Dharam Singh vs State of Haryana

Harbans Singh Rai, J.

Dharam Singh alias Dharma, Sharab Singh alias Sharaba, Niranjan Singh alia Kanda, Sohan Lal and Bachan alias Bachani were tried by Sessions Judge, Kurukshetra who vide his order dated December 8, 1988 acquitted Niranjan Singh, Sohan Lal and Bachan but convicted Dharam Singh alias Dharma and Sharab Singh alias Sharaba under Section 302 read with Section 34 I. P. C. Both Dharam Singh alias Dharma and Sharab Singh alias Sharaba were sentenced to undergo life imprisonment. Dharam Singh and Sharab Singh were, however, acquitted under Section 376 I. P. C.

Feeling aggrieved, they have filed this appeal.

Prosecution case, in brief, is that Banarsi P.W. lodged F.I.R. Ex. PJ in Police Station Dhand, District Kurukshetra on April 22, 1988 at 11.00 P.M. stating therein that he is a resident of Kheri Railway and is working as a "Siri" with Zailre of his village. He had four daughters and two sons. His eldest daughter was Sharbati deceased who was about 16/17 years old. She used to do the work of removing rubbish from the house of agriculturists besides doing household work.

On April 22, 1988 at about 9.30 A.M. his daughter Sharbati had gone to the house of agriculturists for removing the rubbish. His wife Ram Devi and younger daughter Shakuntla had gone to the fields of Vir Singh in order to harvest the wheat crop and he had gone to the fields of Zaila for thrashing wheat. At noon time, his daughter Sharbati did not come to the fields with meals as she used to come daily with the meals previously. He doubted that his daughter Sharbati had gone to her mother in the fields. When he returned home in the evening, his younger children told him that Sharbati had not come to the house that day after attending to her work. In the meantime when his wife came to the house after sunset, he enquired about Sharbati. She told him that Sharbati had not gone to her. Then he searched for Sharbati in the village but did not find any clue of her. Thereafter, he narrated the whole incident to Sharaba and his brother Diwana. Then he alongwith Sharaba and Diwana left for Police Station Dhand on a tractor for lodging a report. When they reached near Dhand Chawla and Churia of his village met them on a moter cycle. They gave them the signal for stopping the tractor. They told him that his daughter Sharbati was found and somebody had put her in the manger built in the cattle shed of Multan Lambardar father killing her.

After recording F.I.R. S.I. Harbhajan Singh P.W. 8 reached the spot, got the dead body photographed and sent the same for post mortem examination. He prepared rough site plan Ex. PO after the inspection of spot. He lifted bloodstained earth from the spot, sealed it into a parcel and took the same into possession vide memo Ex. PN. A pair of "Chappals" was also lifted from the spot, apart from other articles. After completion of investigation, the accused were challaned and tried. Niranjan Singh. Sohan Lal and Bachan were acquitted while Dharam Singh and Sharab Singh were convicted and sentenced as mentioned in the earlier part of the judgment.

Prosecution, in support of its case, examined PW 1 Dr. S.K. Singla who had conducted post mortem examination on the dead body of Sharbati on April 23, 1988 at 12.30 P.M. and had found the following :

"The length of the body was five feet. Transverse ligature mark placed horizontally below the thyroid cartilage 7/2" x 2" in front and sides of neck. There were abrasions and echymoses in the skin adjacent to mark. The base of the groove was soft and reddish. On exploration of ligature sub cutaneous tissues under neath echymosed. Muscles echymosed. Larynx. tranchea and thyroid bone were fractured.

It was a dead body of a young female wearing printed Salwar pinkish kurta and Chunni. Two yellow metallic rings in the right ring finger. Her eyes were closed, swollen. Face was congested, livid Bleeding from nose and mouth was present. Rigor merits was absent in upper neck extremity and it was present in the lower extremity in passing of stage. The body was thoroughly examined. No sign of injury was seen on any part of the body except already discussed.

Larynx and trachea were congested and fractured. Both lungs congested and healthy. Right chamber of the heart was full. Left was healthy. Mouth, pharynx, oesophagus were congested. Stomach was congested and semidigested good was present. Small intestines were congested and chyle was present. Large intestines were congested and faecal matter was present. Liver, spleen and kidneys were congested and healthy. Bladder was healthy. Scanty urine was present. Uterus non gravid, healthy, Hymen membrane ruptured Whitish discharge present in vagina which was taken on slides for chemical analysis for semen. There was no mark of injury on genitalia."

According to the doctor, the death was due to asphyxia as a result of strangulation which was antemortem in nature and sufficient to cause death in ordinary course of nature. Probable time that elapsed between injury and death was within short time and that between death and postmortem was within 18 to 36 hours.

P.W. 2 Dr. Rajan Kohli had medicolegally examined Dharma accused on May 2, 1988 at 6.30 P.M. and had found the following injuries :

(1) There was scabbed abrasion 2.5 cms. x 1 cm. on the lower end of patella (left).

(2) Healed abrasion 2 cms. x. 5 cm. on the right leg, anterior aspect 6 cms. from the knee joint.

The doctor opined that the injuries were simple and the duration of the injuries was 7 to 14 days. The kind of weapon used was blunt.

P.W. 3 Mukesh Kumar, Draftsman, had prepared scaled site plan Ex. PH.

P.W. 4 Ravinder Kumar Photographer had taken photographs of the spot.

P.W. 5 Sumer Chand stated that about seven months prior to his examination i.e. on November 25, 1988 at 2.00/2.30 P.M. both the accused Dharma and Sharaba had come to his residence. Dharma had made an extra judicial confession saying that 10/12 days earlier, Sharbati deceased had gone to life cow dung from the "Kotha" of cattle shed of Multan Lambardar at 10.00 P.M. and since he and Sharaba had an evil eye on her, they also entered the "Kotha". They caught hold of her. She raised an alarm. He had thrown her on the ground, pressed her throat, opened the string of her "Salwar" and Sharaba accused caught hold of her by both of her hands. Sharbati died after sometimes. Thereafter both the accused lifted her and threw her in the manger. They covered her dead body with a "Tat" and left the place. Both the accused requested him that since the police was after them, he should produce them before the police and he did produce them before the police.

P.W. 6 Banarsi father of the deceased, stated that on the day of occurrence Sharbati was missing and when he was going to lodge the report he was informed that her dead body was lying in Multan Lambardar''s manger.

P.W. 7 Raghbir stated that about seven months prior to his making statement i.e. on November 25, 1988 at about 10.00 A.M. he was standing on the shop of Tara Kumar in order to purchase "Beeri". Bohti, wife of his brother Diwana was also standing there. Within his view Sharbati, daughter of Bana is entered the cattle shed of Multan Lambardar. Following her, Sharaba and Dharma accused also entered the cattle shed. After purchasing articles from the shop, Smt. Bohti left. He sat there enjoying "Beeri" and left after sometime. He had not seen Sharbati or any of the accused coming out of that place.

P.W. 8, S.I. Harbhajan Singh is the Investigating Officer.

After the close of prosecution case, the accused were examined under Section 313 Cr.P.C. They have denied the prosecution allegations and pleaded innocence.

We have heard learned counsel for the parties and gone through the evidence, with their help.

According to the prosecution case, there are two circumstances appearing against the accused. One is that the accused were last seen with the deceased in Multan Lambardar''s cattle house and the other is extra judicial confession made 10/12 days after the occurrence.

Dealing with the last seen, the only witness examined by the prosecution in support of this circumstances is P.W. 7 Raghbir. He is real brother of Banarsi, father of the deceased. According to him, he had gone to purchase "Beeri" from the shop of Tara Kumar and at that time he saw the deceased and the accused entering the cattle shed of Multan Lambardar. It was 10.00 A.M. He further stated that he had left the shop of Tara Kumar four/five minutes after the accused following Sharbati had entered the gate and during those four/five minutes, he did not hear any alarm of Sharbati coming out of those premises. He could not say if after he had left the shop of Tara, the two accused had come out of the cattle shed Multan Lambardar and some other person had entered therein or not. According to him, his statement was not recorded by the police during the night intervening 22nd and 23rd of April, 1988. His statement was recorded on the next morning. He had not stated before the police during the night intervening 22nd and 23rd of April, 1988 that he had seen the two accused entering the gate just after Sharbati had entered the gate at about 10.00 A.M. on April 22, 1988. Dr. S.K. Singla P.W. 1 who had conducted postmortem examination at 12.30 P.M. on April 23, 1988 stated that the probable time that elapsed between injury and death was within short time and that between death and postmortem it was 18 to 36 hours. If this time is taken as correct, then the death occurred between 12.30 night to 6.30 P.M. on 22.4.1988 or 18 hours prior to that which comes to 6.30 P.M. on April 22, 1988. So the medical evidence does not fix the time specifically but she could have died at 10.00 A.M. on April 22, 1988. The witness reminded at the shop of Tara only for four/five minutes and during that period he did not hear any noise or shriek from the premises and is not sure whether the accused remained there or somebody else came there or not. His delayed information to the police does cast a shadow of doubt on his veracity. His evidence is although relevant but does not fix the responsibility of murder on the accused squarely.

20 The next circumstance appearing against the accused is extra judicial confession made to Sumer Chand. This extra judicial confession was made 10/12 days after the occurrence to Sumer Chand who is a resident of village Kaul which is at a distance of 14/15 kilometers from the village of the accused. Mr. Sumer Chand had joined the "Chautha" ceremony of the deceased on the fourth day of occurrence and he stated that on that day, the accused had not been named. If the accused were seen with the deceased by Raghbir on April 22, 1988 and he had made a statement before the police next day then it is intriguing how Sumer Chand stated that till 4th day of the occurrence, the accused were not named. According to Sumer Chand, the accused had never visited him earlier prior to that day. If the accused were not on visiting terms with Sumer Chand how they though of going and making an extra judicial confession before Sumer Chand. Sumer Chand is from the brotherhood of the deceased as he himself is a Balmiki. It will be difficult to accept an extra judicial confession made to a person whose village is 14/15 kilometers from the village of the accused and with whom the accused were not even on visiting terms. Sumer Chand also belongs to the same caste as of the deceased whereas the accused belong to a different caste. In fact, Sumer Chand would not have played any part but as he had been joining the mourning ceremonies at the complainant''s place so his interest in the complaint is obvious.

As both the circumstances appearing against the accused are of doubtful nature, we do not feel it safe to maintain the conviction. This appeal is accepted and the accused are acquitted of the charge framed against him.