Surinder Singh vs State of Haryana

Jitendra Chauhan, J.—On 05.04.1994, deceased Sobha was murdered by strangulation in the house of Surinder. For her murder, five

accused, namely Surinder Singh, Dharam Pal, Mahavir, all sons of Yad Ram, Sohan Pali widow of Jai Pal Singh and Hanso wife of Budh Ram

were summoned to face trial u/s 302 of the Indian Penal Code by the Additional Sessions Judge, Faridabad on 10.05.1999. Four accused, namely

Dharam Pal, Mahavir, Sohan Palli and Hanso were acquitted by the learned trial Court. We have no concern with them here.

The brief facts of the prosecution case are that one Ajit Singh, son of Kirpa Ram, resident of village Machhgar made a statement to SI Daya

Nand, Police Station Sadar Ballabgarh that Yad Ram, son of Harchand had three sons, put of the three, Dharam Pal and Mahabir were married

and resided at Alwar. The third son Surinder was not married. He contracted a marriage on 07.01.1994 with Sobha, the deceased, from Assam.

Surinder was having illicit relations with Sohan Pali, widow of Jai Pal and Hanso. wife of Budh Ram. Both Sohan Pali and Hanso proposed that

Surinder should keep either of them as they own piece of land and should get rid off Sobha. All the accused conspired and strangulated Sobha in

the house of accused Surinder on 05.04.1994 at about 11.00 A.M. He along with Ved Ram, son of Karan Singh, went to the house of Yad Ram.

Cries were heard by them; These people rushed to the house of Yad Ram and saw that accused persons were grappling with the rope and with

the legs of Sobha. All the five accused took out the rope and left the place after having murdered Sobha with the rope.

Ruqa was received by ASI Rohtas at 1.20 P.M. On the basis of writing by AS 1 Daya Nand, formal FIR was registered at 1.40 P.M. Special

report was sent at 8.45 P.M. to Illaqa Magistrate the same day. Spot inspection was carried out by SI Daya Nand, PW4. Site plan was prepared

and place of occurrence was photographed. Inquest report on the dead body was prepared. The burnt clothes of the deceased were taken into

possession. The dead body was carried to B.K. Hospital, Faridabad for post mortem examination. Dr. Prem Kumar carried out the post-mortem

examination and noticed the following injuries on the dead body of Smt. Sobha, the deceased.

I. Eyes were semi open, mouth semi open, dropping of reddish fluid from the mouth.

She was wearing a koka in left nostril. Marks of violence on left chin, right forearm, left leg medical, aspect right leg frontal surface with peeling of

skin. Nail marks on left side of chin.

On examination walls, ribs and cartilages normal, pleura was pale, larynx trachea, right lung, left lung, are congested; pericardium left side

contained about 75 ml. of blood. Mouth and phrins and esophagus were congested; Stomach and its contents semi digested food material. Liver,

spleen kidneys congested. Bladder was empty. Uterus: Pregnancy of about three months, Male sex organs present.

Conclusion: In my opinion the cause Of death is strangulation which is sufficient to cause death in ordinary course of nature. All the injuries are ante

mortem in nature.

During the investigation, the police found Surinder to be guilty and challaned him. The remaining accused were summoned u/s a 319 of the Code

of Criminal Procedure by the learned Additional Sessions Judge, Faridabad on 08.02.1995.

In support of its case, the prosecution examined Yad Ram, Jag Ram, Vijay Pal as PW1 to PW3 respectively; Constables Samey Singh, Head

Constable Rattan Singh as PW4 and PW5, Hari Chand, Roshan Lal and Ved Pal as PW6 to PW8; Dr. Prem Kumar, Medical Officer, B.K.

Hospital, Faridabad as PW9, Constable Anoj Kumar as PW 10, Gopi Chand as PW11, Complainant Ajit Singh as PW12, ASI Rohtas as PW13

and SI Daya Nand, Investigating Officer of the case as PW14.

After conclusion of the prosecution evidence, the accused was examined u/s 313 of the Code of Criminal Procedure. The accused/appellant

pleaded false implication and in response to question No. 1, he categorically denied having illicit relations with Sohan Palli, co-accused, not before

us. He further stated that he was not present in the house.

Preet son of Kale Ram appeared as DW1. He stated that on the day of occurrence at about 10/10.30 A.M., he went to the house of Surinder

and found the victim hanged. A number of villagers including Jai Raj and Kamal son of Chittar Singh had gathered at the spot. Ved Pal, PW8, and

Ajit Singh, PW12, were not present in the house at that time. Ajit Singh and Ved Pal arrived at the spot when the dead body of Sobha was about

to be taken for cremation. He further deposed that Ajit and Ved Pal were persons of bad character and they wanted to grab the land of Sohan

Palli, and the plot owned by Hanso also stands grabbed by Ajit Singh. Both of then were inimical to Hanso and Sohan Palli.

Kamal son of Chhittar Singh appeared as DW2. He stated that he was going to his fields at about 10/11 A.M. and he noticed that a number of

persons had collected outside and inside the house of accused Surinder. The door was bolted from inside. The door was broke open. They

entered the house. Sobha was found hanged with rope.. At that time, no other person was present in the house except Sobha. Surinder came after

about 3/4 hours. When they were planning to take her to the cremation ground, the police arrived there and stopped them. Ved Pal, PW8, and

Ajit Singh, PW12, insisted Sohan Palli to sell her land to them. They also took Rs. 1.5 lakh forcibly from Hanso and also grabbed her one acre of

land. After arrival of the police, Ajit Singh and Ved Pal came there. They demanded Rs. 20,000A from Yad Ram, father of accused Surinder for

not appearing against them in the instant case. Sobha was not killed by any one, she died herself. He further stated that Sobha was married with

Surinder only 4/5 months prior to the occurrence.

Two eye witnesses Yad Ram, PW1 and Jai Ram, PW2 were declared hostile. Master Vijay Pal, PW3 before whom the extra-judicial

confession was made, also turned hostile. Constable Samey Ram, PW4, appeared as witness in Court and filed an affidavit regarding delivery of

special record. Head Constable Rattan Singh, PW5, deposed regarding the burnt clothes recovered from the spot. Hari Chand, PW6, before

whom the extra-judicial confession was made by accused Surinder, was declared hostile along with Roshan Lal, PW7, who is an eye witness and

had reached the spot along with Ved Pal and Ajit Singh. Ved Pal, PW8 and Ajit Singh, PW12 supported the case of the prosecution.

It was argued on behalf of the accused that from the statements of Ved Pal, PW8 and Ajit Singh, PW12, it was apparent that Sobha

committed suicide. Her dead body was found hanging with the help of rope. In view of the provisions of Section 106 of the Indian Evidence Act, it

was for the accused to explain as to how Sobha died. It was further pleaded that the accused Surinder was having illicit relations with two ladies..

The deceased could not tolerate and she committed suicide. There was no allegation of any harassment and torture on account of demand of

dowry. Preet Singh, DW1 and Kamal Singh, DW2, also stated that the deceased committed suicide. The family members of the accused, being

illiterate, were not aware of the legal formalities to be complied with in case of suicide.

On behalf of the prosecution, it was argued that all the five accused were holding the deceased. Some were tightening the rope around the

neck of Sobha and other were holding other parts of body i.e. leg, hand etc. of the victim. Ved Pal, PW8 and Ajit Singh, PW12 tried to intervene

but in the meantime, the victim died. The accused persons opened the door and went out of the house. These two witnesses raised an alarm, which

attracted Vijay Pal and Yad Ram.

The statements of Ved Pal, PW8 and Ajit Singh, PW12 further find corroboration from the statement of Dr. Prem Kumar, PW9, who

conducted the postmortem examination and opined strangulation to be the cause of death.

Learned trial Court relied on the statements of Ved Pal, PW8 and Ajit Singh, PW12. No evidence of their enmity with the accused also

surfaced on the record. The statements of Preet Singh, DW1, and Kamal Singh, DW2, to the effect that Ved Pal, PW8, and Ajit Singh, PW12,

were inimical towards the accused, were also not relied by the trial Court.

The Post Mortem report reveals that apart from strangulation, marks of violence on left thin, right fore-arm, left leg, right leg frontal surface

with peeling of skin along with nail marks on the left side of chin of the deceased were also found. After considering the entire evidence, learned

trial Court reached to the conclusion that the deceased, while being strangulated, was also subjected to torture.

Feeling aggrieved by the order of the learned trial Court, the appellant has preferred this appeal, the present appeal was admitted by this Court

on 23.04.2001.

Learned counsel for the appellant has argued that the very fact that four accused have been acquitted by the learned trial Court in this case,

renders the story of the prosecution doubtful. Yad Ram, PWl, Jag Ram, PW2 and Vijay Pal, PW3, Hari Chand, PW6 and Roshan Lal, PW7, did

not support the case of the prosecution. Ved Pal, PW8 and Ajit Singh, PW12 were inimical towards the appellant, therefore, their statements

cannot be relied upon. Both witnesses have made material improvements in their statements. Ajit Singh, PW12, was declared bad character and a

case u/s 307 of the Indian Penal Code was pending against him. They also made an effort to grab the land of Sohan Palli and Hanso. Therefore,

the assertions against the appellant by Ved Pal, PW8 and Ajit Singh, PW 12 were motivated to cause harm to the accused/appellant.

Learned counsel has further argued that the prosecution has failed to discharge its burden of establishing guilt of the accused and it has shifted

the burden on the accused to prove himself innocent.

Learned counsel for the State has argued that Ved Pal, PW8 and Ajit Singh, P W12 have supported the case. It has come in the statements of

Preet Singh, DW1 and Kamal Singh, DW2 that police arrived at the spot when they were making preparation to take the dead body for

cremation. The occurrence-took place in the house of the accused. There is no evidence to the effect that any intruder entered the house of the

accused. In these circumstances, it was for the accused to explain as to how the death had taken place. As per the statements of Ved Pal, PW8

and Ajit Singh, PW12 the house was bolted from inside and the accused was present inside the house. As per the post mortem report, the

violence marks were noticed on the dead body.

We have heard the learned counsel for the parties and perused the record.

The victim was married with the accused-appellant 4-5 months prior to the occurrence. The main argument advanced by the learned counsel

for the appellant is that the deceased committed suicide on account of the fact that the accused-appellant had illicit relations with Sohan Palli.

However, in response to question No. l in the statement recorded u/s 313 of the Code of Criminal Procedure, the accused-appellant has

specifically denied the allegation. Ved Pal, PW8 and Ajit Singh, PW12 have supported the case of the prosecution. Nothing has been brought to

our notice, on the basis of which, it can be concluded that Ved Pal and Ajit Singh were inimical towards the accused/appellant.

As per the post-mortem report, strangulation is the cause of death. A number of violence marks were also noticed by the Doctor on the

various parts of the body of the deceased. If the version as, projected by the appellant is to be believed, in that eventuality, the question of suffering

injuries on various parts of the body of the deceased does not arise. The violence marks noticed on the dead body go to establish that the victim

was done to death by hanging.

It has also come on record that the appellant is a bad character, but that cannot be said to be a valid ground to discard the statement of this

witness particularly when nothing has come on record to the effect that PW8 and PW12 were inimical towards the accused.

Admittedly, death has taken place in the house of the accused/appellant. The presence of the accused/appellant at the spot is natural. In the

circumstances, we are unable to accept the argument of the learned counsel for the appellant that onus is upon the prosecution to prove its case. In

the instant case, the appellant is required to give in account of high probability as to how Sobha died. In a situation that has arisen here, the

provisions of the Indian Evidence Act require to be invoked in the changed scenario, because there is nothing on record suggesting that any

intruder had sneaked into the house of the accused. Therefore, the onus is upon the accused-appellant to prove as to how the death has taken

place. The effort of the accused to cremate the dead body without informing the police also falsified his stand that the deceased committed suicide

and proved that the accused after eliminating the deceased hurriedly made an attempt to do away with the dead body as well in order to wash of

his hands from any criminality.

We are pained to record that a number of prosecution witnesses turned hostile. These prosecution witnesses have made statements before the

Investigating Officer that they are the eye witnesses of the occurrence and of extra judicial confession. It was in their presence that incriminating

material against the appellant was collected in the course of investigation.

The victim is a poor girl from Assam. She tried to improve her luck by marrying with the accused. Victim was defenceless when she was killed.

She was without a well wisher. Therefore, the present case paints the society in black and demonstrates as to how the human dignity is violated in

our society.

In these circumstances, after considering the evidence on record and circumstances leading to the death of the victim, we hold that the accused

committed the murder of the victim, Sobha.

In view of our findings, the present appeal is dismissed. The judgment and order dated 22.02.2001 passed by the learned Additional Sessions

Judge, Faridabad is maintained.

In the instant case, certain material witnesses, namely Yad Ram, PW1, Jagram, PW2, Vijay Pal PW3, Hari Chand, PW6 and Roshan Lal,

PW7 did not support the case of the prosecution. They resiled from their earlier statements recorded u/s 161 of the Code of Criminal Procedure

and hence were declared hostile.

It is very common now-a-days that witnesses, while supporting the prosecution version at the investigation stage of the case by giving a version

there, take a complete U-turn at the trial by not supporting the prosecution, thereby making the case to fall for want of evidence. This practice has

become a menace in the criminal judicial system.

The Hon''ble Supreme Court had dealt very heavily in a case of a similar nature in ""Best Bakery Case"", where the star witness Zahira at

different stages changed her stand and departed from her earlier statements. In that case, vide order dated 12.4.2004, the Hon''ble Supreme Court

in Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, ordered retrial of the case and also gave options to the investigating

agency or those supervising the investigation, to act in terms of Section 173(8) of the Code of Criminal Procedure as the circumstances seem to or

may so warranted. A review petition Zahira Habibullah Sheikh and Another etc. Vs. State of Gujarat and Others etc., was disposed of by the

Apex Court vide order dated 7.5.2004 while the trial was on before a Court in Maharashtra pursuant to the aforesaid orders, Zahira gave a press

statement in the presence of some government officials that what she had stated before the trial Court in Gujarat earlier was correct. A petition,

thereafter was moved before the Apex Court alleging therein that Zahira''s statement was nothing but contempt of that (Hon''ble Supreme Court)

Hon''ble Court. At a press conference held on 03.11.2004 few days before the scheduled appearance of the witnesses in the trial Court, she had

changed her version, disowned the statement made before the Hon''ble Supreme Court, and before the various bodies like the National Human

Rights Commission. Vide order dated 10.01.2005 in Zahira Habibullah Sheikh (3) v. State of Gujarat 2005 (4) SCC 292, the Apex Court

ordered an inquiry to be conducted by the Registrar General of the Hon''ble Supreme Court. Subsequently vide another order, the Hon''ble

Supreme Court in Zahira Habibulla Sheikh (4) v. State of Gujarat 2005 (4) SCC 294 directed Zahira to file an affidavit indicating therein details of

all her financial transactions and also to indicate their sources. A report was filed, wherein the enquiry officer had categorically recorded that Zahira

had changed her stands at different stages and had departed from statements made before the Apex Court. It was found that Zahira was not able

to explain the assets in her possession. The Inquiry Officer had also recorded that after a particular point of time contemporaneous to when she

started changing her stand.

Taking up the aforesaid inquiry report, the Hon''ble Supreme Court in Zahira Habibullah Sheikh (5) v. State of Gujarat 2006 (3) SCC 34

observed as follows:

Serious questions arise as to the role played by witnesses who changed their versions more frequently than chameleons. Zahira''s role in the whole

case is an eye-opener for all concerned with the administration of criminal justice. As highlighted at the threshold the criminal justice system is likely

to be affected if persons like Zahira are to be left unpunished.

In the subsequent paras the Hon''ble Supreme Court observed further:

The complex pattern of life which is never static requires a fresher outlook and a timely and vigorous molding of old precepts to some new

conditions, ideas and ideals. If the Court acts contrary to the role it is expected to play, it will be destruction of the fundamental edifice on which

justice delivery system stands. People for whose benefit the Courts exists shall start doubting the efficacy of the system. Justice must be rooted in

confidence and confidence is destroyed when right minded people go away thinking that ""the Judge was biased"". (Per Lord Denning MR in

Metropolitan Properties Ltd. v. Lannon (1968) 3 All ER 304 (CA.). The perception may be wrong about the judge''s bias, but the Judge

concerned must be careful to see that no such impression gains ground. Judges like Ceaser''s wife should be above suspicion (Per Bowen L.J. in

Lesson v. General Council of Medical Education (1890) 43 Ch.D. 366).

By not acting in the expected manner a judge exposes himself to unnecessary criticism. At the same time the Judge is not to be innovative at

pleasure. He is not a Knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness, as observed by Cardozo in ""The Nature of

Judicial Process.

32.1 It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep promise to justice and it cannot stay petrified

and sit non-challantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection loose hope

(See Jennison v. Backer (1972 (1) All ER 1006). Increasingly, people are believing as observed by SALMON quoted by Diogenes Laertius in

Lives of the Philosophers"" laws are like spiders'' webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break

through and get away"". Jonathan Swift, in his ""Essay on the Faculties of the Mind"" said in similar lines:

Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.

As has been noticed in the earlier case Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, , the role to be played by Courts,

witnesses, investigating officers, public prosecutors has to be focused, more particularly when eyebrows are raised about their roles.

The Hon''ble Supreme Court by holding her guilty of perjury concluded by sentencing Zahira to undergo simple imprisonment for one year and

to pay a fine of Rs. 50,000/- and in case of default of payment within two months, she was ordered to suffer further imprisonment of one year.

In an another case Mahila Vinod Kumari Vs. State of Madhya Pradesh, where the petitioner had lodged FIR against two persons on the

allegations of having committing rape and it was only on the basis of the same that charge-sheet was filed against them and they were put to trial.

During trial, the prosecutrix resiled from her statement made during the investigation and even denied lodging of the FIR or having had given any

statement to the police. The Hon''ble Supreme Court observed as under:

The purpose of enacting Section 344 Cr.P.C. corresponding to Section 479A of the Code of Criminal Procedure, 1898 (hereinafter referred to as

''the Old Code'') appears to be further arm the Court with a weapon to deal with more flagrant cases'' and not to take away the weapon already in

its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be

eradicated and can be better achieved now as it is open to the Courts to take recourse to Section 340( 1) (corresponding to Section 476 of the

Old Code) in cases in which they are failed to take action u/s 344 Cr.P.C.

This Section introduces an additional alternative procedure to punish perjury by the very Court before which it is committed in place of old Section

479 A which did not have the desired effect to eradicate the evils of perjury.

For exercising the powers under S.344 of the Code, the Court at the time of delivery of judgment or final order must at the first instance express

an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is

that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence

which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the

witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions are mandatory. The object

of the provision is to deal with the evil of perjury in asummary way.

The Hon''ble Supreme Court held that this provision should be used effectively and frequently to stop the menace of perjury, which has bearing

on alarming rise. The apex Court held as under:

The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is

desirable for the courts to use the provision more effectively and frequently than it is presently done.

We are pained to see that the trial Courts willingly or unwillingly are not taking action against hostile witnesses. A number of witnesses who

should be deposing as per their statements given u/s 161 of the Code of Criminal Procedure and should be supporting the prosecution turn hostile.

The trial Courts cannot be mute spectators to the statement of these witnesses, when the witnesses are intentionally giving false evidence (a

statement to help the accused). Action should be taken under the relevant provisions of law against such witnesses, so that the administration of

criminal justice does not suffer.

In a case before this Court (Punjab and Haryana High Court) Krishan and Others v. State of Haryana, 2005 (2) RCR (Cri) 109 in case u/s

302 IPC, for the murder of Balraj, the law was set into motion on the registration of the FIR by PW8 Bijender. At the trial, Bijender PW8

supported the case of the prosecution in the cross-examination. His cross-examination was got deferred by the defence counsel on the ground of

his illness. When cross-examined on the subsequent date, he resiled from his statement Exhibit PB on the basis of which FIR was registered as well

as from the statement recorded in the Court on the previous date. He stated that police had obtained his signatures on blank paper and, therefore,

he had denied the contents of his statement, Exhibit PB. He stated that he made the statement in the Court as PW8 on the previous date under the

pressure of police.

Before we conclude, we wish to reflect in the manner the prosecution witnesses have behaved in order to circumvent the proceedings with an

ulterior motive to help the accused. Five prosecution witnesses, namely Yad Ram, PW1, Jag Ram, PW2, Hari Chand, PW6, and Roshan Lal,

PW7, declined to support the case of the prosecution. All of them were declared hostile.

It is relevant to note that Yad Ram, PW1, and Jag Ram, PW2, had signed the inquest report. They had also identified the dead body of victim

Sobha. Hari Chand, P W6. signed document, Exhibit PH, dated 17.04.1989 which pertains to personal search of accused-appellant Surinder But

he stated in Court that he was made to sign on blank paper by the police. Hari Chand has put his signatures in English which shows that he is a

literate person. In the same manner, Roshan son of Parbhu Dayal signed Exhibit PJ, who allegedly helped in extinguishing fire at the place of

occurrence. This statement was made u/s 161 of the Code of Criminal Procedure.

The inquest report bears the signatures of Yad Ram, PW1, and Jag Ram, PW2. Both the witnesses are silent about their signatures on the

inquest report. At the same time, these witnesses do not plead that their signatures were forcibly obtained by the police on certain documents. Hari

Chand, PW6, simply denies having made statement, Exhibit PC. He also has not given any explanation regarding his signatures.

From the facts, it is evident that investigation was conducted properly. No one has caused any aspersion or pleaded that the case was not

properly investigated. The totality of the circumstances indicate and establish that Yad Ram, PW1, Jag Ram, PW2 and Roshan Lal, PW7 resiled

from their earlier stand with a view to help the accused-appellant ultimately subverting the process of justice delivery system.

The victim comes from a very poor family and hails from the State of Assam; there was nobody to shield her during her life time and after her

death, there are no, mourner or sympathizer in the family of her in-laws.

In this like situation where the dignity of human life has been violated in a barbaric and cruel manner resulting in loss of a young, helpless, poor

victim, whom the destiny had landed in the house of the accused, we are inclined to proceed against them:

Consequently, we issue notice to PWs No. 1 to 3 and 6 and 7 who have tried to save the accused-appellant from legal punishment by resiling

from their statements and denying their participation during the course of investigation.

Hence, a show cause notice is issued to PWs. 1 to 3 and 6 and 7 to explain as to why a complaint be not lodged against them for committing

the offence of perjury All the PWs, named above, are directed to appear before this Court on 05.10.2009.

A copy of this judgment be circulated to all the District & Sessions Judges and the Additional District & Sessions Judges in the State of Punjab

and Haryana.