Ishwar Singh vs State of Haryana

H.S. Bedi, J.

This appeal filed by the convicted accused/appellant arises out of the following facts :

On 30th July, 1991 at about 9.05 A.M., Ram Mehar PW7 lodged a First Information Report Ex. PJ under Section 302 of the Indian Penal Code in Police Station Rai, to the effect that his sister Anita since deceased had been done to death by her husband Ishwar Singhthe accused appellant resident of village Garhi Bala. It was further mentioned in the report that the marriage between the two had taken place about 9 years earlier and that they had three young children that is two daughters and one son out of the wedlock. But as the appellant who was an agriculturist was in the habit of taking intoxicating drugs and drinks, the relations between the couple had become strained. It was further stated that efforts had been made by Anita''s family to make the appellant mend his ways, though without success. It was further alleged that on 28th July, 1991, Ishwar Singh accused had given a beating to Anita while under intoxication and had told her to leave his house and when this information had been conveyed to him (Ram Mehar) he had come to village Gari Bala alongwith Dharam SinghPW 8, his uncle from the brotherhood to make an enquiry as to what had happened and had advised the appellant to behave properly with his wife but he told them that it was not possible for him to live with her. It was further alleged that after the talk, the appellant and the witnesses i.e. Ram Mehar and Dharam Singh had gone to sleep in the court yard, whereas Anita had gone to sleet on the roof. At about 11 p.m. on the night intervening 29/30th July, 1991, the two witnesses saw the appellant getting up from his cot saying that he would settle the matter on that very night and observed that appellant going upstairs armed with a kassi and after causing an injury on the neck of Anita, run away after jumping down from the roof. When the two witnesses went up on the roof, they found that Anita had died, whereupon Ram MeharPW7 leaving Dharam Singh at the spot came to his own village to inform his brothers and then went to Police Station Rai and lodged a report at 9.05 a.m. on 30.7.91 which was recorded by ASI Jagdish Chander PW.10 and the special report reached the Judicial Magistrate, Sonepat at 10.05 a.m. the same day, ASI Jagdish Chander accompanied by Ram Mehar complainantPW 7 alongwith other police officials then went to the spot, examined the dead body, prepared the inquest report and also took into possession certain items relevant to the investigation. The appellant was arrested on 1st August, 1991 and on interrogation disclosed that he had kept concealed the murder weapon in his house and the kassi Ex. P.1 was, accordingly recovered at his instance. On completion of the investigation, the case was committed to the court of Sessions vide order dated 13th September, 1991 and the appellant was brought to trial.

In support of its case, the prosecution examined PW1 Dr. S.S. Wadhwa, PW2 Head Constable Krishan Kumar, PW3 Constable Jai Singh, PW4 Constable Balwan Singh, PW5 Constable Ishwar Singh, PW6 Anil Kumar Draftsman, the two eyewitnesses, PW7 Ram Mehar and PW8 Dharam Singh, PW9 Head Constable Baljit Singh and PW10 ASI Jagdish Chander the Investigating Officer.

The statement of the appellant was, thereafter, recorded under Section 313 of the Code of Criminal Procedure, in which he pleaded innocence. The trial Court came to the conclusion that there was no delay in the lodging of the First Information Report; that the evidence of two eye witnesses that is Ram Mehar PW7 and Dharam Singh PW8, was wholly reliable and having held as above, came to the conclusion that the case against the appellant was made out and accordingly, convicted him for the offence for which he stood charged. Hence this appeal at his instance.

It has been urged by Mr. H.S. Gill, learned Senior Counsel appearing in support of this appeal that the First Information Report was highly belated and this indicated that the murder in question was a blind one. Highlighting the facts, he has urged that the incident had taken place at about 11 p.m. whereas the First Information Report had been lodged the next morning at 9.15 a.m. and special report delivered to the Illaqa Magistrate about one hour later and this indicated that the eye witnesses had been called from their residences a long distance away and the story concoeted thereafter.

We have considered this argument and find that it lacks merit. It has come in the evidence of PW7 Ram Mehar that after noticing that his sister was dead, he had gone back to his own village at quite a distance to narrate the story to the family and only then had come to Police Station, Rai to lodge the First Information Report. Mr. Gill has urged that this conduct was wholly unnatural inasmuch as the first anxiety of Ram Mehar ought to have been to lodge the report and contrary to normal human behaviour.

The matter to our mind has to be looked at in a somewhat different manner. Anita had died leaving behind three children, the eldest being six years of age and it is quite possible that before taking steps against the appellant, the soninlaw of the family which would be irreversible, Ram Mehar thought it fit to have the advice of his family. It is also equally true that different people often react in different ways to a situation and it is possible that Ram Mehar though it of the utmost importance to convey the information about the murder first to his family.

Mr. Gill has then suggested that the presence of the witnesses at the spot in the circumstances suggested by the prosecution was difficult to accept. This argument too is without merit looking to the time factor involved. The incident took place at about 11 P.M. and the time has not been seriously challenged before us and in fact is clearly borne out by the evidence of Dr. S.S. Wadhwa PW1. We are of the opinion that if Ram Mehar and Dharam Singh had been called from their village about 20/25 kilometres away assuming that the body had been discovered early in the morning, the First Information Report could not have been lodged at 9.05 a.m. nor the special report delivered at 10.05 a.m. at Sonepat at a distance of 15 kilometres from Police Station, Rai. We are, therefore, of the view that the two witnesses were, in fact, present and had witnessed the incident.

Mr. Gill has then urged that the prosecution story that after committing the murder the appellant had escaped by jumping down from the roof which was 14 feet in height was difficult to accept as he would have suffered a serious injury. In this connection, he has placed reliance on the evidence of PW6 Anil Kumar, the draftsman, who prepared the site plan Ex. PH, who stated that height of the house was about 11 feet and that there was parapet around the roof at a height of 3 feet or so making it a total of 14 feet.

We have considered this argument and find that it lacks merit. It is not the suggestion of the prosecution that the appellant had climbed up on to the parapet and then jumped down as that method of escape would be wholly unnatural but it is possible that he let himself down slowly so as to save himself from injury. Moreover, once we find that the eye witnesses had seen the incident, these minor discrepancies to our mind, would not in any way, go in aid of the defence.

Mr. Gill has finally argued that as there was only one injury on the person of the deceased, some benefit in the nature of the offence committed was required and a case under Section 304(1) of the Indian Penal Code, was, in fact, made out. He has cited Gurdev Singh v. State of Punjab, 1995(3) Recent C.R. 258 , in support of this plea.

We have considered this argument in the light of the injury caused to the deceased. The injury is reproduced below :

"There was an incise wound 17 cm x 6 cm present below the level of larynx cutting skin tracheae, muscles, cesophaqus, blood vessels, cervical vertebra and spinal cord. Neck was attached to body with skin of back and some ligament and muscle of back. The direction of wound was upward and backwards. Clotted blood was present at base of wound around neck and clotting."

The ferocity of the attack can be gauged from the fact that the neck had remained barely attached to the body and its severence therefrom was almost complete. To say, therefore, that a case under Section 302 of the Indian Penal Code was not spelt out, is not acceptable. The judgment cited by the learned counsel for the appellant are on a completely different set of facts and cannot be applied to this case.

For the reasons recorded above, we find no merit in this appeal and the same stands dismissed.