Crl.Appeal No.602-DB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.602-DB of 2001 Date of decision: 2.3.2010 Hukam Singh @ Kalu Ram ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.T.C.Dhanwal, Advocate, for the appellant. Mr.S.S.Randhawa, Addl.AG, Haryana. ... JORA SINGH, J. Hukam Singh @ Kalu Ram preferred this appeal to challenge the judgment dated 14.9.2001 passed by Additional Sessions Judge, Hisar, arising out of FIR No.149 dated 8.8.1999 under Section 302 IPC, Police Station Sadar, Hansi. By the said judgment, he was convicted under Section 302 IPC and sentenced to undergo RI for life and to pay a fine of Rs.5000/-, in default of payment of fine, to further undergo RI for six months under Section 302 IPC. Case of the prosecution, in brief, is that Paras Ram, complainant, is the resident of Shakti Nagar, Hisar and stated that they were installing a brick kiln in the name of Ganga Bricks Company in Village Chanot. Kalu Ram was employed as labourer @ Rs.1500/- per month. He was doing the work of digging and levelling the earth. 5/6 days earlier, he had some altercation with Ram Kishan, brother of the complainant, for not doing the work properly. Kalu Ram had taken some money in advance. Crl.Appeal No.602-DB of 2001 2 After altercation, he went away from the brick kiln by saying that he is not to work on the brick kiln and will return the payment. On 7.8.1999, he (Paras Ram) and his brother Ram Kishan were sleeping on different cots at the brick kiln. At about 11.00 PM, Kalu Ram came armed with kassi and gave blow on the left side of mouth of Ram Kishan. Ram Kishan raised an alarm `mardiya'. Then he got up and tried to catch hold the accused. In the meantime, Kalu Ram had inflicted two more kassi blows, one on the left side of the head and the second behind the ear on the left side. While leaving kassi there, Kalu Ram had fled away from the spot after getting himself released from his clutches. A jeep was arranged and while Ram Kishan was unconscious, then he was shifted to N.C.Jindal Private Hospital, Hisar. Ram Kishan was admitted in the hospital at 1.30 AM. Ruqa (Ex.PM) was sent at 2.45 AM on 8.8.1999. On receipt of VT message regarding admission of Ram Kishan, police party headed by ASI Daya Nand, after collecting ruqa from Police Station, Model Town, Hisar, had gone to N.C.Jindal Hospital, Hisar, and application (Ex.PN) was moved for getting opinion of the doctor as to whether Ram Kishan was fit to make statement or not, but the doctor vide endorsement (Ex.PN/1) reported that Ram Kishan was unfit to make statement. Then statement of Paras Ram (Ex.PG) was recorded. After making endorsement at 11.15 AM, statement was sent to the Police Station, on the basis of which, formal FIR was registered under Section 326 IPC. ASI Daya Nand along with complainant was going towards the place of occurrence. Jagdish, brother of the deceased, had met police party near the police station. After that, ASI Daya Nand had gone to the place of occurrence. Kassi stained with blood was found lying on the spot. Kassi was made into a sealed parcel and parcel was Crl.Appeal No.602-DB of 2001 3 taken into police possession vide separate memo attested by the witnesses. Blood stained earth was also lifted from the spot and made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. Niwar of the cot was cut, which was found to be stained with blood and the same was made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. On return to the police station, case property was deposited with the MHC. On 11.8.1999, Investigating Officer had gone to Jindal Hospital, Hisar, and moved application (Ex.PO) requesting the doctor to opine as to whether patient was fit to make statement or not. The doctor vide endorsement (Ex.PO/1) declared Ram Kishan unfit to make statement. In view of application (Ex.PQ), the doctor opined that injuries on the person of Ram Kishan were dangerous to life. On 16.8.1999, Investigating Officer was present near Police Station, Sadar, Hansi, then Narsi had produced the accused before the police. The accused was interrogated and suffered disclosure statement (Ex.PK). On 17.8.1999, the accused was produced before the Magistrate and was remanded to police custody. In pursuance of his disclosure statement, accused got recovered his pants and shirt from the specified place. Same were made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. On 23.8.1999, parcel of kassi was produced before the doctor. After opening the parcel and on inspection of kassi, the doctor opined that injuries noted on the person of Ram Kishan were possible with a kassi. Investigating Officer again moved application (Ex.PR) requesting the doctor to opine as to Crl.Appeal No.602-DB of 2001 4 whether patient was fit to make statement or not. The doctor vide endorsement (Ex.PR/1) opined that patient was unfit to make statement. On 24.8.1999, intimation was received from Jindal Hospital, Hisar, regarding the death of Ram Kishan. After that, offence punishable under Section 302 IPC was added. ASI Daya Nand along with party had gone to the hospital and inquest report (Ex.PB) was prepared. Dead body was shifted to Government Hospital, Hisar, for postmortem examination. After postmortem examination, dead body was handed over to the relatives for cremation. After completion of investigation, challan was presented in the Court. Accused was charged under Section 302 IPC, to which he pleaded not guilty and claimed trial. To substantiate its case, prosecution examined PW1 Dr.Suresh Kumar. He stated that on 24.8.1999 at about 11.00 AM, he had conducted postmortem examination on the dead body of Ram Kishan and found the following injuries on his person:- “1. One stitched wound on the left temporal parietal region (transvers). Size was 6 inches in length. 2. One stitched wound was present on the left side of the temporal region extending to left eye 5'' in length going downward. 3. One stitched wound was present on the left temporal region, 4'' in length in front of the left ear. On dissection, the underlying parts of the temporal parietal bone were missing. The brain matter was lacerated and coming out of the wounds. Crl.Appeal No.602-DB of 2001 5 4. One tracheostomy wound was present. 5. One gastrostomy wound was present.” Cause of death was due to the injury on the vital organ. Injuries were ante mortem in nature and injury to brain was sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was variable and between death and postmortem within 24 hours. PW2 HC Narender Singh tendered his affidavit (Ex.PD). PW3 Rajinder Singh, Patwari, stated that site plan (Ex.PE) was prepared at the instance of Paras Ram. PW4 ASI Pahlad Singh stated that on receipt of ruqa (Ex.PG), he had recorded formal FIR (Ex.PG/1). PW5 SI Kharati Lal stated that on 28.9.1999, he had re-arrested the accused and on 29.9.1999, submitted report under Section 173 Cr.P.C. PW6 Ramdev stated that in the hospital, he had identified the dead body of his brother Ram Kishan. PW7 Jagdish Chander is the brother of the deceased and stated that they were installing a brick kiln after getting land on lease from Baljit Singh and Amar Singh. On 8.8.1999, ASI Daya Nand had taken into police possession one kassi stained with blood from the place of occurrence. Kassi was made into a sealed parcel and the parcel was taken into police possession vide separate memo attested by him. Blood stained earth was also lifted from the spot and was made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. Niwar of the cot stained with blood was cut and made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by him. Crl.Appeal No.602-DB of 2001 6 PW8 Constable Ajit Singh stated that he was with the police party headed by ASI Daya Nand. Accused was in the police custody. Pants and shirt stained with blood were got recovered by the accused from the specified place and the same were made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by him. PW9 Constable Rajpal Singh had delivered special report to the Ilaqa Magistrate. PW10 Constable Ranbir stated that Jasa Ram had produced the accused before ASI Daya Nand. Accused was interrogated and suffered disclosure statement (Ex.PK) to the effect that he has kept concealed his blood stained clothes at the house of his sister Sushila in Village Juglan. PW11 Dr.A.K.Jain stated that on 8.8.1999, he had medico legally examined Ram Kishan and found the following injuries on his person:- “1. There was a lacerated wound from nose to cheek bone and left ear having 5 inches x 15 inches. 2. Incised wound on tempo frontal having 3 inches x .5 inch. 3. Brain matter coming out of wound. 4. Lacerated wound above left ear having 3 inches x .5 inch.” All the injuries were grievous in nature, caused by sharp edged weapon. Probable duration was within 6 hours. Ex.PL is the correct carbon copy of the MLR. Ruqa (Ex.PM) was sent to Police Station, Model Town, Hisar. In view of application (Ex.PN), Ram Kishan was declared unfit to make statement vide endorsement (Ex.PN/1). On 11.8.1999 as per police Crl.Appeal No.602-DB of 2001 7 request (Ex.PO), again Ram Kishan was declared unfit to make statement vide endorsement (Ex.PO/1). Injuries were declared dangerous to life. On 23.8.1999, as per police request (Ex.PR), Ram Kishan was again declared unfit to make statement vide endorsement (Ex.PR/1). ASI Daya Nand had produced sealed parcel of kassi. Parcel was opened. Then he gave opinion (Ex.PS/1) that the injuries noted on the person of Ram Kishan could be caused by that kassi. Ram Kishan had expired at 1.45 AM on 24.8.1999. PW12 Paras Ram is the complainant/eye witness and has supported the prosecution story by saying that his brother Ram Kishan was murdered by the accused. PW13 ASI Daya Nand is the Investigating Officer. After close of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that 4-5 years ago wife of Ram Kishan had eloped with some body and Ram Kishan suspected that he was behind her elopement. Tussle continued between him and Ram Kishan for 2-3 years. Wife of Ram Kishan did not return for 2-3 years and due to this reason, Ram Kishan and his brothers felt humiliated. Some of the brothers of Ram Kishan has left the village and settled else where. One of the brothers of Ram Kishan is serving as DSP in Haryana. Due to humiliation and with the connivance and pressure of that DSP, he was falsely implicated in this case. In defence, HC Ajaib Singh brought record and stated that Ram Singh, DSP, is son of Gopal Ram of Khairam Pur, Tehsil Mandi Adampur, District Fatehabad, and he is Bishnoi by caste. After hearing learned Public Prosecutor for the State and Crl.Appeal No.602-DB of 2001 8 counsel for the accused and from the perusal of evidence on the file, the accused was convicted and sentenced as stated aforesaid. We have heard learned counsel for the appellant and respondent-State and gone through the evidence on the file. Learned counsel for the appellant argued that except the complainant, there is no other eye witness. Complainant is the brother of the deceased. One brother of the deceased is serving as DSP in Haryana. Presence of complainant at the time of occurrence is doubtful. There was no motive to commit the crime. In the FIR, there is not a word that Rs.4000.00-5000.00 was due from the appellant and there was a dispute amongst the appellant and the deceased few days earlier to the occurrence. In fact, 2-3 years earlier to the occurrence, wife of Ram Kishan had eloped with some body and failed to return. Complainant party suspected the appellant and felt humiliated. At the instance of DSP, appellant was falsely implicated in this case. Recovery of kassi is also doubtful. No independent witness was joined. Witness of recovery is Jagdish Chander, brother of the deceased. Learned State counsel argued that presence of the complainant at the time of occurrence is natural. Occurrence was at the brick kiln of the complainant party. Brick kiln was being constructed. Immediately after the occurrence, injured was shifted to the hospital. Till death, injured remained unconscious. After admission, intimation was sent to the police station. On receipt of information from N.C.Jindal Hospital, Hisar, ASI Daya Nand had gone to the hospital and recorded the statement of Paras Ram at 11.15 AM. Condition of the patient was very serious till death. Delay was fully explained. While constructing brick kiln, appellant was engaged to level Crl.Appeal No.602-DB of 2001 9 the earth etc. He was given payment in advance but he was not performing his duties properly. So, there was dispute amongst the appellant and the deceased. Due to enmity, appellant has committed the crime. Recovery of kassi was from the spot on 8.8.1999. If eye witness is the brother of the deceased, then story is not to be ignored. One brother of the deceased is serving as DSP in Haryana and as per defence version, if appellant had no dispute with the deceased, then there was no reason to implicate him by leaving the real culprit. On the day of occurrence, complainant party was constructing new brick kiln in Village Chanot. Appellant was employed as a labourer to level the earth etc. against payment of Rs.1500/- per month. No suggestion to the complainant or his brother that appellant was not employed as a labourer for doing the work of digging and levelling the earth. On the intervening night of 7/8.8.1999, Paras Ram, complainant, and the deceased were sleeping on different cots. At 11.00 PM during night time, appellant came armed with kassi and was seen while giving blows to Ram Kishan. After causing injuries, appellant had fled away from the spot by getting himself released from the clutches of the complainant. Kassi was left on the spot. Immediately after the occurrence, a jeep was arranged and Ram Kishan was shifted to N.C.Jindal Hospital, Hissar. At 1.30 AM, Ram Kishan was admitted in the hospital and was medico legally examined. Ruqa (Ex.PM) was sent to the police station at 2.45 AM on 8.8.1999. Intimation was received by the concerned police station at 4.25 AM. On receipt of information, ASI Daya Nand had gone to Police Station, Model Town, Hisar. After collecting ruqa, Investigating Officer had gone to N.C.Jindal, Hospital, Hisar. Application (Ex.PN) was moved requesting the Crl.Appeal No.602-DB of 2001 10 doctor to opine as to whether Ram Kishan was fit to make statement or not, but the doctor opined that Ram Kishan was not fit to make statement. Complainant was present in the hospital, then his statement (Ex.PG) was recorded by the Investigating Officer. After making endorsement at 11.15 AM, statement was sent to the police station, on the basis of which, formal FIR under Section 326 IPC was recorded. On 11.8.1999, again opinion of the doctor regarding fitness of the patient was sought by moving application (Ex.PO), but the doctor vide his endorsement (Ex.PO/1) reported that patient was still unfit to make statement. On 23.8.1999, again Ram Kishan was declared unfit to make statement vide endorsement (Ex.PR/1) on police request (Ex.PR). On the intervening night of 23/24.8.1999 at 1.45 AM, Ram Kishan had succumbed to his injuries in N.C.Jindal Hospital, Hisar. Injuries noted on the person of Ram Kishan were found to be dangerous to life. Injuries cannot be self suffered or self inflicted. So, delay was fully explained and if we presume that there is delay in lodging the FIR, then delay itself is not sufficient for ignoring the prosecution story. Delay is one of the suspicious circumstance to scrutinize the evidence with great care and caution. Appellant was not performing his duties properly. There was some altercation amongst the appellant and the deceased. Appellant had left the job by saying that he is not to work and will return the payment. On the day of occurrence, complainant and the deceased were sleeping on different cots and during night time at 11.00 PM, appellant armed with kassi came and caused injuries to Ram Kishan. Occurrence was witnessed by Paras Ram. So presence of Paras Ram at the time of occurrence was natural. There was no reason to implicate the appellant by leaving the real culprit. Crl.Appeal No.602-DB of 2001 11 Simply complainant being real brother of the deceased and failed to produce his blood stained clothes, then his statement cannot be ignored on this short ground. Something could be said if occurrence would have taken place some where else and not at the brick kiln of the complainant party. Nothing to doubt the presence of the complainant at the time of occurrence. According to the prosecution story, appellant was engaged to supervise the work of digging and levelling the earth, but he was not performing his duties properly. There was a dispute amongst the appellant and the deceased. Appellant had left the brick kiln by saying that he is not to work, rather will return the payment. That means, there was a dispute regarding return of payment and not to work properly. Motive is a double edged weapon but when the occurrence was witnessed by the eye witness, then importance of motive is not significant. Motive assumes importance when case is based on circumstantial evidence. Defence version of appellant is that 2-3 years earlier to the present occurrence, wife of the deceased had eloped with some body and the deceased suspected the appellant behind the elopement of his wife and this tussle continued amongst the parties for 2-3 years. No respectable person appeared in defence to state that 2-3 years earlier to the present occurrence, wife of Ram Kishan had eloped with some one and there was a tussle amongst the parties. No suggestion to Paras Ram that wife of Ram Kishan had eloped with some body and there was a tussle amongst the parties, as the complainant party was suspecting the appellant behind the elopement of wife of the deceased. Suggestion was given to Paras Ram that labour had shifted Ram Kishan to the hospital, but no one was produced in defence to state that occurrence was not witnessed by the complainant. In fact, some Crl.Appeal No.602-DB of 2001 12 unknown person had committed the crime and after the injuries were caused to Ram Kishan, then he was shifted to the hospital by the labour. Admittedly, there is no writing regarding employment of the appellant or payment. As per FIR, some amount was due from the appellant but in Court, complainant stated that Rs.4000.00/5000.00 was due from the appellant. So, with this minor improvement, prosecution story is not to be ignored by saying that there was no motive and in the absence of motive, entire story is to be brushed aside. According to the prosecution story, appellant had fled away from the spot by leaving kassi. Kassi was taken into police possession after the same was made into a sealed parcel. Kassi was found to be stained with blood. As per report of the laboratory (Ex.PAA), blood was noticed on the kassi, although blood was found to be disintegrated. Niwar of the cot was also taken into police possession and the same was also found to be stained with human blood. After recording statement of Paras Ram in the hospital at 11.15 AM, ASI Daya Nand along with complainant party had gone to the place of occurrence. Kassi was taken into police possession in the presence of Jagdish Chander. If no independent witness is joined and recovery of weapon is in the presence of relation of the deceased, then on this short ground also, recovery of weapon is not to be ignored with this allegation that weapon was planted. If appellant was to be falsely implicated in this case, then it was very easy for the complainant to state that the appellant had fled away from the spot with the weapon of offence. Appellant was arrested in this case on 16.8.1999 and in pursuance of his disclosure statement, he got recovered his pants and shirt from the specified place. Pants and shirt of the appellant were made into a sealed parcel and parcel was taken into police possession and then sent to the laboratory. As Crl.Appeal No.602-DB of 2001 13 per report of the laboratory, blood was noticed on the pants and shirt. That means, kassi was recovered from the spot on 8.8.1999 and the appellant was arrested on 16.8.1999. So, no question of implicating the appellant by planting kassi. Last submission of learned counsel for the appellant is that one brother of the deceased was serving as DSP in Haryana and wife of the deceased had eloped with some body about 2-3 years earlier to the occurrence and when she failed to return, then at the instance of DSP, appellant was falsely implicated in this case. In defence, HC Ajaib Singh brought record and stated that Ram Singh, DSP, Bishnoi by caste, was serving at PTC, Madhuban. Suppose Ram Singh, DSP, brother of the deceased, was in the police department, then no question of implicating the appellant by leaving the real culprit, when there was no previous enmity amongst the parties. While constructing new brick kiln, the appellant was employed for the purpose of digging and levelling the earth @ Rs.1500/- per month, but he was not performing his duties properly. On account of some altercation with the deceased, the appellant had left the brick kiln with an undertaking to return the payment. So, appellant had motive to commit the crime. If brother of the deceased was serving as DSP, then no idea to leave the real culprit and implicate the appellant. If labour had shifted the injured to the hospital, then any one of them could be produced in defence to state that the complainant was not present at the time of occurrence. In fact, some unknown assailant had committed the crime. If brother of the deceased was serving as DSP or on any respectable post, then it does not mean that the appellant by murdering the brother of DSP or any other officer can argue that case is false at the instance of the DSP. If brother of Crl.Appeal No.602-DB of 2001 14 the deceased was serving as DSP, then we are of the opinion that rightly single person was implicated when no reason to leave the real culprit. Judgment of the trial Court is to be set aside if the same is perverse and against law. Evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is affirmed. Appeal being without merit is hereby dismissed. As the accused-appellant is on bail, so his bail bonds stand cancelled. The appellant is directed to surrender himself before the jail authorities immediately to undergo remaining sentence, failing which the concerned authority is directed to issue non-bailable warrants directing the appellant to undergo remaining portion of sentence as ordered by the trial Court. ( JORA SINGH ) JUDGE 2.3.2010 ( SATISH KUMAR MITTAL ) pk JUDGE