Sunita vs State of Haryana

M.Jeyapaul, J.—This judgment shall dispose of Crl. A. No. 169-DB of 2008, Crl. A. No. 369-SB of 2008 and Crl. A. No. 2006-SB of 2008, as all these appeals arise out of common impugned judgement of conviction and sentence passed by trial Court. Accused Parveen son of Nikka Ram and accused Sita Ram were convicted u/s 201 IPC and accused Sunita was convicted u/s 302 and 201 IPC. Aggrieved by the judgement of conviction and sentence passed by the trial Court they have preferred independent appeals.

Sh. Sukhdev Parmar who entered appearance for the accused-appellant Sita Ram was appointed as Amicus Curiae for the other two accused-appellants also, as no counsel on their side was prepared to argue the case.

The brief case of the prosecution is as follows:-

a) PW1 Nehru Lal, PW2 Jai Narain and Raja Ram (since deceased) are brothers. Accused-appellant Sunita was married to Raja Ram. She gave birth to two sons, namely, Ravi aged 11 years and PW12 Parveen aged 9 years. Raja Ram constructed a house in village Chhatargarh and resided alongwith his wife and sons for about 4 years prior to the occurrence. There had been constant quarrel between Raja Ram and Sunita as Sunita was a lady of bad character. Raja Ram attempted to prevent her from indulging in such activities. Accused Sita Ram resident of village Jodhka started residing in the house of Raja Ram as tenant about 4 months prior to the occurrence. Accused Parveen son of Nikka Ram used to visit Sunita.

b) On 12.6.2006, at about 8.00 a.m. PW1 came to know about the death of his brother Raja Ram. Accompanied by his villagers he proceeded to the house of Raja Ram, having come to know that the dead body of his brother Raja Ram was put in a septic tank of latrine constructed in the house of Raja Ram.

c) PW1 proceeded to the police station and submitted an application (Ex. P1). PW13 Inspector Hari Kailash, SHO of Police Station City Sirsa recorded a formal FIR. PW13 inspected the place of occurrence and prepared a rough site plan (Ex. P18) in the presence of PW1 and his brother Mahender.

d) On 13.6.2006, PW13 arranged JCB machine and dismantled the pit of the septic tank of the latrine and retrieved the dead body of Raja Ram. A photographer was engaged to take photographs of the dead body. He also held inquest and prepared inquest report (Ex. P2).

e) PW10 Dr. Luv Sharma conducted post mortem examination on the dead body of Raja Ram. The dead body emitted an offensive and foul smell. Except the temporal and occipital region of scalp, the skin peeled off. Facial features were distorted and blotted. Eye balls were putrefied and protruding out. Mouth was apart with putrefied tongue protruding out. He found reddish diffused contusion over fronto-parietal and right temporal area of scalp, right ramus of mandible and left side neck. He opined that deceased Raja Ram had died due to head injuries which were ante-mortem in nature. The deceased had received an impact from a blunt object. He had also been throttled (manually strangulated). Vicera was preserved and sent for chemical examination. The probable time that elapsed between injuries and death was immediate and between death and post mortem examination was about 2-3 days.

f) The accused persons came to PW9 Narender Kumar Bajaj, Municipal Councillor and made extra-judicial confession in the presence of PW11 Hans Raj admitting the crime of murder of Raja Ram. PW9 and PW11 took all the three accused-appellants to the police station and produced them before PW13. PW13 arrested all the three accused and interrogated them one by one in the police station. Accused Sunita suffered disclosure statement Ex. P3 based on which a hammer Ex. P7 was recovered. The place of occurrence and the place where the dead body was dumped were pointed out by the accused. PW12 Master Parveen son of the deceased as well as Sunita has spoken to the fact that he witnessed his mother Sunita having administered some poisonous substance to him, attacked him with hammer and caused his death. Thereafter, she called the other two accused, namely, Parveen and Sita Ram and disposed of the dead body in the septic tank of the latrine. After completing the investigation, final report was laid as against all the accused.

g) In the statement u/s 313 Cr.P.C., accused Sunita has set up a plea that she had been to Rajasthan at the time when the occurrence took place. In other words, she set up a plea of alibi. The other accused pleaded that they were falsely implicated in this case.

The trial Court having relied upon the extra-judicial confession alleged to have been given by all the three accused to PW9 Narender Kumar Bajaj in the presence of PW11 Hans Raj and the ocular testimony of PW12 Master Parveen in the background of the medical evidence and the recovery of the material object, recorded conviction as against the accused-appellants as stated supra.

Learned counsel appearing for the accused-appellants would vehemently submit that the extra-judicial confession alleged to have been given by accused-appellants in the presence of PW11 does not inspire confidence, inasmuch as PW9 Narender Kumar Bajaj before whom the extra-judicial confession was allegedly given by accused turned completely hostile to the case of the prosecution. Undue importance was given to the evidence of PW12 Master Parven inspite of the fact that he had admitted in unambiguous terms that he was completely tutored by PW2 Jai Narain his paternal uncle. The place where the dead body was retrieved was also known to PW1 and therefore, the disclosure statement which allegedly led to the discovery of the place where the dead body was disposed of is not admissible in the evidence. Neither the disclosure statement nor the recovery of hammer could be relied upon by the Court, inasmuch as no independent witness was examined by the prosecution to establish it. There is an inordinate delay of 12 hours in lodging the FIR by PW1. The trial Court has simply convicted all the three accused based on mere conjectures. Therefore, it is his submission that all the three accused are entitled to acquittal.

Learned Addl. A.G., Haryana and learned counsel appearing for the complainant would vehemently submit that the extra-judicial confession given by all the three accused to PW9 in the presence of PW11, the ocular testimony of PW12 Master Parveen, the retrieval of the dead body from the septic tank of the latrine based on the information furnished by the accused and recovery of hammer at the instance of accused Sunita based on her disclosure statement would clinchingly establish that accused Sunita has committed the murder and all the three accused including Sunita screened the evidence by putting the dead body in the septic tank of the latrine.

We thoroughly scanned the entire evidence on record as well as the judgement pronounced by the trial Court in the background of the above submissions made by counsel on either side.

First let us take up the alleged ocular testimony spoken to by PW12 Master Parveen. PW12 who was just 9 years of age has spoken during the course of chief examination that his mother having drugged his father with liquor and poppy straw attacked him with a hammer on his head and caused his death. Thereafter, she secured the presence of other two accused, Sita Ram and Parveen son of Nikka Ram and disposed of the dead body in the septic tank of the latrine. He has further deposed during the course of chief-examination that he infact saw the whole occurrence. But during the course of cross-examination, the cat was out of the bag. He came out with a true version that he was completely tutored by his uncle PW2 Jai Narain, both during the course of giving statement before the Judicial Magistrate u/s 164 Cr.P.C. and also before the trial Court as eye witness. He was categoric that he deposed before the trial Court in accordance with the tutoring of his uncle. Whatever his uncle had told him was reproduced by him before the Court. To top it all, he has confessed that he personally did not know anything about the case. Anyway, he has denied the suggestion that he had been named as a witness in the present case at the instance of his uncle.

The trial Court having simply outstretched the denial of the suggestion made to PW12 that he had been named as a witness in the present case at the instance of his uncle chose to give a go-by to the negative version emanated from PW12 and blindly accepted the tutored version of PW12 as figured in his chief-examination. In our considered view, the trial Court was not justified in accepting a tutored version of PW12 who was just 9 years old. The evidence of PW12 is found to be a trash which cannot be a potential stuff to haul-up the accused. In our considered view, PW12 had been brought up and tutored by PW12 Jai Narain to frame a case as against Sunita, the mother of PW12. We do not find any reason to accept the evidence of PW12 as ocular testimony.

Having rejected the ocular testimony of PW12, let us now turn to the alleged extra-judicial confession given by accused before PW9 Narender Kumar Bajaj in the presence of PW11 Hans Raj. It is to be noted that PW9 Narender Kumar Bajaj, Municipal Councillor had completely distanced himself from the alleged extra-judicial confession given by the accused to him during the course of trial. He has turned hostile to the case of the prosecution. But PW11 Hans Raj figures as a witness to such an extra-judicial confession alleged to have been given by the accused to PW9 Narender Kumar Bajaj.

The evidence of PW11 Hans Raj will have to be put to acid test before ever his testimony is accepted by the Court of law.

Let us now take up his evidence to analyse whether his evidence passes the test of credibility. Of course, he has deposed that accused Sunita alongwith the other two accused came to the house of Narender Kumar Bajaj and confessed the murder of his husband after administering the seeds of poisonous plant. He also spoke to the effect that the accused confessed that dead body was disposed of in the septic tank of the latrine. In the chief-examination he had not deposed anything about the purpose of his trip made to the house of PW9 Narinder Kumar Bajaj located about 35 kms away from his village. But during the course of examination, he has stated two contradictory aspects with respect to the purpose of his visit to the house of PW9. At the first instance he has deposed that he came to the house of PW9 to invite him to the marriage of his cousin. Again he said that he had visited Sirsa on that particular day only to extend invitation card to one Dharma of his village who happened to reside at Sirsa. He would categorically admit that he had no work with Narender Kumar Bajaj on that day. Very curiously he would depose that he did not even remember the date of marriage of his cousin. Nor did he know the name of the fatherin- law of his cousin. PW11 has deposed during the course of examination that he was infact sitting in the street outside the house of Narender Kumar Bajaj at the time when the confession was made by the accused before Narender Kumar Bajaj. If the entire evidence of PW11 is thoroughly scanned, one can come to a reasonable conclusion that he was infact close to PW1 and PW2 and not to PW9.

Firstly, PW9 has completely given a go-by to the case of the prosecution that the accused infact made an extra-judicial confession to PW9. PW11 was not related to PW9. Further PW11 had come out with a contradictory version as to the purpose of his visit to Sirsa. No sane person would confess the crime he committed in the presence of a stranger, namely, PW11 Hans Raj. Further it is found that PW11 Hans Raj having completely forgotten the purpose of his visit associated himself throughout the investigation process embarked upon by the investigating official. We really doubt the version of PW11 Hans Raj in the above facts and circumstances. It would be highly improper to rely upon such a rickety evidence of PW11 as to the alleged extra-judicial confession given by the accused and convict the accused. In our view, the trial Court without diving deep into the credibility of the testimony of PW11 simply relied upon the extra-judicial confession alleged to have been given by the accused in the presence of PW11.

It was vehemently submitted that dead body of Raja Ram was detected from the septic tank of the latrine in the house of Raja Ram only on the basis of the disclosure statement made by the accused. A bare perusal of the first information report lodged by PW1 would amply demonstrate that not only PW1 and the investigating officer PW13, but the entire village has come to know that the dead body was lying in the septic tank of the latrine of the house of Raja Ram. It is a trite law that u/s 27 of the Evidence Act only that portion of the statement of the accused which leads to the discovery of fact alone is admissible in evidence. The fact which had already come to the notice of the investigating agency cannot be said to be a fact discovered solely based on the disclosure statement given by accused u/s 27 of the Evidence Act. Applying the above principle of law, we hold that the alleged disclosure statement made by accused which purportedly led to the discovery of the dead body does not stand legal scrutiny. Therefore, the prosecution also cannot rely upon the disclosure statement which allegedly led to the recovery of the dead body.

It is projected by the prosecution that based on the disclosure statement given by accused Sunita, a hammer alleged to have been used by her to attack her husband was recovered from the place which was exclusively in her knowledge. Firstly, no independent witness was examined by the prosecution to establish such a disclosure statement made by accused Sunita and the recovery of hammer that followed. The investigating official has banked on the assistance of PW2 Jai Narain who was the man behind the entire prosecution alongwith his brother PW1 Nehru Lal. The discussion made by us earlier would demonstrate that it was PW2 Jai Narain who had tutored PW12 to depose as though he was an eye witness to the occurrence. Further an important recovery of weapon of offence cannot be established through the interested witness, namely, PW2 Jai Narain, the brother of the deceased.

In addition to the above, we find that PW3 Moharar Head Constable has never deposed that the hammer which was recovered by PW13 was deposited with him for safe custody. In other words, PW13 had not cared to deposit the important material object in safe custody. Even assuming for the sake of arguments that hammer was recovered at the instance of accused Sunita, inasmuch as there was no bloodstains found on the hammer to connect accused Sunita with hammer, the recovery of hammer pales into insignificance. It would be highly unsafe to record conviction based on such recovery which did not connect the accused to the crime.

The prosecution could not explain as to how the dead body was retrieved from the septic tank of the latrine with the help of JCB without causing any damage to the compound wall of house of Raja Ram. Firstly, it is highly doubtful whether the earth digging machine could have been waded through 16 feet wide road running in front of the house of Raja Ram. Secondly we find that it is highly impossible to break the septic tank and retrieve dead body therefrom by JCB without causing any damage to the compound wall of the house of Raja Ram. PW8 Mohan Lal, Draftsman never pointed out such a damage which was caused to the compound wall by the JCB, during the course of retrieval of dead body from the septic tank. Unfortunately the photographer who allegedly took photographs of the scene of occurrence also was not examined. Nor were the photographs taken by him exhibited through PW13. Therefore, it is highly doubtful that dead body of Raja Ram was retrieved from the septic tank of the house of Raja Ram by employing JCB.

It is true that some motive has been attributed by PW1 as against Sunita. She had a loose character as per the version of PW1. No one was examined to support such a damaging version of PW1. Even assuming that motive has been established by the prosecution as against Sunita, mere motive established by the prosecution is not sufficient to convict an accused. The dead body might have been retrieved from the very septic tank of the house of Raja Ram where accused Sunita lived alongwith him as his wife. We also find that the alibi set up by accused Sunita was not established by her. A false defence was set up that she was away at the time when the occurrence took place. The above aspect may give rise to the suspicion that she had a role in the murder of her husband, but suspicion, however strong it may be, cannot take the place of proof.

PW1 has come to know of the occurrence at 8.00 a.m. on 12.6.2006. But unfortunately, the FIR was lodged at 8.30 p.m. on the said day with a delay of more than 12 hours. No explanation was forthcoming from the prosecution to explain such a whopping delay. In our considered view, the delay has been used to weave and concoct the story to the convenience of the prosecution.

We find that the trial Court having failed to appreciate the entire evidence on record in proper perspective chose to wrongly record conviction based on mere surmises. The accused-appellants have made out a case for interference with the verdict of the trial Court. The accused are entitled to acquittal as the offences framed against them were not established beyond reasonable doubt.

In view of the above, the judgement of conviction and sentence passed by the trial Court as against all the three accused-appellants, namely, Parveen son of Nikka Ram, Sita Ram and Sunita is set aside. They are acquitted of the charges framed as against them.

Accused Sunita is undergoing sentence. She be set at liberty if her custody is not required in connection with any other case. The bail bonds executed by accused Parveen son of Nikka Ram and Sita Ram stand discharged. All the three appeals are allowed.