Lal Singh vs State of Himachal Pradesh

V.K. Mehrotra, J.—Shrimati Sarita, aged about 20 years, was found dead at the residence of herparents late in the evening of April29, 1986. Her husband, Appellant Lal Singh, aged about 35 years, was indicted for the murder. He was convicted for an offence u/s 302 of the Indian Penal Code by the Additional Sessions Judge (II), Shimla, on January 12,1987 and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of two years.

Against the aforesaid order of conviction and sentence awarded to him, Lal Singh filed Criminal Appeal No. 17 of 1987 in this Court. The appeal was heard by a Bench consisting of V.P. Bhatnagar and Bhawani Singh, JJ. Both the Learned Judges differed in their perception of the case. While brother Bhatnagar upheld the order of conviction and sentence awarded to Lal Singh, brother Bhawani Singh was of the view that Appellant Lal Singh deserved to be acquitted. The opinion expressed by the two Learned Judges on March 9, 1990 led to this case being placed before me as the third Judge.

The Appellant was married to deceased Sarita about a year prior to the date of the occurrence. It is said that Appellant Lal Singh had doubt about the fidelity of the deceased which prompted him to commit the offence of murder. The case, as far as the fact of the alleged murder is concerned; put forward by the prosecution is that Sarita and Appellant Lal Singh had spent the night between April 28 and April 29, 1986 at the residence of the parents of deceased Sarita in Tara Devi, suburb of Shimla. On the morning of April 29, 1986 both of them left for Shimla. Where Appellant Lal Singh was working as a salesman with HIMFED. Shrimati Sarita was left by Appellant Lal Singh at the house of his friend Ramesh Chand and his wife Shrimati Satya Devi. It was decided that Sarita was to accompany them to the market, where they were going, and at 1.30 P.M. Appellant Lal Singh would meet them at the Ridge. Also, that in case Appellant Lal Singh could not meet them for any reason, Shrimati Sarita would be sent to Tara Devi by bus.

The prosecution says that Appellant Lal Singh was delayed in his office. As such, he did not go to the Ridge. Expecting that his wife Sarita would have gone to her parents'' residence at Tara Devi, he proceeded to Tara Devi reaching there around 3.30 P.M. On enquiry, he was informed that Sarita had not yet arrived. He stayed on and at about 5 P.M. Sarita reached her parents house. Seeing him and her mother, Shrimati Ajudhia Devi, and younger sister, Nirmala together at the residence, Sarita went straight to the inner room of the house. She was followed by Appellant Lal Singh, who bolted the door of the room from inside. The bolting of the room, in the circumstances, aroused the suspicion of Shrimati Ajudhia Devi and Nirmala, who knocked at the door of the room with a view to find out what was happening inside. It is stated that Appellant Lal Singh replied, on enquiry by them, from inside the room that there was nothing special. On this, Shrimati Ajudhia Devi and Nirmala proceeded to the front verandah of the house from where they heard choked voice of Sarita after about 10/15 minutes. They went back to the room and thumped and kicked the door but it was not opened from inside. They came out and went back to the front verandah. Soon thereafter, Appellant Lal Singh came out of the room closed and chained the door of the room from outside and disappeared. Upon this, the mother, Shrimati Ajudhia Devi, went inside the room where she found that Sarita was lying on the ground with her body covered with blanket up to neck. Froth was flowing from her mouth and nose and her neck appeared to have been pressed with some heavy object.

Shrimati Ajudhia is said to have came out of the room and started crying. Nirmala is said to have asked a neigh bour Babu Ram to inform Hari Singh, the father of deceased Sarita and Nirmala, that he was immediately required to go to his house.

Hari Singh was working as a Gangmate at the railway station Tara Devi. Apart from deceased Sarita, who was married to Appellant Lal Singh, another daughter of Hari Singh, elder to Sarita, is married to Rup Lal. The case of the prosecution is that it is this Rup Lal with whom, according to the suspicion held by Appellant Lal Singh, Sarita had some improper relationship. On receiving information, Hari Singh came to his house and found that Sarita was lying on the floor of one of the rooms of the house. She had injury marks on her neck. He says that he was informed by his wife that Appellant Lal Singh had arrived at their residence all alone at a at 3 or 3.30 P.M. and that when. Sarita also came there later in the evening, he followed her into the inner room of the house and after bolting the door from inside killed Sarita and escaped.

The post-mortem examination on the body of Sarita was conducted by Dr. C. M. Rao. Professor of Forensic Medicines, Medical College, Shimla. on April 30. 1986. The following ante mortem injuries were found on the body of Sarita by Dr. Rao:

Abrasion with underlying contusion 3cmxlcm. Horizontally placed on the middle of frost of neck at the level of cricoid cartilage. The abrasion is dark brown in colour due to drying and desiccation and hardened. The underlying tissues showed the evidence of contusion and infiltration of blood-bright red in colour.

There were six cresentiric shaped abrasions (nail marks) on the front of neck-two slightly above the right end of injury No. 1, two slightly above the left end of injury No. I and two 1 cm. away from the left end of injury No. 1 In the same level of injury No. I. All were dark red in colour (due to drying).

There was a small lacenation 1/2 cm long superficial on the Inner surface of the lower lip corresponding to left upper lateral incisor and canine (teeth bite) bright red blood slightly oozing and mixed up with saliva.

The doctor found the left cornu of thyroid cartilage fractured with haemotoma around, red in colour. Larynx, Pharynx and trachea containing froth, slightly blood stained and mucus mora bra nee showing peticheae. Both the lungs were congested and brouchi and bronchioles were containing froth. Carotid vessels and the surrounding sheath and muscles showed contusions on the left side from the level of thyroid cartilage to the root of the neck. Anterior vertebral muscles showed contusion behind left cornu of thyroid cartilage. In the opinion of the doctor, death was due to asphyxia by manual strangulation (throttling). The injuries were sufficient in the ordinary course to cause death. These injuries, in the opinion of the doctor, could have been caused by throttling with fingers and hand or by pressing the front portion of the neck with force and pressure put on the neck with hands and fingers and especially the nail portion of the fingers. When questioned in cross-examination, Dr. Rao further stated that it would not have been possible for the deceased to have sustained external injury No. 1 found on the body in case of hanging or by use of a Dupatta for strangulating her. The internal contusions and other injuries were not possible in that process.

The case was investigated and thereafter a charge-sheet was submitted against Appellant Lal Singh. During the course of his examination in court u/s 313 of the Code of Criminal Procedure, Lal Singh denied his complicity in the offence altogether. He asserted that he did not go to the house of his in-laws on April 29, 1986 as alleged by the prosecution. When questioned as to why were the witnesses, deposing against him, the answer that Appellant Lal Singh gave was that he did not know why they did so.

Bereft of the details, the above as the factual basis of the prosecution against Lal Singh.

Tne principal witnesses, in support of the prosecution case, are P.W. 5 (Smt. Ajudyia Devi), the mother of deceased Sarita and P.W. 6 (Kumari Nirmala), her younger sister, aged about 15 years. They have stated on oath about the coming of Appellant Lal Singh to their residence in Tara Devi at about 3 or 3.30 P.M. on April 29, 1986, followed by the arrival of deceased Sarita at about 5or 5.30 P.M. about Lal Singh following Sarita to the inner room of the house and the boltings of the door from inside; about the choked voice of Sarita being heard ; the enquiry by them resulting in. an answer that there was nothing special by Appellant Lal Singh; the emergence of Lal Singh from the room about 10 to 15 minutes theieafter and his disappearance from the house and the dead body of Sarita being found in the room with injury marks at the neck and covered up to neck with a blanket.

Though no specific reason was put forward on behalf of Appellant Lal Singh at the trial as to why he was being named as the killer of Sarita, the suggestion which was made on his behalf during cross-examination of the prosecution witnesses was to the effect that he was being implicated in. the case as a murderer falsely though he did not go to the residence of his in-laws in the evening of April 29, 19S6, as alleged by the prosecution, at all. This was being done by way of an afterthought presumably at the instance of his brother-in-law, Rup Lal who was alleged to have had some improper relations with Sarita. Another suggestion on behalf of Appellant Lal Singh appears to be that Sarita had committed suicide and he was being falsely implicated by alleging that he had committed her murder because his in-laws were not inclined to give back the ornaments which he had given to Sarita at the time of her marriage.

The presence of the dead body of Sarita at the residence of her parents in Tara Devi is not in doubt. The basic question is whether the death of Sarita was on account of her murder by Appellant Lal Singh, or by someone else, or else it was a result of suicide committed by her.

The medical evidence in. the case clearly rules out any suicide by deceased Sarita. It was put to Dr. C. M. Rao (PW. 1) whether the injuries found on the neck of deceased Sarita could have been caused in case a Dupatta (Ex. P. 10) had been used for strangulation by her. The reply that, the- doctor gave was that "if strangulation with Dupatta were involved it would have produced?, contusion, ligature mark on all the sides of the neck or say all around the neck, but such a ligature was not there. Later in his cross-examination he stated further that "injury No. 1 as observed by me on. the dead-body of the above named lady could no have been produced if the neck was compressed by means of Dupatta, Ext. P. 10 and the chain inter-posing between the Dupatta and the neck, because the chain is not that wide so as to produce the injury of the width that was found on the neck of the dead -body. If hanging is done in such a way that the piece of pipe Ext. P. 9 comes into contact with the neck and the suspension is maintained by meaning of a rope passed through the pipe, then the external injury that I observed on the dead-body is possible, but the internal contusions and other injuries are not possible.

It may be noticed here that the prosecution claims to have recovered a Fookna (blower made of iron pipe). Ex. P. 9 at the instance of Appellant Lal Singh, which is said to have been used for causing compression at the neck of deceased Sarita.

In the face of the evidence of Dr. Rao, it is difficult to accept that it was a case where deceased Sarita had committed suicide by hanging herself with the aid of Dupatta. Besides, the posture and the location of the dead-body of Sarita, as found in the inner-room, of the residence of her parents, also rules out the possibility of a suicide by her. The evidence, not only of her mother and younger sister Nil mala, but also furnished by the condition in. which the dead body was found in the inner room of the residence of her parents rules out the possibility of any suicide by Sarita. The dead-body was found lying in the room, with its back down wards. It was covered up to neck with a blanket. It is inconceivable that Sarita could have committed suicide in that position. It is also inconceivable that her body would have been found in the state, and in the position it was actually found, in case she had committed suicide by hanging herself with the aid of Dupatta.

The possibility of suicide being thus excluded, the inevitable corollary is that Sarita was done to death. The question is whether it was the Appellant who had actually killed her.

Apparently there was no motive for Appellant Lal Singh to kill Sarita. who he had married about a year earlier. The prosecution has attempted to establish a motive for the crime. By the statement of three witnesses, it has been attempted to prove that Appellant Lal Singh suspected the fidelity of Sarita.... The fu.t of these witness is Shrimati A judhia Devi (PW 5), the mother of deceased Sarita, who has stated that prior to the incident, her daughter had complained that accused Lal Singh used to harass her and accuse her of infidelity and that she (the witness) had advised the accused not to do so as her daughter was not very mature. On being questioned in cross-examination, she stated that "It is incorrect to suggest that accused never suspected the fidelity of my daughter. Sarita had complained 3/4 months after her marriage with the accused that the accused suspected that she was not loyal. She had said that the accused used to say to her that she was not of good character"''.

Had Singh (P. W. 8), the father of deceased Sarita also spoke about it. He said that once Sarita had complained that the accused suspected that she was having some illicit affairs with Rup Lal, his elder son-in-law. In the cross-examination, however, he stated that Sarita had not complained to him but had done so to her mother.

Shrimati Satya Devi (PW 9), wife of Ramesh Kumar, a friend of the Appellant, stated that Sarita had told her that her husband used to suspect her of infidelity and that for that reason he used to bring her to Shimla from Tara Devi while coming to attend his office. She was not questioned about this statement in her cross-examination.

These statements must be read alongwith the other statements made by the witnesses in this respect. For example Shrimati Ajudhia Devi (PW 5) herself stated that her daughter (Sarita) had never complained that the accused had ever beaten her and further that the accused had never uttered harsh words to Sarita in their presence. Also, that Sarita wanted to accompany accused to Gohar, to which place the accused had been transferred from Shimla. Kumari Nirmala (PW 6), 1 he younger sister of deceased Sarita told the court that, her sister (Sarita) had told her that she was about to leave for Gohar with her husband and that she had come to meet them before leaving for Gohar. Hari Singh, the father of the deceased, also told the court that the accused had never abused or otherwise ill-treated his daughter in his presence. In fact, even in the examination-in- chief Hari Singh stated that, he had asked the accused as to why did he suspect his daughter and the accused had denied having done so. Even Rup Lal (PW 4), the person with whom deceased Sarita is alleged to have had improper relations on account whereof the accused Appellant is said to be suspecting his wife''s fidelity, stated that in his opinion deceased Sarita was a loyal and faithful wife and the deceased and accused bad never quarreled in his presence and infact they were living as good husband and wife. According to Rap Lal, deceased Sarita was like a sister to him. Rup Lal also denied the suggestion that even though deceased Sarita wanted to accompany accused to Gohar, he and his mother-in-hw were interested in keeping her back at Tara Devi.

The suggested move for the Appellant to commit, the maider of his wife Sarita cannot be said to have been established by the evidence brought on tire record by the prosecution.

It was urged well some emphasis by the learned Counsel for Appellant La] Singh was that in a case like the present, where the prosecution was seeking conviction of the Appellant on the basis of circumstantial evidence, failure of the prosecution to establish the motive for the crime shoved weigh heavily in favour of the accused. The submission, of the learned Assistant Advocate General, however, has been that the present case cannot be characterised as one in which the prosecution was see-king the conviction of the Appellant on the basis of circumstantial evidence. The case, according to the learned Assistant Advocate General, was akin to the one in which there-was direct evidence of the commission of the crime. As such, the failure of the prosecution to establish any motive for the crime affirmatively can render no advantage to the accused.

The present case, if the evidence adduced by the prosecution is to be believed, is almost like the one where the prosecution is basing its case on direct evidence of the commission, of the crime. Except for the fact of any witness actually seeing the throttling of deceased Sarita by the accused Appellant, all the ingredients which go to make the case one of direct evidence are present in it

According to the definition of "Evidence" contained in Section 3 of the Indian Evidence Act, 1872, evidence means and. Includes

(1) All statements which, the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry such statements are called oral evidence".

Fact", according to its definition in the same Sect ion means and includes

(1) anything, state of things, or relation of things of being perceived by the senses ;

(2) xx xx xx".

Illustration (b) then says "That a man heard or saw something, is a fact". A fact is said to be proved, (under the same provision of the Evidence Act), when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.

The definitions aforesaid clearly point to the inference that where the fact of commission of the murder of a person by an accused is in issue, the evidence given by a witness about what he saw or himself heard relating to the murder would be oral evidence of a direct nature relating to that crime.

If the testimony of the witnesses in the present case, particularly of PW 5(Smt. Ajudhia Devi) and PW 6 (Kumari Nirmala) is examined in the light of the aforesaid principle, the inevitable conclusion would only be that it was Appellant Lal Singh who had committed the murder of Sarita. Both these witnesses have clearly stated that on April 29, 1986, Lal Singh had come to their house at. about. 3 or 3.30 P.M. alone and, on enquiry by Shrimati Ajudhia Devi, had stated that he had left Sarita at the house of a friend at Shimla before going to his office with an understanding that he would bring her back to their house at Tara Devi after attending the office. Both these witnesses have further stated that Sarita came to the house of her parents the same evening at about 5 or 5.30 P.M. Lal Singh with standing in the verandaha, when she came, along with both the witnesses. Sarita went into the inner room of the house followed by Lal Singh who bolted the door from inside. On enquiry by the two "witnesses as to why the room had been bolted from inside, Lal Singh replied that there was nothing special. After 10 or 15 minutes both the witnesses heard the suffocated voice of Sarita. The door was knocked by Shrimati Ajudhia Devi but was not opened from inside. After sometime, Lal Singh unbolted the door and came out, chained the door from outside and disappeared. Both the witnesses then went into the room and saw that Sarita was lying on the floor of the room and her body was covered up to neck with a blanket. There was injury mark on the front side of her neck.

Read as a whole the description of the events makes it abundantly clear that what was seen by the two witnesses and heard by them would cumulatively lead only to one inference, that is, that it was Lal. Singh who had done Sarita to death.) In the peculiar circumstances of the present, case, the description of the entire incident, where Sarita was alone in the room with Lal Singh, would amount to ocular testimony by the two witnesses of the killing of Sarita by Lal Singh. In such a case the proof or otherwise of motive for the crime loses its importance.

The mother and the daughter (Shrimati Ajudhia Devi and Kumari Nirmala) were questioned at length in cross-examination. They have, however, remained unshaken on the abovementioned essential facts. The circumstances that they are closely related to deceased Sarita as mother and sister does not rob their testimony of its weight. They were the most natural witnesses of the incident. They were the only persons who could be and were present at the house when il took place. They would be the last persons to implicate Lal Singh, so closely related to them as husband of deceased Sarita, and let go the real culprit without implicating him.

The testimony of these two witnesses, when read as a whole, inspires confidence. The fact that both these witnesses also spoke about the apparently cordial relations between deceased Sarita and Appellant Lal Singh does not detract from the credibility of these witnesses. If anything, it adds to it, for, like truthful persons, they have given out the facts irrespective of whether these were capable of being utilised in favour of against the Appellant.

If, as I do, the testimony of PW 5 (Shrimati Ajudhia Devi) and PW 6 (Kumari Nirmala) is accepted to be true, the guilty is squarely brought home to Appellant Lal Singh.

For the reasons aforesaid in particular and generally agreeing with what has been said by brother V.P. Bhatnagar, in his opinion, I would uphold the conviction of Lal Singh and the sentence awarded to him by the trial Judge.

The appeal is dismissed.