IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.194-DB of 2005 Date of Decision: 03.03.2009 Suresh Appellant Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.Arshit Malik, Advocate for the appellant Mr.S.S.Randhawa, Addl.A.G. Haryana for the respondent-State …. Jasbir Singh, J. It was allegation against the appellant that he, alongwith his brother Satish, had committed murder of Sunil Kumar @ Sonu on 20.5.2003 at about 11.30 PM within jurisdiction of village Jassaur Kheri, Police Station Sadar Bahadurgarh. After trial, brother of the appellant, namely, Satish was acquitted, however, the appellant was convicted for commission of an offence under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- with a default clause. Hence, this appeal. Case of the prosecution, as noticed by the trial Court in paragraph No.2 of the judgment under challenge, reads thus:- Criminal Appeal No.194-DB of 2005 2 “Briefly stated the facts of the case are that Rimpi wife of Sunil Kumar @ Sonu resident of Jassaur Kheri, a housewife lodged a report with the police on 21.5.2003 that her husband Sunil Kumar was working as a farmer in the village. About a month earlier of the occurrence Suresh Kumar accused son of Ramdhari of their village leveled false allegations against her husband Sunil Kumar that he tried to outrage the modesty of his daughter Kiran Balan. That matter was taken up before the Panchayat that nothing such happened. Still the accused was nursing the grudge against him. On 20.5.2003 at about 11.00 P.M. the complainant Rimpi, her husband Sunil Kumar and Poonam wife of her husband’s elder brother all went to their gher, where they used to teather their cattle for sleeping there and have the watch over their cattle. A gas cylinder had been placed over their cart for the light and it was burning. At about 11.30 P.M. the accused Suresh arrived in the gher of the complainant with a pharsa in his hand and he gave a lalkara to sonu that he would not allow him to escape and then he gave a pharsa blow to him at his neck and he fell down. Then he gave two pharsa blows to him one falling at his left ear and the other falling at his cheek and one pharsa blow laws given at his chest. He inflicted further pharsa blows and in the meantime his brother Satish also arrived there with a pharsa in his hand and he gave a pharsa blow on the right side of his head and on his right elbow. Rimpi and Poonam raised alarm and the assailants Criminal Appeal No.194-DB of 2005 3 ran away with their respective weapons. They checked sonu and found him dead. The complainant Rimpi his wife then informed the police on telephone at Police Post Assauda and on receipt of that message Satpal Singh, ASI, posted in Police Post Assuada arrived in the village Jassaur Kheri accompanied by Sanjeet Kumar and Balkishan constables and Azad Singh HC. So the complainant reported the matter to him on the above lines and so her statement Ex.PN was recorded. It was read over to her and she put her signatures thereat after admitted the same as correct.” ASI Satpal Singh (PW10) sent intimation to the police station, whereupon formal FIR (Ex.PN/2) was recorded by Bhim Singh, Inspector Police. Thereafter, the investigating officer made a spot inspection, got prepared the inquest report and sent dead body for post-mortem examination to Civil Hospital, Bahadurgarh. The investigating officer also took into possession blood stained earth against recovery memo (Ex.PJ). He got prepared rough site plan (Ex.PR) of the place of occurrence with marginal notes. In the meantime, SI Mohinder Singh (PW11) also arrived at the spot. Thereafter he visited the hospital, where dead body of Sunil was lying for post-mortem examination, which was conducted on 21.5.2003 by Dr.Anil Rathi (PW8). Appellant-accused was arrested on 22.5.2003. Co-accused Satish was arrested on 29.5.2003. He made a disclosure statement(Ex.PM) on 1.6.2003 in response to which, weapon of offence i.e. Pharsa was recovered and taken into possession against recovery memo (Ex.PF). Weapon of offence was sent to Forensic Science Laboratory for serological Criminal Appeal No.194-DB of 2005 4 examination. On receipt of report thereof and completing other formalities, final report was put in Court. The appellant and his co-accused were charge sheeted for commission of an offence under Section 302/34 IPC. They pleaded not guilty and claimed trial. The prosecution examined 12 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, separate statements of the appellant and his co-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them which they denied, pleaded innocence and false implication. They further stated that it was a case of blind murder. The occurrence was not seen by Rimpy (PW12) and Poonam (PW5), as alleged by the prosecution. The appellant and his co- accused was fixed in the case after deliberation with the police, with a view to settle old existing enmity. The trial Court, on appraisal of evidence on record, convicted and sentenced the appellant-accused, as found mentioned in earlier part of this judgment. However, co-accused was acquitted. Counsel for the appellant Mr.Arshit Malik has vehemently contended that the Court below was not justified in convicting and awarding sentence to the appellant. It was a case of blind murder. Alleged eye witnesses have not seen the occurrence, as stated by the prosecution. The FIR was ante-timed to show its prompt recording. There was no motive with the appellant to commit crime. Story of pre-existing ill-will between the parties, was not proved on record. He further argued that the eye witnesses and the investigating officer are discrepant on material points, benefit of which, must go to the appellant. He prayed that appeal be allowed, judgment, Criminal Appeal No.194-DB of 2005 5 under challenge, be set aside and the appellant be acquitted of the charges framed against him. Prayer made has vehemently been opposed by Mr.S.S.Randhawa, Addl.A.G. Haryana, appearing for the respondent-State. He argued that case of the prosecution was fully proved by the testimony of PW12 Rimpy( wife of the deceased) and PW5 Poonam (sister-in-law of the deceased), who had given clear description as to how the appellant and his co-accused waylaid the deceased and caused injuries to him. He further stated that recording of FIR was prompt in this case. By stating that in case of an eye witness account, motive to commit crime does not play any material role, he prayed that appeal be dismissed having no substance. After hearing counsel for the parties, we are not inclined to interfere at the instance of the appellant-accused in the judgment and order, under challenge. PW5 Poonam and PW12 Rimpy have stated that at about 11.30 PM, when they, along with the deceased were going to their outhouse, the appellant-accused waylaid them and caused several injuries to the deceased, on vital part of his body. When the deceased had fallen down on the ground, co-accused Satish also came there and caused injuries with a Pharsa to the deceased. On alarm being raised, both the accused ran away from the spot along with their respective weapons. Lengthy cross examination has failed to shatter testimony of above named witnesses. Minor discrepancies here and there, in their statements, are of no consequence and will not get any benefit for the appellant-accused. Criminal Appeal No.194-DB of 2005 6 Post-mortem on the dead body was conducted by Dr.Anil Rathi (PW8) on 21.5.2003, who found the following injuries on the dead body of the deceased:- “1. An incised wound 6x 1 ½ cm x bone deep on left cheek. 2. Incised wound 10 x 3 cm x hyoid deep below chin. 3. An incised wound 15 x 6 cm x bone deep present on right side on neck extending from anterior surface of neck to 3 cm posterior to right pinna. Blood vessels and nerves cut muscels cut, treachea cut, clots present. 4. Incised wound 13 cm x 6 cm x bone deep in the middle of chest horizantally placed. 5. Incised wound 20x 12 cm on medial and posterior aspect of right elbow, blood vessels, nerves and bones cut. 6. Incised wound 7 cm x 3cm x bone deep above left wrist posteric aspect. 7. An incised wound 2 x .5 cm x tissue deep anterior to left pinna. 8. An incised wound 2.5 cm x 1.5 cm on external nose. 9. An incised wound on medial aspect of left leg lower. 10. An incised wound 7cm x 4 cm on lateral aspect of left thigh. 11. An incised wound 12 cm x 6 cm x tissue deep on medial aspect of left thigh. 12. Right hip joint fractured.” Criminal Appeal No.194-DB of 2005 7 11 injuries were incised wounds and 12th was fracture of right hip joint. Cause of death was hemorrhage and shock leading to brain ischemia due to injury Nos.3 and 5 and respiratory stress due to respiration of blood. All the injuries were ante mortem in nature and injury No.3 alone was sufficient to cause death in ordinary course of nature. This witness has proved on record the post-mortem report (Ex.PK). It has also come on record that against a disclosure statements made on 22.5.2003 and 1.6.2003, respectively, weapon of offence was recovered. On serological analysis, Pharsa wielded by the appellant, was found stained with human blood. If it had been a case of blind murder, as alleged by the appellant, there was no occasion for Rimpy (widow of the deceased), to leave the real culprits and instead involve the appellant in this case. The appellant has virtually stated that there was no past existing enmity between the parties, as was alleged by the prosecution. Lodging of FIR in this case was very prompt. Occurrence alleged to have taken place at 11.30 PM on 20.5.2003. PW12 Rimpy (wife of the deceased) immediately intimated the police officials on telephone. The police station is situated at a distance of about 15 kms from the place of occurrence. Police reached at the spot in the midnight and recorded statement (Ex.PN) of Smt.Rimpy (PW12), which was concluded at 3.30 AM on 21.5.2003. Formal FIR (Ex.PN/2) was recorded at 5.00 AM. Special report reached the Ilaqa Magistrate at 8.10 AM on 21.5.2003. As per zimny report (Ex.DB), telephone was received in the police station at 12.10 AM. Criminal Appeal No.194-DB of 2005 8 Sequence of evidence given above, clearly indicates that there was no possibility of any padding by the prosecution, as alleged by the appellant. Contention of counsel for the appellant that testimony of PW5 (sister-in-law of the deceased) and PW12 (wife of the deceased), being interested witnesses, was wrongly relied upon by the trial Court, is liable to be rejected. We have looked into statements made by both the witnesses and are convinced that their deposition was reliable and truthful. Counsel for the defence has failed to pin-point any material infirmity in their statements. Deposition made by a relation witness, can be relied upon, if it inspires confidence. In the present case, both the witnesses have passed the above said test. In view of facts on record, presence of both the witnesses, at the spot, was natural. The prosecution has also successfully established motive with the appellant to commit the crime. Otherwise also, in an eye witness account, motive virtually becomes a pale shadow. Counsel for the appellant has failed to indicate any material infirmity in the judgment and order, under challenge, which may necessitate any interference by us. Dismissed. (Jasbir Singh) Judge 03.03.2009 (Jora Singh) gk Judge