Full Text
JUDGMENT
VEENA ..... Appellant
Through: Mr.K.B.Andley, Sr. Advocate with Mr.M.L. Yadav, Advocate.
Through: Mr.Pawan Sharma, Advocate.
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ? AJIT BHARIHOKE, J.
1. Appellant Veena, on being prosecuted in Sessions Case No.10/89 emanating from FIR 279/88 under Section 302 IPC, P.S. Moti Nagar was convicted by the learned Additional Sessions Judge in terms of judgment dated 31.10.1995 under Section 302 IPC for having committed murder of Paramjit Singh @ Pamma and she was 2009:DHC:4293-DB sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo SI for a further period of two months in terms of order on sentence dated 31.10.1995.
2. Feeling aggrieved by the impugned judgment and order on sentence, Smt. Veena has preferred the instant appeal.
3. Briefly stated, case of the prosecution is that on the night intervening 21/22.09.1988, Constable Jagbir Singh, PW-1 and Ram Ajor Mishra, Home Guard Constable PW-9 were on patrol duty seen in new Moti Nagar Area. At about 11.45 PM, when they reached block No.23, New Moti Nagar, they heard a shriek of some person coming from House No.23/337, New Moti Nagar. So, they entered that house. They were also followed by a neighbour Vidya Sagar, complainant. The lights in the house were on. They noticed the deceased Paramjit Singh @ Pamma lying on the floor and the appellant Veena, who was having a “Phawra” in her hands gave two blows on the head of Paramjit Singh in their presence, as a result Paramjit Singh started bleeding. Constable Jagbir Singh took the “Phawra” from the hands of the appellant Veena and made her sit. Paramjit Singh died at the spot.
4. Information about the occurrence was conveyed to the Police Station and it was recorded as DD No.3A dated 22.09.1988. Copy of the DD report was entrusted to Inspector Pratap Chand, PW-17 for verification. He immediately proceeded to the spot of occurrence along with other staff and found the dead body of Paramjit Singh @ Pamma lying on the floor. He recorded the statement of complainant Vidya Sagar, which was signed by him and sent it to the Police Station for the registration of the case under Section 302 IPC. Inspector Pratap Chand (PW17) seized the “Phawra”, one bucket and some broken glass pieces from the spot. He also lifted blood stained earth from the spot and conducted the inquest about the circumstances leading to the death of Paramjit Singh @ Pamma. He arrested the appellant and also took her clothes i.e. salwar and kameej into possession. After completion of the investigation, he submitted the charge sheet against the appellant.
5. Appellant Veena was charged under Section 302 IPC, to which she pleaded not guilty and claimed to be tried.
6. Prosecution examined 17 witnesses in all, including the purported eye witnesses Constable Jagbir Singh, PW-1, Home Guard Ram Ajor Misra Constable-PW[9] and Smt. Krishna Devi-PW10, step mother of the appellant. Complainant Vidya Sagar could not be examined as he had expired during the pendency of trial.
7. The appellant in her statement under Section 313 Cr.P.C. came up with the defence that her husband Paramjit Singh (deceased) had advanced some money to her brother. On 19.09.1988, her husband had gone to the house of her parents to demand repayment of his loan from her brother Kuldeep. Instead of returning the money, her father lodged a report against her husband with the Police. On 21.09.2009, she, along with Paramjit Singh (deceased) visited her parents to demand repayment of the loan and explained to her father and brother that her late husband required the money urgently. Her father and brother, instead of returning the money, insisted on repayment at their own convenience, which resulted in exchange of hot words and a scuffle ensued. Her father and brother gave a push to her husband and he fell prostrate on the ground. Her step-mother Krishna Devi then exhorted her brother Kuldeep @ Deepu to kill her husband with the “Kassi” and on exhortation, her brother Kuldeep picked up the “Kassi” and gave “Kassi” blows on the head of her husband Paramjit Singh. When she tried to rescue her husband, her step-mother caught hold of her by her shirt, as a result whereof the shirt got torn. Thus, in short, the defence of the appellant is that she is innocent and actually her brother Kuldeep @ Deepu has committed murder of her husband Paramjit Singh on the exhortation of her step-mother Krishna Devi. In defence, the appellant has examined DW-1 Madan Lal, father of the deceased, to prove that the money was advanced by her late husband to her brother Kuldeep in September, 1988.
8. On consideration of the evidence, the learned Additional Sessions Judge did not find the defence of the appellant plausible and relying upon the prosecution evidence, he convicted the appellant under Section 302 IPC vide the impugned judgment and sentenced her vide order of sentence dated 31.10.1995.
9. The prosecution has cited four eye-witnesses viz. complainant Vidya Sagar, PW[1] Constable Jagbir Singh, PW[9] Home Guard Constable Ram Ajor Misra and PW10 Krishna Devi. Complainant Vidya Sagar could not be produced as a witness because of his unfortunate demise. Out of the remaining three eye-witnesses, PW[9] Constable Ram Ajor Misra and PW10 Krishna Devi turned hostile and did not support the case of the prosecution. Thus, the prosecution case rests mainly upon the eye-witness account given by PW[1] Constable Jagbir Singh.
10. Before adverting to the submissions made by learned counsel for the appellant, it would be useful to have a look at the testimony of Constable Jagbir Singh. He deposed that on the night intervening 21st and 22nd September, 1988 while he was on patrol duty along with Home Guard Constable Ram Ajor Misra at Block No.23, Moti Nagar, he heard shrieks of someone at about 11.45 p.m. Thus, they entered House No.23/337, New Moti Nagar from where the shrieks were emanating. The lights in the house were on, and he noticed a man lying in the courtyard, who was later on identified as deceased Paramjit @ Pamma. Witness further stated that Paramjit @ Pamma was bleeding from the head and appellant Veena was holding a „Phawra‟ in her hands and in their presence, she gave a „Phawra‟ blow on the head of the deceased followed by another blow. He immediately snatched the „Phawra‟ from her hand and made her sit on a cot lying nearby. Thereafter he went along with Vidya Sagar to his house and informed the police on telephone. He further stated that SHO Moti Nagar reached at the spot within 8 to 10 minutes, and took the „Phawra‟ which was stained in blood with some hair of the deceased attached thereon, into possession vide seizure memo Ex.PW1/A. He also took into possession one bucket having blood stains and blood stained earth as well as some broken pieces of glass of the window pane. In his cross-examination, he denied the suggestion that he has been planted as a witness along with Home Guard Constable Ram Ajor Misra, PW[9]. He also denied the suggestion that the deceased was chased into the house of his inlaws by two bad characters, who caused injuries to him with a rod and a knife, resulting in his death.
11. Learned counsel for the appellant has submitted that the testimony of PW[1] Constable Jagbir Singh is unreliable, firstly because it is not corroborated by the other eye-witnesses. In support of the above contention, he has drawn our attention to the testimony of PW[9] Ram Ajor Misra, Home Guard Constable who stated in his examination-in-chief that on entering the said house, he saw a quarrel taking place between a fat woman, and the appellant and some children. He also stated that one boy and the fat woman whom he later on identified in his cross-examination by learned counsel for the appellant as PW10 Krishna Devi, had fled away. He also stated that he did not see anybody inflicting injury on the person lying on the floor and in response to a Court question, he categorically stated that he did not see the appellant giving „Phawra‟ blows to the injured/deceased. PW10 Krishna Devi stated in her examination-in-chief that she was sleeping inside when the window pane was broken. As a result, she woke up and saw outside and noticed that the deceased was lying on the floor and two persons with muffled faces having a rod and knife in their hands were running away. In the cross-examination by learned counsel for the appellant, she stated that the appellant was sleeping with her inside and she did not inflict any injury on the person of her husband and according to her, police visited the spot of occurrence in the morning hours at about 6.00 a.m.
12. Learned counsel for the appellant has submitted that from above said versions of PW[9] and PW10, it is obvious that the appellant did not inflict any injury on the person of the deceased and therefore, in view of their consistent version to that effect, it is highly unsafe to believe the version of PW[1] Constable Jagbir Singh.
13. We are not impressed with the argument. On perusal of the testimony of PW[9] Ram Ajor as well as PW10 Krishna Devi, it transpires that both of them are hostile witnesses and they have resiled from their previous statements made to the police during the investigation. Thus, in our view, they are not reliable witnesses. Further, their version is contradictory on material aspects of the case. According to PW10 Krishna Devi, the appellant did not cause any injury to the deceased and she saw two persons with muffled faces having a rod and knife in their hands fleeing away from the house, whereas PW[9] Ram Ajor Misra has given a contradictory version stating that when he entered the house, he saw a quarrel taking place between a fat woman and the appellant and that said fat woman and a boy fled away from the spot. The above contradiction in the testimony of PW[9] and PW10 leads us to the irrefutable conclusion that they are not truthful witnesses and have not come clean about the real facts.
14. On perusal of the testimony of PW[1] Constable Jagbir Singh referred to in para 10 of the judgment, it transpires that he has supported the case of prosecution in material particulars. He was subjected to a lengthy cross-examination on behalf of the appellant, but he withstood his ground and his credibility could not be shaken. On the other hand, his version finds corroboration even from the testimony of PW 9, Home Guard Constable Ram Ajor Misra, who is a hostile witness. It is noted that Constable PW[9] Ram Ajor Misra in his examination-in-chief has stated that on the fateful night at about
11.30 PM, he was on patrol duty in New Moti Nagar area along with Constable Jagbir Singh, where they found one Vidya Sagar in the gallery of his house. He has also stated that Constable Jagbir Singh asked Vidya Sagar as to why he was not sleeping and, in the meanwhile, they heard a noise from the nearby house. On hearing the noise, they both along with Vidya Sagar went inside that house and saw one person lying on the ground and he was bleeding from the head. From the aforesaid version of PW[9], Constable Ram Ajor Misra, one fact stands established that he along with PW[1], Constable Jagbir Singh had actually gone into the house where the occurrence took place and saw the deceased lying on the ground in injured condition. PW[9], Ram Ajor Misra during his crossexamination by learned APP in response to a court question has also admitted that not only he saw the injured lying on the ground, he also noticed that the appellant was present there and she was holding a “Phawra” which was snatched from her by Constable Jagbir Singh. The fact that the appellant was holding the “Phawra” at the relevant time provides sufficient assurance that PW[1] Constable Jagbir Singh is a truthful witness. If the appellant was not the assailant, there was no reason for her holding “Phawra” in her hand. Otherwise also, there is nothing on the record to suggest that PW[1] Constable Jagbir Singh had any reason whatsoever to falsely implicate the appellant in this case. Thus, we find no reason to doubt his testimony and are of the view that the learned trial Judge has rightly relied upon his testimony to convict the appellant.
15. Learned counsel for the appellant has drawn our attention to the post-mortem report Ex.PW4/A and the testimony of Dr.L.T. Ramani, PW[4] who conducted the post mortem examination on the dead body of the deceased Paramjit, which indicates that the deceased had sustained nine injuries, out of which eight injuries are either lacerations or bruises with fracture which could be caused by a blunt object and injury no.2 is a clean cut incised looking wound, which could be caused only by a sharp cut object like knife. Details of injuries are as under: “1. A wide gaping laceration present transversely over left temporo parietal area from just above zygoma to the parietal region. Size 10 c.m. x 4 c.m. x cranial cavity deep – with obvious depressed fracture beneath and expulsion of the lacerated brain matter through the injury.
2. Clean cut incised looking wound 3.[5] c.m. x 1.[5] c.m. x muscle deep placed vertically on the left zygoma region near tragus of the ear. Lower end of the injury was swelling into a linear abrasion 2 c.m. long.
3. Laceration 5 c.m. x 2 c.m. x scalp deep on the posterior part of left tempral revion behind the ear.
4. Bruise 4 c.m. x 4 c.m. with superficial abrasion on the Rt. Cheek bone area.
5. Laceration 5 c.m. x 2 c.m. x scalp deep placed transversely on the vault of the skull.
6. Bruise 4 c.m. x 2 c.m. reddish in colour on the back of left shoulder with a linear abrasion 6 c.m. long at the lower end of the bruose.
7. Bruise 3 c.m. x 1 c.m. on the back of Rt. shoulder.
8. Four linear abrasions with bruising at the margins placed transversely on the back of chest partly over scapular area. All these injuries were almost parallel and were 16 c.m. long.
9. Bruise 4 c.m. x 2 c.m. present on the back of chest in the mid-line at the level of 8th Thoracic vertabrao.”
16. Learned counsel for the appellant has further drawn our attention to the complaint statement Ex.PW17/A given by the complainant Vidya Sagar to the SHO on the basis of which the FIR was registered and pointed out that as per the complaint, the appellant had given two blows on the head of the deceased Paramjit Singh in presence of the Constables with back side of the „Phawra‟. He has stated that if aforesaid version was true, then there is no explanation for injury No.2 which could have been caused only by a cutting object. Thus, he has urged us to disbelieve the version of Constable Jagbir Singh.
17. „Phawra‟ is a digging instrument comprising of a steel blade having sharp edge with a wooden rod fitted into it. Even if someone hits a person with back side of the „Phawra”, then also a possibility cannot be ruled out that the blow might have hit the victim by some part of the metal edge resulting in an incised open wound. Even Dr.L.T. Ramani in his testimony has opined that the above referred injuries in his opinion were caused by heavy cutting and blunt weapon. A „Phawra‟ squarely falls within the aforesaid definition. Otherwise also the occurrence took place in a short span of time and witnesses are not expected to observe precisely as to which part of the „Phawra‟ hit the deceased. Therefore, in our considered view, it cannot be said that the injuries on the person of the deceased Paramjit Singh have remained unexplained vis-à-vis the complaint of the testimony of PW[1] Constable Jagbir Singh. As such, we do not find any reason to doubt the truthfulness of the version of PW[1] Constable Jagbir Singh.
18. Lastly, it is submitted on behalf of the appellant that there is nothing on record to suggest that the appellant had any motive whatsoever to commit murder or to cause injury to the deceased who admittedly was her husband. Therefore, it is not safe to convict the appellant on basis of uncorroborated testimony of PW[1] Constable Jagbir Singh whose version is not corroborated by the other two eye-witnesses, PW[9] Ram Ajor Misra and PW10 Krishna Devi. Thus, he has urged us to extend the benefit of doubt to the appellant.
19. The law relating to motive in criminal cases is well settled. The motive may be a significant factor in a case based on circumstantial evidence but it loses its significance in a case which is based on ocular evidence. Once the Court is of the view that there is reliable ocular evidence against the accused, the absence of motive cannot be made a reason to discard the ocular evidence which is otherwise truthful and reliable. We have already concluded in the discussion above that PW[9] Ram Ajor Misra and PW10 Krishna Devi are not reliable witnesses and that there is no reason to doubt the testimony of PW[1] Constable Jagbir Singh which inspires confidence. Therefore, we do not find any merit in the argument.
20. In view of the discussion above, we do not find any infirmity in the impugned judgment of conviction and we are of the considered view that the learned Trial Court has rightly relied upon the prosecution evidence, particularly testimony of PW[1] Constable Jagbir Singh, to record conviction of the appellant.
21. The appeal is devoid of merit and is accordingly dismissed.
22. The appellant is on bail. She be taken into custody and sent to Jail for undergoing her remaining sentence. AJIT BHARIHOKE, J. October 15, 2009 SANJAY KISHAN KAUL, J. pst/gm