Jai Singh vs State of Haryana

R.L. Aanand, J.

Jai Singh son of Balwant Singh resident of village Gheer has filed the present criminal appeal and it has been directed against the judgment dated 1.3.1997 and order dated 3.3.1997 passed by the court of Additional Sessions Judge, Karnal who convicted the appellant under Section 306 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of four years and to pay fine of Rs. 1000/. In default of payment of fine, he was further sentenced to undergo rigours imprisonment for three months. The trial Court further observed that the fine if realised shall be paid to Gurmej Singh son of deceased Surjit Kaur.

Brief facts of the case are that Smt. Surjit Kaur was married to Jiwan Singh who during the days of occurrence used to work in Rajasthan while Surjit Kaur alongwith her children used to reside at village Gheer. A room in the house of Jiwan Singh was let out to appellant in order to run his business of tailoring. Getting the advantage of the absence of Shri Jiwan Singh, the appellant developed illicit relations with Smt. Surjit Kaur deceased.

On the night intervening 17/18.7.1992, Gurbinder Singh alias Gurmej Singh a young boy of 13 years was sleeping with his mother Surjit Kaur in the house. During night he got up for urination and noticed the appellant in the house. Further this boy noticed that the appellant gave some tablets to his mother who consumed it on the asking of the appellant. As a result thereof, Surjit Kaur started vomiting and she made demand of water. At this stage Shanti Kaur motherinlaw of the deceased who was residing in the same house was called. Smt. Shanti Kaur approached Shri Banarsi Lal who also used to reside in the same village in the nearly locality at about 3 a.m. during night. Banarsi Lal alias Banarsi Das sent his son Ramesh in order to call for Sarpanch and he himself accompanied his sisterinlaw Shanti Kaur to her house. In the meanwhile a local doctor from the village was also called who examined Smt. Surjit Kaur and found her in critical condition on account of conusmption of poison. As a result thereof, Smt. Surjit Kaur was taken to Civil Hospital, Karnal. Ramesh PW also reached at the house alongwith Sarpanch Shri Amar Dass and inquired from Smt. Surjit Kaur the cause of her trouble. Upon this Surjit Kuar disclosd that she had developed illicit relations with the appellant and for fear of insult and shame in the village she and the accused decided to consume poison. Appellant gave her the poison tablets which were used for preservating food grains. She further disclosed that she had taken the tablets but she did not know as to whether the appellant had consumed the tablets or not. Smt. Surjit Kaur was then shifted to General Hospital, Karnal who died on the next day i.e. 18.7.1992 at about 4 p.m. Ruqa was sent to Police Station which was received by Shri Azad Singh PW who prepared inquest proceedings. Autopsy on the dead body was performed on 19.7.1992 by Doctor Amarjit Wadhwa but he deferred the cause of death till receipt of the report of the Chemical Examiner. Later on when the report of the Chemical Examiner was received cause of death of Surjit Kaur was determined due to consumption of Aluminum Phosphide.

The story of the prosecution further goes that the appellant was also admitted in the hospital on 18.7.1992 and he was also medically examined. His blood sample was taken for examination but no poison was found. On 21.7.1992, the husband of Surjit Kaur came from Rajasthan and he made a statement before the police on the basis of which First Information Report was recorded by S.I. Ragbir Singh. ASI Sitar Sigh conducted the investigation. On 21.7.1992, he visited the place of occurrence and prepared rough site plan and collected inquest proceedings from Head Constable Azad Singh. After recording statements of the witnesses, Investigating Agency came to the conclusion that the appellant had abetted Smt. Surjit Kaur to commit suicide. On completion of the investigation of the case, the appellant was challaned under Section 306 I.P.C. in the court of the Illaqa Magistrate who supplied copy of the documents to the accused free of costs as required under law and vide commitment order dated 30.3.1994 committed the appellant to the court of Sessions in order to face trial under Section 306 I.P.C.

Vide order dated 2.5.1994, the appellant was chargesheeted under section 306 I.P.C. on the allegations that on the night of 17/18.7.1992 in the area of village Gheer Smt. Surjit Kaur wife of Jiwan Singh committed suicide and he abetted its commission by providing her the poisonous tablets and thereby allegedly committed an offence punishable under Section 306 I.P.C. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined Inspector Ram Kishan (PW.1) Station House Officer who simply stated that he prepared final report under section 173 Cr.P.C. PW.2 Dr. Amarjit Wadhwa conducted post mortem examination on the dead body of Surjit Kaur on 19.7.1992 and stated that he found that the major parts of the body had been congested. He sent viscera for chemical examination but deferred the cause of death in the Post Mortem Report Ex.PA till the received report of the Chemical Examiner. However, the Doctor declared the time between death and post mortem within 24 hours. He proved the inquest report Ex.PB by stating that it was received alongwith dead body. Further this Doctor deposed that on receipt of the report of the Chemical Examiner on the police request Ex.PD he declared the cause of death of Surjit Kaur due to consumption of Aluminium Phosphide. Doctor S.R. Ajmani (PW.3) medically examined Jai Singh appellant on 18.7.1992 as a case of suspected poisoning and stated that at the time of admission, the appellant was unconscious and his general condition was poor. He took a sample of blood and handed over to the police for analysis and issued Ex.PF the correct carbon copy of the M.L.R. He further deposed that he sent ruqa Ex.PG to the Primary Medical Officer of General Hospital Karnal for onward transmission to the police about the admission of the appellant in the hospital. Further this Doctor stated that on the application Ex.PH he opined that Surjit Kaur and Jai Singh were not fit to make statement vide has opinion Ex.PH/1. Jai Singh was discharged from the hospital on 29.7.1992. Further, this Doctor proved the ruqa regarding the admission of Smt. Surjit Kaur in the hospital. It may also be mentioned that on 19.7.1992 Shri Jai Singh was declared fit to make statement. It may also be observed that in the report Ex.PH of the Chemical Examiner with respect to the blood sample of the appellant, it was found that there was no common poison. Shri Manohar Lal (PW.4) is the Draftsman who simply proved the scaled site plan on the record. Head Constable Mam Raj (PW.5) stated that ruqa Ex.PG was received in the Police Post General Hospital Karnal with regard to admission of appellant Jai Singh on 18.7.1992 at 10.10 a.m. He also proved some other entries which are not relevant for the disposal of this appeal. Head Constable Dharam Pal (PW.6) gave his affidavit Ex.PO. Similarly Constable Sunil Dutt (PW.7) gave his affidavit Ex.PQ. Head Constable Azad Singh (PW.8) proved inquest report on the dead body of Smt. Surjit Kaur in the presence of Ramesh son of Banarsi Dass, Roshan Lal and Krishan Lal and they attested the inquest proceedings. Statement of Ramesh was also recorded in the inquest proceedings under section 174 Cr.P.C. Gurmej Singh is son of Smt. Surjit Kaur and he appeared as PW.5. His statement I will deal in the later portion of the judgment in the light of the fact that he is a child witness. Banarsi Dass alias Banarsi Lal is the brother of Shri Gian Singh fatherinlaw of Smt. Surjit Kaur and father of Ramesh appeared as PW.10. I may also state the relationship qua the complainant party inter se. Jiwan Singh husband of Surjit Kaur is son of Gian Singh who is brother of Shri Banarsi Dass. Smt. Shanti Kaur is wife of Shri Gian Singh and she is motherinlaw of Smt. Surjit Kaur. Aforesaid Banarsi Lal appeared as PW.10 and his statement is also relevant for the adjudication of the controversy. Arjan Dass appeared as PW.11. Shri Ramesh Chander son of Banarsi Dass appeared as PW. 12. ASI Sitar Singh the principal Investigating Officer appeared as PW.13.

On closure of the prosecution evidence, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. In question No. 7 of his statement it was specifically put to him that he was got admitted in General Hospital, Karnal on the morning of 18.7.1992 and this fact has been admitted by him with an explanation that he went to that hospital on account of general ailment. When he was questioned that he was unfit to make statement on the morning of 18.7.1992, he denied that fact. Further his plea before the trial Court is as follows :

"In fact originally I belong to Pilana district Ambala. Our family had migrated to village Gheer about 20/22 years back. My father was a Granthi in Gurdwara of village Gheer. In the year 1984 there was HinduSikh riots in our village also. On that account Arjan Dass Sarpanch and other inhabitants of the village wanted to throw us from the village and as a result of this there was lot of tension amongst Hindus and Sikhs. Since then the inhabitants of the village became enimical towards us. After the present incident Arjan Das Sarpanch and all other family members of complainant party joined their hands together and in order to dislocate us from the village and booked me in a false case. The complainant party also wanted me to vacate the shop which was in my possession as tenant. Because of the present false implication myself and my family have left the village Gheer for ever. I am innocent."

When called upon to enter his defence, the accused did not lead any evidence and closed the same.

The learned trial Court relied upon the version of the prosecution by rejecting the defence story and came of the conclusion that the appellant has committed an offence punishable under Section 306 of the Indian Penal Code and resultantly the appellant was sentenced in the manner stated above. Aggrieved by his conviction and sentence, the present appeal.

I have heard Shri Raj Mohan Singh, Advocate on behalf of the appellant and Shri Shailender Singh, learned Deputy Advocate General on behalf of the State and with their assistance gone through the record of his case.

There was a great deal of endeavour on the part of Shri Raj Mohan Singh, the learned Advocate to convince this court that there is no satisfactory evidence on the record that the appellant ever abetted commission of crime. He submitted that the trial Court had acted in an illegal manner in relying upon the statements of those witnesses whose presence was either doubtful or discrepant or unnatural. They have joined hands and heads together in order to falsely implicate the appellant on the basis of suspicion. Learned counsel further submitted that the admission of the appellant in the hospital on the morning of 18.7.1992 was an independent incident which has nothing to do so far as the act of alleged suicide on the part of Smt. Surjit Kaur is concerned, as in the blood sample of the appellant sent to the office of the Chemical Examiner no poison was detected. Until and unless it is established that the appellant aided and abetted commission of crime, he could not be convicted. Learned counsel even went to the extent in saying that the trial Court has not acted according to law as it has acted upon the testimony of a child witness without corroboration. It has also been stated by the learned counsel for the appellant that Ramesh Kumar was examined by Head Constable Azad Singh during the course of preparation of inquest proceedings and at that point of time he never deposed before the police that the deceased ever informed that the appellant provided her poisonous substance or tablets or that she had taken those poisonous substance at the asking of Jai Singh appellant. On the contrary, learned Deputy Advocate General has adopted the reasoning given by the learned trial Court in convicting the appellant.

The points which survive for determination would be (1) What is the evidentiary value of a child witness, (2) To what extent the Inquest Report under Section 174 Cr.P.C. can be read, and (3) Whether the appellant had abetted commission of crime punishable under Section 306 I.P.C. in the light of the evidence which has come on the record.

Child is a competent witness. The rule of law is that before the testimony of a child witness is acted upon, the law courts will look for corroboration and material particulars in order to ensure that child witness has not deposed under the influence of any body because such like witnesses have the tendency to pick up things very easily and they can be influenced very easily. Instances are not lacking that child witnesses are even being tutored by the prosecution or police. If this allowance is given to the accused and then the evidence of a child witness has to be read with care and caution on the parameters of seeking corroboration and still the court finds that the evidence is enough, the testimony of such child witness can be safely acted upon with the help of other corroborative evidence with regard to the scope of the statement recorded by the police under section 174 Cr.P.C., the law has been reiterated for the situation which has been recently given by the Hon''ble Supreme Court report as 1997(3) RCR 115, State of Uttar Pradesh v. Abdul and 1998(2) RCR 199, George v. State of Kerala. Para 31 of the latter judgment is relevant one which I would like to reproduce in verbatim as under :

"The whole purpose of preparing an inquest report under Section 174(1) Cr.P.C. is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon or instrument, if any, such wounds appear to have been inflicted. In other words, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. In dealing with Section 174 Cr.P.C. in Podda Narayana v. State of A.P., 1975(4) SCC 153 this Court held that the object of the proceedings thereunder is merely to ascertain whether a person died under suspicious circumstance or met with an unnatural death and if so, what was its apparent cause. According to this Court the question regarding the details how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings. With the above observation this Court held that the High Court was right (in that case) that the omissions in the inquest report were not sufficient to put the prosecution out of Court. In Eqbal Baig v. State of A.P., 1986(2) SCC 476, this court observed, while dealing with a similar question, that the inquest report was not the statement of any person wherein all the names of the persons accused were to be mentioned. On this ground also the finding of the trial Court based on the inquest report cannot be sustained."

Thus the accused cannot take the benefit of statement of the witnesses recorded by the police in the inquest proceedings whose object was of limited nature as stated by the Hon''ble Supreme Court. The third aspect of this case is the point of fact as to whether the appellant abetted the commission of crime within the purview of provisions of Section 306 of the Indian Penal Code or not ?

The proved facts of this case are that appellant was a young person of 20 years while the deceased was a young lady of 30 years. Shri Jiwan Singh the husband of the lady was not residing in village Gheer an he was away to Rajasthan in connection with his avocation of life. He was working on a cloth shop there. It is further proved on record that the appellant was a tenant in the house of Shri Jiwan Singh. The third aspect proved on record is that deceased Surjit Kaur was residing with her son Gurmej Singh a boy of 13 years and her motherinlaw Shanti Kaur. This proved fact is also on the record that death of Surjit Kaur took place on account of Aluminium Phosphide consumed by her on the night intervening 17/1871992 and on the same morning of 18.7.1992 appellant Jai Singh was got admitted in the hospital as a case of suspect poison and his condition was very bad and he was taken in unconscious condition and so much so he was not fit to make statement. With above proved facts now it will be seen whether there was abetment on the part of the appellant when he allegedly passed on poisonous tablets to Smt. Surjit Kaur who took the same and started vomiting. It has also come in the statement of the boy that appellant came to the house during that night and in his presence he handed over the tablets. Section 107 of the Indian Penal Code lays down that a person abets the doing of a thing who instigates any person to do that thing. As per clause third it will be abetment of a thing if a person intentionally aids, by any act or illegal omission, the doing of that thing. In order to constitute abetment the abettor must be shown to have intentionally abetted the commission of crime. Intentionally aiding with active complicity is gist of the offence. A person instigates another when he actively suggests or stimulates him to do the act by any means, or language direct or indirect whether it takes the form of express solicitation, or of hints, inspiration or encouragement. The occurrence started in the house of the deceased itself. The natural witnesses in these circumstances would be Gurmej Singh son of the deceased and Smt. Shanti Kaur. Shanti Kaur in this case has not been examined. When such like incident takes place it will be natural on the parts of the attendants to inform the relations or respectables of the village. The husband of the lady was not in the village as he was away to Rajasthan. The occupants of the house were Shanti Kaur and Shri Gurmej Singh a boy of 13 years of age. When they saw that condition of Surjit Kaur was deteriorating they decided to inform other relations who were residing in the same village. There was hardly any time during night to record the statement of the deceased in writing. There was no police already available to Gurmej Singh nor the services of any Executive Magistrate could be taken. In this context I shall refer to the statement of Gurmej Singh who appeared as PW.9. This witness has deposed as follows :

"Earlier we were living at village Gheer. About 3 or 4 years ago during night time I got up for urine. Jai Singh and come to our house. He gave some tablets to my mother who consumed them at the asking of Jai Singh. I know accused Jai Singh present in the court. The accused used to run a shop in our house at village Gheer. My mother after consuming those tablets started vomiting. She was demanding water."

In the crossexamination he stated that he had disclosed to his uncle and other persons that accused gave tablets to his mother. The second witness which can be quoted is PW.10 Shri Banarsi Dass alias Banarsi Lal who is father of Ramesh. This witness deposed that on the night of 17/18.7.1992 his sister inlaw Smt. Shanti Devi came to call him at about 3.30 a.m. She informed him that her daughterinlaw had consumed some poisonous thing. This witness Banarsi Dass who was an old man of 75 years then deputed his son Ramesh to call for Sarpanch and he himself went to call for a Doctor. The doctor examined the victim and advised that the victim had consumed some poisonous substance therefore, she should be taken to hospital. It was also deposed by Banarsi Dass that Arjan Dass Sarpanch came in the house of the victim alongwith his (Banarsi Dass''s) son Ramesh. His son Ramesh inquired from Smt. Surjit Kaur as to what has happened with her and she disclosed that she had developed illicit relations with the appellant and on account of fear of insult the appellant had given some tablets which she had consumed. Further it has been told by the victim to Shri Ramesh in the presence of Arjan Dass and Banarsi Dass that the appellant had also consumed the same poison. The third witness in this case would be Shri Ramesh who appeared as PW.12. He also stated that on 18.7.1992 at about 5 a.m. he learnt that Surjit Kaur had consumed some poisonous thing. He went to call Sarpanch of the village to accompany him to the house of Surjit Kaur. He enquired from Surjit Kaur who disclosed the she had developed illicit relations with the accused and for fear of insult in the village she and the accused decided to consume poison. The appellant gave her the poisoners tablets Sulfos which is used for preserving food grains. She further disclosed that she had consumed those tablets and she did not know as to whether the accused had also consumed or not. The next witness relevant would be Shri Arjan Dass who is Sarpanch of the village. According to this witness at about 3 A.M. on 18.7.1992 Shri Ramesh son of Banarsi Dass aforesaid came to his house and informed him that Surjit Kaur had taken some poisonous substance and he should accompany him. When he reached the house of Surjit Kaur she was sleeping. She was vomiting and was restless. Ramesh Kumar inquired from Surjit Kaur upon which she disclosed that in order to save her selfrespect as she had illicit relations with Jai Singh the latter had arranged some tablets which she consumed at the asking of accused and the accused had also consumed the same. Thus the statements of four witnesses namely Shri Gurmej Singh, Banarsi Dass, Ramesh and Arjan Dass leave no manner of doubt that victim disclosed the cause of death by making oral dying declaration in which she had categorically stated two vital facts (1) that she has illicit relations with the appellant, and (2) that in order to save her from insult and shame etc. she had taken poisonous tablets which were provided to her by the appellants. If the testimony of these witnesses are believed the appellant will come under the realm of abetment so as to hold him guilty for the offence under Section 306 I.P.C. Gurmej Singh is a natural witness being the inhabitant of the house. He and his grandmother Shanti would naturally go the house of male person in order to seek their assistance during night. Gurmej Singh was a young boy of 13 years. He could not break the mountain alone. His grandmother also cannot bring medical aid during the night being old lady. In these circumstances they had approached Shri Banarsi Dass who has young son Shri Ramesh. The conduct of Shri Banarsi Dass and Ramesh is natural. One went to call the Doctor and the other went to call the Sarpanch and when all assembled in the house of Surjit Kaur cause of trouble came to surface. The identity of the appellant could not be disputed as he was admittedly the tenant in the house. Shri Gurmej Singh has also stated that it was the appellant who provided tablets to his mother. The counsel for the appellant was highly critical and his main plank of argument was based on the Inquest Report Ex.PB. He submitted that neither Arjan Dass, Banarsi Dass nor Gurmej Singh were examined in the inquest proceedings. Only three persons namely Roshan Lal, Krishan Lal and Ramesh were examined. The statement under Section 174 Cr.P.C. of Ramesh Kumar was recorded in which it was never stated by him that the deceased told him that the appellant had provided her with the poisonous tablets. The learned counsel stated that as per statement of Shri Ramesh the decreased told him that she had illicit relations with Jai Singh of which there was a murmur in the village and keeping in view the fact that she had been shamed in the village, she had consumed poisonous tablets. The learned counsel wanted to conclude that as per version of Ramesh it was a case of simple suicide on the part of Smt. Surjit Kaur. I have considered the submission in depth of Shri Raj Mohan Singh who has not been able to persuade me keeping in view the limited scope of the statement of a person made during the course of inquest proceedings. Even the statement made by Shri Ramesh in the inquest report clearly indicates that the deceased stated to him that she took poisonous substance provided to her by the appellant. The learned counsel during the course of arguments could not advance any cogent explanation under what circumstances appellant was got admitted in the hospital in the same morning when victim Surjit Kaur was also shifted there. The appellant could be clever paramour. He might have given much poisonous tablets the effect of which was quite obvious i.e. the death of Surjit Kaur took place. He might not have taken those very tablets or he might have taken some other tablets leading to his unconsciousness. His admission in the hospital cannot be a chance admission. Rather it suggests an arrangement between him and the deceased. Further it suggests that the appellant aided the deceased to take poisonous tablets. If Shri Ramesh has not categorically stated in his statement in the Inquest proceedings that it was informed to him by the deceased that the appellant provided poisonous tablets, it is not fatal to the prosecution case in the present case keeping in view the fact that there are four substantive statements of the natural witnesses including Shri Arjan Dass Sarpanch of the village against whom there is nothing to say as to why he toed line of action of Shri Jiwan Singh husband of the deceased. Any omission in the proceedings cannot come to the rescue of the accused. The purpose of Section 174 proceedings is totally different and these provisions have to be read in the light of the dictum laid down by the Supreme Court quoted above. In this view of the matter, I am inclined to maintain the conviction of the appellant under Section 306 I.P.C.

The learned counsel for the appellant then submitted that some relief should be given to his client in the matter of sentence as his client is in custody for the last more than 19 months after his conviction by the trial Court and he has also spent some period in jail when he was facing the trial. I have considered this aspect and am of the opinion that ends of justice would suffice if the substantive sentence of the appellant stands reduced from four years to three years under section 306 I.P.C and I order accordingly.

With the above modification in the matter of sentence alone, this appeal of Jai Singh appellant fails and is hereby dismissed. It is stated at the Bar that the appellant is in custody. Let intimation about disposal of this appeal and reduction of sentence be sent to Superintendent, Central Jail, Karnal so that the appellant may be informed about this order.