Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 569 of 2014, Judgment Date: May 29, 2015

Insofar as circumstances leading to connecting the appellant with  the  said
murder are concerned, following evidence has come on record:
(i)  Brother of the deceased i.e. PW-9 had seen  the  appellant  working  in
the fields which are adjacent to the fields of victim's family where  Sunita
had gone to collect Barseem.
(ii)  The appellant was keeping an evil eye on the deceased.
(iii)  The  sickle,  weapon  used  in  the  murder,  was  recovered  on  the
disclosure statement made by the appellant and at his instance.
(iv)  The deceased was wearing earrings and dhol which were  also  recovered
from the appellant.

                 If the aforesaid aspects are  treated  to  have  been  duly
proved, in our  opinion,  they  form  a  complete  chain  of  circumstantial
evidence unequivocally pointing out accusing finger at the  appellant. 

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 569 OF 2014


|PREM SINGH                                 |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF HARYANA                           |.....RESPONDENT(S)           |


                               J U D G M E N T

A.K. SIKRI, J.
                 The appellant herein is convicted  for  committing  offence
under Section 354, 302, 404 of the Indian Penal Code by  the  Session  Court
vide judgment and conviction dated 11.09.2001 followed by order of  sentence
dated 13.09.2001.  His conviction and sentence has been upheld by  the  High
Court vide judgment dated 12.07.2010  and  it  is  this  judgment  which  is
impugned in the present proceedings.

Unfolding the prosecution case, we find that  Jaibir  (PW-12),  complainant,
who is the father of deceased Sunita, had made  a  complaint  at  PS  Sadar,
Hansi stating that he  was  an  agriculturist  and  had  two  sons  and  one
daughter (Sunita).  He had married his daughter, who was aged  24-25  years,
to one Rajesh, s/o Chhanna, at Village Dhantan, Hisar.  She had come to  the
parental house about 8-9 days prior to the incident  and  was  staying  with
the complainant.  On 03.03.1999 at about 9/10 a.m., she went  to  the  field
to bring Barseem (green fodder) but did not return till  3/4  p.m.  on  that
day.  Then, complainant's daughter-in-law Murti (PW-8) went to the field  to
look for Sunita.  When she reached there, she found  Sunita  lying  dead  in
the field of Barseem.  There was a cut mark on the left side of the neck  of
deceased.  Murti returned home and informed the complainant about the  same.
 After hearing the news of the death of  Sunita,  the  complainant  and  his
brother Mahavir and one Chhajju, s/o Buta, went to the field and they  found
dead body of Sunita lying there with cut mark on her neck.   The  blood  had
oozed out and there was one teeth bite mark on her right  cheek,  which  was
an  indication  that  some  unknown  person  had  tried   to   molest   her.
Complainant then lodged the complaint.

FIR was registered on the basis of the said  complaint  and  police  started
investigation.  The blood stained earth and a pair of  chappels  were  taken
into possession from the spot.  Rough  site  plan  regarding  the  place  of
occurrence Ex.  PO  and  inquest  report  were  prepared.   Thereafter,  the
statement of certain witnesses in the case were  recorded  wherein  name  of
the appellant surfaced as a suspect.  The post mortem on the  dead  body  of
Sunita was conducted in the General Hospital, Hansi.   The  clothes  of  the
deceased and other parcels were handed over by the doctor  after  conducting
post mortem report.

The appellant, Prem Singh, was arrested on 07.03.1999 who made a  disclosure
statement Ex.PJ on 08.03.1999.  After the disclosure statement,  a  pair  of
earrings and one dhol (jewellery article of gold which is  worn  around  the
neck of the  women)  and  sickle  was  recovered  at  the  instance  of  the
appellant.  Site plan Ex.PR was prepared regarding place  of  recovery.   On
the same day, one Balraj was also arrested.  With this  exercise  undertaken
by the police, the investigation was completed.   A  challan  under  Section
173 Cr.P.C. was filed  before  the  concerned  Area  Magistrate.   The  Area
Magistrate sent the challan after observing  the  formalities  and  produced
before the trial court.

The charges under Sections 302, 404 and 354 of IPC were framed  against  the
accused Prem Singh. Charges were also framed against  accused  Balraj  under
Section 109 read with Section 302 of IPC.  The  trial  court  examined  PW-1
Jagdish Chander Assistant Sub Inspector, PW-2 Ramji Das  Patwari,  PW-3  Dr.
O.P. Charaya, PW-4 Head Constable Subhash, PW-5 Kharati Lal  Sub  Inspector,
PW-6 Krishan Kumar Assistant Sub Inspector, PW-7 Ramesh Kumar Constable, PW-
8 Murti Devi, wife of Sushil Kumar, PW-9 Sushil Kumar son of  Jaibir,  PW-10
Subhash son of Balbir Singh, PW-11 Shamsher Singh  Constable,  PW-12  Jaibir
Singh son of  Chandgi Ram, PW-13 Mahabir son of Chandgi Ram,  PW-14  Shivdan
Singh Inspector.  After  completion  of  the  evidence  of  the  prosecution
witnesses,  the  statement  of  the  appellant/accused  was  recorded  under
Section 313 Cr.P.C., wherein the appellant pleaded that he was innocent  and
falsely framed in the case.

The learned Additional Sessions Judge, after hearing the arguments  of  both
the counsel and  going  through  the  record  of  the  case,  delivered  his
judgment dated 11.09.2001, finding the appellant guilty  of  offences  under
Section 302, 404 and 354 of IPC and sentenced him  on  13.09.2001.   Accused
Balraj was acquitted.  Appellant was convicted  for  life  imprisonment  and
fine was imposed of Rs.2,000/- for committing the offence under Section  302
of IPC.  In default of payment  of  fine,  the  appellant  was  directed  to
undergo rigorous imprisonment for a period of four months.   For  committing
the offence punishable under Section 404 IPC, he was sentenced  to  rigorous
imprisonment for a period of two years and was directed to  pay  a  fine  of
Rs.500/-, in default to serve for one month.   For  committing  the  offence
under Section 354 of IPC he was sentenced to undergo  rigorous  imprisonment
for a period of one year.

In appeal, the High Court has, vide  impugned  order  dated  judgment  dated
12.07.2010,  affirmed  the  aforesaid  conviction  and   sentence,   thereby
dismissing the appeal.  From the evidence of PW3, Dr. O.P.  Charya,  Medical
Officer, General Hospital, Hansi who conducted the post mortem on  the  dead
body of Sunita, it becomes apparent that the  cause  of  death  was  due  to
hemorrhage and shock and injury No.1 in the post mortem report i.e.  incised
wound on the neck anteriorly 10” x 25” into muscle deep  extending  latterly
on both the sides and more towards the  left  side  along  with  cutting  of
trachea, oesophagas all the major vessels starno claido  mastoid  muscle  on
the left side was sufficient to cause the death in  due  course  of  nature.
According to PW-3, there was a  possibility  of  subjecting  the  victim  to
sexual intercourse before murder.   He  admitted  in  his  cross-examination
that as per the report of chemical examiner Ex.PD semen was not detected  on
the pubic hair and swabs.  However, he opined that it is  not  necessary  in
every case that semen must be detected on the swabs as  it  depends  on  the
discharge of semen.  He also stated that in the present case, the semen  was
discharged and it was detected on the salwar of the deceased.

Though,  the  appellant  has  questioned  the  opinion  of  PW-3  about  the
possibility of sexual intercourse before murder, it  is  not  disputed  that
Sunita had died unnatural death which was the result of murder.  It is  also
not a case where there is  any  eye-witness.   It  becomes  clear  from  the
narration  of  prosecution  story  that  it  is  a  case  of  blind  murder.
Therefore, the only question to be examined is as to  whether  the  findings
of  the  courts  below  finding  appellant  guilty  of  murder  are  legally
sustainable or not.

The appellant became a suspect allegedly for  the  reason  that  Murti  Devi
wife of Sunil Kumar (daughter-in-law of the complainant)  who  had  gone  to
the fields in search of Sunita and saw her lying  dead  there,  had  made  a
statement under Section 161 of the Code of Criminal Procedure to the  effect
that one day prior to Holi festival,  when  the  deceased  returned  to  the
house after bringing fodder, she had told her that the appellant was  a  bad
person and had winked at her on that day while she was lifting fodder.   The
deceased had also disclosed to her that even prior  to  this  incident,  the
appellant was behaving like this everyday.  Brother of the  deceased  (PW-9)
had also mentioned about the appellant in his statement. It  is  because  of
this reason that when PW-8 and PW-9  named  him  in  their  statements,  the
appellant  was  arrested.   Further,  after  his  arrest,   his   disclosure
statement was recorded which led to recovery  of  sickel  which  was  soiled
with some  sand.   Some  gold  ornaments  were  also  recovered  which  were
identified to be that of the deceased by PW-8 and PW-10 Subhash  s/o  Balbir
Singh who had joined the investigation when  appellant  was  in  custody  of
police and being taken to the fields for the  recovery  of  the  sickel  and
gold ornaments.  The courts below  have  accepted  the  testimony  of  these
witnesses and other witnesses as well as recovery of  sickel  and  ornaments
at the instance of the appellant and named the appellant  on  the  basis  of
this evidence holding  that  his  charge  stands  proved  beyond  reasonable
doubts.

Mr. Dhanda, learned counsel  appearing  for  the  appellant  submitted  that
there were inherent  contradictions  in  the  depositions  of  the  material
witnesses; the recoveries were not proved in accordance with law  and  could
not be connected with the crime.  He argued that  these  aspects  have  been
ignored  leading  to  wrong  conviction.   He  submitted   that   from   the
testimonies of PW-8 (sister-in-law of the deceased)  and  PW-9  (brother  of
the deceased), it would become clear that  they  have  improved  upon  their
version in the statements made in the Court which were not there when  their
statements were earlier recorded, during investigation,  under  Section  161
of the Cr.P.C.    He further submitted that it was a case  of  blind  murder
wherein there was no eye-witness and the appellant is found  guilty  on  the
basis of circumstantial evidence. However, whatever circumstances have  been
stated to be proved against the appellant  are  not  sufficient  to  form  a
complete chain of events  leading  to  the  guilt  of  the  appellant.   He,
therefore, pleaded for the release of the appellant as according to  him  he
was innocent.  Learned counsel for the respondent, on the other  hand,  took
us to the analysis of the findings as done by the trial court and  the  High
Court and submitted that there was no infirmity in the findings  arrived  at
by the courts below.

The incident in this case  took  place  on  03.03.1999.   Within  few  hours
thereafter and without loss of any  time,  the  complainant  Jaibir  (PW-12)
lodged the report with the police at about 7.15 pm on the  same  day.   Even
the copy of the FIR was sent to the ilaka Magistrate on the same  day  at  9
pm.  As would be noticed later while discussing the testimonies of PW-8  and
PW-9, suspicion about the involvement of the  appellant  was  nurtured  from
the very beginning.  He was arrested on 07.03.1999 i.e. within four days  of
the occurrence.  On the very next day,  i.e.  on  08.03.1999,  he  made  the
disclosure statement (Ex.PJ) before Shri Shivdan  Singh,  the  investigating
officer in presence of Head Constable Krishan Kumar and  Constable  Mahender
Singh.  Though, it is a confessional statement which records  his  admission
that he had murdered Sunita,  since  this  part  of  the  statement  is  not
admissible in view of Section 25 and Section 26 of the Evidence Act, we  are
not supposed to take the confessional part into account.  He, however,  also
stated that he removed the golden earrings and one dhol and  after  wrapping
the same into a wax paper, he concealed underneath the earth  after  digging
in a pit in the onion fields (Kayari)  which  was  taken  by  him  on  share
basis.  He also stated that he threw the sickle in the field of Barseem  and
he could get these things recovered after pointing out the  same.   Pursuant
to the aforesaid disclosure  statement,  the  appellant  got  recovered  two
earrings and dhol made of gold as well as sickle in the presence of  Subhash
(PW-10) and Mahavir (PW-13).

Parna, Shirt,  Salwar,  Dupatta,  Brassier,  Swabs  from  the  body  of  the
deceased as well as blood stained earth were taken possession  of  and  sent
to Forensic Science Laboratory.  The report  (Ex.PD)  was  received  on  the
said articles stating that they were found to  be  blood  stained.   It  was
also stated that human semen was detected on the salwar. Post-mortem on  the
body of the deceased was conducted by Dr.  O.P.  Charya  (PW-3)  who  opined
that cause of death was due to hemorrhage and  shock  and  injury  No.1  was
sufficient to cause death in the  ordinary  course  of  nature.   All  these
injuries were ante-mortem in nature. This doctor was  also  of  the  opinion
that probable time that elapsed between the injury and  death  was  variable
and it happened within 24 hours.  On the basis of report Ex.PD  of  chemical
examiner and report (Ex.PD/1) of Serologist, this witness gave  his  opinion
that possibility of victim  having  been  subjected  to  sexual  intercourse
before the murder could not be ruled out.

The aforesaid evidence  clearly  proves  that  death  of  the  deceased  was
unnatural and she was murdered.  It  also  proves  that  before  the  murder
either she was molested. Further, it also  stands  established  that  sickle
was the weapon of murder.

Insofar as circumstances leading to connecting the appellant with  the  said
murder are concerned, following evidence has come on record:
(i)  Brother of the deceased i.e. PW-9 had seen  the  appellant  working  in
the fields which are adjacent to the fields of victim's family where  Sunita
had gone to collect Barseem.
(ii)  The appellant was keeping an evil eye on the deceased.
(iii)  The  sickle,  weapon  used  in  the  murder,  was  recovered  on  the
disclosure statement made by the appellant and at his instance.
(iv)  The deceased was wearing earrings and dhol which were  also  recovered
from the appellant.

                 If the aforesaid aspects are  treated  to  have  been  duly
proved, in our  opinion,  they  form  a  complete  chain  of  circumstantial
evidence unequivocally pointing out accusing finger at the  appellant.   The
question is as to whether the evidence of the prosecution on  the  aforesaid
aspects is trustworthy and reliable.

Apart from the  testimonies  of  Doctor,  Investigating  Officer  and  other
police officials etc., testimonies of various witnesses and, in  particular,
Murti Devi, sister-in-law of the deceased (PW-8), Sushil Kumar,  brother-in-
law of the deceased (PW-9), complainant Jaibir, father of the deceased  (PW-
12) have been discussed in detail by the trial court as  well  as  the  High
Court.  After detailed discussion and analysis of the  evidence  on  record,
the courts below have accepted the version of PW-8,  PW-9  and  PW-12.   The
recovery of the jewellery belonging to Sunita and sickle with  which  Sunita
was murdered at the instance of the appellant is also believed.

Since Mr. Dhanda had argued  that  there  are  some  contradictions  in  the
depositions of some of these witnesses, we are required to do  a  diagnostic
of sorts, with limited purpose to examine  as  to  whether  High  Court  has
faltered in the same  very  exercise  done  by  it  so  seriously  that  its
findings are rendered perverse. We may say at the outset  that  great  pains
are taken by the learned counsel for the appellant to show  the  lacuna  and
loopholes in the prosecution version, but regrettably, the record  does  not
substantiate it.

As it has come in the testimony of PW-8 that appellant was  having  an  evil
eye on the deceased which deceased had told her, we would  first  look  into
the deposition of PW-8 to find out as to whether the aforesaid  fact  stands
established.  She has stated in her examination in chief  about  this  fact,
accusing appellant as well as Balraj.  It is stated that both appellant  and
Balraj had misbehaved with Sunita as well as this witness  (PW-8).  She  has
also stated that a day prior to the occurrence,  both  of  them  had  teased
Sunita and Sunita had informed her about this.  However, they  kept  mum  on
account of the family pride and also feared that it may not  lead  to  fight
between the two families. In the cross-examination, she was confronted  with
her statement under Section 161 of Cr.P.C.  She stated that though  she  had
told the police that appellant and Balraj had teased Sunita as told  by  her
earlier and these facts were not disclosed to anyone in  the  family  as  it
would result in fight between the two families. However,  this  was  not  so
recorded specifically in her statement under Section  161  Cr.P.C.   At  the
same time, it is specifically recorded in  the  earlier  statement  as  well
that  deceased  had  complained  to  her  about  the  misbehaviour  of   the
appellant.  Thus, the only thing which is  not  recorded  in  the  statement
made by her during investigation is that she and Sunita kept quiet  and  did
not inform the family members about the behaviour of Prem Singh in order  to
save family pride or the possible fight.  That by itself is  not  sufficient
to discredit the version of PW-8 on the conduct of  the  appellant  who  was
having an evil eye on  the  deceased,  inasmuch  as,  on  this  aspect  this
witness is consistent.  It would be pertinent to mention here that even  PW-
9 Sushil Kumar had stated in his statement  under  Section  161  Cr.P.C.  as
well as in his deposition in the Court that the appellant had teased  Sunita
a day prior to occurrence and she has disclosed this fact to  this  witness.
He also stated that he did not disclose these facts to anyone in the  family
fearing that it would result in fight between  the  menfolk.   When  he  was
confronted with his earlier statement  made  during  investigation  (Ex.DA),
the only thing which was not recorded  in  that  statement  was  related  to
reason why he did not disclose.  However, even in his earlier statement,  it
is specifically recorded that deceased had complained to Murti  Devi  (PW-8)
about the appellant having teased Sunita a day  prior  to  Holi.   Thus,  on
this aspect, both PW-8 and PW-9 are consistent and there  is  no  reason  to
disbelieve.

PW-9 has also specifically mentioned that he had gone to his fields  in  the
early morning, which are close to the fields of one Hoshiar Singh,  and  the
appellant was cultivating the land. He also used to operate the tubewell  of
Hoshiar Singh.  When he  had  gone  to  his  fields  on  03.03.1999  in  the
morning, he had seen the appellant  and  Balraj  near  his  fields  who  was
operating the tubewell.  He further stated that when he was  returning  from
his fields, he met his sister Sunita who was going towards their  fields  to
bring Barseem.  She was carrying sickle  (darati)  and  a  palli.   She  was
wearing pair of earrings and dhol made of gold on her  person.   He  further
specifically stated that when Sunita had gone to the fields, only  Prem  and
Balraj were present there.  He has, thus, deposed  about  the  earrings  and
dhol which the deceased was wearing.  When these articles were recovered  on
the disclosure statement and at the instance of  the  appellant,  these  are
identified to be the same earrings and dhol which deceased was wearing.   On
this aspect, namely, Sunita was wearing the aforesaid articles, there is  no
cross-examination at all.

We would like to point out here that when  PW-8  and  PW-9  were  confronted
with their statements recorded earlier under  Section  161  Cr.P.C.  by  the
counsel who appeared for Balraj, what is found is that name  of  Balraj  was
missing which has surfaced later.  It is for this reason insofar  as  Balraj
is concerned, he was given benefit of  doubt  and  acquitted  by  the  trial
court itself.  However, as far as  appellant  is  concerned,  there  are  no
contradictions by the witnesses on the aforesaid  aspects.   Even  if  there
are some  contradictions,  those  are  of  minor  nature  and  it  would  be
foolhardy to discard the version of these witnesses on miniscule  variations
which have no bearing at all.

Having regard to the above, we are of the  considered  view  that  there  is
clinching evidence against the appellant and he is rightly  convicted  under
Sections 354, 404 as well as 302 IPC.   The High Court  has  summed  up  the
analysis of the evidence in the following words with which we  are  entirely
agree:
“Thus, from the aforementioned discussion, it is  clear  that  accused  Prem
Singh had cast an evil eye upon deceased Sunita.  He had teased her,  a  day
prior to the occurrence and had also winked at her  on  previous  occasions.
The report of post  mortem  as  well  as  the  Forensic  Science  Laboratory
(Ex.PD/1) shows that there was a teeth bite mark on the right cheek  of  the
deceased and also human semen was detected on the salwar  of  the  deceased.
When the attempt to commit  rape  upon  the  deceased  failed,  the  accused
committed the murder of Sunita with the sickle  which  she  was  having  for
cutting fodder (Barseem).  As per the FSL Report, human blood  was  detected
on the sickle.  As per the statement of  PW-9  Sushil  Kumar,  he  had  seen
accused Prem Singh operating the tubewell of Hoshiar Singh  which  was  near
his fields.  The deceased had gone to the fields of  Hoshiar  Singh  to  cut
fodder. This witness had last seen the accused on the date of occurrence  in
the same fields where  Sunita  had  gone  for  cutting  fodder.   Thus,  the
prosecution has been able to prove last seen evidence.
            Apart  from  the  above,  the  recoveries  of  sickle  and  gold
earrings which the deceased was wearing  were  effected  upon  a  disclosure
statement made  by  the  accused.   It  was  accused  Prem  Singh,  who  got
recovered the earrings and dhol of gold by digging the earth from the  field
of Hoshiar Singh Master.  Thus, the prosecution has been able  to  establish
that the recoveries were effected at the instance of accused Prem Singh,  as
per his disclosure statement and the same belonged  to  the  deceased.   The
recoveries were effected in the presence on PW-10 Subhash  and  Mahavir  PW-
13.  The post mortem report also corroborates the  case  of  prosecution  as
according to Dr. O.P. Charaya (PW-3), injury No.1 was  sufficient  to  cause
death in the ordinary course of nature.  The Doctor had also noticed a  bite
mark on the cheek of the deceased.   All  the  aforementioned  circumstances
clearly and unequivocally point towards the fact that it was Prem Singh  who
had firstly intended to outrage the modesty of  Sunita  and  thereafter  had
committed  her  murder.   The  evidence  of  the  prosecution  witnesses  is
trustworthy and reliable and furthermore, all the links  in  the  chain  are
complete which point to the guilt of the accused.”


Learned counsel for the appellant had cited certain judgments in support  of
his submission that suspicion, however grave it  may  be,  cannot  take  the
place of proof, and there is a large difference between something that  'may
be' proved and something that 'will be proved'.   However,  in  the  present
case,  as  we  found  that  the  guilt  of  the  appellant  is  conclusively
established  with  the  credible   material,   those   judgments   have   no
application.  We find the appeal bereft of any merits which  is  accordingly
dismissed.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                          (UDAY UMESH LALIT)
NEW DELHI;
MAY 29, 2015.