Crl. Appeal No. 365-DB of 2005 and [1] Crl. Appeal No. 447-DB of 2005 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 365-DB of 2005 Date of decision: 12.11.2008 Rajesh Kumar son of Sh. Bhola Nath ….. Appellant Versus State of Punjab ….. Respondent and Crl. Appeal No. 447-DB of 2005 Date of decision: 12.11.2008 Bahua @ Babu Ram son of Chunna Parshad ….. Appellant Versus State of Punjab ….. Respondent CORAM: HON’BLE MR. JUSTICE S.S. SARON. HON’BLE MRS. JUSTICE SABINA. Present : Mr. Dhruv Dayal, Advocate for the appellants. Mr. S.S. Gill, Additional Advocate General, Punjab. *** S.S. SARON, J. (ORAL) This order will dispose of Crl. Appeal No.365-DB of 2005 filed by Rajesh Kumar son of Sh. Bhola Nath and Crl. Appeal No. 447-DB of 2005 filed by Bahua @ Babu Ram son of Chunna Parshad as both the appeals arise out of the same judgment and order dated 14/15.3.2005 whereby the respective appellants in the two appeals have been convicted for the offence under Section 302 read with Section 34 Crl. Appeal No. 365-DB of 2005 and [2] Crl. Appeal No. 447-DB of 2005 Indian Penal Code (“IPC” – for short) and sentenced to undergo imprisonment for life; besides, to pay a fine of Rs.5000/- each and in default of payment of fine, to undergo further rigorous imprisonment for one year each. The FIR (Ex.PH/2) has been registered on the statement of Vijay Kumar Jaiswal (PW-8) resident of Beant Nagar, Moga - brother of the deceased Raj Kumar. It is stated by the complainant that they were eight brothers and sisters, out of which two elder sisters were married. His elder brother – Ashok Kumar was residing in Sultanpur (UP). The remaining brothers – Vijay Kumar (complainant) himself, Raj Kumar (deceased), Ajay and Shiva were residing jointly with their parents. Shiva was running a ‘khokha’ of ‘paan-biri’ at Akalsar Road, Moga. His father had disowned him from his properties. On the day of the occurrence i.e. 12.11.2002 in the morning, the complainant Vijay Kumar Jaiswal (PW-8) had gone to Ludhiana in connection with his business. In the evening, at about 8.30 p.m. he had returned from Ludhiana and after supplying readymade garments in the bazaar, he was returning back to his house. When he reached at the ‘khokha’ of ‘paan-biri’ at Akalsar road, then he found his brothers Raj Kumar (deceased) and Ajay Kumar (PW-9) were standing there. Raj Kumar (deceased) had closed the ‘khokha’ and started going back to his house by taking his ice rehra (cart). After sometime, the complainant (PW-8) and his brother Ajay Kumar(PW-9) after doing some shopping and conversing with each other were going towards their house. The time was about 9.15 p.m., when they were just some distance before street No.3, Beant Nagar, Moga they saw the rehra (cart) of their brother Raj Kumar (deceased) was standing on the turn of street No.3 and Rajesh Kumar (appellant in Crl. Appeal No. 365-DB of 2005) was holding a ‘dah’ in his right hand while Bahua @ Babu Ram (appellant in Crl. Appeal No. 447-DB of 2005) was holding a ‘kirpan’ (sword) in his hand. Both were residents of Baba Anand Singh Nagar, Moga. They were both mercilessly beating Raj Kumar - brother of the complainant (PW-8). The complainant Vijay Kumar Crl. Appeal No. 365-DB of 2005 and [3] Crl. Appeal No. 447-DB of 2005 Jaiswal (PW-8) and his brother Ajay Kumar (PW-9) raised an alarm of ‘na maro – na maro’ and they both rushed towards their brother Raj Kumar (deceased). On seeing them, both the assailants ran away on their scooter along with their respective weapons. They saw Raj Kumar smeared with blood was lying on the ground. He (deceased) had suffered injuries with sharp-edged weapons and was breathing. They at once put him on the ice rehra (cart) and took him to Civil Hospital, Moga. Raj Kumar died on reaching the hospital and the dead body had been kept in the dead house at the Civil Hospital, Moga. The statement of the complainant Vijay Kumar Jaiswal (PW-8) was recorded by Varinder Singh, SI (PW-10), SHO, Police Station City, Moga-II. The motive for the incident was that Rajesh Kumar (appellant in Crl. Appeal No. 365-DB of 2005) had a doubt that his (complainant’s) brother (Raj Kumar –deceased) had illicit relations with his sister Smt. Geeta because they both in the afternoon of the date of incident had threatened their parents. So both the assailants had killed Raj Kumar-the brother of the complainant Vijay Kumar Jaiswal (PW-8) by causing injuries. The statement of the complainant was recorded by Varinder Singh, SI (PW-10) which was accepted to be correct. From the said statement, offence under Section 302 read with Section 34 IPC was found to be made out. The writing was sent to the Police Station for registration of FIR. Varinder Singh, SI (PW-10) proceeded for conducting investigation in the case. On the following day i.e. on 13.11.2002 early in the morning, the Investigating Officer again went to Civil Hospital, Moga. He met the complainant (PW8) in the Hospital and went to the Mortuary and prepared inquest report (Ex.PC). Then, he sent the dead body along with request (Ex.PD) for post mortem examination through Head Constable Iqbal Singh and Constable Jaswinder Singh. The Investigating Officer – Varinder Singh SI (PW10) along with the complainant then visited the spot where the incident had occurred. Rough site plan (Ex.P1) of the place of occurrence was prepared. Blood-stained earth and simple earth was lifted from the place of Crl. Appeal No. 365-DB of 2005 and [4] Crl. Appeal No. 447-DB of 2005 occurrence which was prepared into a parcel and sealed. Parcels were taken in possession vide memos Ex PJ and Ex PK respectively, which were attested by Vijay Kumar Jaiswal (PW-8) and ASI Randhir Singh. Statements of the witnesses were recorded. Thereafter, efforts were made to arrest the accused (appellants). However, they could not be arrested. On the same day, both the accused were arrested from the ‘dhaba’ of Chana. In the meantime, further investigations were carried out. HC Iqbal Singh produced documents relating to post-mortem of the deceased. The belongings of the deceased Raj Kumar were taken in possession vide recovery memo Ex.PL. The clothes and undergarments were also taken in possession. The accused when they were apprehended were on a light grey coloured scooter without a number and the said scooter was taken in possession vide recovery memo Ex.PM. On search of boot of the scooter, the registration certificate Ex P7 was found, which was taken in possession vide same recovery memo (Ex PM). The accused were confined to the Police lock up and the case property was deposited with Gulzar Singh MHC of Police Station (PW11). The appellants were interrogated on 15.11.2002. Rajesh Kumar (appellant) was interrogated first. He disclosed that he had concealed a ‘dah’ under the bushes at the spot where Gill Road enters the GT Road near a culvert. His disclosure statement (Ex PN) in this regard was recorded, which was signed by Rajesh Kumar (appellant) and witnessed by ASI Randhir Singh. Thereafter, appellant – Bahua was interrogated. He disclosed that he had concealed the sword at the same spot under the bushes near the Gill Road. The statement (Ex PO) of Bahua was recorded which was signed by Bahua and attested by ASI Randhir Singh. In accordance with the statements of both the accused disclosing the concealment of ‘dah’ and sword, they were taken by Varinder Singh SI (PW 10) to the place where the weapons were stated to be concealed. Rajesh Kumar (appellant) as per his statement got recovered the ‘dah’. The outlined sketch of the ‘dah’ (Ex PN/1) was prepared and the same was taken in possession vide recovery memo (Ex PN/2). A Crl. Appeal No. 365-DB of 2005 and [5] Crl. Appeal No. 447-DB of 2005 rough site plan (Ex PN/3) of the place of recovery of ‘dah’ was prepared. Then Bahua, as per his statement, got recovered the sword. The outlined sketch (Ex PO/1) was prepared and it was taken in possession vide recovery memo (Ex PO/2) which was attested by ASI Randhir Singh. Rough site plan (Ex PO/3) regarding the place of recovery of sword was prepared. On return from the spot, the items that were recovered, were deposited with the MHC. After completion of investigation, charge report (challan) was filed in the Court of Chief Judicial Magistrate, Moga. The learned Magistrate in view of the offence under Section 302/34 IPC being alleged which was exclusively triable by the Court of Session committed the case to the said Court for trial vide his order dated 21.3.2003. The learned Sessions Judge, Moga to whom the case was entrusted on 17.4.2003 charge sheeted the respective appellants on the allegations that on 12.11.2002 at about 9.15 p.m. in the area of Beant Nagar, Moga, they both in furtherance of their common intention did commit murder by intentionally causing the death of Raj Kumar and they both thereby committed an offence punishable under Section 302 read with Section 34 IPC. The respective appellants pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as eleven witnesses; besides, tendered documents including FSL report Ex PQ in evidence. The statements of Rajesh Kumar and Bahua in terms of Section 313 CrPC were recorded, the substance of evidence appearing against them was put to them. Both the accused stated that they were innocent. They had no concern with the alleged murder. The complainant party had falsely involved them in the case. The complainant party in connivance with the Police had involved them on grounds of suspicion. The witnesses had given false statements against them being related as well as interested witnesses. The learned trial Court after considering the evidence and material on record convicted both the respective appellants for the offence under Section 302 read with Section 34 IPC and sentenced them to undergo imprisonment for life; besides, to pay a fine of Rs.5000/- Crl. Appeal No. 365-DB of 2005 and [6] Crl. Appeal No. 447-DB of 2005 and in default of payment of fine, to undergo further rigorous imprisonment for one year each. The respective appellants aggrieved against the said order have assailed the same by way of the present appeals. Mr. Dhruv Dayal, Advocate learned counsel appearing for the respective appellants has contended that the present case is one of blind murder in which the appellants have been falsely implicated. It is submitted that the complainant-Vijay Kumar Jaiswal (PW-8) who is the complainant and his brother Ajay Kumar (PW-9) have been introduced later on. A reference has been made to the initial memo (Ex.PA) sent by Dr. VJS Dhillon (PW-2) wherein, it is mentioned that an unknown dead body had been brought in the Emergency of Civil Hospital, Moga at 9.20 p.m. It is submitted that the body being that of an unknown person, it is evident that the complainant Vijay Kumar Jaiswal (PW-8) and Ajay Kumar (PW-9) had not witnessed the occurrence, because as mentioned in the FIR, the complainant – Vijay Kumar Jaiswal (PW8) had alleged that they had taken the deceased – Raj Kumar to Civil Hospital, Moga on the ice-cart (rehra) and Raj Kumar died reaching the hospital. It is submitted that it is in pursuance of the subsequent memo (Ex.PA/1) sent by Dr. VJS Dhillon (PW-2) that the dead body was identified to be that of Raj Kumar (deceased) which was identified by his brother at 10.00 p.m. It is further submitted that there is no motive for the appellants to commit the murder of Raj Kumar as there is nothing to show that Raj Kumar was having any kind of relations with the sister of Rajesh Kumar (appellant in Crl. Appeal No. 365-DB of 2005). Therefore, in the absence of any motive, the appellants have been involved on entirely misplaced suspicion. It is further submitted that even though, it is recorded in the FIR that the appellants were known to the accused and their names are mentioned in the FIR, the complainant Vijay Kumar Jaiswal (PW-8) came to know the names of the appellants from his mother which is evident from the deposition of Vijay Kumar Jaiswal – complainant (PW-8) in Court. It is further submitted that there are other material discrepancies Crl. Appeal No. 365-DB of 2005 and [7] Crl. Appeal No. 447-DB of 2005 in the prosecution case inasmuch as Gurdev Singh (PW-5) has deposed that the scooter that was involved in the occurrence was not sold by him to Rajesh Kumar (appellant in Crl. Appeal No. 365-DB of 2005). Therefore, the scooter also has been foisted by the prosecution on the appellants. Besides, Mool Chand (PW-6) who is father of the complainant Vijay Kumar Jaiswal (PW-8), Ajay Kumar (PW-9) and Raj Kumar (deceased) has stated that he came to know about the death of his son Raj Kumar while he was going from his house to shop whereas, he is an attesting witness to the inquest proceedings (Ex.PC). Therefore, it is submitted that the inquest proceedings have been ante-timed. In response, Mr. S.S. Gill, Additional Advocate General, Punjab appearing for the State has submitted that the contentions as raised by the learned counsel for the appellants are trivial in nature and do not cast any doubt in the prosecution case. It is submitted that the prosecution has proved its case against the appellants in all material aspects and the learned trial Court having recorded a firm finding establishing the guilt of the appellants and thereafter, convicting and sentencing them would not warrant any interference by this Court in the appeals. Therefore, it is submitted that the conclusions reached at by the learned trial Court are liable to be maintained and upheld. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the record of the case. The contentions of the learned counsel for the appellants that it is a case of blind murder is not tenable. Vijay Kumar Jaiswal (PW-8) who is the complainant has narrated the occurrence as it occurred at 9.15 p.m. on 12.11.2002. It may be noticed that the FIR in the case has been registered at 11.25 p.m. on 12.11.2002 itself, which is quite near in point of time to the occurrence. Though prompt lodging of a FIR is not an unmistakable guarantee of the truthfulness of its version. Nevertheless, prompt lodging of the same does inspire confidence. It may Crl. Appeal No. 365-DB of 2005 and [8] Crl. Appeal No. 447-DB of 2005 be noticed that Dr. VJS Dhillon (PW-2), Medical Officer, Civil Hospital, Moga who sent the memo (Ex.PA) and supplementary memo (Ex.PA/1) has appeared in Court and deposed that on 12.11.2002, he had sent a ruqa (memo) No.837 in which it was written that an unknown dead body was brought to the Civil Hospital, Moga at 9.20 p.m. Then at 10.00 p.m., this unknown body was identified by his brother as Raj Kumar son of Mool Chand resident of Prem Nagar, Street No.4, Akalsar Road, Moga. It was sent to the Police vide ruqa (memo) No.837-A. The ruqa was Ex.PA and the supplementary ruqa was Ex.PA/1. In cross-examination, it is stated that at the time of sending ruqa (Ex.PA), the dead body was unidentified. It may, however, be noticed that the complainant-Vijay Kumar Jaiswal (PW-8) in his deposition in Court has reiterated the version as per his statement made before the Police. It is also stated that after the occurrence, they had put Raj Kumar (deceased) who at that time was breathing on the ice rehra (cart) and they took him to the Civil Hospital, Moga. It has been deposed by Vijay Kumar Jaiswal (PW-8) that when they reached near the gate of Civil Hospital, Moga, his brother- Raj Kumar succumbed to his injuries. On reaching the hospital, the doctor Incharge declared him as dead. Then they came to their house to inform their relatives leaving the dead body in the hospital. When they reached there, the Police had already arrived. Then Vijay Kumar Jaiswal made his statement Ex PH, which was read over and explained to him and he signed in token of its correctness. Therefore, it is evident that the fact of an unidentified body being brought came to be recorded, only when the complainant- Vijay Kumar Jaiswal (PW-8) and his brother Ajay Kumar (PW-9) had left the dead body at the hospital and gone to inform their relatives. It is during this time that Dr. VJS Dhillon (PW-2) had sent the memo (Ex.PA) to the Police regarding an unidentified body being brought to the Civil Hospital, Moga. Therefore, merely because in the memo Ex.PA, it is recorded that the dead body that was brought to the Civil Hospital was that of an unidentified person, would not by itself be such a Crl. Appeal No. 365-DB of 2005 and [9] Crl. Appeal No. 447-DB of 2005 circumstance to show in the facts and circumstances of the case that the present case is one of a blind murder which had not been witnessed by the complainant Vijay Kumar Jaiswal (PW-8) and Ajay Kumar (PW-9). In fact Vijay Kumar Jaiswal (PW-8) and Ajay Kumar (PW-9) have supported the prosecution version and also stood the cross-examination during the trial of the case. It may also be noticed that Dr. Vijay Kumar Goyal, Medical Officer, Civil Hospital, Moga (PW-3) conducted the post mortem examination on the dead body of Raj Kumar (deceased). On the person of the deceased, he found as many as six injuries, the same are as follows:- “1. Incised wound 22 cms x 4 cms on the top of head, bone deep. 11 cm above the anterior hair line extending from right side. 7 cm from right ear to left side. 9 cm from left ear horizontally placed, underlying bone was fractured and brain matter was coming out. On dissection underlying bone and membrane were cut. Muscle was also cut. 2. Incised wound 10 cms x 4 cms on right perotid region. 1 cm below the ear lobule going downward and posteriorly. 2 cm from the posterior hair line. Underlying bone was fractured. 3. Incised wound 11 cms x 3 cms bone deep on the top of right shoulder. Underlying bone was cut. 4. Incised wound 6 cms x 2.5 cms on the posterior lateral aspect of right forearm. 8 cm below the elbow. Crl. Appeal No. 365-DB of 2005 and [10] Crl. Appeal No. 447-DB of 2005 5. Superficial incised would 2 cm x .5 cms on the lateral aspect of right forearm. 2.5 cms above injury no: 2. 6. Incised wound two in number 3.5 cms and 2.5 cms on the back of left hand in the web of index finger and thumb. In the opinion of Dr. Vijay Kumar Goyal (PW-3), the cause of death in the present case was due to injury to brain. Injuries were ante-mortem in nature and sufficient to cause death in an ordinary course of nature. In the cross-examination it is stated that it was possible that all the injuries could be a result of one weapon. The time that elapsed between injuries and death, it was mentioned may be five to ten minutes. The result of the Forensic Science Laboratory have been placed on record and exhibited as Ex.PQ. The blood stained earth that was lifted from the place of occurrence contained in Parcel A, the soil alleged to be simple earth contained in Parcel B, the ‘dah’ alleged to be stained with blood contained in Parcel C and the ‘kirpan’ alleged to be stained with blood contained in Parcel D were examined. The exhibits contained in Parcels A, C and D it is mentioned, are stained in blood. However, no demonstrable blood could be detected on exhibit contained in Parcel B. Parcel B which was simple earth was, therefore, found to be not stained with blood. It may also be noticed that Rajesh Kumar (appellant in Crl. Appeal No. 365 of 2008) made a disclosure statement (Ex.PN) regarding concealing a ‘dah’ that was used during the occurrence in the bushes on left side under a small bridge just ahead the Gill road on G.T. road, regarding which he only knew and he could get it recovered. In pursuance of the disclosure statement (Ex.PN), a ‘dah’ was recovered which was taken into possession vide recovery memo Ex.PN/2. Similarly Bahua @ Babu Ram (appellant in Crl. Appeal No. 447-DB of 2005) made a disclosure statement Ex.PO regarding concealing a ‘sword’ that was used during the occurrence in the bushes on Crl. Appeal No. 365-DB of 2005 and [11] Crl. Appeal No. 447-DB of 2005 the left side of a bridge just ahead of the Gill road, Moga bypass G.T. Road about which he only knew and could get the same recovered. The sword was recovered vide memo Ex.PO/2. Therefore, the recovery of the weapons of offences vide recovery memos Ex.PN/2 and Ex.PO/2 coupled with the same to be stained with blood as per the FSL report (Ex.PQ), the chain in the facts and circumstances is complete which leads to establishing the guilt of the appellants. Therefore, mere fact that in Ex.PA/1, the Dr. VJS Dhillon (PW-2) has recorded that an unknown dead body was brought to the hospital, would in no manner discredit the prosecution case. As regards the motive, it may be noticed that Rajesh Kumar (appellant in Crl. Appeal No. 365-DB of 2005) had a suspicion that Raj Kumar (deceased) was having illicit relations with his sister Smt. Geeta. In this regard, he (Rajesh Kumar- appellant) had also gone and threatened the parents of the deceased in the afternoon. Vijay Kumar Jaiswal (PW-8) in his deposition in Court has while appearing in Court reiterated his initial statement (Ex.PH) on the basis of which FIR (Ex.PH/2) has been registered. The Complainant-Vijay Kumar Jaiswal (PW-8) has stated that he made a statement (Ex.PH) which was read over and explained to him and he signed the same in token of its correctness. Besides, it may be noticed that there was no motive even from the complainant side to falsely implicate the appellants. In view of the nature of injuries that were caused to the deceased Raj Kumar, the complainant would want that the real and actual culprits who were involved in the crime are brought to book rather than some innocent person being dragged into the case and falsely implicated. Their grouse would be vindicated and feelings of hurt assuaged if the actual person who had committed the murder is tried and convicted rather than an innocent person being implicated and incarcerated. Therefore, motive as is well-known is a double edged weapon and would operate both ways. In the present case, the appellants had a motive to cause the murder of Raj Kumar as Rajesh Kumar (appellant in Crl. Appeal No. 365 of 2005) suspected relationship of Raj Kumar (deceased) with his sister Smt. Crl. Appeal No. 365-DB of 2005 and [12] Crl. Appeal No. 447-DB of 2005 Geeta. However, this would not furnish a motive for the complainant to falsely implicate the appellant. The contention of the learned counsel for the appellants that the complainant-Vijay Kumar Jaiswal (PW-8) came to know about the names of the appellants from his mother is also not of much significance. Both the parties are residents of Moga and it is just that the complainant Vijay Kumar Jaiswal (PW-8) would be knowing the assailants by face and may not be knowing their actual names and particulars. Therefore, in his cross-examination, he has stated that he did not know the names of the accused and he came to know the names of the accused from his mother. In fact Bahua @ Babu Ram (appellant in Crl. Appeal No. 447-DB of 2005) is resident of Beant Nagar, Moga and the complainant-Vijay Kumar