Crl. Revision No. 1614 of 2006 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1614 of 2006 (O&M) Date of Decision: April 26, 2011 Ram Pal ---Petitioner versus State of Haryana and others ---Respondents Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Ajit Sihag, Advocate, for the petitioner Mr.Amit Rana, Deputy Advocate General, Haryana for respondent No. 1 Mr. K.S.Dhanora, Advocate, for respondents No. 2 and 3 *** GURDEV SINGH, J. The petitioner-complainant, Ram Pal, has preferred this revision against the judgment dated 23.3.2006 passed by Sessions Judge, Hisar, acquitting the accused-respondents No. 2 and 3 of the offence under Section 302/34 IPC. The facts, in brief, are that Ram Pal, complainant, PW-9, Dalbir, PW-1, Mani Ram-deceased and their fourth brother had taken the land of Jai Singh and Ramu, on lease for one year. The land of Satbir- Crl. Revision No. 1614 of 2006 -2- accused was adjacent to that land wherein he had constructed a pucca room. About three years before the present occurrence, a fight had taken place between the deceased and Prahlad-accused and the matter was settled in the village itself. On that ground, the accused were nourishing a grudge against the deceased. On 5.8.2003, after taking his meals, he went to the fields, at about 11-00 p.m. to have a round and found the deceased and Satbir sitting on one cot and the other two accused, Prahlad and Amar Chand, sitting on the other cot in front of the above said room while talking to each other. He stayed with them for 5-7 minutes and then came back to his house. When he went to the fields next day at about 7-00 a.m., he found the deceased lying on the cot after covering himself with a blanket and the accused were not present. When he removed the blanket, he found sharp weapons injuries on his head, forehead, neck and chest. He also found that a lot of blood was lying under the cot. He entertained a firm belief that the deceased had been murdered by the accused with the help of sharp edged weapons. He was proceedings to the police station to lodge a report, when Kartar Singh, SI, PW-11, met him near the railway crossing. At that place, he made his statement, Ex. P.G, about the occurrence before the SI, who after making is endorsement, Ex. PG/1, upon the same, sent that to the police station and on the basis thereof, FIR, Ex. PG/2, was recorded against the accused under Section 302/34 IPC. Accompanied by the complainant, the SI came to the place of occurrence and after inspecting the same, prepared the rough site plan, Ex. P.O, with correct marginal notes. He called Kundan Lal, Photographer, PW-5, to the spot, who took the photographs, Ex. P.3 to P.9 of the dead Crl. Revision No. 1614 of 2006 -3- body etc. The SI prepared the inquest Report, Ex. PJ, in respect of the dead body of the deceased and sent the same to the hospital for post mortem examination. He collected the blood stained earth from the spot and the blood stained “baan” (jute fiber meant for knitting the cot) of the cot and converted the same into sealed parcels and those sealed parcels were taken into possession, vide memo Ex. P.N. Dalbir, PW-1, made a statement, Ex. DA, before the Investigating Officer, in which he narrated that he came to the fields at about 1.15 a.m. to take a round and found in the light of the torch that Prahlad was armed with Kulhari (axe) and Amar Chand was armed with Farsi and both of them were causing injuries with those weapons to the deceased, who was sleeping on the bed. When he challenged those accused as to why they were causing injuries to his innocent brother, they left him and tried to assault him by raising a lalkara that they would teach a lesson to him also. He saved himself by running and concealing himself in the crops of Millet and he came out from those when he found that a number of persons had already collected there. The autopsy on the dead body of the deceased was performed by Dr. Davinder Sidhu, PW-6, who found six injuries on the same and gave his opinion that the cause of death was severe damage to the brain tissue due to multiple injuries, along with shock and hemorrhage, which were sufficient to cause death in the ordinary course of nature. The wearing apparels, found on the dead body, were produced before the SI and were taken into possession, after those were converted into a parcel. After coming back to the police station, SI deposited the case property with Dogar Singh, MHC, PW-2. On 11.8.2003, Prahlad and Amar Chand, Crl. Revision No. 1614 of 2006 -4- accused were produced before the SI by Ram Sarup and were arrested in this case. On 12.8.2003, SI interrogated those accused in the presence of Dalbir, PW-1. On that interrogation, Amar Chand made a disclosure statement that he had kept concealed one Farsi in the bushes, standing in the fields of Parsa by the side of the pucca road leading to village Daroli, about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement, Ex. P.S., Amar Chand, accused, got recovered one Farsi. The SI prepared the rough sketch, Ex. PD, thereof, and converted the same into a parcel, which was sealed with the seal of “RLB”. The sealed parcel was taken into possession, vide Memo Ex., P.C. The SI prepared the rough site plan, Ex. PB, of the place of recovery with correct marginal notes. It was disclosed by Prahlad that the wearing apparels, which he had on his person were worn by him at the time, the crime was committed and that he had washed those clothes. Those wearing apparels were got removed and were converted into a parcel, which was sealed with the said seal. That sealed parcel was taken into possession, vide Memo Ex. P.A. When he was interrogated by the SI, he made disclosure statement that he had kept concealed one Kulhari on the back side of the trees standing in the fields of Mani Ram, about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement, Ex. PT, he got recovered the Kulahri. The SI prepared the rough sketch, Ex. P.B, thereof, and converted the same into a parcel and sealed the same with seal “RLB”. The sealed parcel was taken into possession, vide Memo Ex. PA. The SI prepared the rough site plan of the place of Crl. Revision No. 1614 of 2006 -5- recovery and on coming back to the police station, deposited all these sealed parcels with the MHC. These parcels and the parcels containing the blood stained earth and blood stained baan, were sent to the FSL through Kishan Singh, Constable, and were delivered at that place with seals intact. After examination, it was reported by the Senior scientific Officer of that laboratory, vide his report Ex. PX, that blood was detected on all those articles. After the completion of the investigation, the challan was put in before the JMIC, Hisar, who committed the same to the Court of Session on the ground that the offence was exclusively triable by the Court of Session. From the documents, sent along with the police report and relied upon by the prosecution, learned Sessions Judge found sufficient grounds for presuming that the accused committed offence punishable under Section 302 read with Section 34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined Dalbir, PW-1, Dogar Singh, PW-2, Kanhiya Ram, PW-3, Raj Kumar ASI, PW-4, Kundan Lal, Photographer, PW-5, Dr. Davinder Sidhu, PW-6, Kishan Singh, PW-7, Mahabir Singh, PW-8, Ram Pal, PW-9, Raj Kumar, PW-10 and Kartar Singh, PW-11. After the evidence was closed by the prosecution, the accused were examined by the trial court and their statements were recorded under Section 313 Cr.P.C. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and Crl. Revision No. 1614 of 2006 -6- pleaded their innocence and false implication. It was stated by Prahlad- accused, that Ram Pal, complainant, had purchased a cow from him for consideration of ` 2000/- and did not pay that amount, regarding which a panchayat was convened and he was given ` 500/- by Lal Chand, father of the complainant in the year 2000. In the year 2002, a quarrel had taken place between Dalbir, Ram Pal and Mani Ram and thereafter, Dalbir had shifted to Sirsa after selling his house, cattle etc. . It was stated by Amar Chand-accused, that his father Ram Sarup had two brothers named, Lal Chand and Likhma Ram, who inherited three acres of agricultural land from their father, but Likhma Ram in collusion with Lal Chand, got entered that land in their names to grab the same. Ram Pal, complainant, PW-9 and Dalbir, PW-1 are the sons of that Lal Chand and he was falsely implicated by them for grabbing the land. No such clothes or weapons were recovered from him. The accused were called upon to enter on their defence. They examined Anil Bedi, Civil Ahlmad, DW-1 and Jai Bhagwan, DW-2, and also tendered in evidence copies of the jamabandis for the years 1989-90 and 1999-2000, Ex. DC and Ex. DD, respectively, Revenue Receipt, Ex. DR, copy of the plaint dated 22.5.1995, Ex. DF, copy of the order of the Assistant Collector Ist Grade dated 14.8.2003, Ex. DG, copy of the decree sheet, Ex. DH and copy of the mutation No. 2251, Ex. DI, in their defence. I have heard learned counsel for both the sides. It has been submitted by counsel for the petitioner- complainant that in view of the cogent and convincing evidence produced by the prosecution, the trial court was not justified in recording a finding Crl. Revision No. 1614 of 2006 -7- of acquittal. Direct evidence was produced in the form of the statement of Dalbir, PW-1, and according to him, he witnessed the occurrence with his own eyes. He made categorical statement that the accused caused injuries to the deceased with the help of sharp edged weapons. His testimony stands corroborated by the medical evidence, which was furnished by the statement of Dr. Davinder Sidhu, PW-6, who conducted the post mortem examination on the dead body and found sharp edged weapon injuries on the same and those injuries were found sufficient to cause death in the ordinary course of nature. Besides that the last seen theory was also proved by Ram Pal, complainant, PW-9, who made categorical statement in the Court that soon before the death, he had seen the deceased with the accused. The corroborative evidence was also produced regarding the recovery of weapons of offence from the possession of the accused, which were sent to the FSL and were found to be stained with blood. The evidence, so produced, was sufficient to record the conviction of the accused and an illegality was committed by the trial court while recording the finding of acquittal. According to him, that acquittal is required to be converted into conviction. On the other hand, counsel for the accused-respondents No. 2 and 3 supported the reasoning recorded by the trial court while acquitting the accused. According to him, Dalbir, PW-1, was introduced in the picture subsequently and that fact stands proved from the admissions made by him during his cross examination. In case, it is to be taken that the prosecution is based on circumstantial evidence, then it was incumbent on the part of the prosecution to prove the motive on the part of the Crl. Revision No. 1614 of 2006 -8- accused to cause the death of the deceased, but no such motive was proved on the record. The delay in lodging the FIR has remained unexplained. The recovery of weapons of offence becomes doubtful from the contradictory evidence of the prosecution. It is a fact that the prosecution tried to produce direct evidence in the form of the statement of Dalbir, PW-1, though initially, at the time of registration of the FIR, it was relying only on the circumstantial evidence consisting of the last seen theory and the motive. Though Ram Pal, complainant, PW-9, in his version before the police came up with the story of motive on the part of the accused to cause the death of the deceased but he never supported that version while making his statement in the Court and his statement is altogether silent on that aspect. Even Dalbir, PW-1, has not proved on record any such motive. Can it be said that this Dalbir, PW-1, had witnessed the occurrence or has been introduced into the picture subsequently as false witness? A minute perusal of the statement of this witness coupled with the unnatural conduct on his part shows that he never witnessed any such occurrence and has been introduced into the picture subsequently, being the brother of the deceased. During his examination-in-chief, he stated that after having been chased by the accused, he concealed himself in the standing crop and he came out of those crops towards the dead body only after the sun rise. The alleged occurrence took place in the month of August and judicial notice can be taken of the fact that the sun arises in the State of Punjab in that month before 6-00 a.m. If that was the case, there was no question of recording of the FIR on the statement of Ram Crl. Revision No. 1614 of 2006 -9- Pal, complainant, PW-9, which is based upon circumstantial evidence. After having apprehended that his conduct in not making a statement immediately thereafter before the police, regarding this direct evidence, will be subjected to criticism, he changed his version during his cross examination and stated that he had reached the place of occurrence at 10- 00 a.m. and at that time Ram Pal, complainant and the police were present along with 20-22 other persons from the village. Thereafter, he stated that the statement of the complainant was recorded in his presence. He further changed his version and stated that the statement of the complainant had already been recorded at some other place. If the statement of the complainant had already been recorded, before he came near the dead body, even then the Investigating Officer had the opportunity to record his statement during the inquest proceedings, but the same was never done. Had he been present at that time, that fact must have found mentioned in the inquest proceedings. There is every possibility of the recording of his false statement under Section 161 Cr.P.C. subsequently in order to strengthen the prosecution case. It cannot be believed that a person having witnessed the accused causing injuries to his brother will be concealing himself in crops just at a distance of 1 ½ acre even when it had already become safe for him to come out No doubt, Ram Pal, complainant, did support the prosecution version given by him before the police to the effect that he had seen the accused with the deceased on 5.8.2003, when he went to take a round of the fields at 11-00 p.m., but in case the evidence of the prosecution is scrutinized in the right perspective, keeping in view the medical Crl. Revision No. 1614 of 2006 -10- jurisprudence, it becomes very much clear that no reliance is to be placed on his statement. It was asked from him as to at what time the deceased had taken the meals and he stated that the meals were taken by the deceased at about 8/9-00 p.m.. To the same effect is the statement of Dalbir, PW-1. Dr. Davinder Sidhu, PW-6, conducted the autopsy on the dead body of the deceased. He found semi digested food in the stomach. According to the complainant he had seen the deceased alive at 11-00 p.m. By that time 2-3 hours had already elapsed since the deceased had taken the meals. When it was asked from the said doctor witness, during his cross examination, as to when the deceased had taken his last meals, he stated that the same was taken by him 4-6 hours before his death. He could not give any opinion as to how much percent of the food had already been digested. According to him, the possibility of death at 9-00 p.m. on 5.8.2003 cannot be ruled out. As per the authoritative books on the medical jurisprudence, the usual Punjabi meal consisting of cereals, vegetables and loaf of bread, is digested within three hours, but the same depends on other factors also, such as over feeding, weak supply of food to stomach owing to ill health, diversion of blood supply for nerves or other reasons. Those factors will not count in this case as the doctor had found dead body to be that of a well built nourished male of 27 years. There was no question of the presence of semi digested food in the stomach of the deceased after the lapse of 2-3 hours of his having taken his meals. That not only makes doubtful the statement of Ram Pal, complainant, but also shows that Dalbir, PW-1, has absolutely made false statement in the Court. There was no question of the deceased being alive Crl. Revision No. 1614 of 2006 -11- on 1.30 a.m., when he stated to have received the injuries at the hands of the accused. In these circumstances, there was every reason for the trial court to come to the conclusion that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. For proving the recovery of weapons of offence from the possession of the accused, prosecution examined the Investigating Officer and one of the recovery witness and both of them deposed that those weapons were recovered from the possession of the accused on 12.8.2003, in pursuance of their disclosure statements. But as per the deposition of Dogar Singh, MHC, PW-2, as contained his affidavit, EX. P.E. The parcels containing those weapons were deposited with him on 11.8.2003. There was no question of deposit of those parcels with him in case the recovery had been effected on 12.8.2003. That itself shows that all this evidence was manipulated by the Investigating agency. In order to succeed in the revision, the petitioner-complainant was required to make out a very strong case and to satisfy this Court that the findings so recorded by the trial court are illegal and perverse. He has failed to do so. There is no merit in this revision petition and the same is hereby dismissed. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE April 26, 2011 PARAMJIT