) JUDGE July 12, 2010 Gulati (NAWAB SINGH) JUDGE