Crl. Appeal No.295-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.295-DB of 1998 Date of Decision: 30.05.2008 Siri Ram Pandey and another. ....Appellants. Versus State of Punjab. ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Jora Singh. Present: Mr. Rajiv Vij, Advocate for the appellants. Mr. S.S. Bhinder, Addl.A.G., Punjab for the respondent. ... J.S. Khehar, J. Through the instant appeal the accused/appellants Siri Ram Pandey and Baldev Singh Bania have impugned the judgement rendered by the Sessions Judge, Ludhiana, in Sessions Case No.36 of 1996, on 2.5.1998, by which both the accused/appellants Siri Ram Pandey and Baldev Singh Bania have been held guilty of the offence, under Section 302 read with Section 34 of the Indian Penal Code, for intentionally causing the death of Shabbi Devi, in furtherance of their common intention. The accused/appellants Siri Ram Pandey and Baldev Singh Bania have also been held guilty of the offence under Section 325 read with Section 34 of the Indian Penal Code, for having caused grievous injuries on the person of Crl. Appeal No.295-DB of 1998 2 Usha Devi, in furtherance of their common intention. The accused/appellants Siri Ram Pandey and Baldev Singh Bania have also impugned the order passed separately on 2.5.1998 whereby, they have been sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, under Section 302 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, the defaulting convict(s) has/have been ordered to undergo further rigorous imprisonment for six months. Additionally, the accused/appellants Siri Ram Pandey and Baldev Singh Bania have also been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- each, for the offence under Section 325 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, the defaulting convict(s) has/have been ordered to undergo further rigorous imprisonment for three months. It has also been directed that all the substantive sentences awarded to the accused would run concurrently. The prosecution version of the incident emerges from the complaint made by Sehdev PW4 to SI Harbans Singh PW7 on 3.6.1996. In his complaint, Sehdev PW4 asserted that he was residing as a tenant in House No.3480, Gali No.10, Chet Singh Nagar, Ludhiana. Alongwith him, his wife Usha Devi and his mother Shabbi Devi, were also residing. He stated that he was a shop keeper and was selling tea and milk at Chowk Janta Nagar. The complainant Sehdev PW4, had two brothers Dharamraj and Bhim Singh, who were residing separately on Gill Road in Ludhiana itself. According to the complainant Sehdev PW4, he had left for his shop in the morning at about 3.00 O'clock. In the afternoon, his brother Bhim Singh came to him at the shop. Since the mother of the complainant was Crl. Appeal No.295-DB of 1998 3 blind, very old, and ailing the complainant Sehdev PW4, as well as, his brother Bhim Singh left the shop and proceeded to his residence to enquire about her health. When they reached the street in front of House No.3480, they heard voices of crying from within the room under the occupation of the complainant Sehdev PW4, as also, out-cries “mardita-mardita” (killed- killed). On hearing the aforesaid voices, the complainant Sehdev PW4 and his brother Bhim Singh rushed into the room, where they saw the accused/appellants Siri Ram Pandey and Baldev Singh Bania giving blow with an iron “dat” to their mother Shabbi Devi and to the wife of the complainant Sehdev PW4 i.e. Usha Devi PW5. The complainant Sehdev PW4 and his brother Bhim Singh grappled with the accused/appellant Siri Ram Pandey and were successful in apprehending him, whereas, the accused/appellant Baldev Singh Bania was successful in running away. According to the statement of the complainant Sehdev PW4, his mother Shabbi Devi expired at the spot on account of the injuries suffered by her at the hands of the accused/appellants Siri Ram Pandey and Baldev Singh Bania, whereas the wife of the complainant (Sehdev PW4) Usha Devi PW5 had suffered extensive injuries. On hearing the commotion in the house of the complainant Sehdev PW4, police personnel, as well as, other people came to the place of occurrence. The complainant Sehdev PW4, having left his brother Bhim Singh alongwith the police personnel so as to guard over the dead body of Shabbi Devi, as also, to ensure that the accused/appellant Siri Ram Pandey apprehended by them, does not escape, took his wife Usha Devi PW5 to the Pahwa Hospital, Ludhiana, for treatment. Having got Usha Devi PW5 admitted there, the complainant Sehdev PW4 proceeded towards the police station to make a complaint. On the way to the police Crl. Appeal No.295-DB of 1998 4 station, the complainant Sehdev PW4 met SI Harbans Singh PW7 and got his statement recorded. On the basis of the complaint made by Sehdev PW4 to SI Harbans Singh PW7, First Information Report bearing No.105 was registered on 3.6.1996 at 6.40 PM. The special report in connection with the aforesaid First Information Report was singed by the Ilaqa Magistrate on the same day i.e. on 3.6.1996 at 7.30 PM. SI Harbans Singh PW7 after recording the statement of the complainant Sehdev PW4 proceeded to the place of occurrence in Chet Singh Nagar. A number of persons had already gathered there. After examining the place of occurrence, he prepared the inquest report Ex.PE, He also recorded the statements of the witnesses present at the place of occurrence. He also noticed in the inquest report, that the accused/appellant Siri Ram Pandey had been apprehended at the place of occurrence and was under the effective custody of Constable Parminder Singh. The accused/appellant Siri Ram Pandey was formally arrested. SI Harbans Singh PW7 lifted the blood stained earth from the place of occurrence and placed the same in a sealed parcel. He also took into possession pieces of broken glass bangles found at the place of occurrence. The same were also put in a sealed parcel. SI Harbans Singh PW7 also took into possession a cot from the place of occurrence. All the aforesaid case property was taken into possession vide recovery memo Ex.PH. SI Harbans Singh PW7 made arrangements for a vehicle to carry the dead body of Shabbi Devi to the Civil Hospital, Ludhiana, for postmortem examination. One “datar”, one ankle, one silver chain, a blood stained trouser and the shirt of the accused, were taken into possession vide recovery memo Ex.PJ. The blood stained Crl. Appeal No.295-DB of 1998 5 shirt of the complainant Sehdev PW4 was also taken into possession and was put in a sealed parcel vide recovery memo Ex.PL. When SI Harbans Singh PW7 returned to the police station, he entrusted all the sealed parcels, referred to above, with Head Constable Mohan Lal PW6 for safe custody. On 4.6.1996, Constable Ranjit Singh handed over to SI Harbans Singh PW7 the postmortem report, as well as, the belongings of the deceased Shabbi Devi. The aforesaid belongings of Shabbi Devi were taken into possession vide recovery memo Ex.PM. SI Harbans Singh PW7 then went to the Pahwa Hospital, Ludhiana and recorded the statement of Usha Devi PW5, who was lying admitted at the aforesaid hospital in an injured condition. The statement of Usha Devi PW5 was recorded by SI Harbans Singh PW7 after Dr. Harish PW2 had affirmed that she was fit to make a statement. Yet again, SI Harbans Singh PW7 deposited the aforesaid case property in the form of sealed parcels with MHC Mohan Lal PW6. On 12.6.1996, SI Harbans Singh PW7 arrested the accused/appellant Baldev Singh Bania, after he was identified by the complainant Sehdev PW4. The accused/appellant Baldev Singh Bania was subjected to interrogation. During the course whereof, he made a statement that he had concealed one “dagar” and one silver chain in the godown close to the Sidwa Canal. The aforesaid disclosure statement of the accused/appellant Baldev Singh Bania was recorded as Ex.PO. The same was attested by the complainant Sehdev PW4 and Jang Bahadur. The accused/appellant Baldev Singh Bania then led the police party to the place indicated in the disclosure statement and got recovered one “dagar” and one silver chain. The aforesaid articles were taken into possession vide recovery memo Ex.PO/1. SI Harbans Singh PW7 deposited the aforesaid case property also with MHC Mohan Lal PW6. Crl. Appeal No.295-DB of 1998 6 After completing the investigation and other police formalities, SI Harbans Singh PW7 presented a challan in respect of the instant case before the Ilaqa Magistrate, on 1.8.1996. The Chief Judicial Magistrate, Ludhiana, after examining the facts emerging from the investigation carried out by the police authorities (in furtherance of First Information Report bearing No.105 recorded at Police Station, Division No.6, Ludhiana), arrived at the prima-facie conclusion, that the accused/appellants Siri Ram Pandey and Baldev Singh Bania were guilty of the offence punishable under Sections 302 and 324, 325, 395, 397 and 400 read with Section 34 of the Indian Penal Code. Since the offences under Sections 302, 395, 397 and 400 of the Indian Penal Code are exclusively triable by the Court of Session, the Chief Judicial Magistrate, Ludhiana, by his order dated 1.8.1996, committed the case for trial to the Court of Session. The Sessions Judge, Ludhiana, by his order dated 26.8.1996 framed three charges against the accused/appellants Siri Ram Pandey and Baldev Singh Bania. The accused/appellants Siri Ram Pandey and Baldev Singh Bania were firstly charged under Section 392 read with Section 397 of the Indian Penal Code, for having robbed Usha Devi PW5 of her silver ornaments, with deadly weapons during the course whereof, they had murdered Shabbi Devi and caused grievous injuries to Usha Devi PW5. Secondly, the accused/appellants Siri Ram Pandey and Baldev Singh Bania were charged under Section 302 read with Section 34 of the Indian Penal Code, for having intentionally committed the murder of Shabbi Devi with a common intention. Thirdly, the accused/appellants Siri Ram Pandey and Baldev Singh Bania were charged under Section 325 read with Section 34 Crl. Appeal No.295-DB of 1998 7 of the Indian Penal Code, for having caused grievous hurts to Usha Devi PW5. The accused/appellants Siri Ram Pandey and Baldev Singh Bania were then confronted with the charges levelled against them. They pleaded not guilty, and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarised hereunder. The prosecution first of all, examined Harminder Singh, Draftsman as PW1. In his deposition before the trial Court, he stated that he had gone to the place of occurrence on 15.6.1996 and prepared the scaled site plan Ex.PA. Dr. Harish Pahwa, of Pahwa Hospital, Ludhiana, was examined as PW2. Dr. Harish Pahwa PW2 had conducted the medico-legal examination of Usha Devi PW5 on 3.6.1996, during the course whereof, he found the following injuries on her person:- “1. 3 x 0.5 cm incised injury bons deep over left mandibular margin 8 cm anterior to left ear lobule. 2. 5 x 1 cm incised injury over left lumber region 12 cm above the posterior Iliac spine (skin deep). 3. 4.5 x 0.5 cm incised injury 2.5 cm below injury No.2 (skin deep). 4. 6.5x4 cm lacerated injury over dorsal of left forearm 5.5 cm above the lower palpable and of radius. Tendons torn apart (bone deep). 5. 9x3.5 cm lacerated near circular injury over left fore-arm over ventra I and dorsal aspect 3.5 cm above ulna styloid Crl. Appeal No.295-DB of 1998 8 process Tendons forn apart. (Bone deep). 6. 8 cm x 1 cm incised injury over right scapular pine in line with it (skin deep). 7. Open fracture of ulna left present.” Dr. Harish PW2 opined that injuries No.4, 5 and 7 were grievous in nature, whereas, injuries No.1, 2, 3 and 6 were simple in nature. He also opined that injuries No.1, 2, 3 and 6 were caused with a sharp edged weapon, whereas, injuries No.4, 5 and 7 were caused with a blunt weapon. He also stated that the incised injuries on the person of Usha Devi PW5 could have been caused with the sharp side of a “datar”, whereas, the remaining injuries could have been caused with the blunt side of a “datar”. The statement of Dr. KJS Kakkar, SMO, Incharge, PHC, Kum Kalan, was recorded as PW3. While appearing before the trial Court, Dr. KJS Kakkar PW3 asserted that he had conducted the postmortem examination on the dead body of Shabbi Devi on 4.6.1996, and found the following injuries on the dead body of Shabbi Devi:- “1. A lacerated wound 25 cm x 20 c involving left cheek was present and underlying muscles and bones were crushed with vessels smashed. 2. A lacerated wound 10 cm x 7 cm was present on the left hand on dorsal aspect and underlying bones were crushed and muscles, broken. 3. Fracture of the underlying left ankle joint was present. 4. A lacerated wound 4 cm x 3 cm present on left leg, in lower 1/3rd with underlying bones crushed.” Dr. KJS Kakkar PW3 also opined that the cause of death of Shabbi Devi Crl. Appeal No.295-DB of 1998 9 was due to shock and haemohrrage, as a result of injury No.1, which was sufficient to cause death in the ordinary course of nature He also opined that all the injuries on the person of Shabbi Devi were ante-mortem in nature. The statement of the complainant Sehdev was recorded as PW4. While appearing before the trial Court, the complainant Sehdev PW4 reiterated the factual position as had been narrated by him when he had made the complaint to SI Harbans Singh PW7 on 3.6.1996. The statement of Usha Devi was recorded as PW5. It would be pertinent to mention, that Usha Devi PW5 is an injured eye witness to the occurrence. It would also be pertinent to mention, that Usha Devi PW5 is the wife of the complainant Sehdev PW4 and the daughter-in-law of the deceased Shabbi Devi. While deposing before the trial Court, Usha Devi PW5 corroborated the testimony of the complainant Sehdev PW4, on all material particulars. During the course of her cross-examination, she expressly stated that she knew the accused/appellants Siri Ram Pandey and Baldev Singh Bania prior to the date of the occurrence. She also asserted that the accused/appellant Siri Ram Pandey was a vegetable vendor in the mohalla where she was residing. In her testimony, Usha Devi PW5 stated that the accused/appellants Siri Ram Pandey and Baldev Singh Bania had attacked her mother-in-law Shabbi Devi, as well as, herself, when in response to their demand for money, she had told them that she did not have any money with her. The statement of Head Constable Mohan Lal was recorded as PW6. It would be pertinent to mention, that Head Constable Mohan Lal PW6 was the Moharrir Head Constable at the police station with whom sealed parcels of the case property were deposited by SI Harbans Singh PW7 from time to time. The statement of SI Harbans Singh was recorded as PW7. During Crl. Appeal No.295-DB of 1998 10 the course of his testimony, he disclosed the details of the investigation carried out by him, leading to the presentation of the challan before the Ilaqa Magistrate. Details in this behalf have already been narrated above. The statement of Constable Gurdev Ram was recorded as PW8. Constable Gurdev Ram PW8 tendered into evidence his affidavit Ex.PQ. A perusal of the aforesaid affidavit reveals, that Constable Gurdev Ram PW8 was deputed with the special report by ASI Som Nath for being delivered to senior officers. It also reveals that he had delivered the special report to the Ilaqa Magistrate on 3.6.1996. The statement of Taranjit Singh was recorded as PW9. He deposed that he had been handed over the dead body of Shabbi Devi for getting the postmortem examination conducted. Constable Mohinder Singh appeared before the trial Court as PW10. He tendered into evidence his affidavit Ex.PT. A perusal of his affidavit reveals, that he had taken samples of the case property from MHC Mohan Lal PW6 and deposited them at the Forensic Science Laboratory. After recording the statement of Mohinder Singh PW10, the prosecution evidence was closed by order. The statements of the accused/appellants Siri Ram Pandey and Baldev Singh Bania were then recorded under Section 313 of the Code of Criminal Procedure. In the first instance, the incriminating evidence appearing on the record of the case was put to the accused/appellants Siri Ram Pandey and Baldev Singh Bania. Both the accused/appellants Siri Ram Pandey and Baldev Singh Bania denied the correctness of the incriminating evidence available on the record of the trial Court. In their defence, the accused/appellants Siri Ram Pandey and Baldev Singh Bania stated that they had been falsely implicated in this case due to misguided Crl. Appeal No.295-DB of 1998 11 suspicion. The trial Court then afforded an opportunity to the accused/appellants Siri Ram Pandey and Baldev Singh Bania to lead evidence in their defence. No witness was examined either by the accused/appellant Siri Ram Pandey or by the accused/appellant Baldev Singh Bania. Defence evidence was, accordingly, closed by order on the basis of the statements made by the accused/appellants Siri Ram Pandey and Baldev Singh Bania. The Sessions Judge, Ludhiana, delivered the judgement in Sessions Case No.36 of 1996, on 2.5.1998. The trial Court convicted the accused/appellants Siri Ram Pandey and Baldev Singh Bania for the offence under Section 302 read with Section 34 of the Indian Penal Code, i.e. for having intentionally caused the death of Shabbi Devi, in furtherance of their common intention. The trial Court also found the accused/appellants Siri Ram Pandey and Baldev Singh Bania guilty of the offence under Section 325 read with Section 34 of the Indian Penal Code, for having caused grievous injuries on the person of Usha Devi PW5. The accused/appellants Siri Ram Pandey and Baldev Singh Bania were, however, acquitted of the charge under Section 392 read with Section 397 of the Indian Penal Code, as the prosecution could not substantiate the charge of robbery levelled against them. On the same day i.e. on 2.5.1998, the accused/appellants Siri Ram Pandey and Baldev Singh Bania were heard on the question of sentence. Both the accused/appellants Siri Ram Pandey and Baldev Singh Bania were sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, for the offence under Section 302 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, the defaulting Crl. Appeal No.295-DB of 1998 12 convict(s) was/were ordered to undergo further rigorous imprisonment for six months. Additionally, the accused/appellants Siri Ram Pandey and Baldev Singh Bania were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- each, for the offence under Section 325 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, the defaulting convict(s) was/were ordered to undergo further rigorous imprisonment for three months. The Sessions Judge, Ludhiana, also directed that all the substantive sentences awarded to the accused would run concurrently. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Sessions Judge, Ludhiana, reveal that while convicting the accused/appellants Siri Ram Pandey and Baldev Singh Bania, reliance was placed on ocular, as well as, expert evidence. In so far as ocular evidence is concerned, the trial Court placed reliance on the testimony of the complainant Sehdev PW4, as well as, Usha Devi PW5. In so far as the complainant Sehdev PW4 is concerned, he was an eye witness to the occurrence. He alongiwth his brother Bhim Singh, were successful in apprehending the accused/appellant Siri Ram Pandey at the place of occurrence itself. Usha Devi PW5 was an injured eye witness, inasmuch as, she sustained injuries in the occurrence itself. Not only did the statement of Usha Devi PW5 corroborate the testimony of the complainant Sehdev PW4, but the same also clarified that she recognised the accused/appellants Siri Ram Pandey and Baldev Singh Bania on account of the fact that she had known them prior to the occurrence. In so far as the accused/appellant Siri Ram Pandey is concerned, she stated that he was a local vegetable vendor in the mohalla where she was residing. In so far as, Crl. Appeal No.295-DB of 1998 13 expert evidence is concerned, reliance was placed on the testimony of Dr. Harish PW2, who had conducted the medico-legal examination of Usha Devi PW5, wherefrom it is apparent that as many as seven injuries were suffered by Usha Devi PW5 in the occurrence under reference, and further, that three of the injuries described at Sr.No.4, 5 and 7 in the injury report recorded by Dr. Harish PW2, were greves in nature. Dr. KJS Kakkar PW3, besides depicting the injuries caused on the person of the deceased Shabbi Devi, also recorded the conclusion that injury No.1 (depicted in the postmortem report) was sufficient to cause death in the ordinary course of nature. It is on the basis of the over-whelming evidence noticed hereinabove, that the trial Court recorded the conviction of the accused/appellants Siri Ram Pandey and Baldev Singh Bania under Section 302 read with Section 34 of the Indian Penal Code, as well as, under Section 325 read with Section 34 of the Indian Penal Code. In order to assail the findings recorded by the trial Court and in order to establish that the evidence produced by the prosecution is not credit-worthy, learned counsel for the accused/appellants Siri Ram Pandey and Baldev Singh Bania raised a number of pleas. Learned counsel for the accused/appellants Siri Ram Pandey and Baldev Singh Bania has also vehemently contended, that there is no credible evidence on the record of the case to establish the guilt of the accused/appellants Siri Ram Pandey and Baldev Singh Bania in respect of the charges levelled against them. Each of the pleas raised by the learned counsel for the accused/appellants Siri Ram Pandey and Baldev Singh Bania is being dealt with in the succeeding paragraphs. The first contention advanced by the learned counsel for the Crl. Appeal No.295-DB of 1998 14 accused/appellants was to the effect, that although, Usha Devi PW5 while deposing before the trial Court had indicated that an identification parade had been conducted, and that, she had identified the accused/appellants Siri Ram Pandey and Baldev Singh Bania, the investigating officer SI Harbans Singh PW7 stated, that no identification parade was conducted for the identification of the accused/appellants. In view of the aforesaid discrepancy in the testimony of Usha Devi PW5 and SI Harbans Singh PW7, it is the vehement contention of the learned counsel for the accused/appellants Siri Ram Pandey and Baldev Singh Bania, that the prosecution evidence is based on a totally false foundation, and that, there is no evidence on the record of the case to link the accused/appellants Siri Ram Pandey and Baldev Singh Bania with the occurrence under reference. We have carefully examined the statement of Usha Devi PW5. Inspite of our best efforts, we could not find any assertion made at the hands of Usha Devi PW5 to the effect that an identification parade was conducted, wherein she had identified the accused/appellants Siri Ram Pandey and Baldev Singh Bania. From a perusal of the statement of Usha Devi PW5, it is apparent that she clearly and unequivocally asserted that she was able to identify the accused/appellants Siri Ram Pandey and Baldev Singh Bania on account of the fact that they were know to her earlier. She stated, that the accused/appellant Siri Ram Pandey was the local vegetable vendor in the mohalla. During the course of her cross-examination, Usha Devi PW5 acknowledged that the accused/appellant Siri Ram