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PETITIONER: SMT. JASWINDER KAUR & ANR

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT26/07/1995

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) MUKHERJEE M.K. (J)

CITATION:  1995 AIR 2327            JT 1995 (5)   532  1995 SCALE  (4)546

ACT:

HEADNOTE:

JUDGMENT:                            J U D G M E N T NANAVATI, J.      This appeal  is filed under Section 14 of the Terrorist Affected Areas  (Special Courts) Act, 1984 against the order of conviction  and sentence  passed by  the  Special  Court, Hoshiarpur, in Case FIR No.103 of 1984.      Appellant No.1  Smt. Jaswinder  Kaur  is  the  wife  of appellant No.2 Shri Jaswinder Singh. Appellant No.2 has been convicted under Section 302 and appellant No.1 under Section 302/34 IPC,  for causing  death of  Surjit Singh, brother of appellant No.2      The prosecution  case was  that Surjit Singh (deceased) Jaswinder  Singh  (accused)  and  Kewal  Singh  were  living together along  with their  parents. Surjit Singh alone used to  manage  the  family  affairs.  This  was  not  liked  by Jaswinder Singh  and therefore  there used  to  be  quarrels between them.  The last  quarrel was  on 24.5.84. On 25.5.84 Surjit Singh  after taking food at about 12.00 noon slept on a cot in dalan of their house. Since some time prior to 2.30 P.M. Raj  Rani, wife  of Surjit  Singh and  his two  sisters Kewal Kaur and Jaswinder Kaur were sitting together on a cot in  the   dalan  and  were  talking  with  each  other.  The appellants were sitting on a separate cot and they were also talking with  each other.  At about 3.30 P.M. appellant No.1 Jaswinder kaur  brought some clothes, gave them to appellant No.2 and  told him  as to what he was waiting for. Appellant No.2 took  those clothes  and got  up from  the cot. He then picked up  an axe  lying in one corner of the dalan and gave two blows on the neck of Surjit Singh. He gave one more blow near his  right shoulder. On cries being raised by Raj Rani, Kewal Kaur  and Jaswinder Kaur the accused ran away from the place. Raj  Rani then  approached Tarsem  Singh, a member of the Panchayat  and along  with him  went  to  Dasuya  Police Station at  a distance of 8 K.M. There she lodged the FIR at 3.30 P.M.

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    Appellant No.1  was tried  for commission of an offence punishable under Section 302/34 IPC and appellant No.2 under Section 302  IPC. Before  the trial  court, the  prosecution mainly relied  upon the evidence of three eye witnesses PW-4 Raj Rani,  PW-5 Kewal  Kaur and  PW-7  Jaswinder  Kaur.  The prosecution also  relied upon  an extra  judicial confession alleged to  have been  made before  PW-6,  Sarwan  Singh,  a member of the Panchayat who was approached by the appellants for producing  them  before  police.  The  prosecution  also relied upon  recovery of  an axe  from appellant  No.2.  The learned Addl.  Judge did  not rely  upon the  alleged  extra judicial confession and the recovery as the evidence in that behalf was  not found  satisfactory. The  learned Addl.Judge did not  believe the  two  defence  witnesses,  DW-1  Mangal Singh, father  of the appellant No.2 and DW-2 Jarnail Singh, brother of  appellant  No.2,  examined  to  prove  that  the appellants were in their field at the relevant time. Relying upon evidence  of the eye witnesses and the medical evidence the learned Addl. Judge convicted both the accused as stated above.      What is  contended  by  the  learned  counsel  for  the appellants is that the learned Addl. Judge ought not to have discarded the  evidence of  the defence  witnesses as  being equally related  to appellant No.2 and the deceased they had no reason  to  tell  what  was  not  true.  It  was  further submitted that  their evidence  establishes  that  both  the appellants were  not present in the house at the time of the incident but were in the field belonging to the family. Both the defence  witnesses deposed  that at  about 2.30 P.M. Raj Rani came  to the  field and informed them that Surjit Singh was lying  dead in  the house. They also stated that she was having illicit  relationship with Kewal Singh, elder brother of the  deceased and  appellant No.2;  and, as  that was not liked by  the appellants,  she was  on inimical  terms  with them. They  also stated that Kewal Kaur was with them in the field thereby  indicating that  she was  not present  in the house when  the incidence  took place.  They further  stated that PW-7 Jaswinder Kaur was at the relevant time at her in- law’s place  and she  was sent  for because  of the death of Surjit Singh.  Both these  witnesses took no steps to inform either the  village people  or the police. They did not make any complaint  to any authority that the two appellants were falsely involved by the police. Apart from the fact that the allegation of illicit relationship is totally denied by PW-4 Raj Rani,  PW-5 Kewal  Kaur and PW-7 Jaswinder Kaur, it does not appear  to be  true for the reason that if it was really so then the parents and other family members would have also reacted to  the same.  It is difficult to appreciate that of all the  family members only the appellants objected and for that reason  PW-4 Raj  Rani would have gone to the extent of falsely involving them for the murder of her husband. Surely the two  sisters PW-5  Kewal Kaur  and PW-7  Jaswinder  Kaur would not have supported her, if the allegation made against her was  true and  their brother had not caused the death of Surjit Singh.  After carefully  considering the  evidence of the defence  witnesses, we are of the opinion that they have deposed falsely  in order  to save the appellants. DW-1, the father having  lost one son (Surjit Singh) obviously did not want to  lose his  other son (appellant No.2) by getting him convicted. So  also DW-2  being the  brother tried  to  save appellant No.2 by deposing like that.      So far  as the  three eye  witnesses are  concerned, we find that their evidence is quite consistent and acceptable. Their presence  in the  house was  natural. PW-4  Raj  Rani, immediately after  the incidence,  contacted  Tarsem  Singh,

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went to the Police Station, and lodged the First Information Report at  Dasuya Police  Station within  an hour.  She  had stated all  the material  facts  in  the  First  Information Report. The  conduct of  this witness  and  promptness  with which the  FIR was lodged make her evidence trust-worthy. In our opinion, the learned Addl. Judge has rightly relied upon her evidence.  The evidence  of PW-5  Kewal  Kaur  and  PW-7 Jaswinder Kaur  does not  suffer from  any serious infirmity and no good reason could be urged by the learned counsel for not relying  upon their evidence. Their evidence establishes beyond any  doubt that  appellant No.2  Jaswinder Singh  had given axe  blows to  the deceased  and he  died as  a result thereof. In  our opinion,  appellant No.2  has been  rightly convicted under  Section 302  IPC for  causing death  of his brother Surjit Singh.      So far as appellant No.1 Jaswinder Kaur is concerned we find that  there is  no sufficient  evidence to  sustain her conviction under  Section 302/34  IPC. What  the evidence of the three eye witnesses establish is that immediately before the incident  she had whispered something in the ears of her husband, appellant  No.2, had  given him  a  bundle  of  new clothes, and  had told  him as  to what  he was looking for. From this  evidence it  cannot  be  inferred  that  she  had incited him  to commit  the murder  of his  brother. All the three eye  witnesses have stated that she had given a bundle of new  clothes to her husband before telling him as to what he  was  waiting  for.  This  would  indicate  that  in  all probability she wanted him to leave the house as she and her husband did not like the importance given to the deceased in the matter of their house-hold management. Therefore, we are of the  opinion that  her conviction under section 302/34 is not at all proper and that she deserves to be acquitted.        In  the result,  the appeal  is partly  allowed.  The conviction of  appellant No.2  and  the  order  of  sentence passed against  him are  confirmed and  to that  extent  the appeal is  dismissed. The  conviction of  appellant No.1 and the order  and sentence passed against her are set aside and to that  extent the appeal is allowed. As she is on bail her bail bonds are ordered to be cancelled.