Criminal Appeal No.1048-SB of 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1048-SB of 1998 Date of decision : 25.9.2008 Ishwar and others .....Appellants Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Hiteshwar Singh, Advocate for the appellants Mr. S.S.Mor, Senior Deputy Advocate General, Haryana **** S. D. ANAND, J. The appellants (Ishwar, Karampal, Krishan and Nirmala) are in appeal against their conviction at the hands of learned Trial Court, for offences under Sections 342, 304 Part II read with Section 34 IPC. The appellants were sentenced to undergo rigorous imprisonment for seven years, besides a fine of Rs.100/- each for the offence under Section 304 (2) IPC; while for the offence under Section 342 read with Section 34 IPC, the appellants were sentenced to undergo rigorous imprisonment for three months. Both the substantive sentences were ordered to run concurrently. 2. PW-5 Priya Vart has four brothers, Suresh deceased being the eldest of them. On 4.4.1997, at about 8/8.30 A.M., he was on way to Sonepat; while one Samunder was taking the bullocks towards the field. When both of them reached near the house of Ishwar son of Lal Chand, they spotted Suresh coming from Criminal Appeal No.1048-SB of 1998 -2- the side of Sonepat. When Suresh reached in front of the house of appellant Ishwar, he was challenged by all the appellants (appellant Nirmala being wife of appellant Ishwar and appellants Karampal and Krishan their sons). They declared that Suresh ought to be taught a lesson because his brother Priya Vart had resiled from his statement. (The reference in the context was to a case detailed in para No. 4 of this judgment. 3. All the appellants caught hold of Suresh and dragged him inside their house. PW-5 Priya Vart could not move that fast because he had a nail in his leg. By the time PW-5 Priya Vart and Samunder reached the house of Ishwar, door thereof had been shut from inside. PW-5 Priya Vart and Samunder tried to push the gate open but were not successful. They peeped through the door holes and found that all the appellants were belabouring Suresh. Appellant Ishwar was beating Suresh with slaps and fist blows, his wife Nirmala appellant gave a kick on the testicles of Suresh and appellants Krishan and Karampal inflicted blows on the chest of Suresh. Apart therefrom, appellants Karam Pal and Krishan caught hold of the head of Suresh and hit it against wooden part of a cot which was available over there. After Suresh had been belaboured , he was thrown into the street from the main door. The appellants fled the spot thereafter. PW-5 Priya Vart and Samunder found that Suresh had succumbed to the injuries there only. 4. The motive for the impugned occurrence was as under:- Appellant Nirmala had launched a prosecution under Section 354 IPC against one Sahab Singh. Priya Vart (PW-5 a brother of Suresh deceased ) was cited as a prosecution witness in Criminal Appeal No.1048-SB of 1998 -3- that case. At the instance of Suresh, PW-5 Priya Vart did not support the prosecution in that case. That resiling from the attributed role actuated the appellants to commit the crime for which they were convicted. 5. The ocular segment consists of statement of PW-5 Priya Vart. Samunder was given up as having been won over by the accused. 6. PW-1 Dr. Satnam Singh , Medical Officer, General Hospital, Sonepat had conducted post-mortem examination on the dead body of Suresh and found the following injuries:- 1. A lacerated wound 2 x .5 cm on the back of the skull on right side of the occipital region with clotted blood on it. 2. There were multiple reddish bruises on the fore- head measuring 1 x 1 cm to 4 x 4 cms in size. 3. Both the eye lids of the left eye were swollen and it was difficult to open the left eye. 4. A reddish contusion 4 x 4 cms just lateral to the right eye. 5. There were multiple reddish burise and abrasions over the back of the right side chest and abdomen. On dissection, there was infiltration of blood in subcutaneous tissue. 6. There were multiple circular abrasions and bruise on lateral and dorsal aspects of both the wrists.” 7. Dr. Satnam Singh further observed as under:- “On dissection of the skull there was haemotoma in Criminal Appeal No.1048-SB of 1998 -4- the frontal and right side of occipital region of the skull. On removing the vault the membranes were congested. On exposing the brain there was haemotoma over both frontal lobes of the brain. The cranial fossae were empty. Chest: On dissection of the chest there was haemotoma of strenum and right side of the chest in the area of 3rd and 4th ribs. There was fracture of sternum at the level of 3rd rib. 3rd, 4th, 5th ribs on the right side of the chest were fractured at multiple places. On further dissection the pericardial cavity was full of clotted blood. There were laceration in the left aterium measuring 2.5 x 1 cm. Both chambers of the heart were empty. On exploration of lungs there was lacerated wound in th right lung measuring 2 x 1 cm with blood in the pleural cavity. The upper lobe of the right lung was collapsed. On dissection of abdomen, there was blood in the peritoneal cavity around the liver. There was big lacerated wound measuring 8 x 1.5 cm on the anterior aspect of right lobe of the liver with blood in it. Stomach contained small amount of semi-digested food. Small intestine contained digested juices. Bladder was empty. Sex organs were normal.” 8. In the opinion of Dr. Satnam Singh, death had occurred due to shock and haemorrhage as a reuslt of multiple injuries described in the post-mortem report. All the injuries were ante- mortem in nature and were sufficient to cause death in ordinary Criminal Appeal No.1048-SB of 1998 -5- course of nature. It was further opined that probable time between the injuries and death was within few minutes. 9. PW-2 Constable Inder Pal, a Draftsman posted in S.P. Office, Sonepat, had prepared site plan Ex. PB, on the pointing of Samunder Singh. 10. PW-3 Pankaj a Professional Photographer, had photographed the spot on 4.7.1997 vide proved photographs Ex. P9 to Ex. P12, Ex. P5 to Ex. P8 being their negatives. 11. PW-4 HC Ranbir Singh made a record based statement to the effect that FIR No. 319 dated 25.11.94 had been lodged by Nirmala wife of Ishwar Singh resident of village Hulla heri. He also proved Ex. PC a photocopy of the FIR. 12. Affidavit Ex. PE is of Constable Daya Nand, who was formal witness in this case. Ex. PF and Ex. PF/1 are the FSL reports. 13. PW-6 Nahar Singh, a brother of PW-5 Priya Vart and a police official posted at Sonepat itself had accompanied the latter to the Police Station to notify the offence to the police. On finding that Suresh had died on account of the belabouring, Priya Vart had been to Nahar Singh, to intimate the occurrence to him. 14. PW-7 Inspector Prem Singh and PW-8 SI Kishan Singh had investigated the case. 15. The appellants raised a pure and simple plea of innocence. Appellant Ishwar Singh averred as under in the context:- “I am innocent. On 4.7.97 Suresh deceased intruded in our house at about 7-30 A.M. under the influence of liquor. He had already suffered some injuries on his Criminal Appeal No.1048-SB of 1998 -6- person. He tried to outrage the modesty of my wife Nirmala. My wife pushed him outside the house where he fell down in the street. My wife and my son Karanpal had gone to Police Station Sadar Sonipat for reporting the matter to the police but after about half an hour Nahar Singh brother of the deceased reached at the police Station and he informed that Suresh had died. Thereupon the police detained my wife and my son. After two hours I had also been arrested by the police. My relative had also given a telegram to the High Court regarding our false implication and illegal detention.” 16. The other appellants adopted the defence offered by Ishwar. 17. No evidence was been adduced in defence. 18. The learned Trial Court accepted the presentation made by the prosecution by relying upon the oral presentation in the statement of PW-5 Priya Vart. In recording the impugned finding of indictment, the learned Trial Judge also drew sustenance from the fact that the prosecution had been able to prove the motive on the part of the appellants to do away with Suresh brother of PW-5 Priya Vart who 'ditched' appellant Nirmala in a prosecution launched by her against one Sahab Singh. The learned Trial Judge further held that the defence plea about Suresh having tried to enter the house of appellants under influence of liquor and in order to have sex with appellant Nirmala was unbelievable. 19. I have heard Mr. Hiteshwar Singh, Advocate as Amicus Curiae and Mr. S.S.Mor, learned Senior Deputy Advocate General, Criminal Appeal No.1048-SB of 1998 -7- Haryana and carefully gone through the record. (The appeal had been filed through another counsel who did not enter appearance in spite of adequate opportunity having been afforded for the purpose. It was under those circumstances Mr. Hiteshwar Singh, Advocate was appointed as Amicus Curiae to assist this Court). 20. Learned Amicus Curie argues that prosecution plea does not sound credible. The averment in the context is that if the appellants nursed a grievance against PW-5 Priya Vart, they would have taken out their ire at him only and there is no reason why they would have instead belaboured Suresh deceased. 21. The plea is without any merit. One can not be sure about the mind set of an individual who retains a sense of vengeance against another. It is in the own statement of PW-5 Priya Vart that he had resiled from his statement in the prosecution launched by Nirmala against one Sahab Singh (at the instance of Suresh). His statement on that point of fact was not challenged in the course of cross-examination. That being so, there was nothing unnatural on the part of the appellants in having taken it out on Suresh, who they thought, had persuaded Priya Vart to refrain from supporting appellant Nirmala in the presentation to that Court. 22. The defence offered is also without any force. If Suresh was under intoxication, his post mortem examination would have surely given an indication to that effect. There is nothing in the post- mortem report to indicate that Suresh was under intoxication at the time of death or that any liquor had been found in his stomach in the course of the post-mortem examination. 23. As per the prosecution presentation, the impugned Criminal Appeal No.1048-SB of 1998 -8- occurrence had taken place at 8/8.30 A.M. In the rural India, that would be fairly early hours of the day when all the men folk and others members of the family are supposed to be in their house only. It would be illogical to expect that Suresh would have gone to the house of appellant Nirmala to have sex with her at a time when he could easily envisage that other members of the family too would be available over there. Even otherwise, it already stands held in an earlier part of the judgment that Suresh was not under the influence of liquor. 24. Learned Amicus Curiae, then, found fault with the validity of the prosecution plea by arguing that no independent witness from the locality or village had been examined at the trial to support the prosecution allegation. 25. It is a matter of common observation that those living in the village would like to, by and large, avoid getting embroiled in a controversy between different residents of the village. Some of the villagers would do so for fear of reprisal; while few others may adopt that “I don't care' attitude on account of sheer indifference to the plight of others or for fear of annoying the opposite party. Be that as it may, the phenomenon of refrain on the part of the co-villagers to volunteer a statement at the trial is not new to the realm of administration of justice. 26. As would be apparent from a perusal of the discussion in the fore-going paras of this judgment, even the appellants do not deny the factum of availability of Suresh on the spot. It may be indicated, even at the cost of repetition, that they raised a plea that he sustained injuries in the course of a scuffle with the members of Criminal Appeal No.1048-SB of 1998 -9- the complainant party who thwarted his attempt to have sex with appellant Nirmala. At the trial, a suggestion to that effect was also given to the Investigating Officer. It was put to him that he refrained from acting on the information furnished by the appellant (party)in the context of those facts. He, ofcourse, denied the suggestion as incorrect. Even otherwise, if there had been even an iota of truth in the plea of appellants in the relevant behalf, there is no reason why the complainant party would not have approached the higher authorities. They could very well have had a resort to the remedy available to them in the form of a private complaint in a Court of law. Nothing of type is averred to have been done by the appellants. 27. Learned counsel, appearing on behalf of the appellants, also proceeded to find fault with the bonafides of the prosecution presentation by pointing out that PW-5 Priya Vart was not in a position to even indicate the number and nature of blows given by the appellants to Suresh deceased. 28. Learned Amicus Curiae is expecting too much of an exactitude from PW-5 Priya Vart who witnessed the impugned occurrence by peeping through the holes of the main door of the house of the appellants. He was a brother who was watching another brother of his being done to death. Reaction to such a situation would vary from individual to individual. There might well be a case in which a person would raise audible raula which attracts people from the vicinity to the spot. Equally so, there could be a person who may react to the indicated situation by going numb. In any case, it would be unnatural and illogical to expect that PW-5 Priya Vart would have counted the number and seat of the injuries Criminal Appeal No.1048-SB of 1998 -10- even which he could witness that his real brother was suffering belaboring at the hands of the appellants and there was nothing he could do to help his brother as the door of the room could not be pushed open. The following are, thus, apparent from the record:- i) The appellants were nursing a feeling of reprisal/vengeance vis-a-vis Suresh deceased for the reasons noticed in the course of para no. 21 of this judgment. ii) The presentation made by PW-5 Priya Vart inspires confidence. There is, even otherwise, no reason why he would have allowed the real culprit to go scot-free and to substitute the real culprit by the appellants. 29. In the light of the fore-going discussion, the appeal is held to be devoid of merits and is ordered to be dismissed. September 25, 2008 (S. D. ANAND) Pka JUDGE