Veena vs State Of Delhi
2009 Latest Caselaw 4180 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on : October 06, 2009
                        Judgment delivered on : October 15, 2009


+      CRIMINAL APPEAL NO.213/1995

       VEENA                                        ..... Appellant
                        Through:   Mr.K.B.Andley, Sr. Advocate with
                                   Mr.M.L. Yadav, Advocate.

                             versus

       STATE OF DELHI                            .....Respondent
                    Through:       Mr.Pawan Sharma, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE


     1. Whether Reporters of local papers may
        be allowed to see the judgment?

     2. To be referred to the Reporter or not ?
     3. Whether the judgment should be reported
        in Digest ?

AJIT BHARIHOKE, J.

1. Appellant Veena, on being prosecuted in Sessions Case

No.10/89 emanating from FIR 279/88 under Section 302 IPC, P.S.

Moti Nagar was convicted by the learned Additional Sessions Judge

in terms of judgment dated 31.10.1995 under Section 302 IPC for

having committed murder of Paramjit Singh @ Pamma and she was

sentenced to undergo imprisonment for life and to pay a fine of

Rs.1000/- and in default of payment of fine, to undergo SI for a

further period of two months in terms of order on sentence dated

31.10.1995.

2. Feeling aggrieved by the impugned judgment and order on

sentence, Smt. Veena has preferred the instant appeal.

3. Briefly stated, case of the prosecution is that on the night

intervening 21/22.09.1988, Constable Jagbir Singh, PW-1 and Ram

Ajor Mishra, Home Guard Constable PW-9 were on patrol duty seen

in new Moti Nagar Area. At about 11.45 PM, when they reached

block No.23, New Moti Nagar, they heard a shriek of some person

coming from House No.23/337, New Moti Nagar. So, they entered

that house. They were also followed by a neighbour Vidya Sagar,

complainant. The lights in the house were on. They noticed the

deceased Paramjit Singh @ Pamma lying on the floor and the

appellant Veena, who was having a "Phawra" in her hands gave two

blows on the head of Paramjit Singh in their presence, as a result

Paramjit Singh started bleeding. Constable Jagbir Singh took the

"Phawra" from the hands of the appellant Veena and made her sit.

Paramjit Singh died at the spot.

4. Information about the occurrence was conveyed to the Police

Station and it was recorded as DD No.3A dated 22.09.1988. Copy of

the DD report was entrusted to Inspector Pratap Chand, PW-17 for

verification. He immediately proceeded to the spot of occurrence

along with other staff and found the dead body of Paramjit Singh @

Pamma lying on the floor. He recorded the statement of

complainant Vidya Sagar, which was signed by him and sent it to

the Police Station for the registration of the case under Section 302

IPC. Inspector Pratap Chand (PW17) seized the "Phawra", one

bucket and some broken glass pieces from the spot. He also lifted

blood stained earth from the spot and conducted the inquest about

the circumstances leading to the death of Paramjit Singh @ Pamma.

He arrested the appellant and also took her clothes i.e. salwar and

kameej into possession. After completion of the investigation, he

submitted the charge sheet against the appellant.

5. Appellant Veena was charged under Section 302 IPC, to which

she pleaded not guilty and claimed to be tried.

6. Prosecution examined 17 witnesses in all, including the

purported eye witnesses Constable Jagbir Singh, PW-1, Home Guard

Ram Ajor Misra Constable-PW9 and Smt. Krishna Devi-PW10, step

mother of the appellant. Complainant Vidya Sagar could not be

examined as he had expired during the pendency of trial.

7. The appellant in her statement under Section 313 Cr.P.C.

came up with the defence that her husband Paramjit Singh

(deceased) had advanced some money to her brother. On

19.09.1988, her husband had gone to the house of her parents to

demand repayment of his loan from her brother Kuldeep. Instead of

returning the money, her father lodged a report against her

husband with the Police. On 21.09.2009, she, along with Paramjit

Singh (deceased) visited her parents to demand repayment of the

loan and explained to her father and brother that her late husband

required the money urgently. Her father and brother, instead of

returning the money, insisted on repayment at their own

convenience, which resulted in exchange of hot words and a scuffle

ensued. Her father and brother gave a push to her husband and he

fell prostrate on the ground. Her step-mother Krishna Devi then

exhorted her brother Kuldeep @ Deepu to kill her husband with the

"Kassi" and on exhortation, her brother Kuldeep picked up the

"Kassi" and gave "Kassi" blows on the head of her husband Paramjit

Singh. When she tried to rescue her husband, her step-mother

caught hold of her by her shirt, as a result whereof the shirt got

torn. Thus, in short, the defence of the appellant is that she is

innocent and actually her brother Kuldeep @ Deepu has committed

murder of her husband Paramjit Singh on the exhortation of her

step-mother Krishna Devi. In defence, the appellant has examined

DW-1 Madan Lal, father of the deceased, to prove that the money

was advanced by her late husband to her brother Kuldeep in

September, 1988.

8. On consideration of the evidence, the learned Additional

Sessions Judge did not find the defence of the appellant plausible

and relying upon the prosecution evidence, he convicted the

appellant under Section 302 IPC vide the impugned judgment and

sentenced her vide order of sentence dated 31.10.1995.

9. The prosecution has cited four eye-witnesses viz. complainant

Vidya Sagar, PW1 Constable Jagbir Singh, PW9 Home Guard

Constable Ram Ajor Misra and PW10 Krishna Devi. Complainant

Vidya Sagar could not be produced as a witness because of his

unfortunate demise. Out of the remaining three eye-witnesses, PW9

Constable Ram Ajor Misra and PW10 Krishna Devi turned hostile and

did not support the case of the prosecution. Thus, the prosecution

case rests mainly upon the eye-witness account given by PW1

Constable Jagbir Singh.

10. Before adverting to the submissions made by learned counsel

for the appellant, it would be useful to have a look at the testimony

of Constable Jagbir Singh. He deposed that on the night intervening

21st and 22nd September, 1988 while he was on patrol duty along

with Home Guard Constable Ram Ajor Misra at Block No.23, Moti

Nagar, he heard shrieks of someone at about 11.45 p.m. Thus, they

entered House No.23/337, New Moti Nagar from where the shrieks

were emanating. The lights in the house were on, and he noticed a

man lying in the courtyard, who was later on identified as deceased

Paramjit @ Pamma. Witness further stated that Paramjit @ Pamma

was bleeding from the head and appellant Veena was holding a

„Phawra‟ in her hands and in their presence, she gave a „Phawra‟

blow on the head of the deceased followed by another blow. He

immediately snatched the „Phawra‟ from her hand and made her sit

on a cot lying nearby. Thereafter he went along with Vidya Sagar to

his house and informed the police on telephone. He further stated

that SHO Moti Nagar reached at the spot within 8 to 10 minutes,

and took the „Phawra‟ which was stained in blood with some hair of

the deceased attached thereon, into possession vide seizure memo

Ex.PW1/A. He also took into possession one bucket having blood

stains and blood stained earth as well as some broken pieces of

glass of the window pane. In his cross-examination, he denied the

suggestion that he has been planted as a witness along with Home

Guard Constable Ram Ajor Misra, PW9. He also denied the

suggestion that the deceased was chased into the house of his in-

laws by two bad characters, who caused injuries to him with a rod

and a knife, resulting in his death.

11. Learned counsel for the appellant has submitted that the

testimony of PW1 Constable Jagbir Singh is unreliable, firstly

because it is not corroborated by the other eye-witnesses. In

support of the above contention, he has drawn our attention to the

testimony of PW9 Ram Ajor Misra, Home Guard Constable who

stated in his examination-in-chief that on entering the said house,

he saw a quarrel taking place between a fat woman, and the

appellant and some children. He also stated that one boy and the

fat woman whom he later on identified in his cross-examination by

learned counsel for the appellant as PW10 Krishna Devi, had fled

away. He also stated that he did not see anybody inflicting injury on

the person lying on the floor and in response to a Court question, he

categorically stated that he did not see the appellant giving

„Phawra‟ blows to the injured/deceased. PW10 Krishna Devi stated

in her examination-in-chief that she was sleeping inside when the

window pane was broken. As a result, she woke up and saw outside

and noticed that the deceased was lying on the floor and two

persons with muffled faces having a rod and knife in their hands

were running away. In the cross-examination by learned counsel for

the appellant, she stated that the appellant was sleeping with her

inside and she did not inflict any injury on the person of her

husband and according to her, police visited the spot of occurrence

in the morning hours at about 6.00 a.m.

12. Learned counsel for the appellant has submitted that from

above said versions of PW9 and PW10, it is obvious that the

appellant did not inflict any injury on the person of the deceased

and therefore, in view of their consistent version to that effect, it is

highly unsafe to believe the version of PW1 Constable Jagbir Singh.

13. We are not impressed with the argument. On perusal of the

testimony of PW9 Ram Ajor as well as PW10 Krishna Devi, it

transpires that both of them are hostile witnesses and they have

resiled from their previous statements made to the police during the

investigation. Thus, in our view, they are not reliable witnesses.

Further, their version is contradictory on material aspects of the

case. According to PW10 Krishna Devi, the appellant did not cause

any injury to the deceased and she saw two persons with muffled

faces having a rod and knife in their hands fleeing away from the

house, whereas PW9 Ram Ajor Misra has given a contradictory

version stating that when he entered the house, he saw a quarrel

taking place between a fat woman and the appellant and that said

fat woman and a boy fled away from the spot. The above

contradiction in the testimony of PW9 and PW10 leads us to the

irrefutable conclusion that they are not truthful witnesses and have

not come clean about the real facts.

14. On perusal of the testimony of PW1 Constable Jagbir Singh

referred to in para 10 of the judgment, it transpires that he has

supported the case of prosecution in material particulars. He was

subjected to a lengthy cross-examination on behalf of the appellant,

but he withstood his ground and his credibility could not be shaken.

On the other hand, his version finds corroboration even from the

testimony of PW 9, Home Guard Constable Ram Ajor Misra, who is a

hostile witness. It is noted that Constable PW9 Ram Ajor Misra in his

examination-in-chief has stated that on the fateful night at about

11.30 PM, he was on patrol duty in New Moti Nagar area along with

Constable Jagbir Singh, where they found one Vidya Sagar in the

gallery of his house. He has also stated that Constable Jagbir Singh

asked Vidya Sagar as to why he was not sleeping and, in the

meanwhile, they heard a noise from the nearby house. On hearing

the noise, they both along with Vidya Sagar went inside that house

and saw one person lying on the ground and he was bleeding from

the head. From the aforesaid version of PW9, Constable Ram Ajor

Misra, one fact stands established that he along with PW1,

Constable Jagbir Singh had actually gone into the house where the

occurrence took place and saw the deceased lying on the ground in

injured condition. PW9, Ram Ajor Misra during his cross-

examination by learned APP in response to a court question has also

admitted that not only he saw the injured lying on the ground, he

also noticed that the appellant was present there and she was

holding a "Phawra" which was snatched from her by Constable

Jagbir Singh. The fact that the appellant was holding the "Phawra"

at the relevant time provides sufficient assurance that PW1

Constable Jagbir Singh is a truthful witness. If the appellant was not

the assailant, there was no reason for her holding "Phawra" in her

hand. Otherwise also, there is nothing on the record to suggest that

PW1 Constable Jagbir Singh had any reason whatsoever to falsely

implicate the appellant in this case. Thus, we find no reason to

doubt his testimony and are of the view that the learned trial Judge

has rightly relied upon his testimony to convict the appellant.

15. Learned counsel for the appellant has drawn our attention to

the post-mortem report Ex.PW4/A and the testimony of Dr.L.T.

Ramani, PW4 who conducted the post mortem examination on the

dead body of the deceased Paramjit, which indicates that the

deceased had sustained nine injuries, out of which eight injuries are

either lacerations or bruises with fracture which could be caused by

a blunt object and injury no.2 is a clean cut incised looking wound,

which could be caused only by a sharp cut object like knife. Details

of injuries are as under:

"1. A wide gaping laceration present transversely over left temporo parietal area from just above zygoma to the parietal region. Size 10 c.m. x 4 c.m. x cranial cavity deep - with obvious depressed fracture beneath and expulsion of the lacerated brain matter through the injury.

2. Clean cut incised looking wound 3.5 c.m. x 1.5 c.m. x muscle deep placed vertically on the left zygoma region near tragus of the ear. Lower end of the injury was swelling into a linear abrasion 2 c.m. long.

3. Laceration 5 c.m. x 2 c.m. x scalp deep on the posterior part of left tempral revion behind the ear.

4. Bruise 4 c.m. x 4 c.m. with superficial abrasion on the Rt. Cheek bone area.

5. Laceration 5 c.m. x 2 c.m. x scalp deep placed transversely on the vault of the skull.

6. Bruise 4 c.m. x 2 c.m. reddish in colour on the back of left shoulder with a linear abrasion 6 c.m. long at the lower end of the bruose.

7. Bruise 3 c.m. x 1 c.m. on the back of Rt. shoulder.

8. Four linear abrasions with bruising at the margins placed transversely on the back of chest partly over

scapular area. All these injuries were almost parallel and were 16 c.m. long.

9. Bruise 4 c.m. x 2 c.m. present on the back of chest in the mid-line at the level of 8th Thoracic vertabrao."

16. Learned counsel for the appellant has further drawn our

attention to the complaint statement Ex.PW17/A given by the

complainant Vidya Sagar to the SHO on the basis of which the FIR

was registered and pointed out that as per the complaint, the

appellant had given two blows on the head of the deceased Paramjit

Singh in presence of the Constables with back side of the „Phawra‟.

He has stated that if aforesaid version was true, then there is no

explanation for injury No.2 which could have been caused only by a

cutting object. Thus, he has urged us to disbelieve the version of

Constable Jagbir Singh.

17. „Phawra‟ is a digging instrument comprising of a steel blade

having sharp edge with a wooden rod fitted into it. Even if someone

hits a person with back side of the „Phawra", then also a possibility

cannot be ruled out that the blow might have hit the victim by some

part of the metal edge resulting in an incised open wound. Even

Dr.L.T. Ramani in his testimony has opined that the above referred

injuries in his opinion were caused by heavy cutting and blunt

weapon. A „Phawra‟ squarely falls within the aforesaid definition.

Otherwise also the occurrence took place in a short span of time

and witnesses are not expected to observe precisely as to which

part of the „Phawra‟ hit the deceased. Therefore, in our considered

view, it cannot be said that the injuries on the person of the

deceased Paramjit Singh have remained unexplained vis-à-vis the

complaint of the testimony of PW1 Constable Jagbir Singh. As such,

we do not find any reason to doubt the truthfulness of the version of

PW1 Constable Jagbir Singh.

18. Lastly, it is submitted on behalf of the appellant that there is

nothing on record to suggest that the appellant had any motive

whatsoever to commit murder or to cause injury to the deceased

who admittedly was her husband. Therefore, it is not safe to convict

the appellant on basis of uncorroborated testimony of PW1

Constable Jagbir Singh whose version is not corroborated by the

other two eye-witnesses, PW9 Ram Ajor Misra and PW10 Krishna

Devi. Thus, he has urged us to extend the benefit of doubt to the

appellant.

19. The law relating to motive in criminal cases is well settled.

The motive may be a significant factor in a case based on

circumstantial evidence but it loses its significance in a case which

is based on ocular evidence. Once the Court is of the view that

there is reliable ocular evidence against the accused, the absence of

motive cannot be made a reason to discard the ocular evidence

which is otherwise truthful and reliable. We have already concluded

in the discussion above that PW9 Ram Ajor Misra and PW10 Krishna

Devi are not reliable witnesses and that there is no reason to doubt

the testimony of PW1 Constable Jagbir Singh which inspires

confidence. Therefore, we do not find any merit in the argument.

20. In view of the discussion above, we do not find any infirmity in

the impugned judgment of conviction and we are of the considered

view that the learned Trial Court has rightly relied upon the

prosecution evidence, particularly testimony of PW1 Constable

Jagbir Singh, to record conviction of the appellant.

21. The appeal is devoid of merit and is accordingly dismissed.

22. The appellant is on bail. She be taken into custody and sent

to Jail for undergoing her remaining sentence.

AJIT BHARIHOKE, J.

October 15, 2009                         SANJAY KISHAN KAUL, J.
pst/gm