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CASE NO.: Appeal (crl.)  1388 of 2007

PETITIONER: GURDEV RAJ

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 09/10/2007

BENCH: C.K. THAKKER & DALVEER BHANDARI

JUDGMENT: J U D G M E N T ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 1435 OF 2007

C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal is filed by the  appellant-accused against the judgment and  order passed by the Sessions Judge, Amritsar on  August 12, 2002 in Sessions Case No. 53 of 1999  convicting him for an offence punishable under  Section 302 of the Indian Penal Code (IPC) and  confirmed by the High Court of Punjab and  Haryana at Chandigarh on August 10, 2005 in  Criminal Appeal No. 789-DB of 2002. 3.              The case of the prosecution was that  one Rajani Bala\027PW4 was married to appellant  Gurdev Raj before about one year of the  incident which took place on July 5, 1999.  According to the prosecution, relations between  Rajani Bala and her husband Gurdev Raj\027 appellant herein were not cordial. The  appellant was doing labour work. He, however,  used to pick up quarrels with his wife Rajani  Bala over petty matters. Because of frequent  quarrels, Rajani Bala was taken by her father  at her parental home, Amritsar. An application  was also made to the Women Cell, Taran Taran  against the appellant. 15 to 20 days prior to  the date of incident, because of intervention  of Assistant Sub-Inspector\027Rajwinder Kaur, In- charge, Women Cell, a compromise was entered  into between the parties, i.e. the appellant- accused and the father of Rajani Bala. Pursuant  to the said compromise, Rajani Bala went back  to her husband\022s house. Before about a week of  the incident, Rajani Bala had again gone to the  house of her parents at Amritsar with the  consent of the appellant. On July 5, 1999, a  message was received by Rajani Bala from her  husband (appellant herein) that he was not  well. PW4-Rajani Bala (wife of the appellant- accused), PW1-Pooja (brother\022s wife of Rajani  Bala) and Bhushan Lata (mother of Rajani Bala  and mother-in-law of the appellant-accused)  (since deceased) came to Taran Taran to enquire  about the health of the appellant. It was said  that in the evening of that day, a quarrel  ensued between Rajani Bala and her mother

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Bhushan Lata on the one side and the appellant  Gurdev Raj on the other side. The appellant got  angry and picked up an iron mungli lying inside  the room and administered blows on the head of  Bhushan Lata (his mother-in-law). As a result  of those injuries, Bhushan Lata died. It was  about 6.30 p.m. 4.              According to the prosecution, both  Rajani Bala and Pooja raised hue and cry, but  no body from the neighbourhood came to their  rescue as they were aware of strained relations  between the husband and wife. Gurdev Raj,  taking mungli with him, fled away in the  meanwhile. Both the ladies got frightened, they  left the dead body of Bhushan Lata in the house  itself, locked the house and went back to  Amritsar to inform Janak Raj, husband of the  deceased Bhushan Lata, father of Rajani Bala  and father-in-law of Pooja. They reached  Amritsar at night. Janak Raj was not in the  house at that time. He came back quite late at  night and at that time he was told about the  incident by both the ladies. Since it was very  late, they could not come back to Taran Taran.  On the next day i.e. on July 6, 1999, Rajani  Bala, along with her father, went to Taran  Taran in the morning. Rajani Bala\022s statement  was recorded by PW9-Baldev Singh, Sub- Inspector/Station House Officer, on the basis  of which formal First Information Report (FIR),  Ex.PD/2, was registered at about 11.25 a.m.  Special report was thereafter sent to Ilaka  Magistrate which was received by the Magistrate  at about 1.00 p.m. Usual investigation was  made. The case was committed to the Sessions  Court. Charge for an offence punishable under  Section 302, IPC was framed. The accused  pleaded not guilty and claimed to be tried. 5.              The prosecution, in order to establish  the guilt of the accused, inter alia, examined  PW4-Rajani Bala, wife of appellant accused, as  eye-witness. She was also the informant as well  as the complainant. PW1-Pooja was another eye- witness. PW5-Dr. Tejwant Singh, Medical  Officer, Civil Hospital, Taran Taran proved  injuries sustained by the deceased.  He had  performed post mortem. Other police witnesses  were also examined. 6.              In defence, the appellant examined one  Naresh Kumar Soni, Advocate as DW1, Rajesh  Sharma, Tehsildar as DW2 and Amarjit Singh,  Reader to Tehsildar as DW3. 7.              The trial Court, on the basis of  evidence of PW4-Rajani Bala and PW1-Pooja, eye- witnesses to the incident, came to the  conclusion that both the witnesses were  reliable and truthful witnesses and they had  seen the incident. In their presence, the  appellant-accused caused injuries to deceased  Bhushan Lata which were proved fatal and she  died of those injuries.  There was no reason to  disbelieve them. The Court also held that the  injuries were proved by the evidence of PW5-Dr.  Tejwant Singh. The deceased sustained three  injuries.  Injury Nos. 1 and 2 were sufficient

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in the ordinary course of nature to cause  death. The weapon used was an iron mungli. The  appellant was responsible for causing death of  deceased Bhushan Lata.   He thereby committed  an offence punishable under Section 302, IPC.  The Court also held that it was not proved that  affidavits were filed by PW4-Rajani Bala (Ex.  DC) and PW1-Pooja (Ex. DB) that the appellant- accused had not committed the offence in  question and hence defence version and the  evidence of DW1-Naresh Kumar Soni, Advocate  practising in District Court, Amritsar, DW2- Rajesh Sharma, Tehsildar, Amritsar and DW3- Amarjit Singh, Reader to Tehsildar was of no  help to the appellant. Accordingly, the  appellant was held responsible for causing  death of deceased Bhushan Lata. After recording  an order of conviction, an opportunity was  afforded to the appellant on the question of  sentence and after hearing the parties, the  Court observed that the accused was a poor man  and was the only bread winner in the family. He  prayed for mercy and keeping in view the  entirety of facts, the Court felt that it was  appropriate if the accused would be ordered to  undergo imprisonment for life and to pay fine  of Rs.500/- and in default of payment of fine  to further undergo rigorous imprisonment for a  period of three months. Accordingly, an order  was passed by the trial Court. 8.              Being aggrieved by the order of the  trial Court, the appellant preferred appeal  before the High Court of Punjab and Haryana and  the Division Bench of the High Court upheld the  order observing that no illegality was  committed by the trial Court in convicting the  appellant and sentencing him. Accordingly, the  appeal was dismissed by the High Court. 9.              Notice was issued by this Court on  March 9, 2007 and we have heard learned counsel  for both the sides. 10.             The learned counsel for appellant  submitted that both the Courts were in error in  holding the appellant guilty of an offence  punishable under Section 302, IPC. It was  submitted that there was gross and unexplained  delay in filing the FIR which went to the root  of the matter and the appellant was entitled to  acquittal. It was also submitted that neither  Rajani Bala-PW4 nor Pooja-PW1 could be said to  be an eye-witness. They were subsequently  brought by the prosecution to give evidence to  support the case against the appellant. There  were material contradictions in their evidence  which went to show that they had not seen the  incident and their evidence, therefore, could  not have been relied upon. It was also urged  that according to the prosecution case, the  incident took place at about 6.30 p.m. in a  locality where several houses were there and  neighbours were staying in those houses. In  spite of that, no independent witness had been  examined by the prosecution and two closely  related persons, one being daughter of the  deceased and the other being daughter-in-law of

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the deceased, were brought before the Court.  Their evidence could not have been relied upon  by the Courts below in absence of material  corroboration from independent witnesses,  particularly when such evidence could have been  adduced by the prosecution. A grievance was  also made that both the Courts were in error in  not relying upon the affidavits said to have  been sworn by PW4-Rajani Bala and PW1-Pooja.  The Courts ought to have considered those  affidavits, particularly, when in support of  such affidavits, the appellant examined three  witnesses who were not in any way connected  with the appellant-accused; DW1-Naresh Kumar  Soni, an Advocate, DW2-Rajesh Sharma and DW3- Amarjit Singh, Tehsildar and Reader to  Tehsildar respectively. They were neither  relatives of the accused nor they had any axe  to grind against the prosecution. Their  evidence, therefore, ought to have been relied  upon. By not doing so, the Courts had acted  illegally and were in error in convicting the  appellant. Finally, it was submitted that even  according to the prosecution, relations between  Rajani Bala and the appellant, (husband and  wife), were strained. There were frequent  quarrels. The Assistant Sub-Inspector of Women  Cell had to intervene and a compromise was  arrived at. Even on July 5, 1999, there was  altercation between Rajani Bala and the  deceased on the one side and the appellant on  the other side. In the circumstances, the case  could not be said to be covered by Section 302,  IPC and at the most, it would fall within  Section 304, Part II or Part I, IPC and to that  extent, the appeal deserves to be allowed. 11.             The learned counsel for the  respondent-State, on the other hand, supported  the order passed by the trial Court. He  submitted that both the Courts were right in  holding the appellant guilty of offence of  murder and no interference is called for. He  also submitted that all the contentions raised  by the appellant in this Court had been raised  before both the Courts and were negatived by  them. He, therefore, submitted that the appeal  deserves to be dismissed. 12.             Having heard learned counsel for the  parties, in our opinion, the appeal deserves to  be partly allowed. So far as the incident is  concerned, it cannot be said that by believing  evidence of PW4-Rajani Bala and PW1-Pooja,  either the trial Court or the High Court had  committed any error of fact or of law. Both the  witnesses had stated that pursuant to  information received from the appellant on July  5, 1999 that he was not keeping good health,  they proceeded from Amritsar to Taran Taran  along with deceased Bhushan Lata. Both of them  deposed that quarrel ensued between Rajani Bala  and Bhushan Lata on one side and the appellant- accused on the other side and appellant-accused  caused injuries to Bhushan Lata. 13.             As far as delay in lodging FIR, both  the Courts, in our opinion, were right in

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holding that delay had been properly explained.  The incident took place at about 6.30 p.m. at  Taran Taran.  Both the ladies were obviously  very much frightened. They raised hue and cry  but no body from the neighbouring locality came  there. The accused ran away. They, in the  circumstances, locked the house and went to  Amritsar to inform Janak Raj but he was not  available. He came back late at night and it  was not possible thereafter to go to Police  Station. Obviously, therefore, on the next day  morning i.e. on 6th July, 1999, they went to  the Police Station and lodged FIR at about  11.25 a.m. In our opinion, therefore, it could  not be said that there was unexplained delay on  the part of the prosecution in lodging FIR. It  was immediately forwarded to the Magistrate.   It was not a case wherein independent witnesses  were present who had seen the incident and yet  they were kept back by the prosecution and were  not examined. The evidence clearly shows that  hue and cry was raised by both the ladies but  no body came forward, presumably because they  were aware of frequent quarrels between husband  and wife.  Moreover, they did not want to  unnecessarily indulge in the matter. If it is  so, obviously there was no question of non  examination of witnesses.  In any view of the  matter, no body was present at the time of  incident. Therefore, the prosecution cannot be  blamed for not examining an independent witness  from the neighbourhood so far as the actual  incident is concerned. 14.             It also cannot be said that since  Rajani Bala and Pooja were closely related to  deceased Bhushan Lata, their version could not  have been believed. In our opinion, the trial  Court was wholly right in holding that Rajani  Bala and Pooja were no doubt relatives of the  deceased but they could not be termed as  \021interested\022 witnesses. The Court was also  right in further stating that close relatives  would be most reluctant to spare the real  assailant and would falsely implicate an  innocent person. After seeing the demeanour of  witnesses, the trial Court believed both of  them. The High Court again considered their  evidence and confirmed the finding recorded by  the trial Court. We see no infirmity in the  approach of the trial Court as well as of the  High Court. It, therefore, cannot be said that  by believing these two witnesses, any  illegality was committed by the Courts below. 15.             We are also not impressed by the  argument of the learned counsel for the  appellant that the so called affidavits said to  have been filed by Rajani Bala and Pooja could  have been relied upon for acquitting the  appellant-accused. Both the Courts have  considered this aspect and negatived the  argument advanced on behalf of the appellant- accused. From the evidence of all the three  defence witnesses, it was clearly established  that they had not identified that the  affidavits were sworn by PW4-Rajani Bala and

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PW1-Pooja. The Courts were also right in  holding that the affidavits were sworn on May  22, 2000 whereas the substantive evidence of  both the witnesses was recorded on oath in  Court on August 17, 2000 (PW1-Pooja) and April  11, 2001 (PW4-Rajani Bala). The alleged  affidavits were thus prior in point of time.  They were said to have been executed outside  the Court.  Substantive evidence of these  witnesses in Court subsequent to the date of  affidavits was rightly referred to and relied  upon by the Courts. Even that aspect,  therefore, does not help the appellant. 16.             But so far as the nature of offence is  concerned, in our opinion, there is substance  in what the learned counsel for the appellant  urged. As is clear, even according to the  prosecution, there were frequent quarrels  between the husband and wife. Rajani Bala had  left matrimonial home and was staying with her  parents. An application was filed with Women  Cell and due to intervention of Rajwinder Kaur,  Assistant Sub-Inspector, In-charge of Women  Cell, compromise had been recorded and Rajani  Bala had gone to matrimonial home. Thereafter,  she had again gone to her parental home and on  the date of incident, because of telephonic  call by the appellant that he was not well that  she along with her mother and brother\022s wife,  went to see the appellant-accused. There also  there was altercation between the parties.  According to the evidence of PW5-Dr. Tejwant  Singh, three injuries were sustained by the  deceased.  Out of three injuries, injury Nos. 1  and 2 were sufficient in the ordinary course of  nature to cause death. The High Court, in the  impugned judgment, has observed that both the  injuries could be caused \023with one blow\024. If it  is so, in our opinion, taking into account  totality of facts and circumstances, it can be  said that the appellant had committed an  offence punishable under Section 304, Part I,  IPC. His conviction, therefore, ought to have  been under the said provision and not for an  offence of murder, punishable under Section  302, IPC. 17.             For the foregoing reasons, the appeal  deserves to be partly allowed. So far as  conviction recorded against the appellant for  causing death of deceased Bhushan Lata is  concerned, there is no infirmity and both the  Courts were right in coming to the conclusion  that it was the appellant who had caused the  death of the deceased. But, in view of totality  of circumstances, in our opinion, the appellant  ought to have been convicted by the Courts  below for an offence punishable under Section  304, Part I and not under Section 302, IPC. The  appeal is, therefore, partly allowed and  conviction of the appellant for an offence  punishable under Section 302, IPC is converted  to an offence punishable under Section 304,  Part I, IPC and he is, therefore, ordered to  undergo rigorous imprisonment for ten years. 18.             The appeal is accordingly allowed to

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the extent indicated above.