Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1- Crl. Appeal No.D-928-DB of 2003 Date of Decision : 02.09.2011 Jasbir son of Gaje Singh ... Appellant Versus State of Haryana .... Respondent 2- Crl. Appeal No.D-929-DB of 2003 Date of Decision : 02.09.2011 Gaje Singh s/o Ami Lal & Hem Chander s/o Ami Lal ... Appellants Versus State of Haryana .... Respondent - CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK ....... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. S.P. Chahar, Advocate, for the appellants. Ms. Shubhra Singh, DAG, Haryana for the respondent-State. -- Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --2-- Vijender Singh Malik, J. The two appeals, one brought by Jasbir and the other brought by Gaje Singh and Hem Chander, as described above. have been preferred challenging the judgments of conviction and orders of sentence dated 31.07.2003 passed by learned Additional Sessions Judge, Rohtak. Though, two judgments challenged in the two appeals are passed independently, yet they have been passed in a case registered by way of FIR No. 293 dated 06.10.2002 of Police Station Sadar, Rohtak, for an offence punishable under sections 302, 307 read with section 34 of the Indian Penal Code. The trials were also held separately, still the material witnesses examined are the same and their statements are also near identical. Therefore, we are deciding these two appeals by way of this common judgment. The appellants have been held guilty for the offence punishable under sections 302, 307 read with section 34 of the Indian Penal Code vide judgments dated 31.07.2003. They have been sentenced as under vide order of the same date:- Name of the accused(now appellants) The offence for which conviction was recorded. Sentence awarded Jasbir, Gaje Singh & Hem Chander U/S.302/34 IPC Life imprisonment each. Fine of Rs.2000/- each. In default of payment of fine to undergo rigorous imprisonment for three years each. Jasbir, Gaje Singh & Hem Chander U/S 307/34 IPC Rigorous imprisonment for 10 years each. Fine of Rs.500/- each. In default of payment of fine to undergo rigorous imprisonment for one year each. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --3-- The substantive sentences were ordered to run concurrently. The prosecution case against the appellants is as under:- Kaptan Singh, complainant, resident of village Dhamar is a student of 10th class. His grandfather Shobha Chand and uncle Ajit Singh had been residing in a house known as 'Kansiwala house'. The complainant with his parents was residing separately. However, the father of the complainant used to tether his cattle in the 'Kansiwala house'. On 06.10.2002 at about 6.00 PM the complainant alongwith his father Dharambir and mother Om Patti had gone to 'Kansiwala house' to take care of their cattle. Shobha Chand, Ajit Singh and Hari Singh were found present there. Hem Chander accused, a neighbour of their grandfather, had spread branches of kikkar trees in the street. Shobha Chand and Om Patti told Hem Chander to move those branches aside,as the same was their passage also. Hearing this, Jasbir and Gaje Singh came out in the street and started quarreling with and abusing his mother and grandfather. When Ajit Singh asked them not to pick up quarrel, Gaje Singh, Jasbir Singh and Hem Chander went inside their house declaring that they would see them soon. They returned to the spot with rapis( sharp edged instruments of cobblers used to cut leather) in their hands. Jasbir gave a blow with rapi in the abdomen of Shobha Chand. Gaje Singh gave a blow with rapi on the right side of chest of Shobha Chand. Hem Chander gave a rapi blow near left ribs of Shobha Chand. Jasbir gave another blow with rapi on the left flank of Shobha Chand. When the complainant and his other family members tried to rescue him. Jasbir gave a rapi blow on the chest of Om Patti. Gaje Singh and Hem Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --4-- Chander caught hold of his uncle Ajit Singh and mother Om Patti and gave them rapi blows. They raised noise, which attracted people from the neighbourhood. Shobha Chand, grandfather of the complainant breathed his last at the spot. Dharambir Singh father of the complainant took Ajit and Om Patti to PGIMS Rohtak in a tempo for their treatment. The complainant started for the police station to lodge a report after leaving the villagers near the dead body of Shobha Chand. He met Jagat Singh, ASI at Bus Stand of village Dhamar. Kaptan Singh, complainant got his statement recorded with Jagat Singh, ASI, who had sent the same with his endorsement to the police station where Jai Singh, ASI had registered a case for an offence punishable under sections 302, 307 read with section 34 of the Indian Penal Code. Jagat Singh, ASI accompanied Kaptan Singh, complainant to the place of occurrence. He inspected the spot and prepared a rough site plan thereof. Surender Singh, photographer arrived there in the meanwhile and took photographs of the spot. Jagat Singh, ASI then took up blood stained earth from the spot and sealed the same with seal bearing impression 'JS'. He prepared inquest report about the death of Shobha Chand and had sent the dead body of Shobha Chand for post- mortem examination. Dr. Paramjit Kaur conducted the same on 07.10.2002 and found four wounds of different size on the person of the deceased and had opined that the death in this case was due to shock and haemorrhage due to multiple injuries, which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --5-- Jagat Singh, ASI then reached Police Post, PGIMS Rohtak wherefrom he collected copy of MLR of Ajit Singh as also the medical ruqa sent by the doctor regarding admission of Ajit Singh with the history of assault. Om Patti had also died by that time and ruqa intimating her death was also found at Police Post, PGIMS Rohtak, which was also taken into possession by Jagat Singh, ASI. Ajit Singh was declared unfit to make statement by the doctor on the query made by Jagat Singh, ASI. At about 8.15 PM on 06.10.2002 Dr. S.P. Chugh had medicolegally examined Jeeta son of Shobha Chand. Jeeta was operated upon on the same day and tear of his liver was repaired because in ultrasound examination some free fluid was detected in pelvis. Inquest proceedings regarding death of Om Patti were conducted and the dead body of Om Patti was also sent for post-mortem examination. Dr.Paramjit Kaur conducted post-mortem examination on the dead body of Om Patti also. The belongings of the deceased were handed over by the doctor in sealed parcels and they were taken into possession by way of recovery memos, which were subsequently deposited with the MHC alongwith the other sealed parcels. On 08.10.2002 the accused were arrested. During interrogation, the accused made disclosure statements regarding concealment of the rapis. In pursuance of the said disclosure statements, three rapis were got recovered by the accused. Sketches of the rapis were prepared and the blood stained rapis were taken into possession by way of recovery memos. Rough site plan of the place of recovery was prepared. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --6-- On 18.10.2002 Jagat Singh, ASI produced the rapis before Dr. Paramjit Kaur seeking her opinion whether the injuries sustained by Shobha Chand and Om Patti could be caused by those rapis or not. The doctor examined the rapis and opined that the injuries of the deceased could be caused by those weapons. The rapis were then again sealed and were ultimately deposited with the MHC. Ajit Singh, injured was declared fit to make statement on 10.10.2002 and his statement under section 161 of the Code of Criminal Procedure was recorded. The sealed parcels were sent to Forensic Science Laboratory, Madhuban. Human blood was found on all the three rapis as well as on the clothes of the deceased. The blood stained earth was also examined but the material was found to have disintegrated. The blood on the shirt and dhoti of deceased Shobha Chand was found to be of 'O Group'. However, the group of the blood on the clothes of Om Patti and rapis could not be ascertained. On 19.12.2002 Dr. S.P. Chugh on the strength of Surgeon's note had opined that injury of Ajit Singh could be dangerous to life. Site plan to scale of the place of occurrence was got prepared. Statements of other witnesses were recorded. On completion of investigation, challan against the accused was prepared. The prosecution had applied with a medical report for separation of trial of Jasbir on the ground that he was lunatic and was not fit to face trial. His trial was separated on 05.02.2003 with the directions to get treatment for Jasbir and to put up his case for trial whenever he became fit to stand the same. Subsequently his case was put up for trial. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --7-- As is evident from the aforesaid fact, Hem Chander and Gaje Singh were charged separately for the offence punishable under sections 302, 307 read with section 34 of the Indian Penal Code vide order dated 07.02.2003 while Jasbir accused was charged for the same offence vide order dated 29.04.2003. Needless to say that the accused pleaded not guilty to the charge and claimed trial. Twenty witnesses were examined at the trial of Gaje Singh and Hem Chander while eighteen witnesses were examined at the trial of Jasbir. The accused were examined thereafter in terms of section 313 of the Code of Criminal Procedure. Gaje Singh and Hem Chander have denied the prosecution evidence put to them in the shape of questions. They have pleaded complete innocence and false implication at the instance of the complainant party. According to them, Jasbir was suffering from schizophrenia. They have denied their presence at the spot at the time of alleged occurrence. They have examined Dr. S.C. Bhargava as DW-1, Pawan Kumar as DW-2 and closed their defence evidence. Jasbir Singh in the other case had also denied the truth of the prosecution evidence put to him in the shape of questions. He has also pleaded innocence and false implication in the case. He has claimed that he was suffering from schizophrenia and was under medical treatment and had nothing to do with the alleged crime. Two witnesses examined in the defence by his co-accused were examined by him also. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --8-- After hearing learned public prosecutor for the State, assisted by learned counsel for the complainant, and learned counsel for the defence, learned trial court found the appellants guilty by way of two separate judgments of the same date i.e. 31.07.2003 and after hearing on quantum of sentence on the same day, the sentence detailed as above had been awarded to them. Aggrieved by the aforesaid judgments of their conviction and the orders of sentence, the present appeals have been brought. We have heard Mr. S.P.Chahar, Advocate for the appellants, Ms. Shubhra Singh, DAG, Haryana, for the respondent-State and have gone through the record of the case with their assistance. Learned counsel for the appellants has contended that Jasbir, appellant had been suffering from schizophrenia at the time of occurrence and under the effect of the said ailment, he had caused blows to Shobha Chand, Om Patti and Ajit Singh with rapi. According to him, the other two appellants were not there at the spot. He has submitted that the other two appellants have been falsely implicated in the case. According to him, Kaptan Singh, PW-12 admits in his cross- examination that he was having effect of fits occasionally even prior to the occurrence. He has drawn our attention to the statement of Dr. S.C. Bhargava, DW-1 to prove that Jasbir, appellant had been suffering from schizophrenia. According to him, in such a condition, he could cause injuries to the deceased and injured. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --9-- Learned counsel for the appellants has further submitted that the statements of the witnesses were inconsistent regarding the description of the occurrence as well as the blows given by the various appellants to the victims. He has further submitted that Kaptan Singh, complainant and Dharambir, the alleged eye witness are not reliable witnesses because on seeing their family members under attack, they rushed back to save themselves. According to him, this conduct on the part of these witnesses is unnatural and so they cannot be said to have been there at the place of occurrence. Learned counsel for the appellants has further submitted that coming to the statement of Ajit Singh, it becomes evident from his statement that he did not see Shobha Chand being assaulted by the appellants. According to him, Ajit Singh, PW-13 has stated that Hem Chander, appellant did not cause any injury to him and the injuries to him were caused by Gaje Singh and Jasbir while Hem Chander caught hold of him. According to him, he has also admitted that Kaptan Singh, and Dharambir reached the spot on hearing the noise when injuries had already been caused to them. He has, thus, submitted that Ajit Singh himself admits that Kaptan Singh and Dharambir to have not seen the occurrence. Coming to the aspect of the recovery of the weapons of offence, learned counsel for the appellants has submitted that no person from the vicinity of the place of occurrence was called to witness the recovery of weapons. According to him, the evidence regarding recovery of rapis is quite shaky and is not supported by any independent witness. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --10-- He has, thus, submitted that the aforesaid circumstances were not taken into consideration by learned trial court and, therefore, learned trial court had fallen in grave error in holding the appellants guilty. Learned DAG, Haryana for the respondent-State, on the other hand, has submitted that the evidence of Dr.S.C. Bhargava, DW-1 does not prove that Jasbir was suffering from schizophrenia on the date of occurrence. According to her, if Jasbir would have acted at the time of occurrence under the effect of schizophrenia, he would not have been discriminatory. He did not cause any injury to people on his side. She has further submitted that the two witnesses namely Kaptan Singh and Dharambir could be scared and could run to the house for cover and for this reason alone, their statements cannot be disbelieved. According to her, in the statements of the people who had seen the occurrence from the houses through the windows or slits of the doors, some discrepancy could come in the description of the occurrence, which cannot be over emphasized. She has further submitted that there is no reason for not placing reliance on the statement of Ajit Singh , PW-13. There had been no previous history of any ill-will between the parties and, therefore, the statement of Ajit Singh, PW-13 cannot be discarded. She has, therefore, submitted that learned trial court has judicially appraised the prosecution evidence coming on the record and has rightly concluded about the guilt of the appellants and has appropriately sentenced them. The main submission of learned counsel for the appellants is that Jasbir was suffering from fits of schizophrenia at the time of occurrence and under such a fit, he alone had caused injuries to the Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --11-- victims and the other two appellants were not there at the spot. The argument is based on the evidence of Dr.S.C. Bhargava, DW-1. Statement of Kaptan Singh, PW-12 does not extend any help to the defence in this behalf. Kaptan Singh appears to have been a truthfulness witness. It was suggested to him that Jasbir was suffering from schizophrenia at the time of occurrence. He has denied the said suggestion but came out voluntarily saying that he was having effect of fits occasionally even prior to the occurrence. Therefore, the witness appears to have not concealed anything. However, his statement made voluntarily does not help appellants in proving that Jasbir was suffering from schizophrenia at the time of occurrence. Dr. S.C. Bhargava, DW-1 has stated that he had examined Jasbir as a Member of Board having Dr.Sujatha Sethi and Dr. Pirthi Singh as other members of the same. According to him, he remained admitted in the ward from 23.01.2003 to 07.04.2003 . He had found that Jasbir was suffering from schizophrenia at that time. He was shown photocopies of some OPD slips i.e. Ex.DE and DF, vide which he was attended to in the OPD on 24.10.2001, 24.12.2001, 10.04.2002, 15.7.2002 and 16.09.2002. These documents though relate to Jasbir son of Gaje Singh, yet the diagnosis is not given in these documents. Therefore, it cannot be said from these documents that he was taking treatment as OPD patient for schizophrenia on the aforesaid dates. Even if it is assumed that he visited the OPD on the aforesaid dates for taking treatment of schizophrenia, it cannot be believed that he had suffered the fit of schizophrenia on the date of occurrence. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --12-- It is argued on behalf of the appellants that Jasbir alone has caused injuries to the victims and the other two appellants were not there at the spot. It has been suggested to Kaptan Singh, PW-12 that Gaje Singh and Hem Chander had gone for evening walk at the time of occurrence. Dr. Paramjeet Kaur examined as PW-19 in the trial against Hem Chander and Gaje Singh has stated in her cross-examination that all the injuries on the person of Shobha Chand and Om Patti could be caused by one weapon. This part of the statement of Dr. Paramjit Kaur is, however, a piece of opinion, which cannot make the oral evidence unreliable. The same is, moreover, not correct as per her own observation. She had noticed four wounds on the person of Shobha Chand. They are elliptical in shape and are of the different size. The variation in their size is significant. The first wound is of the size of 3 x 1 cm. The second wound is of the size of 5 x 2 cms. The third wound is of the size of 4 x 2 cms and the last is again a wound of the size of 4 x 2 cms. The difference in size of the four wounds suggests different weapons to have been used in causing them. Three different weapons cannot be used by one person. This clearly indicates involvement of more than one and at least three persons in the occurrence. The opinion of Dr. Paramjit Kaur goes even against her own opinion which she gave after examining the rapis. She examined different weapons and gave the opinion that the injuries of Shobha Chand could be caused by those weapons. In the face of the statement of Dr. Paramjit Kaur, the opinion that all the injuries of Shobha chand and Om Patti could be caused by one weapon, cannot be held justified. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --13-- Some variations in the description of the occurrence appear even in case of people seeing the same at the same time from the same place. The difference is a natural result of difference in the powers of observation and perception of people. Here Kaptan Singh,PW-12 and Dharambir, PW-14 were scared seeing their family members under attack with rapis. All persons cannot be said to possess the same amount of courage. So no standard of courage could be applied to assess and appreciate the statements of the eye witnesses. The occurrence had taken place by the side of the house of the deceased. The complainant and Dharambir are grandson and son respectively of Shobha Chand deceased and they are the natural witnesses of the occurrence. So their statements cannot be discarded for these reasons. Jagat Singh, ASI had appeared as PW-20 at the trial against Hem Chander and Gaje Singh. His statement appears at Sr.No.18 in the trial against Jasbir. He arrested the three accused on 08.10.2002. He interrogated the accused in the presence of Dharambir. They made disclosure statements of keeping the rapis concealed in different manner. They then led Jagat Singh, ASI to various places of concealment of rapis and got those rapis recovered. His statement in this regard is corroborated by Dharambir, PW-14 and HC Rajinder, PW-15. We find no reason to disbelieve them. The three rapis were found vide recovery memo Ex.PK to be stained with human blood. As per the nature of the instrument named as rapis, human blood is not expected to come on the same unless the same is used in causing injuries to a human being. Crl. Appeal No.D-928-DB of 2003 & Crl. Appeal No.D-929-DB of 2003 --14-- Presence of human blood on all the three rapis would further prove not only the recovery of rapis from the appellants, but also involvement of all the three appellants in the occurrence. For the aforesaid reasons, we find no infirmity in the findings of guilt recorded by learned trial court against the appellants vide judgments dated 31.07.2003 as also in the order of sentence of the same date. Therefore, we find no merit in the appeals and dismiss the same. (VIJENDER SINGH MALIK) JUDGE ( HEMANT GUPTA) JUDGE 02.09.2011 dinesh