IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 260-DB of 2004 DATE OF DECISION : 14.07.2011 Raju .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. B.S. Sra, Advocate, for the appellant. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellant Raju was tried by the court of Sessions Judge, Hoshiarpur, under Section 302 IPC, for committing the murder of Budh Nath. The trial court, vide its judgment and order dated 5.2.2004, convicted and sentenced the appellant to undergo imprisonment for life and to pay a fine of ` 10,000/-, or in default of payment of fine to undergo further rigorous imprisonment for one year, under Section 302 IPC. 2. As per the prosecution version, which is based upon the statement (Ex.PC) of Parminder Singh (PW.2), appellant Raju and deceased Budh Nath were working as agriculture labourer with the complainant and were residing together in a room of his Haveli, which was situated in front Crl. A. No. 260-DB of 2004 -2- of his house. The appellant was working with the complainant for the last eight years, whereas the deceased was employed by him about one month prior to the occurrence. It is the further case of the prosecution that on 24.4.2003, a dispute arose between the appellant and the deceased with regard to a wrist watch. The appellant told the complainant that Budh Nath (deceased) was not returning his watch, which was given by him as a security for ` 400/-, borrowed by the appellant from Budh Nath. It is further the case of the prosecution that on the day of occurrence, the complainant had hired a carbine for harvesting the wheat crop. On the intervening night of 24/25.4.2003, the crop was being cut and thereafter, it was being loaded in a tractor-trolley. At about 11.00 PM, appellant came to him and asked to go to the house to take meal. He was allowed to go. After two hours, at about 1.00 AM (night), complainant along with Satnam Singh (PW.3), on the tractor trolley loaded with wheat, reached his house. After reaching his house, he switched off the tractor for opening the gate. Then he heard the cry from the Haveli side. Thereupon, he and Satnam Singh ran towards the Haveli, where the appellant was mercilessly killing Budh Nath (deceased) with the help of a Bahola. When he and Satnam Singh rushed to the Haveli, then Budh Nath had fallen down and the appellant along with his Bahola jumped over the wall and ran away from the spot in their presence. According to him, the motive behind the occurrence was that the appellant had borrowed ` 400/- from Budh Nath and when he did not return the said amount, Budh Nath took his watch as security for return of the said amount Crl. A. No. 260-DB of 2004 -3- and was not returning the watch. Due to non-returning of the watch by Budh Nath, appellant caused his death by inflicting injuries with Bahola. Complainant Parminder Singh further stated that after leaving Satnam Singh near the dead body, he went to the houses of Iqbal Singh Sarpanch (PW.4) and Sukhwinder Singh, Block Samiti Member, and then all the three searched the appellant, but in vain. Then he along with Sukhwinder Singh and Iqbal Singh proceeded for Police Station to lodge the report. In the way, they met the police party, headed by SI Hans Raj (PW.12), who recorded the statement (Ex.PC) of complainant Parminder Singh at 8.30 AM, on the basis of which the formal FIR (Ex.PC/2) was recorded in Police Station Tanda at 9.30 AM and special report was sent, which was received by the Duty Magistrate at about 4.10 PM. 3. As per the prosecution case, on 25.4.2003 at 8.30 AM, the police party along with the complainant, Sukhwinder Singh and Iqbal Singh reached the place of occurrence and inspected the spot. SI Gurdip Singh (PW.10) the Finger Prints Expert and Paramjit Singh Photographer (PW.6) were called. The photographer took seven snaps of the dead body. SI Gurdip Singh, the Finger Prints Expert, developed finger prints on the mirror of a wrist watch lying near the dead body. The watch (Ex.P1) was taken into possession by the police vide memo (Ex.PD). Two pairs of chappals (Ex.P2 to Ex.P5) were recovered from the spot, which were taken into possession vide memo (Ex.PE). The blood stained earth was lifted from the spot, which was taken into possession vide separate memo (Ex.PF). The rough site plan Crl. A. No. 260-DB of 2004 -4- (Ex.PU) and the inquest report (Ex.PN) were prepared and the dead body was sent for post mortem examination. 4. On 25.4.2003 at 4.45 PM, Dr. Shiv Raj Rikhi (PW.5) conducted the post mortem examination on the dead body of deceased Budh Nath and the following injuries were found on his body : 1. Lacerated wound 6 cm x 2 cm x brain deep on the right side of scalp, vertically placed 4 cm behind right pinna. 2. Lacerated wound 5 cm x 2 cm x bone deep, vertically placed on the right side of scalp, 1 cm above injury No.1. 3. Lacerated wound 4 cm x 2 cm x brain deep on the right side of scalp, 7 cm above right pinna. 5. On dissection of injuries No.1 to 3, underlying bones were fractured into multiple pieces. Semi-clotted blood was present in the subcutaneous tissue between scalp and bone, between manages and brain matter and brain matter itself. Some pieces of fractured bone were lying in the brain matter itself. 4. Incised wound 8 cm x 3 cm on the back of left side of chest, obliquely placed, starts at the inner margin of scapula from mid-line and extends downwards and laterally. Muscle deep. 5. Lacerated wound 6 cm x 2 cm x bone deep on the right side of head, obliquely placed, starts from frontal hair line and 10 cm from mid- line. 6. Lacerated wound 1 cm x 15 cm x 1 cm on right side of leg. Anterior aspect 7 cm below the right knee joint. 6. In the opinion of the doctor, the cause of death was injury to the brain, which was sufficient to cause death in an ordinary course of nature. Crl. A. No. 260-DB of 2004 -5- All the injuries were ante mortem in nature. The probable duration between injuries and death was instantaneous and between death and post mortem between 12 to 24 hours. At the time of the post mortem examination, the doctor found that right hand of the deceased was in `fist' position containing hair, which were taken out and handed over to the police. 7. On 6.5.2003, the appellant was arrested. During interrogation, he suffered disclosure statement (Ex.PG) and got recovered his undervest (Ex.P6), underwear (Ex.P7) and Bahola (Ex.P8), which were kept concealed by him near the popular trees, planted near the well belonging to complainant Parminder Singh in the area of village Allarh. The same were taken into possession vide memo (Ex.PH). 8. During investigation, on 19.11.2003, samples of hair and specimen finger impressions of the appellant were taken in the court. 9. As per the report of the Forensic Science Laboratory, Punjab, Chandigarh (Ex.PBB), the hair taken by the doctor from the right fist of the deceased and the samples of hair of the appellant were similar. Similarly, as per the report of the Director, Finger Prints Bureau, Phillaur, the finger prints of the appellant were found on the mirror of the wrist watch (Ex.P1), recovered from the place of occurrence. Further, as per reports of the Forensic Science Laboratory, Punjab, Chandigarh (Ex.PCC and Ex.PDD), the clothes and articles of the deceased, the blood stained earth, two pairs of chappals, recovered from the spot, as well as the clothes and the weapon of offence, recovered at the instance of the appellant, were stained with human Crl. A. No. 260-DB of 2004 -6- blood. 10. After completion of investigation, the police filed challan against the appellant and charge under Section 302 IPC was framed, to which he did not plead guilty and claimed trial. 11. In support of its case, the prosecution examined 14 witnesses, out of whom PW.2 Parminder Singh (complainant-eye witness), PW.3 Satnam Singh (eye witness), PW.4 Iqbal Singh (Sarpanch of village Johal), PW10 SI Gurdip Singh (Finger Prints Expert) and PW.12 SI Hans Raj (Investigating Officer) are the material witnesses. All these witnesses have fully supported the case of the prosecution. The remaining witnesses are the formal witnesses. 12. In his statement under Section 313 Cr.P.C., appellant denied the incriminating evidence appearing against him. He pleaded his innocence and took the plea that in fact, complainant Parminder Singh had killed Budh Nath, which was witnessed by the appellant. He further stated that in order to save himself, the complainant in connivance with the police of Police Station Tanda falsely implicated the appellant in this case, as he had witnessed the entire occurrence. However, in defence, the appellant did not examine any witness. 13. After hearing learned counsel for the parties, while believing the testimony of both the eye witnesses, recovery and the other evidence connecting the appellant with the commission of the offence, and while disbelieving the defence of the appellant, the learned trial court has come to Crl. A. No. 260-DB of 2004 -7- the conclusion that the prosecution has proved its case against the appellant beyond reasonable doubt, and has convicted and sentenced the appellant, as indicated in the first paragraph of the judgment. 14. Learned counsel for the appellant argued that in the present case, the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. Both the alleged eye witnesses, namely PW.2 Parminder Singh and PW.3 Satnam Singh had not witnessed the occurrence at all. They had reached the Haveli after the occurrence. Learned counsel further argued that there are material contradictions in the statements of both these two witnesses, which render the entire prosecution case doubtful. In this regard, learned counsel has referred to the statement of PW.2 Parminder Singh, wherein he stated that he and Satnam Singh (PW.3) together had gone to Haveli at about 1.00 AM (night) and saw the appellant killing Budh Nath with Bahola. At that time, Budh Nath was lying on the ground and was being assaulted by the appellant with Bahola. On seeing them, appellant ran away along with Bahola by jumping over the boundary wall of the Haveli and Budh Nath was served with water by them, but he died. Learned counsel argued that PW.3 Satnam Singh did not corroborate the aforesaid version of complainant Parminder Singh (PW.2). Even in his examination- in-chief, he has stated that when they heard the voice from the side of the Haveli of Parminder Singh, there was darkness and when they reached at the spot, they found that Budh Ram was dead. He stated that he did not see appellant giving Bahola blow to Budh Nath and the assailant had already Crl. A. No. 260-DB of 2004 -8- run away from the spot, before his arrival. He further stated that when he reached the spot, Parminder Singh told him that it was appellant Raju, who killed Budh Nath. 15. Secondly, learned counsel has drawn the attention of the court towards another contradiction with regard to coming of Satnam Singh in the field of Parminder Singh. According to PW.2 Parminder Singh, Satnam Singh came to his field at about 1.00 AM (night), whereas PW.3 Satnam Singh stated that he reached field of Parminder Singh at 9.10 PM. PW.3 Satnam Singh further stated that he did not see any person in the field, whereas PW.2 Parminder Singh stated that the appellant was working there and on asking, he was permitted to go home at 11 PM. 16. Thirdly, learned counsel has pointed out that there is a major contradiction in the statement of PW.4 Iqbal Singh Sarpanch of the village and the prosecution version. According to PW.4 Iqbal Singh, the police reached the village at about 4 AM, whereas according to PW.12 SI Hans Raj, the Investigating Officer, the police reached the village at 8.30 AM. 17. Learned counsel further argued that the trial court has committed grave illegality, while relying upon the expert evidence and convicting the appellant on the basis of the circumstantial evidence. 18. On the other hand, learned Additional Advocate General, Punjab, argued that in view of the statements of both the eye witnesses, recovery of Bahola at the instance of the appellant, the expert evidence and the other connecting evidence produced by the prosecution, the trial court Crl. A. No. 260-DB of 2004 -9- was fully justified in convicting the appellant. She further argued that the appellant has failed to establish the defence version, taken by him in his statement under Section 313 Cr.P.C., to the effect that in fact Parminder Singh (complainant) had killed Budh Nath and since the appellant was an eye witness to the crime committed by the complainant, therefore, he was falsely implicated in the case. Thus, the judgment of conviction and the order of sentence, passed by the trial court, are liable to be upheld. 19. We have considered the submissions made by learned counsel for the parties and have perused the record of the case. 20. In the present case, homicidal death of Budh Nath has been established. According to the Post Mortem Report (Ex.PL), which has been proved by PW.5 Dr. Shiv Raj Rikhi, there were six injuries on the body of the deceased. Injuries No.1 to 3 were the brain deep injuries and underlying bones were found fractured into multiple pieces. In the opinion of the Doctor, the deceased has died due to brain injuries, which were sufficient to cause death in the ordinary course of nature. As per the prosecution case, which is based upon the version given by PW.2 Parminder Singh, the aforesaid injuries to the deceased were caused by the appellant with Bahola (Ex.P8), which was recovered at the instance of the appellant. PW.5 Dr. Shiv Raj Rikhi has opined that the injuries found on the body of the deceased could have been caused by Bahola (Ex.P8). 21. It is an admitted fact that the deceased had died in the room of the Haveli of the complainant, where the deceased and the appellant were Crl. A. No. 260-DB of 2004 -10- residing together. The appellant has admitted his presence in the room at the time of the occurrence. According to him, PW.2 Parminder Singh (complainant) had caused injuries to the deceased and he had seen Parminder Singh causing injuries to the deceased, but in connivance with the local police, the complainant got him falsely implicated as an accused. 22. Learned counsel for the appellant vehemently argued that the testimony of PW.2 Parminder Singh, the alleged eye witness, is wholly unreliable and untrustworthy and on the basis of the statement of such a witness, conviction of the appellant for the murder is not safe. According to him, neither PW.2 Parminder Singh nor PW.3 Satnam Singh had witnessed the occurrence at all and they had reached the Haveli after the occurrence. It has also been argued that PW.3 Satnam Singh does not corroborate the version given by PW.2 Parminder Singh, as he has stated that he had not seen the appellant causing injuries to the deceased and when he reached the room, the deceased had already died and the accused had already left the room. 23. We have carefully examined the testimony of both the eye witnesses, in the light of the other evidence available on record. In order to assess the evidence of eye witnesses, the Court must adhere to two principles : (i) whether in the circumstances of a case, it was possible for eye witnesses to be present at the scene; and (ii) whether there was any thing inherently improbable or unreliable in their testimony. In the present case, the deceased as well as the accused were employed by PW.2 Crl. A. No. 260-DB of 2004 -11- Parminder Singh as agriculture labourers. They were residing together in a room in his Haveli. It was the month of April and generally, the harvesting of wheat crop takes place in this month of the year. On the intervening night of 24/25.4.2003 at about 1.00 AM (night), after loading his tractor trolley with wheat, PW.2 Parminder Singh along with PW.3 Satnam Singh went to his house. The reaching of the complainant Parminder Singh along with Satnam Singh at his residence, at that time, cannot be said to be improbable or doubtful. After reaching the house, both of them heard the cries from the Haveli side and then they rushed towards the Haveli. To this extent, PW.3 Satnam Singh has corroborated the testimony of PW.2 Parminder Singh. According to PW.2 Parminder Singh, when he reached near the room of the Haveli, he had seen that the appellant was mercilessly killing Budh Nath with the help of Bahola, due to which he had fallen down and thereafter, the appellant along with Bahola ran away from the spot, after jumping over the wall. PW.3 Satnam Singh stated that by the time, he reached near the room, the accused had already left the spot and Budh Nath had died due to the injuries. He had not seen the accused giving injuries to the deceased. Merely on account of the fact that PW.3 Satnam Singh did not corroborate the testimony of PW.2 Parminder Singh to the aforesaid extent, neither the presence of PW.2 Parminder Singh at the spot can be doubted nor it can be said that he had not seen the appellant causing injuries to the deceased. It might be possible that PW.3 Satnam Singh was coming behind PW.2 Parminder Singh at some distance and by the time, he reached the spot, the Crl. A. No. 260-DB of 2004 -12- accused had already left the spot. Merely on the ground that PW.3 Satnam Singh does not support the testimony of PW.2 Parminder Singh regarding causing of injuries by the accused to the deceased and running of the accused from the spot, it cannot be assumed that testimony of PW.2 Parminder Singh is unreliable and untrustworthy and the prosecution cannot be said to have failed to prove its case against the accused beyond reasonable doubt. On the other hand, if defence of the appellant is examined, in light of the facts and circumstances of the case, and the evidence led by the prosecution, it appears to be totally false. There are two important pieces of evidence, which were taken into possession by the investigating agency at the time of the spot inspection. Firstly, some hair were found in the hand of the deceased, which were later on compared in the Forensic Science Laboratory, Punjab, Chandigarh, with the sample hair of the appellant taken in the court, and the same were found to be similar. Secondly, a wrist watch allegedly belonging to the accused, which was in possession of deceased Budh Nath, was found at the spot and finger prints on the mirror of the watch were developed by SI Gurdip Singh, the Finger Prints Expert, and as per report of the Director, Finger Prints Bureau, Phillaur, the finger prints of the appellant were found on the mirror of the watch. As per the defence of the appellant, murder of Budh Nath was committed by PW.2 Parminder Singh. According to him, he himself had seen Parminder Singh committing the murder of Budh Nath. If that was so, then how his hairs were found in the hands of the deceased and how his Crl. A. No. 260-DB of 2004 -13- finger prints appeared on the watch, which was found lying near the dead body. These two pieces of scientific evidence, if carefully examined in light of the other related circumstances, clearly establish that it is only the appellant, who has committed the crime and not PW.2 Parminder Singh, as alleged by the appellant. 24. In this case, the appellant has admitted that he was residing with the deceased in a room of the Haveli of the complainant and when the deceased died due to the injuries, the appellant was present in the room. The explanation given by the appellant has not been established at all. In view of Section 106 of the Evidence Act, the explanation given by the accused, which has not been proved by him, further strengthens the case of the prosecution. The rule embodied in Section 106 of the Evidence Act does not cast any burden upon an accused in a criminal trial, but where the accused throws no light at all upon facts which ought to be especially within his knowledge, and which could support any theory or hypothesis compatible with his innocence, the Court can also consider his failure to adduce any explanation as an additional link which completes the chain. 25. As per the case of the prosecution, the motive behind the occurrence was that the appellant had borrowed ` 400/- from Budh Nath (deceased) and when he did not return the said amount, Budh Nath took his watch as security for return of the said amount and was not returning the watch. Due to non-returning of the watch by Budh Nath, appellant caused his death by inflicting injuries with Bahola. In order to prove the motive, the Crl. A. No. 260-DB of 2004 -14- prosecution has examined PW.2 Parminder Singh, who has stated that on the day of occurrence, the appellant told him that Budh Nath was not returning his watch, which was given to him as a security for ` 400/-, borrowed by the appellant from him, regarding which a dispute had arisen between the appellant and the deceased. The fact that after the occurrence, watch of the appellant was recovered from near the dead body, coupled with the fact that on the mirror of the said watch, finger prints of the appellant were found, further proves the motive. 26. Though there are some contradictions in the testimonies of the prosecution witnesses, as pointed out by learned counsel for the appellant, but the same are so minor and irrelevant, which itself cannot render the prosecution version unreliable and doubtful. The trial court has also examined the prosecution case from a different angle that even if it is assumed that the occurrence was not witnessed either by PW.2 Parminder Singh or PW.3 Satnam Singh, even then there is sufficient circumstantial evidence available on record, which establish the guilt of the appellant beyond reasonable doubt. In this regard, the learned trial court has referred to the expert evidence, i.e. evidence of the Finger Prints expert, reports of the Director, Finger Prints Bureau, Phillaur, the Forensic Science Laborarory, Punjab, Chandigarh, the recovery of Bahola at the instance of the appellant, the photograph taken at the spot, which shows hair in the hand of the deceased as well as the medical evidence. Thus, in our opinion, in the instant case, the prosecution has led sufficient evidence, which fully Crl. A. No. 260-DB of 2004 -15- establish guilt of the accused beyond shadow of all reasonable doubts and the trial court, while relying upon that evidence, has rightly convicted and sentenced the appellant. 27. For the reasons recorded above, the instant appeal is dismissed. The impugned judgment and order, passed by the trial court, are upheld. ( SATISH KUMAR MITTAL ) JUDGE July 11, 2011 ( A.N. JINDAL ) ndj JUDGE