Crl.A.No.383 DB of 2006 1 IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of decision: January 24, 2008 Criminal Appeal No.383 DB of 2006 Jagdish and another .....Appellants vs. The State of Haryana ......Respondent CORAM: Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice S.D.Anand Present: Mr. Vinod Ghai, Advocate for the appellants. Mr. Kulvir Narwal, DAG,Haryana for the State. JUDGMENT: The appellants are aggrieved by their conviction under sections 302/34 IPC, for which they have been sentenced to undergo life imprisonment and to pay fine of Rs.1 lac each, in default, to undergo further simple imprisonment for a period of one year. Case of the prosecution is that for the murder of Dilbagh Singh, brother of the appellants, Vinod deceased, Krishan deceased, Ram Niwas, Ganga Sarup and Satish were convicted and sentenced to undergo life imprisonment. Vinod and Krishan were availing parole for 42 days at the time of incident dated 9.7.2004 at 5 PM. Vinod, Krishan and their brother Sonu had gone to the tube- well of their uncle Ram Niwas. Ram Niwas was on bail. Ram Niwas and Mahabir, father of Vinod were sitting near the tube- Crl.A.No.383 DB of 2006 2 well. Vinod, Krishan and Sonu went towards the fields to answer the call of nature. Appellants Jagdish and Anand Sarup alongwith co-accused Magha Ram and Jai Parkash (who were declared proclaimed offenders) came on their tractor with their weapons. Magha Ram and Anand Sarup were armed with 'gandasis', while Jagdish and Jai Parkash were armed with axes. They shouted that Vinod and Krishan should not be allowed to escape and revenge for murder of Dilbagh be taken. Magha Ram gave blows on the hands of Vinod. Anand Sarup gave blows of 'gandasi' in the stomach of Vinod. Jagdish and Jai Parkash gave blows on the feet of Vinod. Magha Ram gave two blows of 'gandasi' on the left hand of Krishan. Anand Sarup gave 'gandasi' blows on the left knee and Jai Parkash gave blows of axe on right feet of Krishan. On hearing the alarm, Ram Niwas, uncle and Mahabir, father of Vinod came to the site. Krishan died on the spot. Sonu escaped from the site. On receiving a telephone message that Vinod and Krishan have been assaulted by Magha Ram and his brothers, Rajender Singh SHO, Police Station, Mohana, PW9 went to the place of occurrence and recorded the statement of Vinod at 9 PM. He arranged to send Vinod, injured to the hospital at Sonepat and proceeded to make investigation. He prepared rough site plan and inquest report of deceased Krishan. He lifted blood stained earth and sent dead body of Krishan for post mortem. Later, he also prepared inquest report Crl.A.No.383 DB of 2006 3 of deceased Vinod and also recovered clothes of the deceased. He arrested Anand Sarup and Jagdish and in pursuance of their disclosure statements, he recovered weapon of offence. He also recovered tractor and after investigation sent up the accused for trial. Dr. Rajiv Sethi PW3 conducted post mortem on the dead body of Vinod, aged 22 years and found following injuries:- “1. There was an incised wound in front of chest lower part on both sides of midline obliquely placed 20 x 5.5 cmx. Muscle deep. Clotted blood was present. 2.An incised wound 8 cm x 1 cm muscle deep present in front of chest 6 cm below injury No.1. Clotted blood was present. 3.An incised wound 6 cm x 1.5 cm on the left side of lower part of chest in the anterior axillary line. 4.An incised wound in front of right upper arm 15 cm x 10 cm only tag of skin intact on both side. Underlying bones muscles, tendons and vessels cut. Clotted blood was present. 5.An incised wound 3 cm x 2 cm in front of right upper arm in the middle 1/3rd just above injury No.4. 6.An incised wound 2.5 cm x 2 cm muscle deep present on lateral side of upper one side of right upper arm. 7.An incised wound on the lateral side of right Crl.A.No.383 DB of 2006 4 upper arm in the middle 1/3rd, 5 cm x 2 cm in size. Muscle deep. Clotted blood was present. 8.An incised wound in the lower 1/3rd of right upper arm on the lateral side 3 cm x 2 cm in size, muscle deep. Clotted blood was present. 9.An incised wound 4 cm x 1.5 cm on the antero lateral side of left upper arm in the upper 1/3rd. Clotted blood was present. 10.An incised wound 4 cm x 2 cm muscle deep present in the middle 1/3rd of left upper arm on the antero lateral side. Diffused swelling was present. 11.An incised wound 2.5 cm 1.00 cm muscle deep just below injury No.10. 12.Diffused swelling underneath above three injuries with fracture of underlying bone. 13.An incised wound 1 cm x 0.5 cm in front of left elbow. Clotted blood was present. 14.An incised wound on the back of left lower arm 10 cm x 3.5 cm bone deep, Clotted blood was present. Underlying bone fractured. 15.Multiple incised wounds of different sizes and shapes present in front of middle and lower 1/3rd of right leg, size varying from 7 x 2 cm to 3.5 cm x 1 cm. Clotted blood was present. Underlying bone fractured. 16.Incised wound in front of left foot 6 cm x 4 cm bone deep underlying bone fractures. Clotted blood was present. 17.Incised wound 4 x 1 cm in front of left ankle joint. Crl.A.No.383 DB of 2006 5 18.Multiple incised wound 5 in numbers, present in front of left leg. Middle and lower 1/3rd with diffused swelling and underlying fracture of the bones. Size varying from 4 x 2 cm to 3 x 1 cm Clotted blood was present. All the organs were healthy and pales. The cause of death in this case in our opinion was haemorrhage and shock as a result of cumulative effect of all the injuries described which were ante mortem and sufficient to cause death in normal course of life. Probable duration between injuries and death within minutes to hour and between death and post mortem was six to 36 hours.” Dr. JS Punia, PW10 conducted post mortem on the dead body of Krishan, aged 20 years and found following injuries:- “1. Once incised wound of size 8 cm x 3 cm present on the anterior aspect of left lower thigh, traversely placed, bone deep underlying muscle reputed and bone (femur) fractured, Clotted blood present. 2.One incised wound of size 2 cm x 1 cm present on the anterior aspect of left leg of muscle deep. 3. One incised wound of 2 x 2 cm present on the left foot on anterior aspect skin deep. 4. One incised wound of size 11 cm x 3 cm present on the anterior aspect of right thigh in the lowest thigh, muscle ruptured and underlying bone fractured (Femur). Crl.A.No.383 DB of 2006 6 5.One incised wound of size 8 cm x 2 cm present just below the injury No.4 muscle deep. Clotted blood was present. 6.One incised wound of size 13 cm x 5 cm present on the popleatil fossa of right lower limb. Underlying muscle ruptured, bone fractured and vessels ruptured. 7.One incised wound of size 18 cm x 5 cm present in the posterior region of right lower limb, bone fractured exposed, clotted blood was present and vessel ruptured. 8.One incised wound of size 8 x 3 cm present on the posterior region of right thigh in the middle of right thigh, muscle deep, transversely placed. 9.One incised wound of size 2 x 1 cm present on the right thigh in the upper posterior thigh. 10.One incised wound of size 10 x 5 cm present on the left forearm on anterior aspect transversely placed. Bone of left forearm fracture. Vessels ruptured. Clotted blood was present. 11.Diffused swelling was present with multiple abrasion on the left upper arm at the anterio lateral aspect on exploration left humerus bone fractured. 12.One incised wound of size 3 cm x 1 cm present on the right palm obliquely placed. Clotted blood was present. Rest of the organs were found healthy. Crl.A.No.383 DB of 2006 7 The cause of death in this case in our opinion was due to excessive haemorrhage and shock as a result of injuries described above which are sufficient to cause death in normal course of life. All the injuries were ante mortem in nature and probable duration between injuries and death was within few minutes to hour and between death and post mortem was within six to 36 hours.” The prosecution examined PW1 Vijya Kumar, Patwari who prepared site plan, PW2 Kuldeep Singh who carried envelopes containing FIR, PW3 Dr. Rajiv Sethi, PW4 Sonu, eye witness, PW5 Anand Kumar, photographer, PW6 Mahabir, PW7 Bhagwan Swaroop ASI, PW8 HC Umed Singh who tendered his affidavit, PW9 Rajender Singh SI who conducted investigation, PW10 Dr. JS Punia, PW11 Raj Kumar who produced the record, PW12 Constable Dharambir Singh who filed his affidavit and PW13 HC Dharam Singh, who assisted PW9 Rajender Singh SI in investigation. The accused denied the prosecution allegations. The trial court, after considering the evidence on record, held the case of the prosecution to be proved beyond reasonable doubt and convicted and sentenced the appellants. Substance of the reasoning of the trial court can be summed up as under:- Crl.A.No.383 DB of 2006 8 (i)Delay in FIR was duly explained. (ii)The police was informed on telephone immediately by PW4 Sonu and PW6 Mahabir and arrived on the spot and recorded statement of Vinod who died thereafter. Delay in sending copy of the FIR to the Magistrate was explained by PW2 Constable Kuldeep Singh. In any case, the delay was inconsequential in view of clear evidence on record. (iii)Statement of Vinod Ex.PE was genuine and could be treated as dying declaration. (iv)Evidence of PW4 Sonu and PW6 Mahabir who were eye witnesses, was reliable and was consistent. (v)Recoveries in pursuance of disclosure statements were duly proved. We have heard learned counsel for the parties and perused the record. Main contention raised by the learned counsel for the appellants was that statement of Vinod deceased Ex.PE was forged as he died instantaneously and could not have survived for three hours when a statement is said to have been recorded. From the original statement, the same appeared to have been adjusted after taking his thumb impression on blank paper to create a dying declaration. There was delay in receiving a copy of special report. This showed that the investigating agency resorted to padding by creating false evidence and on that account, evidence of Mahabir Crl.A.No.383 DB of 2006 9 and Sonu, eye witnesses should also not be believed. He submitted that the eye witnesses had not seen the occurrence. The deceased had been killed in the night and FIR was registered in the morning by antedating the time. It was clear from the fact that the doctor who first examined the injured, was not examined. Learned counsel referred to evidence of Dr. Rajiv Sethi, PW3 to the effect that duration between injuries and death was within minutes to hours and between death and post mortem was six to 36 hours. He also referred to evidence of Sonu PW4 to the effect that Vinod had become unconscious. He submitted that Vinod having received 18 injuries, which included multiple incised wounds in chest, Vinod could not have made a statement. Even Rajender Singh SI PW9 admitted in the cross examination that Vinod was having multiple injuries and was in a serious condition. It was also submitted that in normal course, Vinod having been seriously injured at 6.30 PM would have been rushed to the hospital to save his life. According to PW5 Anand Kumar, photographer, I.O. came to his shop at 7 PM and when he went to the place of occurrence at 7.30 PM, I.O. was present at the place of occurrence. We have not been able to find any merit in the contentions raised. In the present case, there is direct evidence of PW4 Crl.A.No.383 DB of 2006 10 Sonu and PW6 Mahabir who were both eye witnesses. They have fully supported the version of the prosecution in all material particulars. Their presence on the place of occurrence is natural. There is no dispute about identity as the accused were well known to the said witnesses. Being close relations of the deceased, they will be the last persons to substitute real accused for the appellants. They immediately informed the police and the police arrived on the spot. PW5 Anand Kumar Photographer has also stated that when he reached the spot at 7.30 PM, the I.O. had arrived there. Thus, false implication of the appellants is not ruled out. The appellants had clear motive to cause death of the deceased. Thus, case of the prosecution stands fully proved against the appellants. Even if statement of Vinod Ex.PE having been recorded by PW9 Rajender Singh, is excluded from consideration, there being enough evidence on record against the appellants, no significance could be attached to the issue whether Ex.PE was really genuine. Medical evidence is only an opinion evidence and is not conclusive about the time between the injury and the death. The defect or irregularity in investigation is not enough to reject prosecution case. Where there is an allegation of defective investigation, the court has to be circumspect in evaluating evidence but the court cannot reject a version merely on account of Crl.A.No.383 DB of 2006 11 lapse of investigating agency where evidence of eye witnesses is otherwise reliable. In the present case, evidence of Mahabir PW6 and Sonu PW4 cannot be held to be unreliable in any manner and in these circumstances, even if statement of deceased Vinod Ex.PE is to be ignored, case of the prosecution is not liable to be rejected. Accordingly, we do not find any merit in this appeal. We affirm conviction and sentence of the appellants. The appeal is dismissed. (Adarsh Kumar Goel) Judge ( S.D. Anand ) Judge January 24, 2008