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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.

2) 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

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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.   

3) 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

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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.   

4) 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.   

5) 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

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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.    

6) 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

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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.   

7) 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

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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.   

8) 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.   

9) 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

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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.

10) 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

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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.   

11) 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

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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).

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12) 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.

13) 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.

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14) 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.

15) 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

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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.

16) 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.   

17) 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

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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

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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.

18) 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

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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.

19) 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.  

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20) 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

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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.”

21) 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.

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