Balwan vs State of Haryana

Iqbal Singh, J.

Balwan Singh, appellant, on conviction by the learned Sessions Judge, Hissar, for offence under Section 302, Indian Penal Code, was sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/ and in default to suffer further rigorous imprisonment for one year. Through this appeal, he questioned his conviction and sentence.

Briefly narrated the facts giving rise to this appeal are that Rajpati (deceased) sister of Smt. Khazani, PW1 was married to Balwan, accused, who is younger brother of husband of Khazani, PW1. Deceased''s husband used to give beatings to the deceased and she was rescued many times by Khazani, PW1, Khazani was residing at village Badian Jattan. On September 29, 1992, Tara Singh PW2, and Zila Singh, father and brother respectively of Smt. Khazani, PW1 came to village Badian Jattan to meet her. Balwan Singh gave slaps to deceased in the presence of her father over some domestic matter. Both father and son Tara Singh, PW2 and Zila Singh respectively returned to their village on the same day on account of quarrel in the house. On the next day i.e. 30.9.1992 at about 7/8 a.m. Khazani PW1 went to the house of her sister (deceased) on hearing the noise of their quarrelling and saw Balwan Singh accused beating her sister with lathi. He gave three straight blows with lathi to her sister on her head in her presence and she fell down on the ground. Khazani, PW1 tried her best to get her sister rescued but Balwan Singh did not desist from beating her. Alarm of Khazani, PW1 did not attract anybody. After sometime Rajpati deceased, succumbed to her injuries at the spot. After that Jai Pal, Balwan Singh, Jai Narain and Mohinder took the dead body of her sister to the cremation ground on the same day. Khazani, PW1 was, however, not allowed to go out. On 2.10.1992 on coming to know about the incident, Tara Singh, PW2 and Zila Singh came to the village and took Khazani, PW1 with them to Police Station where she lodged her report with the police. Report Ex.PA was recorded by Kishan Lal, ASI, PW5 at Police Station Sadar, Hissar at 7.40 p.m. on 2.10.1992. He sent the special report to the Ilaqa Magistrate which was received by him at 9.40 p.m. Krishan Lal, ASI, PW5 went to the spot at about 8.30 p.m. but could not inspect it. Thereafter, Mr. Udhey Shankar, Police Inspector (now D.S.P.) PW6 took up investigation from him. He could not carry out any proceeding during the night and came back to Police Station leaving an A.S.I. and a Constable at the spot. On 3.10.1992 he reached the village around 8.00 a.m. inspected the spot and took into possession cot Ex.P1 vide memo Ex.PC. The rough site plan Ex.PF was also prepared by him. He also visited the cremation ground and on the pointing out of Smt. Khazani, PW1 took into possession ashes and the last remains of Rajpati, deceased and made the same into parcel Ex.P2 and sealed it with seal of ''KL'' vide memo. Ex.PB. He also prepared rough site plan Ex.PF/1 of the cremation ground. The Sarpanch of the village produced the accusedBalwan Singh before him (PW6) and he was interrogated. The accused made a disclosure statement Ex.PD that he had kept concealed one lathi in the kotha of chaff (toori) and could get the same recovered and in consequence of his disclosure statement, he got recovered lathi Ex.P3 and it was taken into possession vide memo Ex.PD/1. He prepared rough site plan Ex.PD/2 of the place of recovery of lathi Ex.P3. Photographs Ex.P4 to Ex.P6 of the cremation ground were taken by Des Raj, Photographer, PW4. Scaled plan was got prepared vide Memo Ex.PE from Shamsher Singh, Draftsman, PW3. Appellant along with his coaccused on completion of investigation were sent up for trial. The accused Balwan was chargesheeted for an offence under Section 302, I.P.C. to which he did not plead guilty and claimed trial. Accused Jai Pal, Jai Narain and Mohinder were charged sheeted u/S 20 I.P.C. to which they did not plead guilty and claimed their trial.

The prosecution to prove its case examined as many as six witnesses

PW1 Khazani is the complainant eyewitness. She supported the case in the Court by narrating the abovementioned facts. She is corroborated by Tara Singh, PW2.

PW3 Shamsher Singh is the formal witness who prepared the scaled site plan Ex.PE.

PW4 Des Raj Photographer is also formal witness who took photographs of the cremation ground and proved Exts. P4 to P6.

PW5 Krishan Lal, ASI, deposed regarding recording of the statement Ex.PA and sending of Special Report to Ilaqa Magistrate. PW6 Udhey Shanker (D.S.P.) is an Investigating Officer.

Prosecution also placed on record report of Forensic Science Laboratory Ex.PG and that of Serologist Ex.PG/1 and affidavits of formal witnesses, Jai Bhagwan, Head Constable (Ex.PG/2), Gandharwa Sain, Constable (Ex.PG/3) and Jot Ram Constable (Ex.PG/4). They were not crossexamined by the accused''s counsel, their evidence being of formal nature.

Prosecution gave up Zila Singh, Inspector Prem Chand, ASI Balbir Singh witnesses as unnecessary.

Accused on examination under Section 313 Code of Criminal Procedure admitted his marriage to the deceased and relationship of the deceased with Khazani, PW1 and her marriage to his brother. He also admitted the Muklawa (going of bride to the house of her inlaws for the first time after marriage as per custom) of Rajpati was performed two years ago prior to the occurrence. He denied other allegations and stated that it is a false case; there had been a quarrel between himself and his brother regarding the distribution of the sheep and also regarding the claim for money for the construction of the pucca house on account of which they got him implicated in this case. After conclusion of the trial, the appellant was found guilty, convicted and sentenced. However, his coaccused were acquitted by the Sessions Judge.

The first argument of the learned counsel for the appellant is that there is a delay of more than two days in lodging the report with the police and there is no explanation for this and has relied upon Ramji Surjya and another v. State of Maharashtra, 1983 Crl.L.J. 1105. Admittedly, the occurrence took place on 30.9.1992 at about 7/8 a.m. whereas the report was lodged with police on 2.10.1992 at 7.40 p.m. The reason for this is that the complainant was not allowed to go outside by the accused. No doubt there is a delay but it itself is no ground to discard the prosecution case. It cannot be forgotten that the complainant is a poor lady with rural background and as such could not be expected to go alone to lodge report to the Police Station. Furthermore fear of accused must have further affected her mental state of mind after she saw her sister being murdered. Therefore, the delay stands explained. The case of Ramji Surjya (supra) is not helpful to the appellant as in that case the attempt of the prosecution to explain away the delay had failed since there were several different versions about the lodging of the information with the police outpost and the earlier versions of the crime said to have been given by sole eyewitnesses, the wife of the deceased, which were in writing appear to have been suppressed in that case and, therefore, it was held that the prosecution has not been able to properly explain the delay. But in this case delay stands well explained.

The second submission of the learned counsel for the appellant is that statements of Khazani, PW1 and Tara Singh PW2 did not show when statement was recorded by the police which formed basis of the case and to strengthen his argument, he took us to the statements of these two witnesses, wherein Khazani, PW1 stated in her crossexamination that her father and brother came early in the morning on the following day of the murder; they went to the police station and brought the police and she further deposed that thereafter her statement was recorded and police obtained her thumb impression whereas Tara Singh, PW2 in his crossexamination stated that his statement and that of his son had been recorded by the police before Khazani, PW came there. No doubt, there is some contradiction in this regard, but the fact cannot be lost sight of that these two witnesses are illiterate, naive and rustic villagers. They are not expected to give parrot like versions. They are human beings and it is but natural for them to be discrepant on one point or the other, particularly when they happen to have rural background and with no education. Their statements have to be read as a whole and not in disjoined parts. The accused has not asked for the copy of the statement so recorded, if any earlier to Ex.PA. Not only this, even ASI Krishan Lal who recorded Ex.PA has not been crossexamined that he recorded the statement of Tara Singh, PW2 on 1.10.92 in the village. Moreover, statement of this witness that Khazani PW accompanied by Tara Singh came on 2.10.92 in the police station and made statement Ex.PA has not been challenged. Besides ASI Krishan Lal was not crossexamined that he was brought to the village by Tara Singh, PW, and inspected the spot and recorded the statement which later on formed the basis of this FIR. Therefore, this argument fails.

The learned counsel for the accused relied on a reported case in Mukhtiar Singh and others v. State of Punjab, 1996 CAR 65, but this authority is not helpful to the appellant, as in that case motive was not clear and sole eyewitness was not believed. The investigation was held to be tainted.

Another authority in Mulak Raj and others v. State of Haryana, 1996 CAR 76 has been relied upon by the counsel for the appellant but it is not helpful to the appellant as that was a dowry death case and it was not clear whether it was homicidal or suicidal death and at the time of death accused was not at home, whereas in the present case, the wife of the accused was found murdered and the accused was required to give an account how the accused died. Moreover, the cot Ex.P1 was taken into possession from the house of the accused in the presence of Khazani, PW1 and a string of this cot Ex.P1 was found to be stained with human blood vide report of the Serologist Ex.PG and that of Forensic Science Laboratory Ex.PG/1 and there is no explanation provided by the accused how human blood came on the string of the cot and this fact gives corroboration to the oral testimony of Khazani PW1 who is an eye witnesses to the murder of the deceased by the accused. We accordingly find that the evidence on the record fully proves the case against the accused. He has rightly been found guilty, convicted and sentenced. There is no merit in this appeal and the same stands dismissed.