Crl. Appeal No. 464-DB of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 464-DB of 2007 Date of Decision : February 24, 2009 Prithvi and another .... Appellants Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. S. Rana, Advocate for the appellants. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : Prithvi son of Tikka Dutt and Ramu @ Raj (in fact Ramu @ Raju) son of Lekh Raj have preferred this appeal to assail judgment of conviction and order of sentence dated 29.03.2007 of learned Additional Sessions Judge, Ludhiana, whereby the appellants stand convicted under Section 302 and Section 324 read with Section 34 of the Indian Penal Code (in short – the IPC) and have been sentenced to undergo life imprisonment and to pay fine of Rs.2,000/- each and in default thereof, to undergo further rigorous imprisonment for six months for offence under Section 302/34 IPC and also appellant no.1 has been sentenced to undergo rigorous imprisonment for 1 ½ years under Section 324/34 IPC, whereas appellant Crl. Appeal No. 464-DB of 2007 2 no.2 has been sentenced to undergo rigorous imprisonment for two years under Section 324 IPC. All these sentences have been ordered to run concurrently. Along with the two appellants, Malikdin and Deepak Kumar were also sent for trial, but during the pendency of the trial, they were held to be juveniles and were accordingly directed to be tried separately by Juvenile Justice Board. Prosecution case may be narrated as under :- Case was registered on statement (Ex.P-A) of Mukesh Aggarwal resident of Ludhiana made at 02:43 A.M. on the night intervening 21/22.09.2002 in C.M.C. Hospital, Ludhiana to SI Sandeep Kumar, Station House Officer of Police Station Focal Point, Ludhiana. It was stated that the complainant Mukesh Aggarwal and his elder brother Naresh Kumar run a sweet shop namely `Mukesh Sweet Shop' in Urban Estate, Ludhiana. They had employed all the four accused to run stall of golgappas etc. at the shop. On 21.09.2002, at about 11:30 P.M., Mukesh Aggarwal and another servant Nand Lal Mandal left the shop for house along with cash proceeds of the shop. When they reached in the store in the residential house, both the appellants told them that wiring of electric motor was burnt and was emitting foul smell. The complainant and Nand Lal Mandal went inside the shop and tried to check the motor. However, the accused persons picked up red chillies' powder and threw it into the eyes of complainant and Nand Lal Mandal. Thereafter, Prithvi-appellant no.1 picked up a wooden batten (balli) and hit it on the forehead of Nand Lal Mandal, who resultantly fell down and died. Meanwhile, Ramu-appellant no.2 inflicted a knife blow on left wrist of the complainant. His vein was resultantly cut. He raised alarm, which attracted his brother Naresh Kumar and another servant Suman. Thereupon, the accused persons fled away with their weapons. Naresh Kumar chased them for some distance and then came back. Their tenant Kapil Dev tied handkerchief on the wrist of the complainant to stop the Crl. Appeal No. 464-DB of 2007 3 bleeding. The complainant was removed to G. R. Hospital, from where he was referred to C.M.C. Hospital and was accordingly taken there. Accused had also snatched the envelope containing sale proceeds of the shop. SI Sandeep Kumar had gone to the hospital on receiving telephonic information from the hospital regarding admission of the injured complainant. SI Sandeep Kumar made endorsement Ex.P-Q/2 on statement Ex.P-A of the complainant recorded by him and sent it to Police Station, where FIR Ex.P-Q/1 was registered on its basis. SI Sandeep Kumar recorded statements of Naresh Kumar and Kapil Dev and then visited the spot. The spot was got photographed. SI Sandeep Kumar prepared rough site plan Ex.P-R of the place of occurrence. Dead body of Nand Lal Mandal was lying there. SI Sandeep Kumar prepared inquest report Ex.P-S and sent the dead body for post-mortem examination with request Ex.P-B. From the spot, blood stained earth was lifted vide memo Ex.P-C. Chillies' powder in an envelope was also seized from the spot vide memo Ex.P-D. Statements of witnesses were recorded. On 22.09.2002, Dr. S. K. Sharma conducted post-mortem examination on the dead body of Nand Lal Mandal and found three injuries thereon. Injury no.1, which proved fatal, is as under :- “1. Lacerated wound 1 ½” x 3/4” on the left front of head. The underline bone was fractured and blood was present in the cavity.” Cause of death was opined to be head injury i.e. injury no.1, which was ante mortem and sufficient to cause death in ordinary course of nature. Clothes of the deceased given by the doctor were seized vide memo Ex.P-E. All the four accused were arrested on 28.09.2002. A visiting card and a diary each recovered from all the four accused were seized vide memos Ex.P-K, Ex.P-L, Ex.P-M and Ex.P-N. On 29.09.2002, appellant Crl. Appeal No. 464-DB of 2007 4 no.1 made disclosure statement Ex.P-H and got recovered a wooden balli vide memo Ex.P-H/2. Sketch of the wooden balli is Ex.P-H/1. Similarly, appellant no.2 after making disclosure statement Ex.P-J got recovered a knife vide memo Ex.P-J/2. Sketch of the knife is Ex.P-J/1. Rough site plan Ex.P-U of the place of recovery was prepared. Scaled site plan Ex.P-O of the place of occurrence was also got prepared. On completion of investigation, all the four accused were sent for trial. Charge under Section 302 against Prithvi Raj-appellant no.1 and under Section 302 read with Section 34 against the remaining three accused and charge under Section 324 IPC against appellant no.2 and charge under Section 324 read with Section 34 IPC against the other three accused was framed. All the four accused pleaded not guilty and claimed trial. In order to bring home the charge against the appellants, the prosecution examined 11 witnesses. Dr. S. K. Sharma (PW-1) stated about post-mortem examination of the deceased. ASI Girdhari Lal (PW-2) stated about seizure of blood stained earth and packet of chillies' powder from the spot. He also took the dead body for post-mortem examination and then handed over the clothes of the deceased (given to him by the doctor) to SI Sandeep Kumar. Mukesh Kumar complainant (PW-3), Naresh Kumar (PW- 4) and tenant Kapil Dev (PW-7) have broadly stated according to the prosecution version narrated above. Constable Ram Saran (PW-5) stated that he prepared scaled site plan (Ex.P-O) after inspecting the spot. Dr. Abha Rani (PW-6) stated that on 22.09.2002, while posted in C.M.C. Hospital, Ludhiana, on police request Ex.P-P, she had given opinion Ex.P- P/1 declaring the patient Mukesh Aggarwal as fit to make statement. HC Amarjit Singh (PW-8) being formal witness tendered his affidavit in evidence. Manoj Arora (PW-9) stated that on 21.09.2002, at about 11:45 P.M., while going to his restaurant to close the same, he saw all the four accused running away while he was 50-60 feet from the place of occurrence. Crl. Appeal No. 464-DB of 2007 5 The accused used to install rehri of golgappas, chat etc. in front of sweet shop of the complainant. The witness asked the accused as to why they were running, but they fled away without giving any reply. On reaching the spot, he found that there was chillies' powder in the eyes and on other parts of Mukesh Aggarwal complainant and his servant was lying injured on the floor. SI Sandeep Kumar (PW-10) stated about investigation of the case conducted by him. HC Rajinder Kumar (PW-11) being formal witness tendered his affidavit in evidence. Report of Forensic Science Laboratory (Ex.P-V) was also tendered in evidence showing that wooden balli recovered from appellant no.1 was found stained with blood. The appellants in their statements under Section 313 of the Code of Criminal Procedure (in short Cr.P.C.) denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They alleged false implication in the case. They also stated that they were never working at the shop of the complainant. No evidence was led by the appellants in their defence. We have heard learned counsel for the parties and examined the case file with their assistance. Prosecution evidence is very cogent and credible and is sufficient to prove the guilt of both the appellants beyond reasonable doubt. The occurrence took place after 11:30 P.M. After the occurrence, injured Mukesh Aggarwal complainant was taken to G. R. Hospital and then to C.M.C. Hospital, Ludhiana from where intimation was sent to police and thereupon, SI Sandeep Kumar reached the hospital and recorded statement Ex.P-A of the complainant, which along with police proceedings, concluded at 02:43 A.M. The FIR was thus lodged very promptly and is a very significant piece of evidence. Mukesh Aggarwal (PW-3), Naresh Kumar (PW-4) and Kapil Dev (PW-7) have broadly stated according to the prosecution version. Manoj Arora (PW-9), who is an independent witness, also saw all the four accused running from the spot soon after the Crl. Appeal No. 464-DB of 2007 6 occurrence. Statements of these witnesses inspire confidence. Statement of the complainant is corroborated by the prompt FIR lodged by him. The complainant being an injured witness, is stamped eye-witness. Prosecution case is further corroborated by medical evidence. Recovery of blood stained wooden balli (weapon of offence) at the instance of appellant no.1 further lends credence to the prosecution case. There is no reason to discard the prosecution evidence. Moreover, the appellants have not alleged any reason for their false implication. It is thus apparent that the prosecution witnesses had no motive to implicate the appellants falsely or to depose falsely against them. Learned counsel for the appellants contended that there is no evidence of admission of complainant Mukesh Aggarwal in the hospital nor there is any evidence of his injury. The contention cannot be accepted. Statement of Dr. Abha Rani (PW-6) stands unchallenged as inspite of opportunity, she was not cross-examined. She has categorically stated that the complainant was admitted in C.M.C. Hospital, Ludhiana and on police request, she gave opinion that the complainant was fit to make statement. The complainant Mukesh Aggarwal and his brother Naresh Kumar have also stated that the complainant was admitted in C.M.C. Hospital, Ludhiana. SI Sandeep Kumar (PW-10) has also stated that on receiving telephonic information from C.M.C. Hospital, Ludhiana regarding admission of injured Mukesh Aggarwal, he had gone to the said hospital and recorded statement of the complainant there itself. The said statement Ex.P-A also bears endorsement Ex.P-Q/1 made in C.M.C. Hospital, Ludhiana and this fact has also been mentioned in the FIR. It is thus apparent that there is overwhelming evidence on record to establish that the complainant injured stood admitted in C.M.C. Hospital, Ludhiana. Learned counsel for the appellants next contended that there is no medical evidence on record to show that chillies' powder was thrown in the eyes of the complainant and the deceased. This contention is also Crl. Appeal No. 464-DB of 2007 7 devoid of merit. There is direct ocular evidence of prosecution witnesses that chillies' powder had been thrown in the eyes of the complainant and the deceased. Even packet of chillies' powder was seized from the spot. Consequently, absence of any medical evidence regarding chillies' powder is immaterial and insignificant. Learned counsel for the appellants next contended that there is no evidence as to what amount was taken away by the accused persons. However, the prosecution case cannot be discarded on this ground because the complainant or his brother might not have counted the money when the same was being taken by the complainant from the shop to the house. Learned counsel for the appellants submitted that on the basis of statement Mark-X of Naresh Kumar – brother of the complainant, offence under Section 382 IPC was deleted because Naresh Kumar stated in the said statement that he had already taken away the sale proceeds to his house and no money was robbed in the incident. However, this statement Mark-X has not been proved. Naresh Kumar denied having made statement Mark-X. In any event, deletion of offence under Section 382 IPC would not effect the prosecution case regarding the offences under Sections 302 and 324 read with Section 34 IPC, for which the appellants have been convicted. Learned counsel for the appellants also submitted that Naresh Kumar (PW-4) is not an eye-witness as he stated in the opening line of his cross-examination that he was not present at the time of occurrence. However, learned counsel for the appellant has ignored the later part of the same sentence, wherein Naresh Kumar stated that he had reached the spot immediately after the occurrence. He saw the accused persons running away from the spot and at that time, appellant no.1 was holding a wooden balli and appellant no.2 was holding a knife and the accused were also holding envelope containing cash amount. He also chased the accused to some distance, but they ran away. This statement of Naresh Kumar provides sufficient corroboration to the prosecution case as deposed by Crl. Appeal No. 464-DB of 2007 8 complainant Mukesh Aggarwal (PW-3). Learned counsel for the appellants also argued that Kapil Dev (PW-7) pointed to Malikdin accused as the person, who had inflicted blow with wooden balli on the head of the deceased and pointed to appellant no.1 as the accused, who inflicted knife blow to the complainant. However, this witness was examined 1 ½ years after the occurrence and might not be correctly remembering the respective role of the accused persons. However, by and large, Kapil Dev has corroborated the prosecution case. Regarding specific roles of the appellants, we have testimony of Mukesh Aggarwal (PW-3), which is corroborated by the prompt FIR lodged by him. The prosecution case is further strengthened and corroborated by other evidence on record, as already noticed herein above. Some discrepancy in the testimony of Kapil Dev (PW-7) only cannot be attached undue importance and cannot be said to be fatal to the prosecution case, particularly so in view of the other overwhelming evidence proving the guilt of both the appellants beyond reasonable doubt. For the reasons recorded herein above, we find no merit in the instant appeal. The same is accordingly dismissed. The appellants, if on bail, shall surrender to their bail bonds or shall be arrested to undergo the remaining sentence. ( L. N. MITTAL ) JUDGE February 24, 2009 ( MEHTAB SINGH GILL ) monika JUDGE