Gurmukh Singh and Another vs State of Haryana

S.D. Bajaj, J.—Pritam Singh PW 2 reported to S.I./S.H.O. Knar Singh Dass at Police Ismailabad in Police Station Thaska of Kaithal district in Haryana State at 6.30 P.M. on 17th March 1987 that his mother''s sister''s daughter Balwinder Kaur from the loins of Nand Singh Kamboh of village Daulatpur Fakira was married by him to Gurmukh Singh son of Mohan Singh on 16th March, 1986, that after marriage the male spouse Gurmukh Singh, his elder brother Hari Singh and their mother were all the three harassing Balwinder Kaur for bringing them more dowry and a bullet motor-cycle, that Balwinder Kaur had come to her parents'' house 25 days before the occurrence and apprised them and the author of the First Information Report her cousin Pritam Singh aforesaid of it, that they in turn assured the two accused in Gurmukh Singh and Hari Singh nearly two weeks before the occurrence; when they went to their house for bringing Balwinder Kaur along therefrom that deficiency in dowry as also the bullet motor-cycle would be provided to them after harvesting "Hari'' wheat crop and sent Balwinder Kaur to her matrimonial home, that the intermediary in marriage Jit Singh was to visit the house of the parents of the bride to assure them of the acceptance of the arrangement aforesaid thereafter but did not come, that Pritam Singh (author of the First Information Report) visited the dera of the accused along with Malook Singh and Jit Singh in Village Dera Bhuni on 17th March, 1987 but did not find Balwinder Kaur therein. Upon enquiry someone present at the dera, however told them that Balwinder Kaur had been done to death and cremated secretly by the two accused in the evening on 10th March, 1987.

On being charged with the commission of offences u/s 302 read with Section 34 of the Indian Penal Code for having murdered Balwinder Kaur in pursuance of their common intention, shared by them two, destruction of evidence of the murder aforesaid through hurried cremation of Balwinder Kaur thereafter punishable u/s 201 of the Indian Penal Code and for cruelty and harassment to Balwinder Kaur after marriage by making demands for more dowry and a bullet motor-cycle punishable u/s 498A of the Indian Penal Code, both the convicted accused-appellants pleaded ''not guilty'' thereto and claimed to be tried.

Vide its impugned judgment dated 7th December, 1987 learned trial court convicted both of them of the offences aforesaid and sentenced them to undergo imprisonment for life for their conviction u/s 302 read with Section 34 of the Indian Penal Code, rigorous imprisonment for a period of two years each for their conviction u/s 201 of the Indian Penal Code and rigorous imprisonment for a period of two years more each for their conviction u/s 498A of the Indian Penal Code. All the three substantive sentences of imprisonment awarded to both the convicted accused-appellants individually were, however, ordered to run concurrently.

Feeling aggrieved therefrom both the accused have jointly filed Criminal Appeal No. 616-DB of 1987 in this Court. Complainant side represented by Pritam Singh (author of the First Information Report) have also filed Criminal Revision No. 667 of 1988 for enhancement of the sentence awarded to accused-appellants by the learned trial court.

We have heard Shri R.S. Cheema, Advocate, with Sarvshri S.S. Narula and M.S. Sidhu, Advocates, for the appellants, Shri Ram Avtar Singh, Additional Advocate General, Haryana, assisted by Shri C.L. Sharma, Advocate, for the complainant party and have carefully gone through the entire evidence on record.

The relevant portion of the deposition of Pritam Singh PW 2, Baldev Singh PW 3 and Smt. Amar Kaur PW 4 is being reproduced hereinafter to lay bare the course of conduct allegedly adopted by the real mother of the deceased on seeing her dead body inside her matrimonial home on 10th March, 1987 itself before cremation, an eye-witness of the alleged occurrence while the deceased was being strangulated to death by the two accused in his very presence and the next of kin; who had allegedly performed the marriage of the deceased with accused Gurmukh Singh on 16th March, 1986 on learning of her death from Baldev Singh PW 3 on 17th March, 1987 a week after the occurrence.

PW 2 Pritam Singh states :--

"I accompanied by Maluk Singh and Jit Singh went to dera Bhuni to see Balwinder Kaur. Balwinder Kaur was not available there. Mohan Singh and the women folk at the dera told us that 4 or 5 days back all of a sudden Balwinder Kaur fell ill and had died. We were not satisfied with their explanation. When we were coming out of their dera at a little distance a person of their ''dera had met us. I do not know him. He informed us that six or seven days back the accused had killed Balwinder Kaur and that she did not fall ill. He further informed us that after killing Balwinder Kaur the accused had cremated her without informing any relation or anybody in the village. First of all we went to P.P. Ismailabad on our way to Thaska Miranji. I made my statement Ex. PB. It was read over to me and 1 signed the same in token of its correctness. All three of us went to the dera on our bullet motorcycle. We were following the police jeep. A rivulet fell on the way near village Bhuni. There Baldev Singh PW met us. He told us that on 10-3-1987 at about 4/5 A.M. when he was going towards his village from the dera of Phuman Singh where he stayed for the night he had seen Hari Singh and Gurmukh Singh strangulating Balwinder Kaur to death with a rope.

I accompanied by Jit Singh and Maluk Singh had reached in village Daulatpur Fakiran on 18-3-1987. There I met my aunt/Massi Smt. Amar Kaur and my mother Smt. Kartar Kaur. They told us that they accompanied by Gurdip Singh and Labh Singh had gone to dera Mohan Singh in order to see Balwinder Kaur on 10-3-87 reaching there at about 2/2.30 . P.M.; that the accused and other family members were present there and sitting on the cots; on enquiry they were informed that Balwinder Kaur was inside the house. Then they went there and found the dead body of Balwinder Kaur lying inside. Then the women folk at the dera of Mohan Singh had started giving bath to the dead body in the process of proceedings to cremate the dead body. Amar Kaur and Kartar Kaur had seen ligature marks on the throat of Balwinder Kaur. They informed Gurdip Singh and Labh Singh about this fact and concluded that the accused had killed Balwinder Kaur. When Gurdip Singh and Labh Singh asked the accused not to cremate the dead body of Balwinder Kaur before the arrival of the relatives of Balwinder Kaur, Hari Singh accused brought a gun whereas Gurmukh Singh brought a revolver and threatened to kill them, if they obstructed the cremation. Thereafter, they removed the dead body towards the Band. They also informed us that the accused were amongst the other family members who had removed the dead body. The ladies then told us that they along with Labh Singh and Gurdip Singh left for their village and in the way they nad asked Labh Singh and Gurdip to go to the police station and lodge a report. But they stated that since it was a matter between the relatives and the accused had threatened to kill them, they were not interested to go to the police station. I told them that I had already lodged a report. My statement was recorded by the police again on 19-3-1987."

Baldev Singh PW 3 states :--

"At about 7.00/8.00 P.M. on 9.3.87 I had gone to the dera of Phuman Singh. From there I left for my village Sahnipur Tanda on the morning of 10-3-87, at about 4/5 A.M. When I reached near the dera of Mohan Singh I heard a female shriek. I entered the dera of Mohan Singh. In my presence accused Gurmukh Singh and Hari Singh were pulling two ends of rope in opposite direction and the said rope was tied around the neck of Smt. Balwinder Kaur, who was lying on her bed. She breathed her last. They threatened to kill me if I disclosed to anybody what I had seen. Earlier they had told me that it was the question of their honour and that it being their domestic affair t should keep silent. I returned back to dera Phuman Singh and narrated the occurrence to my sister Smt. Sinder Kaur. Then I went to my village Sahnipur Tanda. Sinder Kaur had advised me to keep silent because it was their domestic affair."

On 17-3-1987 Pritam Singh had met me, while he was crossing Dangri river near village Bhuni. I narrated the occurrence above mentioned to him.

On 22-3-1987 Gurmukh Singh and Hari Singh accused had come to my house. Ajmer Singh was sitting by my side at that time. Gurmukh Singh told me that I already knew what they had done; that his marriage was solemnized one year back, that he was given less dowry in marriage; that Balwinder Kaur was of dark complexion and of weak virtues; that he wanted to desert Balwinder Kaur; that he did not do so because he could not pay the fine of Rs. 20,000/- to be imposed by the brotherhood; that Hari Singh was also annoyed Balwinder Kaur deceased and had assured him that he would get him remarried with the younger sister of his wife in case he deserted Balwinder Kaur. He further stated that he demanded a bullet motor cycle from his parents-in-law, that Balwinder Kaur had gone to her parental house, one month prior to death and told her parents that he demanded a bullet motor cycle; that on the asking of his family members he accompanied by Hari Singh had gone to the parental house of Balwinder Kaur to bring her back; that his parents-in-law had assured to get a motor cycle purchased for him after reaping and selling wheat crop; that thereupon they had brought back Balwinder Kaur, after assuring them that they will not harass her and that they should give motor cycle (bullet) as promised. He further stated that I had already seen him and Hari Singh killing Balwinder Kaur and that I should not disclose this fact to anybody. He then requested that I should produce them before the police, as I had an approach with the police. Hari Singh had also stated before me like his co-accused Gurmukh Singh. I accompanied by Ajmer Singh proceeded towards P.S. Thaska Miranji but in the way we ventured to find out the SHO in P.P. Ismailabad. He was present there. I made a statement before him. Then we both of us returned to my house, brought and produced the two accused before the SI/SHO in P.P. Ismailabad. My statement was recorded."

In cross-examination the witness states :--

"I had not raised any alarm on seeing the two accused strangulating Balwinder Kaur with a rope.

I had been meeting police of police station, Thaska Mkranji, while coming and going to and from my house. The police had been meeting me. Since my village is on the Haryana-Punjab border, they had been visiting there in connection with raids. I was close to the police (PREM PIAR SEE).

I had voluntered the information to Pritam Singh and his companions."

The deposition of the real mother of deceased in Smt. Amar Kumar P.W. 4 reads :--

"On 10-3-87 we had reached the dera Mohan Singh at about 2 P.M. I did not find Balwinder Kaur there. However, her dead body was lying inside. The women folk in the dera of Mohan Singh started giving bath to the dead body. We found ligature marks on its neck, as if these marks were of a rope, I and Kartar Kaur told this fact to Labh Singh and Gurdip Singh and asked them not to allow the accused to dispose of the dead body. Thereupon, Labh Singh and Gurdip Singh asked the accused party not to cremate the dead body till the arrival of the relatives of Balwinder Kaur. Thereupon Hari Singh took out a gun and Gurmukh Singh a pistol, and threatened to kill all of us. They removed the dead body for cremation. All four of us returned to our house via ftelds. In the way I and Kartar Kaur asked Gurdip Singh and Labh Singh to lodge a report but they declined saying that it was a matter of relationship and that the accused party had already threatened them. They further suggested that the action in the matter should be taken by our men. Our menfolk returned from the Mela after 8 or 9 days and then I narrated the occurrence to Nand Singh, Pritam Singh, Balbir Singh and Jeet Singh. My statement was recorded by the police on the next date of the arrival of our menfolk from the mela."

In the course of his statement u/s 313 of the Criminal Procedure Code accused Gurmukh Singh, however, stated, "When Balwinder Kaur visited her parental house lastly she was carrying 7/8 months foetus in her womb. On the fateful night Balwinder Kaur had some, labour pain and was taken seriously ill. A doctor from village Maghar Sahab was summoned by Gurmel Singh. The said doctor examined her but she died in his presence. I am innocent." Appreciating the explanation in the light of the circumstances of (i) mother of the deceased not raising her little ringer on seeing her daughter dead in her matrimonial home on 10th March, 1987; (ii) of the eye-witness in Baldev Singh P.W. 3 being admittedly a stooge of the police; before whom extra-judicial confession of their guilt is also alleged to have been made jointly by the two accused on 22nd March, 1987 nearly 12 days after the occurrence; and (iii) Pritam Singh P.W 2 having inordinately delayed the lodging of the First Information Report for 8 long days, it has to be observed that the explanation offered by the accused for his alleged false inculpation sounds credible and that the deceased Smt. Balwinder Kaur died a natural death as narrated therein by the accused.

Unexplained and inordinate delay of more than a week in lodging the First Information Report was, however, adversely commented upon by their lordships of the Privy Council in AIR 1945 18 (Privy Council) and later by their lordships of the Supreme Court in Khedu Mohton and Others Vs. State of Bihar, , Ganesh Bhavan Patel and Another Vs. State of Maharashtra, , and Dinanath Singh and Ors Vs. State of Bihar, as follows :--

"FIR is based upon the earliest version of a cognizable offence. The object of the FIR is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten and embellished.

It is the duty of the prosecution to explain the delay. Failure to do so undoubtedly is a circumstance of considerable importance. The delay of 8 days in filing the complaint throws a great deal of doubt on the prosecution story.

The ordinate delay in registration of the FIR and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.

Solitary eye-witness was examined by the police 13 days after the occurrence. Far from giving any reasonable explanation for the delay in his examination by the police, the witness admits that although the investigating officers or other police constables were searching for him, he kept himself concealed due to fear for 12 days. The witness does not at all state in his evidence that either at the time of occurrence or sometime later any of the accused gave any threat to the witness not to depose against them. Thus the theory of fear appears to be clearly an after thought. In view of this infirmity the trial Court was fully justified in not placing reliance on the solitary eye-witness who concealed himself for 13 days after the occurrence."

Inordinate and unexplained delay aforesaid thus sounds the death knell of the prosecution case set out against the accused appellants.

Commenting upon the reliability of the extra-judicial confession narrated by Baldev Singh P.W. 3 their lordships of the Supreme Court observed in Rahim Beg and Another Vs. State of U.P., , Lakhanpalw. The State of M.P. AIR 1979 SC 1620 and Heramba Brahma and Another Vs. State of Assam, as follows :--

"There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances, it seems highly improbable that the two accused would go to Mohd. Nasim Khan and blurt out a confession. It is also not clear as to why the two accused should try to run away on seeing the police party coming with Mohd. Nasim Khan if Mohd. Nasim Khan had gone to the police at the request of the accused.

The evidence shows that witness was not known to the appellant and therefore it is difficult to believe that the appellant would make a confession to a person who was not known to him at ali. It is wholly unsafe to accept the evidence of the extra-judicial confession of the appellant.

Witness speaks of an extra-judicial confession by three accused persons having simultaneously made and when reproduced in his language, it makes no sense. It is dangerous to rely upon such extra-judicial confession even if the witness''s credentials are not in question. The question that agitates is what Language was used by each accused, in what words confession was made and whether each used the same language ? Evidence of the witness does not reproduce the words used by each accused.

High Court wrongly accepted the evidence on this extra-judicial confession without examining the credentials of P.W. 2 Bistriram; without ascertaining the words used; without referring to the decision of this Court to be presently emtioned wherein it is succintly stated that extra-judicial confession to afford a piece of reliable evidence must pass that the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed."

In this view of the matter alleged extra-judicial confession made by the two accused jointly to Baldev Singh P.W. 3 is rendered natatory.

Discovery of rope in pursuance of disclosure statement allegedly made by the accused to the police has in no way been connected with the crime of strangulation of the deceased therewith allegedly attributed to the two accused.

In result Criminal Appeal No. 616-DB of 1987 succeeds and is allowed. Impugned judgment of their conviction and sentence dated 7th December, 1987 is set-aside and both the accused-appellants are acquitted. There is, however, no merit in Criminal Revision No. 667 of 1988 and the same is hereby dismissed.