Kiran Pal Singh vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Darshana, wife of the present appellant, Kiran Pal Singh, died an unnatural death in Village Dagar, Police Station Chirawa. Dead body of Darshana was recovered from a well.

Whether on the fateful day after causing injuries her body was thrown into the well or she herself had jumped into the well is a core issue raised before us in the instant appeal.

It is an admitted fact that initially the appellant was charged for offence under Section 306 IPC for having inflicted cruelty, maltreated and harassed his wife, Darshana, leading to abetment to offence of suicide. This was the conclusion arrived at by the investigating agency and consequently, vide order dated 7.1.2002 the trial court discharged the parents of the present appellant, Kiran Pal Singh, who were sent for trial but formulated charge under Section 306 IPC alone against the present appellant.

The trial court vide a detailed order dated 20.5.2004 came to the conclusion that alternative charge for offence under Section 302 IPC is to be formulated against the appellant and consequently, the appellant was separately charged on 22.7.2004 for offence under Section 498A and 302 IPC.

After framing charge of murder, Meenu (P.W.22) daughter of Darshana, deceased, and the present appellant, Kiran Pal Singh, stepped into the Witness Box to depose that her father had given a Kulhari (Axe) injury on the head of the deceased and thereafter by wrapping her dead body in a Dari (cotton rug) had thrown the dead body in the well.

Questioning the evidence of Meenu (P.W.22) who at the time of deposition was eight years old, the learned senior counsel appearing for the appellant has raised the following three issues before us:-

(a) Whether the child who as per her own deposition on the day of occurrence was aged three years, can have faculty to comprehend, retain and narrate the event, allegedly witnessed after four years of the occurrence?

(b) Whether a witness whose statement during investigation under Section 161 Cr.P.C. has not been recorded can be straightaway put to the Witness Box and whether such deposition will cause prejudice to the accused or not?

(c) Whether a child who for a long period of about four years had resided with her maternal uncle (Mama) and maternal grandparents (Nana and Nani) will be tutored witness or not?

Before we proceed to decide the question and issues raised before us, it is required to be noted that the court of Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu relying upon the testimony of child witness, Meenu (P.W.22) has convicted the appellant for offence under Sections 498A and 302 IPC. Having convicted the appellant for the above said offences vide impugned judgment dated 3.11.2004, by a separate order of even date, the trial court had sentenced the appellant as under:-

U/s. 498-A IPC: Two years rigorous imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo three months simple imprisonment.

U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.

Both the sentences were ordered to run concurrently.

Aggrieved against his conviction and sentence, the present appellant has preferred the present appeal.

Briefly stated, Shimbhu Singh, not examined, submitted written report (Ex.P.11) before the Sub-Inspector, Ram Kumar (P.W.19), who was then posted at Police Station, Chirawa. The written report (Ex.P.11) when translated into English, reads as under:-

"To,

The SHO Sahab, Police Station Chirawa.

Sir,

I, Shimbhu Singh S/o. Ramsahai Singh Rajpoot, is resident of Village Bhuchawas, District Mahendragarh (Haryana). I had married my daughter, Darshana, about 11-12 years ago with Kiran Pal Singh S/o. Umrao Singh Rajpoot, r/o. Dagar, P.S. Chirawa. At the time of incident, she was aged about 27-28 years. After marriage, her husband, Kiran Pal Singh, father-in-law, Umrao Singh, mother-in-law, Man Bai and Jai Singh, Devar (younger brother-in-law) used to beat my daughter. I had brought Panchayat of my village 3-4 times to the house of the accused and made them see the reason, but they had not desisted from beating my daughter. Thereafter I had submitted a report at Police Station, Chirawa. Again Panchayat gave its decision. In the Panchayat, Prabhu Singh, Master Mohanlal Sharma took responsibility that in future no dispute will take place and no beating will be given to my daughter. Yet again Umrao Singh, Kiran Pal Singh, Man Bai and Jai Singh gave merciless beating to my daughter. I again called Panchayat. Then Narain Singh, Raju Singh again took the responsibility that in future no untoward incident will happen. Yesterday on 17.2.2000, 3-4 persons came from Dagar and informed us that your daughter has fallen in the well. Then again 8-10 persons which included Shimbhu Singh, father of the deceased, Musaddi Singh uncle, Nihal Singh uncle, Chhitar Singh uncle, ex-Sarpanch Meg Singh, Rohitash Singh, Pandit Govind Ram, Pandit Amarnath, Ram brother, Madan Singh brother, Pratap Singh brother, Hari Singh all came to the village. They inquired from Ninu, younger daughter of Darshan. She informed that her mother was cutting fire wood then her grandfather Umrao Singh, grandmother Man Bai, father Kiran Pal Singh, and uncle Jai Singh, killed her mother and threw her in the well. Therefore, request is made to you that strict legal action be taken against Umrao Singh, Man Bai, Kiran Pal Singh, Jai Singh. I shall be highly obliged.

Sd/- Shimbhu Singh

Date: 18.2.2000"

As stated earlier, above said FIR was investigated and a charge-sheet for offence of abetment to suicide punishable under Section 306 IPC was filed in the court of concerned Magistrate against Umrao Singh father-in-law, Man Bai mother-in-law, and the present appellant Kiran Pal Singh. The trial court had discharged Umrao Singh and Man Bai and had framed charge under Section 306 IPC against the appellant. At the cost of repetition it is again mentioned that later the appellant was tried for offences under Sections 302 and 498A IPC.

In the trial court, various relations of the deceased and neighbours of the parents of the deceased being residents of Buchawas, District Mahendragarh, Haryana were examined to depose regarding beating given to Darshana by the present appellant and holding of Gram Panchayat on various occasions and attestation of the inquest. We shall briefly recapitulate the evidence of the witnesses so examined by the prosecution.

Madan Singh (P.W.1) is cousin of the deceased. He stated that Darshana was daughter of his uncle. Kiran Pal Singh, his parents and his younger brother used to beat Darshana. He came to his village Budhawas, informed her parents and others regarding the conduct of the accused. This witness further stated that meetings of the Panchayat were held on many occasions and later on the day of occurrence Meenu, daughter of the deceased, had informed that her father had caused Farsi injury on the head of her mother and had thrown her dead body in the well.

Chhitar Singh (P.W.2) stated that Shimbhu Singh, father of the deceased, was his younger brother. Darshana was married 10 years ago with Kiran Pal Singh. The accused used to maltreat Darshana for demand of dowry. Meetings of the Panchayat were held. He had accompanied 10-20 persons of the village on the fateful day and got the dead body of the deceased recovered from a well. The daughter of the deceased had informed that her father, grandfather and grandmother had caused injuries to her mother with a Fawadi (spade) and had thrown her dead body in the well.

Amarnath Sharma (P.W.4) is also resident of Village Buchawas. He also deposed regarding beating given by the present appellant, father-in-law and mother-in-law to Darshana. He had accompanied villagers on 17.2.2000 to the house of the accused. This witness further stated that daughter of Darshana had disclosed that Umrao Singh, Kiran Pal Singh caused murder of Darshana and had thrown the dead body in the well.

Govind Ram (P.W.5) also deposed on the same lines and further stated that daughter of the deceased had disclosed that her father had caused death of the mother and had thrown her dead body in the well.

To similar effect is the statement made by Rohitash Singh (P.W.6), another neighbour of the parents of the deceased. This witness stated in the court that daughter of Darshana had disclosed that her father after causing murder and mother had thrown the dead body in the well.

Umrao Singh (P.W.7), father of the appellant, has stated that his daughter-in-law had fallen in the well and he had attested the Panchayatnama. This witness was not declared hostile by the prosecution.

Mohan Singh (P.W.8) had attested the inquest proceedings (Ex.P.4) and stated that he was not aware as to how Darshana had died.

Prabhu Singh (P.W.9) a resident of village of the accused has not supported the prosecution case and was declared hostile.

Mohanlal (P.W.10) another resident of village of the accused stated in the court that Darshana wife of Kiran Pal Singh fell in the well and died. This witness having turned hostile was confronted with previous statement by the prosecutor.

Raju Singh (P.W.11) stated that he had never seen the accused causing beating to deceased, Darshana. This witness was also declared hostile by the prosecution.

Ranjeet Singh (P.W.12) another resident of village of the accused also has not supported the prosecution case and was declared hostile.

Tara Chand (P.W.13) had attested the arrest memo (Ex.P.8) whereby the accused was arrested.

Musadi Singh (P.W.14) is uncle of the deceased, Darshana. He is brother of Shimbhu Singh. This witness also reiterated regarding beating, maltreatment caused to the deceased, holding of Panchayat and information relayed by the daughter of the deceased that the present appellant caused a Kulhari blow to Darshana and thereafter had thrown her dead body in the well.

Pratap Singh (P.W.15) is cousin of the deceased and nephew of Shimbhu Singh. This witness has also deposed that deceased was given beating by the accused. The meeting of Panchayat was held. The dead body of Darshana was recovered from a well and daughter of the deceased had told that her grandmother and father had murdered Darshana and had thrown her dead body in the well.

Hari Singh (P.W.16) another cousin of deceased, also deposed that accused used to beat Darshana. On the fateful day, he had come to village Dagar, had recovered the dead body and daughter of the deceased informed that her father had caused injuries to deceased by Fawadi and thrown her dead body in the well.

Amar Singh (P.W.17) brother of the accused stated that accused used to keep Darshana well in her matrimonial home. This witness was declared hostile by the prosecution.

Megh Singh (P.W.18) stated that on 17.9.2000 he came to the village of accused alongwith father of the deceased. They had recovered dead body. Daughter of the deceased had informed them, that her father caused injuries to Darshana with Fawada and thereafter had thrown her dead body in the well.

Ram Kumar (P.W.19) being the investigating officer proved various facets of the investigation.

Surendra Kumar Dixit (P.W.20) had conducted inquest on the dead body being a police officer.

Sunita (P.W.21) is sister of the deceased. She has not supported the prosecution case and was declared hostile.

Now we come to the testimony of the star witness, Meenu (P.W.22). For the first time his statement was recorded in the court on 17.12.2003. She had given her age as eight years. The court asked her general questions to assess her ability of understanding by evaluating the answers. The examination-in-chief of this witness when translated into English reads as under:-

"Name of my mother is Darshana. About three years ago, I was aged three years. My mother was cutting fire wood. My father, Kiran Pal Singh, caused blow with Kassi to my mother. Thereafter wrapping her body in a Dari (cotton rug) my father threw the dead body of my mother in the well." 33. In the cross-examination this witness stated that she had narrated what was seen by her and at the time of occurrence nobody had made inquiry from her regarding the incident occurrence. She further stated that police personnel on the day of occurrence came to her house, but the police had not taken her to any court at Jhunjhunu for recording her statement. The witness denied the suggestion that she had not seen the occurrence and had made a false statement on the asking of her maternal uncle. This witness further denied the suggestion that her mother herself had fallen into the well. This witness further stated that she had no brother. This witness also denied the suggestion given by defence that because her mother was not having a son therefore, she herself had jumped into the well.

Before we appreciate the evidence, it will be necessary for us to notice the testimony of Dr. Ratan Singh Nahar (P.W.3) who had conducted autopsy on the dead body of deceased, Darshana, aged 28 years. According to this witness, as per post-mortem report (Ex.P.1) he had noted the following injuries on the person of the deceased:-

i. Lacerated wound 4" x 2" x bone deep on left parietal area scalp with depressed compound fracture corresponding to wound O/E Laceration of underlying membrane and brain tissue with sub dural haemotoma 3" x 2" size.

ii. Lacerated wound 3" x 1" x bone deep on posterior aspect left elbow fracture of lower end of left humorous with laceration of muscles and tissue.

iii. Diffused swelling on left shoulder with fracture of lateral part clavicle.

iv. Diffused swelling on right shoulder and fracture of Rt. Clavicle.

v. Abrasion 10" x 4" area posterior aspect left thigh with diffused swelling on exploration laceration of muscles and tissue with haemotoma with fracture of upper part of left femur at upper 1/3 of shaft.

vi. Lacerated would 6" x 2" x muscle deep on Rt. Side perineum.

vii. Lacerated would 12" x 10" communicating to abdominal cavity through which loops of small intestine coming out. Compound fracture of body of sacrum with fracture and dislocation of both iliac bones haemotoma ++.

viii. Contusion on lower chest left side is axillary plane 4" x 4" on expl. S.C. Haemotoma with irregular fracture of 7th, 8th, 9th and 10th left ribs with laceration of adjacent pleura and lung tissues. Haemotoma of 5" x 3" on under line tissues.

As per opinion of the Medical Board, the cause of death was comma due to injury No. 1 and shock due to multiple injuries, fracture, resulting into excessive hemorrhage.

In cross-examination, this witness stated that injuries No. 1 to 8 can be suffered by the deceased due to fall in the well

We have heard Shri Biri Singh Sinsinwar, Senior Advocate who was assisted by Shri Rajesh Choudhary, and Shri Aladeen Khan, the learned Public Prosecutor.

Counsel for the parties are in agreement that so far offence of murder is concerned, same rests upon the sole testimony of Meenu (P.W.22). Shri Biri Singh, the learned senior counsel, has urged that we should appreciate the evidence of child witness with great care and caution and insist for corroboration and ensure that there is no contradiction in the evidence of witnesses who have been examined to corroborate the child witness. Finding merit in this contention, we may note that in the written report (Ex.P.11), Shimbhu Singh stated that the daughter of the deceased disclosed that while her mother was cutting fire wood, her grandfather, Umrao Singh, grandmother, Mana Bai, her father, Kiran Pal Singh, and her uncle, Jai Singh, killed her and had thrown the dead body in the well, whereas Madan Singh (P.W.1) in court states that the child had disclosed to him that her father had given injury with Farsi and thereafter grandfather and grandmother and uncle (Chacha) and father had taken the dead body in a jute bag and had thrown the same in the well. It is to be noted that no jute bag was recovered.

Chhitar Singh (P.W.2) in court stated that the child informed that grandfather, grandmother and father had caused injuries with Fawadi. Amarnath Sharma (P.W.4) stated that the child informed that after murdering her mother, Umrao Singh and Kiran Pal Singh had thrown the dead body in the well. Govind Ram (P.W.5) stated that child told to him that her father after murdering her mother, had thrown the dead body in the well. Rohitash Singh (P.W.6) also stated that the child disclosed that mother was killed by her father. Musadi Singh (P.W.14) stated that as per child Kiran Pal Singh caused injuries with a Kulhadi and had thrown the dead body in the well. Pratap Singh (P.W.15) stated that the child informed that grandmother and father after murdering Darshana had thrown her dead body in the well. Hari Singh (P.W.16) stated that child narrated to him that her father had caused injury with a Fawada (spade) and had thrown the dead body in the well. Megh Singh (P.W.18) also stated that as per child, her father caused injury to the deceased and thrown her dead body in the well.

The evidence of the witnesses, as noted above, regarding narration given by the child depict that the witnesses have made contradictory statement regarding the weapon, participation of the accused and thus, we can safely say that the witnesses have not corroborated the child witness, Meenu (P.W.22). Dr. Ratan Singh Nahar (P.W.3) who had conducted autopsy on the dead body in his cross-examination clearly admitted that the injuries No. 1 to 8 can be caused due to fall in the well. Therefore, even the medical evidence has not corroborated the testimony of the child witness. All injuries found on the person of deceased were lacerated wounds which are caused by a blunt weapon. It is to be noted that the child witness Meenu (P.W.22) has stated that she had neither narrated occurrence to any witness nor police had recorded her statement, nor she was taken by the police to the court for recording of her statement.

Mr. Biri Singh, the learned senior counsel, has further submitted that though in the written report (Ex.P.11) Shimbhu Singh has stated that the child had informed that her mother was murdered by her father, but no statement of the child u/s. 161 Cr.P.C. was recorded by the investigating agency. It is stated that even the investigating agency has not relied upon this witness in the charge-sheet. To fortify his submission, the learned senior counsel has placed reliance on Ram Lakhan Singh and Ors. v. State of Uttar Pradesh [(1997) 3 SCC 268] wherein Their Lordships of Apex Court have observed as under:

"37. It is true that no enmity or grudge is suggested against this witness, but we find that this witness was not even examined by the police nor was he cited in the charge-sheet. In a grave charge like the present, it will not be proper to place reliance on a witness who never figured during the investigation and was not named in the charge-sheet. The accused who are entitled to know his earlier version to the police are naturally deprived of an opportunity of effective cross-examination and it will be difficult to give any credence to a statement which was given for the first time in Court after about a year of the occurrence. We cannot, therefore, agree that the High Court was right in accepting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps the High Court felt unsafe to convict the accused." 42. We cannot become oblivious of the fact that Meenu (P.W.22) at the time of recording of her statement was 8 years old. Therefore, the investigating agency could not record her statement at time of occurrence. As per witness in her deposition in court, she was aged three years at time of incident. If the statement of a child three years old cannot be recorded, it is difficult for us to hold that the child aged three years have power of retention to narrate the event and she will not be tutored. Mental age and the IQ (intelligence quotient) of the child aged three years to comprehend and depose also make evidence of P.W.22, Meenu, doubtful. We are of the view that power of a child aged three years to recall the incident and age of retention of the event will be too less and the possibility that such a child can be tutored by those who near the child cannot be ruled out. Taking totality of the circumstances, we are of the view that it is highly unsafe to rely upon the testimony of Meenu (P.W.22). Having ruled out evidence of Meenu (P.W.22) from the consideration we are left with no evidence so far murder is concerned.

It is to be noted that right from the beginning the needle of suspicion was towards father-in-law, mother-in-law and younger brother of the present accused-appellant. Therefore, we cannot draw presumption under Section 106 of the Indian Evidence Act alone against the appellant. Marriage was admittedly more than ten or eleven years old. Therefore, presumption under Sections 113-A and 113-B, Indian Evidence Act is also not attracted qua the appellant. Thus, we are unable to sustain the conviction of the appellant for offence of murder.

It is a well settled legal position that even if the appellant is charged for offence under Section 302 IPC, he can be convicted for offence under Section 306 IPC if evidence to this effect is available in the prosecution case. Reliance can be placed on judgment rendered by Hon''ble Supreme Court in case of Dalbir Singh Vs. State of U.P., and Virendra Kumar Vs. State of U.P., . Numerous witnesses and relations of the deceased have stated that the deceased was given beating by the accused. Number of Panchayats were held. People had taken responsibility that the deceased would not be maltreated in future. A woman is entitled to live with dignity. A woman who is often beaten and denied honour of a home maker is driven to wall to commit suicide. In the peculiar facts of the case, considering the evidence of number of witnesses, we are of the view that the offence under Section 306 IPC is made out against the appellant.

We have been informed that the appellant has already undergone 11 years of actual sentence. Maximum imprisonment which can be awarded for offence under Section 306 IPC is 10 years. Since the appellant has already undergone the sentence which can be awarded under Section 306 IPC, we are of the view that the sentence already undergone by the appellant shall be sufficient for his conviction recorded by us under Section 306 IPC.

In view of above, the present appeal stands disposed of.