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Judgment
Mahavir Singh Chauhan, J.—Ravinder Sabherwal alias Neeta (here-in-after referred to as ''the appellant'') was tried for the offences punishable under Sections 302 and 452 of the Indian Penal Code, 1860 (here-in-after referred to as ''IPC'') for committing murder of his own daughter Rajni and her prospective husband Rajesh Kumar alias Rinki and vide judgment dated July 09, 2011/order dated July 11, 2011, learned Additional Sessions Judge, Ludhiana (here-in-after referred to as ''the trial court'') has convicted and sentenced him as under:
Both the substantive sentences have been ordered to run concurrently.
To challenge correctness of judgment of conviction and order on quantum of sentence and to seek his acquittal, appellant has brought Criminal Appeal-D-754-DB of 2011while Rakesh Kumar alias Tinku (here-in-after referred to as ''the complainant'') has brought Criminal Revision No. 3044 of 2011 to seek enhancement of sentence awarded to the appellant by the learned trial court. In view of commonality of facts and circumstances involved therein, the Criminal Appeal and Criminal Revision are proposed to be disposed of by this common judgment being passed in CRA-D-754-DB of 2011.
A quick glance across prosecution chronicle suggests that Rajni and Rajesh Kumar alias Rinki developed a longing for each other and their marriage was scheduled to be held on January 30, 2005. However, appellant did not approve of this relationship and proclaimed that he would not allow this bond to materialize into matrimony. On January 14, 2005 at or around 11.15 a.m., when, besides Rajesh Kumar alias Rinki, the complainant, Rakesh Kumar alias Tinku (PW1), his mother Asha Rani and wife Meena Rani (PW2), were present in their house, Rajni came to their house. Immediately thereafter appellant and his nephew, named Kala also descended on the scene. Kala grappled with Rajesh Kumar alias Rinki. Complainant and Rajni intervened to rescue Rajesh Kumar alias Rinki. In the meantime appellant fired from his licenced.32 bore German made Arminius revolver (Exhibit P14) upon Rajni. The bullets hit Rajni on left side of her chest, right elbow and right side of her back. Rajni fell down. Appellant then fired upon Rajesh Kumar alias Rinki. The bullets hit him on left side of his chest, left side of his lips and right shoulder. Complainant and others present there raised an alarm and out of fear ran out of the house. While running, they heard more shots being fired. Alarm raised by them also attracted inhabitants of the locality. Appellant and Kala made good their escape alongwith the revolver used in the occurrence. Complainant, on his way to the Police Station, came across SI Karnail Singh (PW6) (the Investigating Officer) at Nalkianwala chowk, Jagraon and suffered before him statement, Exhibit PA, and based thereupon a formal First Information Report (''FIR'', for short), Exhibit PC/1, was recorded by ASI Malkiat Singh. SI Karnail Singh (PW6) reached the spot of occurrence and found that Rajni was lying dead there while Rajesh Kumar alias Rinki was still alive and was sent to Civil Hospital, Jagraon. He, however, died before he could reach the hospital. Investigating Officer got the spot of occurrence photographed; prepared Inquest Report, Exhibit PD, in respect of dead body of Rajni; drew a visual site plan, Exhibit PE, lifted from the spot blood of Rajni and Rajesh Kumar alias Rinki vide memorandum, Exhibit PF; recovered three pieces of an iron "Kara" (Exhibits P3 to P5), two empty cartridges (Exhibits P6 and P7) and a bullet (Exhibit P8) vide memorandum, Exhibit PG; on receipt of intimation that Rajesh Kumar alias Rinki had died, went to Civil Hospital, Jagraon; prepared Inquest Report, Exhibit PH, on the dead body of Rajesh Kumar alias Rinki; and arrested the appellant. Dr. Sarwan Singh (PW7), alongwith Dr. R.K. Singla, conducted autopsy on the dead body of Rajesh Kumar alias Rinki vide Post Mortem Report, Exhibit PP, at 04.50 p.m. on January 14, 2005. Dr. Ajay Bansal (PW11) conducted post mortem on the dead body of Rajni vide Post Mortem Report, Exhibit PU, at 09.15 a.m. on January 15, 2005. SI Gurinder Singh (PW10), to whom investigation of the case stood entrusted, interrogated the appellant. During interrogation appellant got recovered a.32 bore German made Arminius revolver (Exhibit P14) pursuant to his disclosure statement, Exhibit PW3/C. On being opened, the revolver was found to contain seven empty cartridges (Exhibits P15 to P21). As recorded in report, Exhibit PBB, when subjected to forensic examination, empty cartridges, Exhibits P6 and P7 and Exhibits P15 to P21 were found to have been fired from revolver, Exhibit P14, but as regards bullet (Exhibit P8) no definite opinion could be given that it was fired from that revolver. Vide report, Exhibit PAA, it was opined that blood lifted from the spot was human blood.
On conclusion of investigation, a report in terms of sub-section (2) of Section 173 of the Code of Criminal Procedure, 1973 (for short, ''the Code'') was prepared and presented before the learned Jurisdictional Magistrate.
Case on being committed to the Court of Session, learned trial court heard the prosecutor and the defence; found a prima facie case punishable under Sections 302 and 452, IPC, against the appellant; and charged the appellant for those offences.
Appellant pleaded not guilty to the charge and claimed to be tried.
During the trial, Dr. Sarwan Singh (PW7) proved Post Mortem Report, Exhibit PP, pertaining to Rajesh Kumar alias Rinki and told the learned trial court that on his person following injuries were found:
"i. a 7 mm circular wound with contused and inverted margins on anterior aspect of right shoulder. Blackening around the wound was present. Corresponding hole in the shirt was also present. On dissection track of this wound was found going inside. Upper part of humerus near its neck was fractured. Lacerated tissues and blood were present in the track. One metallic piece was recovered from right axillary region;
ii. a 7 mm circular wound with contused and inverted margins on right side of neck, 2.5 cms. towards right of midline and 5 cms. from sterno clavicular joint. Blackening around the wound was present. On dissection one metallic piece was found in the neck muscles just near the entry point;
iii. a 7 mm circular wound with contused and inverted margins on right side of chin, 3cms towards right of midline. On dissection one metallic piece was found on the right mandible. Blackening around the wound was present;
iv. a 7 mm circular wound with contused and inverted margins on left side of cheek, I cm from the left angle of mouth. Blackening around the wound was present. On dissection fracture on mandible and maxilla was seen on the left side. One metallic piece was found near left ear;
v. a 7 x 4 mm oval wound with contused and inverted margins on left side of chest, 5 cms. towards left of midline, 3cms from left nipple. Blackening around the wound was present. On dissection track of the wound led towards right hypochondral region piercing on its way through left lung, major vessels, right lung, right side of the diaphragm, and in the upper and lateral part of liver. One metallic piece was found in the upper and lateral part of the wound; and
vi. a 7 mm circular wound with contused and inverted margins on the back near the inferior angle of right scapula. Blackening around the wound was present. On dissection the track led towards right axilla. One metallic piece was found in axillary region."
According to Dr. Sarwan Singh (PW7) cause of death of Rajesh Kumar alias Rinki was shock and hemorrhage as a result of fire-arm injuries to vital organs. All the injuries were ante-mortem in nature. Time that elapsed between injuries and death was immediate and between death and post mortem, 05 to 12 hours.
Dr. Ajay Bansal (PW11), besides proving Post Mortem Report, Exhibit PU, pertaining to Rajni, revealed that on her dead body following injuries were found:
"i. a 7 x 5 mm oval shaped wound with contused, inverted and black margins on the posterior aspect of right side of chest near inferior angle of right scapula. Blackening was also present in the surrounding area. Corresponding hole in the clothes was also present. On dissection the wound led to track which went to 7th rib posteriorly on right side, from this area to anteriorly superiorly and forward from right lung to left lung anterior to vertebral column and entered left side of chest cavity. This track passed through left bronchus, aorta and left side of heart and from left ventricle of heart one metallic piece was removed. Track tissues were full of blood;
ii. a 7 x 5 mm oval shaped wound with inverted and contused margins on the posterior aspect of right arm near shoulder joint with blackening on the surrounding area. Corresponding cut was present in the clothes. On dissection this wound led to a track which went anteriorly and downwards to the left side after passing through the soft tissues of right shoulder joint, right infraclavicular area to left breast in its upper and outer quadrant from where one metallic piece was removed. Track was full of blood;
iii. a 7 x 5 mm oval shaped wound with inverted and contused margins on the anteromedial aspect of right arm, 6 cms. above the right elbow joint with blackening on the surrounding area. Corresponding cut was present in the clothes. On dissection this wound led to a track which passed through the biceps muscles. On anterior aspect of right arm and came out to the skin on anterolateral aspect of right arm (Injury No. 4). Tissues in the track were full of blood;
iv. a 1.5 x 1 cms. wound, with everted and irregular margins, on the lateral aspect of right arm, 6 cms. above the line of right elbow joint. On dissection this track communicated with the track coming from injury No. 3;
v. a 7 x 5 mm oval shaped wound with inverted and contused margins on the left side of chest in mid clavicular line, 4 cms. below the clavicle, with blackening on the surrounding area. Corresponding cut was present in the clothes. On dissection this wound led to a track which went downwards and outwards after passing through the fat and muscles present on the anterior aspect of chest and arm and came to the skin in anterior axillary line on the left side. Tissues on the track were full of blood; and
vi. a 1.5 x 1.2 cms. wound with everted and irregular margins, on the left arm in anterior axillary line. On dissection this wound communicated with the track coming from injury No. 5."
According to Dr. Ajay Bansal (PW11) cause of death of Rajni was shock and hemorrhage as a result of fire-arm injuries to vital organs. Probable time that elapsed between injuries and death was immediate and between death and post mortem, 12 to 24 hours.
Complainant Rakesh Kumar alias Tinku while appearing as PW1 narrated the entire sequence of events leading to death of Rajesh Kumar alias Rinki and Rajni, besides proving on record his statement, Exhibit PA, while his wife Meena Rani (PW2) supported his version, almost verbatim.
Draftsman Tarsem Lal (PW4) proved scaled site plan, Exhibit PW4/A. Jasbir Kaur (PW13) brought on record certified copy of appellant''s Arms Licence as Exhibit P13. SI Karnail Singh (Retired) (PW6), SI Gurinder Singh (PW10), Head Constable Ramji Dass (PW12), Head Constable Santokh Singh (PW9), Constable Gurdev Singh (PW8), Head Constable Sham Singh (PW5) and Head Constable Gurcharan Singh (PW3) highlighted various facets and phases of investigation and provided necessary links in the prosecution account.
In his statement under Section 313 of the Code, appellant rubbished all the inculpating circumstances appearing in the prosecution evidence and while re-asserting his innocence and false implication, came out with a plea that he was suffering from mental derangement; on coming to know for the first time (on the day of occurrence) that Rajni had gone to house of Rajesh Kumar alias Rinki, (he went there) and found that no other member of the family (of Rajesh Kumar alias Rinki) was present in the house; he peeped into a room of the house, which was bolted from inside, and noticed that Rajni and Rajesh Kumar alias Rinki were in compromising position; he knocked at the door; Rajni, after putting on her clothes, opened the door; he lost self control and fired upon Rajni and Rajesh Kumar alias Rinki and killed them under grave and sudden provocation; a number of persons, including Kanta, Sunita, Rajesh son of Gobind Ram and Ram Pal had converged on the scene; prior to that he did not know that Rajni had illicit relations with Rajesh Kumar alias Rinki and their marriage was never fixed; and in the inquiry conducted by Superintendent of Police it was established that he (the appellant) had fired upon the two deceased on account of sudden and grave provocation when he saw them in compromising position.
Bal Krishan, one of the three brothers of the appellant, appeared as DW3 and deposed that Rajni did not have an affair with Rajesh Kumar alias Rinki and their marriage was never fixed; and the appellant, who was suffering from mental ailment, had been getting treatment for the same before the occurrence and even during his incarceration. Ram Pal (DW1) testified to say that on the day of occurrence he had gone to see his brother Manohar Lal near the house of deceased- Rajesh Kumar alias Rinki and on hearing a noise when he came out he found that the appellant was knocking at the door of house of Rajesh Kumar alias Rinki and was asking for opening of the door; on being told by the appellant that his daughter Rajni and Rajesh Kumar alias Rinki were lying in compromising position, he also peeped into the room and saw that Rajni and Rajesh Kumar alias Rinki were putting on their clothes; and when Rani opened the door appellant fired upon them. Kulwinder Singh (DW2) brought on record Exhibit DW2/A, report of inquiry conducted by Superintendent of Police Bachan Singh Randhawa.
Learned trial court, on hearing the prosecutor and the defence and appraisal of evidence, found the prosecution to have established appellant''s guilt beyond reasonable doubt and, accordingly, convicted and sentenced him as here-in-before stated.
We have heard learned counsel for the parties besides examining the record of the case.
Learned counsel for the appellant have admitted the factum of occurrence as also death of Rajni and Rajesh Kumar alias Rinki by fire-arm injuries caused by the appellant but have stressed that the two deceased were fired upon by the appellant while deprived of self control on account of sudden and grave provocation caused by the sight of his daughter Rajni and Rajesh Kumar alias Rinki lying in a compromising position. Thus, according to learned counsel for the appellant the case falls within the ambit of second part of Section 304, IPC, and not under Section 302, IPC. Mental derangement of the appellant is also sought to be put forth as one of the circumstances that impelled him to fire upon the deceased.
Contrarily, learned State counsel has argued that circumstances appearing on record negate the contention that appellant''s act was result of sudden and grave provocation and the very fact that he followed Rajni to the house of Rajesh Kumar alias Rinki armed with a loaded revolver and after pumping all the loaded bullets into the bodies of the two deceased, reloaded the revolver and again fired upon them, proves that the appellant came to the spot of occurrence with premeditated and well planned strategy to bring to an end lives of the two deceased and thereby terminate their inter se relationship which he did not like. According to learned State counsel plea of mental derangement of the appellant is a concoction in so far as there is no medical evidence to establish it and from the manner in which the appellant has executed his plan to kill the two deceased it is ruled out that he suffered from any such deformity.
Learned senior counsel representing the complainant, besides supporting the submissions put up on behalf of the respondent-State, has urged award of extreme penalty to the appellant terming the case as rarest of rare cases warranting such a penalty. He has also relied upon a judgment of the Hon''ble Supreme Court rendered in the case of Bhagwan Dass versus State (NCT) of Delhi, Criminal Appeal No. 1117 of 2011 decided on May 09, 2011.
No other or further point has been urged on either side.
We must at the threshold point out that there is no challenge to the finding of the learned trial court that it was the appellant who had shot the deceased using his licenced revolver. Use of his licenced.32 bore German made Arminius revolver (Exhibit P14) by the appellant and the fact that two empties recovered from the spot and seven empties recovered from the revolver (Exhibits P6, P7, and P15 to P21) had been fired from the said weapon is also established by report of Forensic Science Laboratory, Exhibit PBB. It is also not in dispute that the bullets fired by the appellant had pierced body of Rajesh Kumar alias Rinki at six places, viz. right shoulder, right side of neck, right side of chin, left side of chest, left side of cheek, and right scapula and that of Rajni at four places, viz. right side of chest, posterior aspect of right arm, anteromedial aspect of right arm, and left side of chest. It has also remained undisputed that the ghastly incident occurred at the residence of deceased Rajesh Kumar alias Rinki. The crucial question is whether the occurrence took place in the manner described by Rakesh Kumar alias Tinku (PW1) and Meena Rani (PW2) bringing the act of the appellant within the description of murder or as deposed to by Ram Pal (DW1) or mental derangement of the appellant, as stated by Bal Krishan (DW3), has been responsible for it, bringing it within the ambit of Section 304, IPC.
Rakesh Kumar alias Tinku (PW1) has very categorically stated (and has been supported by Meena Rani-PW2) that Rajni, who was in love with and was scheduled to marry Rajesh Kumar alias Rinki on January 30, 2005, came to their house at or around 11.15 a.m. on January 14, 2005. Appellant, who did not like this relationship, also came there carrying a revolver in his hand and fired upon the two deceased. He has not been cross-examined with regard to this part of his deposition. He has been confronted with a suggestion that Kanta, Sunita, Rajesh and Ram Pal had testified before Bachan Singh Randhawa, Superintendent of Police that the appellant had fired upon the two deceased on sudden and grave provocation as he found the duo in compromising position when he knocked at the door and that Bachan Singh Randhawa, Superintendent of Police had given a report on these lines but he has not been confronted with a suggestion that the appellant did see the two deceased in compromising position and for that reason fired upon them while deprived of his self control. Statement of this witness that the appellant reloaded the revolver and fired upon Rajesh Kumar alias Rinki has been criticized saying it to be an improvement but the fact that the.32 bore German made Arminius revolver (Exhibit P14) can accommodate seven bullets only and two empties (Exhibit P6 and P7) have been recovered from the spot and seven empties (Exhibits P15 to P21) were found in the revolver when it was opened by the Investigating Officer after its recovery at the instance of the appellant, confirms that the revolver was actually reloaded and firing was resumed. Appellant in his statement under Section 313 of the Code has stated that on coming to know for the first time on the day of occurrence that Rajni had gone to house of Rajesh Kumar alias Rinki, he went there and peeped into the room of the house, which was bolted from inside, and noticed that Rajni and Rajesh Kumar alias Rinki were in compromising position and knocked at the door; Rajni, after putting on her clothes, opened the door; he lost self control and fired upon Rajni and Rajesh Kumar alias Rinki and killed them under grave and sudden provocation and prior to that he did not know that Rajni had illicit relations with Rajesh Kumar alias Rinki and their marriage was never fixed. Ram Pal (DW1) has attempted to support this version saying that on the day of occurrence he had gone to see his brother Manohar Lal who was residing near house of deceased Rajesh Kumar alias Rinki and on hearing a noise when he came out he found that the appellant was knocking at the door of house of Rajesh Kumar alias Rinki and was asking for opening of the door; on being told by the appellant that his daughter Rajni and Rajesh Kumar alias Rinki were lying in compromising position, he also peeped into the room and saw that Rajni and Rajesh Kumar alias Rinki were putting on their clothes; and when Rani opened the door appellant fired upon them. The story does not inspire confidence and seems to be an afterthought and a concoction. It is wholly implausible that it was for the first time that the appellant came to know that Rajni had gone to the house of Rajesh Kumar alias Rinki and followed her carrying a loaded revolver in his hand without even attempting to know the purpose behind her such visit. Equally dubious is the story that Rajesh Kumar alias Rinki indulged in the sex act with Rajni even though his elder brother (Rakesh Kumar alias Tinku-PW1), elder sister in law (Meena Rani-PW2), and mother Asha Rani were present in the house. It is also astonishing that Ram Pal (DW1) could hear the noise (say knocks) and saw the two deceased in compromising position and then being killed by the appellant at or around 10.15 a.m. whereas the occurrence took place at 11.15 a.m. Even otherwise, Rakesh Kumar alias Tinku is not shown to have been confronted with a suggestion that Ram Pal (DW1) had seen the two deceased in compromising position and putting on their clothes. Further, in our conservative and non-permissive society no father would call a third person to witness his own daughter indulging in a sex act. If the story propounded by the appellant is accepted as correct, though argue do, it runs contrary to the plea that the two deceased were killed by the appellant in a fit of rage while deprived of self control because the period that elapsed his first sight of the duo in compromising position and opening of the door by Rajni after Ram Pal (DW1) had also reached there after hearing the noise and had peeped inside the room to see both of them putting on their clothes, was sufficient for a man of ordinary and reasonable prudence to rethink and cool down. Had the appellant barged into the room and fired upon the two deceased immediately on seeing them in objectionable position, his plea of sudden and grave provocation, perhaps, could carry some weight but the circumstances proved on record tell a different story.
It will bear repetition that Rakesh Kumar alias Tinku has picturesquely described the occurrence. His deposition finds invaluable support in the deposition of Meena Rani (PW2), medical evidence and recovery of empties and the revolver used in the occurrence. Occurrence took place at 11.15 a.m. and recording of statement, Exhibit PA, of the complainant was over by 01.00 p.m. and even FIR, Exhibit PC/1, came to be recorded at 01.15 p.m. on January 14, 2005. Even special report reached the learned Jurisdictional Magistrate at 05.30 p.m. on that very day. Prompt recording of the FIR also lends credence to the case of the prosecution because it rules out deliberated and coloured version being substituted for the real story. Presence of holes corresponding to the seats of bullet injuries in the clothes of the two deceased, establish that both of them were wearing the clothes, or say were not naked, when fired upon. Repeated firing even after reloading of the revolver is indicative of premeditated and calculated plan of the appellant to force life out of the bodies of the two victims of his ill design.
Appellant has come out with a plea that he has been suffering from mental derangement. Bal Krishan (DW3) also has stated that the appellant has been suffering from mental diseases and was getting treatment before the occurrence and during his incarceration. However, no medical evidence has been brought forth to substantiate this assertion. During the course of trial an adjournment was sought on his behalf saying that he wanted to move an application (presumably for his medical examination) as he was said to be mentally upset. However, nothing of the sort is shown to have been done. Plea of mental derangement of the appellant, therefore, falls to the ground.
Be that as it may, it is nobody''s case that the two deceased belonged to different castes or that they had defied the social sanction to marry each other. To the contrary, it has come in the evidence of Rakesh Kumar alias Tinku (PW1) that their marriage had been fixed by uncle ("Taya"-elder brother of father) of Rajni. Even invitation cards had been printed and a marriage palace had also been booked. No member of parental family of Rajni has come forward to say that the relationship of Rajni with Rajesh Kumar alias Rinki was not liked by the family. Appellant alone was averse to this relationship. Thus, this cannot be said to be a case of honour killing. It also does not qualify the test of rarest of rare cases so as to invite the extreme penalty of death sentence and the judgment Bhagwan Dass versus State (NCT) of Delhi (supra) is found to be inapplicable to the case in hand.
Resultantly the Criminal Appeal and Criminal Revision fail and are hereby dismissed.