text stringlengths 5 5.67k |
|---|
The story of rape by me with her has been fabricated by her husband as he is inimical towards me FAC |
Even I do not know who took me to hospital FAC |
I have been implicated in this case falsely FAC |
The trial court and the High Court relying on the circumstances available on the evidence convicted and sentenced the appellant, as already mentioned above RLC |
Mr. Goburdhan, the learned counsel for the accused has raised several arguments in the course of hearing ARG |
He has pointed out that there was absolutely no evidence to suggest that Mukhtiar Kaur had been subjected to rape and in this view of the matter the very basis for the imposition of the death penalty was not made out ARG |
He has also pointed out that there were no eye witnesses to the incident and the 4 witnesses i.e. Jora Singh and others who had reached the place of incident and carried the injured appellant to the hospital had also resiled and as the prosecution story now rested on circumstantial evidence alone, it was imperative for... |
It has also been submitted that in a case of attempted suicide a firearm must of necessity be used from a very close range and the absence of any blackening, charring or burning around the wound on Ujjagar Singh clearly ruled out the possibility of such an attempt ARG |
It has finally been submitted that the land had been transferred in the name of Ujjagar Singh's sons in the year 1994 by Gurmail Kaur, mother of Mukhtiar Kaur by a collusive decree and there was no evidence to show that Mukhtiar Kaur had ever displayed any unhappiness or made any complaint to any person or any authorit... |
The learned State counsel has, however, supported the judgment of the courts below ARG |
He has further emphasized that the prosecution's case stood proved from various factors including the medical evidence, the reports of the Forensic Science Laboratory, the Chemical Examiner, from the post-mortem reports and the recovery of the gun and cartridges ARG |
We have heard the learned counsel for the parties and gone through the record Ratio |
We first take up for consideration the question of the conviction u/s Ratio |
376 of the IPC Ratio |
We find from the medical evidence and from the chemical examiner's reports that the vaginal swab and clothes taken from the dead body did indicate the presence of semen Ratio |
There is however absolutely no evidence to suggest (even assuming that the intercourse had been committed by the appellant) that he had done so without Mukhtiar Kaur's consent or against her will Ratio |
Some suspicions of rape could perhaps have been raised had some tell tale injuries been detected on Mukhtiar Kaur's person but we find that the two injuries other than the gun shot wounds i.e. injury No.3 being on the left pinna and Ratio |
No. 4 an abrasion near the right eye do not indicate any attempt to rape or the commission of rape Ratio |
It is also significant that the investigators had made no attempt whatsoever to have the appellant medically examined to ascertain his capacity to perform sexual intercourse Ratio |
The learned State counsel relying on the statement of PW14 Inspector Harjinder Pal Singh has however submitted that the examination had not been possible as the appellant had received a very serious gun shot injury and was hanging between life and death Ratio |
We agree with the submission of the learned counsel that an examination could not have been carried out immediately Ratio |
but we see no justification in the omission of the prosecution to have him examined after he had recovered his health and been discharged from hospital Ratio |
We are further of the opinion that even assuming for a moment that sexual intercourse between the two had indeed taken place it cannot be said from the evidence before us that it was without the consent or against the wishes of Mukhtiar Kaur Ratio |
We, therefore, find that Ujjagar Singh's conviction u/s Ratio |
376 of the IPC cannot be sustained Ratio |
Mr. Goburdhan has placed great emphasis on the fact that as the four witnesses who had reached the place of incident i.e. Jora Singh, Satnam Singh, Gurdeep Singh and Kulwant Singh had resiled from their statements and had disowned their initial stories, the prosecution had of necessity to rely on circumstantial evidenc... |
He has also relied on the judgment of Balu Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543 2002 Indlaw SC 1923 to contend that it was open to the accused to take advantage (insofar as possible) from the statement of a witness though declared hostile and the four witnesses having disowned the prosecution story and... |
The learned State counsel has, however, emphasized that both the trial court and the High Court had for good reasons opined that the circumstances made out a case for conviction and the accused having given a counter version some obligation lay on him as well to explain the circumstances against him inasmuch that admit... |
Reliance for this argument has been placed on the decision of Raj Kumar Prasad Tamarkar v. State of Bihar & Anr. 2007(1 ARG |
SCALE 19 2007 Indlaw SC 5 ARG |
We have considered their arguments very carefully PRE |
In Mahmood v. State of U.P. (1976) 1 SCC 542 1975 Indlaw SC 643 it has been observed that in a case dependent wholly on circumstantial evidence the court must be satisfied - (a)that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow ... |
In this case this Court held that the omission of the prosecution, inter-alia, to have the finger prints found on the alleged murder weapon was fatal to the prosecution story PRE |
In 1984 (4) SCC 116 Sharad Birdhichand Sarda v. State of Maharashtra 1984 Indlaw SC 432, this Court discussed the ratio of the judgments in Hanumant v. State of M.P. AIR 1952 SC 343 1952 Indlaw SC 89, Tufail (Alias) Simmi v. State of U.P PRE |
1969) 3 SCC 198 1969 Indlaw SC 573 and Ramgopal v. State of Maharashtra (1972) 4 SCC 625 1971 Indlaw SC 555 and Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 1973 Indlaw SC 181 and observed thus: "A close analysis of this decision would show that the following conditions must be fulfilled before a ca... |
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established PRE |
There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973 Indlaw SC 181 where the following observations were made PRE |
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' is long and divides vague conjectures from sure conclusions PRE |
2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3)the circumstances should be of a conclusive nature and tendency, (4)they should exclude every possible hypoth... |
Mr. Goburdhan has also cited Mahmood v. State of U.P. (1976) 1 SCC 542 1975 Indlaw SC 643, Shankarlal Gyarasilal Dixit v. State of Maharashtra (1981) 2 SCC 35 1980 Indlaw SC 47, Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 1984 Indlaw SC 432, Omwati (Smt) and Ors Ratio |
V. Mahendra Singh Ratio |
Ors Ratio |
1998) 9 SCC 81 1997 Indlaw SC 1403, Sudama Pandey & Ors Ratio |
V. State of Bihar (2002) 1 SCC 679 2001 Indlaw SC 21243, and R.R.Khanna Reddy & Anr Ratio |
V. State of A.P. (2006) 10 SCC 172 2006 Indlaw SC 144 in support of his plea relating to the evaluation of circumstantial evidence Ratio |
These judgments have broadly followed the principles laid down in the judgments referred to above and need not therefore be dealt with us in extenso Ratio |
It must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted Ratio |
It is in this background that we must examine the circumstances in the present case Ratio |
A few facts stand out from the prosecution story Ratio |
First, the place of incident being adjoining rooms in the residential house of the appellant and the fact that the alleged murder weapon is his licensed DBBL gun is proved on record Ratio |
The evidence also reveals that the appellant was living in the premises along with his wife, mother and son, and two daughters, who were studying outside the village, were frequent visitors, but it is the admitted position that nobody but the appellant and the deceased were present at the time of incident Ratio |
It is also clear from the evidence that the two spent cartridge cases recovered, one from near Mukhtiar Kaur's dead body, and the second from the right barrel of the gun lying near the appellant had been sent to the Forensic Science Laboratory which opined that one of the cartridges had been fired from the gun and the ... |
Mr. Goburdhan has, however, laid great emphasis on the fact that no reference to the gun or cartridges had been made in the inquest report and that in any case the weapon and the spent cartridges had been sent to the laboratory belatedly ARG |
We are of the opinion, however, that no adverse inference can be drawn from either of these circumstances Ratio |
The aforesaid articles had been carried to the Laboratory by Constable Gopal Singh who in his affidavit dated 17th March 2003 deposed that he had first taken the articles to the laboratory on 9th December 2002 but they had been returned by the Director on the ground that the seals affixed thereon were not of the requis... |
Gopal Singh was cross-examined by the prosecution Ratio |
and but for some inconsequential questions put to him with regard to the seals, not even a suggestion was made that the aforesaid articles had in any way been tampered with Ratio |
It is true, as contended, that in Column 22 of the inquest report which refers to the articles found near the dead body, there is no reference to the spent cartridges or the murder weapon but we find from a perusal of the site plan Exh Ratio |
PJJ prepared by the investigating officer Inspector Harjinder Pal Singh PW14 on 10th November 2002 that the weapon is shown lying close to the place where the appellant had been found unconscious and a spent cartridge recovered from near the dead body of Mukhtiar Kaur Ratio |
It has also been submitted by Mr. Goburdhan that there appeared to be no motive for the incident as the story about Mukhtiar Kaur's unhappiness about the transfer of land to the sons of Ujjagar Singh sought to be proved by PW9 Balwinder Singh and PW10 Karam Singh had been disbelieved by the High Court with the observat... |
It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the clichi Ratio |
the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy Ratio |
There is however a hint in the testimony of PW14 Inspector Harjinder Pal Singh that his enquiries had revealed that the accused was having illicit relations with Mukhtiar Kaur and we can assume that some thing untoward had happened which could have triggered the volatile and hostile incident Ratio |
There could perhaps be some truth in this suggestion, as it is significant that though the appellant had an extended family living with him i.e. mother, wife, son living (in the village) and two young daughters who were studying outside and residing in a hostel, but were frequent visitors home, yet none of them has com... |
To our mind, therefore, this is yet another circumstance inculpating the accused Ratio |
Mr. Goburdhan has also laid much stress on the apparent discordance between the prosecution story and the medical evidence and has argued that had the accused attempted to commit suicide, the gun shot must, of necessity, had to be fired from a very close range on which the wound would have marks of burning or charring ... |
He has in this connection referred us to the statement of Dr. Ripan Miglani PW15 and the wound found on the appellant at the time of his medical examination in the Department of Surgery of the Dayanand Medical College & Hospital, Ludhiana which was "About 15 x 8 cm curvilinear wound present on the left half of face ext... |
No blackening or foreign body was visible ARG |
Underlying muscles were exposed and contamination was present ARG |
He has thus urged that the absence of any blackening underlined the argument that the shot had been fired from some distance and as such an attempt at suicide was clearly to be ruled out ARG |
He has also drawn our attention to the cross- examination of the Doctor wherein he reiterated that there was no visible blackening and that it was not possible for him to say whether the injury was suicidal or otherwise ARG |
The learned State counsel has, however, relied on the statement of PW16 Dr. Sanjay Uppal, who was apparently the first doctor to have examined the appellant, wherein he clearly testified that the blackened portion around the firearm injury had been removed by him ARG |
We are therefore of the opinion that this statement falsifies Mr. Goburdhan's argument on this aspect Ratio |
It is also significant that the shot had apparently travelled upwards skirting the mandible, through the flesh of the cheek in an upward direction with minimal damage to the bone structure and it is indeed providential that the appellant got away with only an injury, albeit a very serious one Ratio |
The fact that the shot was fired from below going upwards is also supported by the site plan Exh Ratio |
PJJ wherein marks of a shot hitting the roof were seen at point E whereas the appellant was found lying at point D in the same room Ratio |
It is therefore apparent that the weapon had indeed been fired by the appellant from a close range and that the blackened portion around the wound had been removed by Dr. Sanjay Uppal Ratio |
The learned State counsel has emphasized that in the light of the admitted position that the accused and the deceased were the only ones present at the time of incident and that the accused had projected a counter story, some credible explanation was also expected from him ARG |
Reference has been made to Raj Kumar Prasad Tamarkar's case2007 Indlaw SC 5 (supra) wherein in circumstances surprisingly akin to the present matter, this Court had the following observations to make: "The conspectus of the events which had been noticed by the learned Sessions Judge as also by the High Court categorica... |
There was no other person ARG |
The cause of death of the deceased Usha Devi i.e. by a gun shot injury is not disputed ARG |
The fact that the terrace and the bedroom are adjoining each other is not in dispute ARG |
The autopsy report shows that 'a blackening and charring' existed so far as Injury No.(i) is concerned ARG |
The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance ARG |
Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet ARG |
It, therefore, cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet ARG |
The place of injury is also important ARG |
The lacerated wound was found over grabella (middle of forehead ARG |
It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance ARG |
There was, thus a remote possibility of causation of such type of injury by any other person, who was not in the terrace ARG |
Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife ARG |
The onus was on him ARG |
He failed to discharge the same ARG |
We have considered the submission of the State counsel very carefully Ratio |
It is true that it is generally for the prosecution to prove its case beyond doubt but in circumstances such as the present one, some explanation is also due from an accused in order to absolve himself from suspicion of the crime Ratio |
In his statement u/s Ratio |
P.C. his positive stand was that he alone had been in the house with Mukhtiar Kaur when she had been killed and indeed as per Exhibit P.JJ Mukhtiar Kaur's body had been found only one Karam (5 feet) away from the place where the appellant lay injured Ratio |
It must be emphasized that but for this self serving statement made by the appellant, there is nothing on record to support his positive stance Ratio |
Even otherwise, we are of the opinion that had the shot been fired by some intruder, the direction would have been more or less horizontal and parallel to the ground and not from down upwards with the pellets hitting the jaw, skirting the cheek and hitting the roof at point Ratio |
E Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.