CRIMINAL APPEAL NO. 161-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 30, 2009. Parties Name Om Parkash alias Om and another ..APPELLANTS VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. R. S. Cheema, Sr. Advocate, with Ms. Tarannum Cheema, Advocate, for the appellants. Mr. H.S. Brar, Addl. A.G., Haryana, for the respondent. JASBIR SINGH, J. ORDER. Om Parkash alias Om (A-1) and his wife Babita (A-2) have filed this appeal against judgment dated January 17, 2001, convicting them for commission of offence under Section 302 read with Section 34 IPC. They have also laid challenge to the order dated January 20, 2001, vide which both of them were sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- each for commission of the above said offence with a default clause. Appellants were put to face trial on an accusation that they, in furtherance of their common intention, committed murder of Ram Chander, CRIMINAL APPEAL NO. 161-DB OF 2001 -2- on April 30, 1999, at 2.30 PM, within the area of village Rathdhana, Police Station Sadar Sonepat, by causing injuries to him with a Jaili (Ex. PK). The process of Criminal Law was set in motion on a statement (Ex. PF/1), made by Angrej (PW7), brother of the deceased, on April 30, 1999, at 6.15 PM in General Hospital at Sonepat. His statement was recorded by Sub Inspector Mohinder Singh (PW10), on the basis of which formal FIR No. 90 (Ex. PF) was recorded against the appellants on April 30, 1999, at 6.40 PM. Special report reached the concerned Magistrate at 8.35 PM at Sonepat. Case of the prosecution, as noticed by the trial Court in para No. 2 of the impugned judgment, reads thus: “The facts of the prosecution story within the short compass are that on 30.04.1999 constable Dharambir gave a telephonic message at the Police Station that dead body of one Ram Chander resident of Rathdhana has been brought to the Civil Hospital, Sonepat. The information was incorporated in the Daily Diary Register (DDR), copy of which is Ex. PB/2. After receiving information SI Mohinder Singh went to Civil Hospital, Sonepat. Ruqa Ex. PD was received by him. Complainant Angrej met him there and gave statement Ex. PF/1. It was stated by him that they were five brothers including Suraj Bhan and deceased Ram Chander. Previously deceased Ram Chander used to practise as medical practitioner at village Jurasi Khera. At that time, he (Ram Chander) was doing that practice in their village (Rathdhana). On 30.04.1995, at about 2.30 PM, he was sitting at Mini liquor CRIMINAL APPEAL NO. 161-DB OF 2001 -3- vend at village Rathdhana along with his brother Ram Chander and nephew Bijender son of Suraj Bhan. They were having share therein. After some time accused Om Parkash came and asked his brother Ram Chander to accompany him to village Jurasi where his sister was married because he was knowing so many people and there was a dispute with his sister. So, Ram Chander accompanied him. After some time he alongwith his nephew Bijender started for the house of accused Om Parkash to know what was the dispute with his sister. When they reached near the house of accused Om Parkash, they heard the noise for help (Mardiya-Mardiya, Bachaoo). They ran towards his house and saw that his brother Ram Chander was lying on the cot and accused Babita was holding him from shoulder and accused Om Parkash gave jelli (two pronged implement used by the agriculturist for collecting fodder etc.) blows on the abdomen and right thigh. When they raised noise, accused Om Parkash and his wife Babita ran away from the spot alongwith jelli.” It is further case of the prosecution that after making arrangement of a vehicle, the injured were shifted to Civil Hospital at Sonepat by complainant Angrej etc. When they reached near the Hospital, his brother breathed his last and was declared brought dead by the doctor. It was also stated that cause of the occurrence was a dispute, which had occurred about three years earlier, regarding examination centre, in the village School. There was a scuffle between the parties. The matter was CRIMINAL APPEAL NO. 161-DB OF 2001 -4- settled by the villagers. However, the accused kept that grudge in his mind, which resulted into killing of Ram Chander, as mentioned above. It is on record that after receipt of the dead body, Doctor concerned sent Ruqa Ex. PD to the Police Post at 4.45 PM on April 30, 1999. As per DDR No. 20, the Investigating Officer – SI Mohinder Singh (PW10) was intimated on telephone by a Constable that dead body had arrived in the Hospital. The Investigating Officer reached at the spot, prepared inquest report (Ex. PC) of the dead body and sent the same for post-mortem examination, which was conducted by Dr. C.P. Arora (PW1) at 9.45 AM on May 1, 1999. As per his report, following injuries were found on person of the deceased: “1. There were nine lacerated wounds varying in size from 1 x 0.5 cms to 3 x 1.5 on the anterior abdominal wall on the right side of the midline. 2. There were three lacerated wounds varying in size from 1 x 1 cms to 3 x 1 cms on the anterior surface of the right thigh. 3. Lacerated wound of the size 1.5 cms x .5 cms on the posterior surface of the right wrist. 4. Lacerated wound of the size 1 x .5 cms on the ventral surface of the left thumb near its base. 5. Lacerated wound of the size 1 x 1 cms on the ventral surface of the left hand. On dissection the anterior surface of the liver was lacerated and there were big haemotoma in the mesentery of the transverse colon. There was massive haemoperitoneum” CRIMINAL APPEAL NO. 161-DB OF 2001 -5- Cause of death was shock on account of above mentioned injuries, which were ante mortem in nature and sufficient to cause death in ordinary course. The Doctor further stated that duration between death and post mortem was 6 to 36 hours and between injuries and death was few hours. This witness further stated that possibility of injuries having been caused by a Jaili could not be ruled out. In the meantime, the Investigating Officer went to the spot, recovered cot Baan (material used for knitting a cot) stained with blood, prepared rough site plan with correct marginal notes and also recorded statements of the witnesses. Both the accused surrendered before a Magistrate on May 7, 1999. They were arrested. Their interrogation led to the recovery of weapon of offence, i.e., Jaili. On completion of investigation, final report was put in Court. Both the accused were charge-sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced eleven witnesses and also brought on record documentary evidence to prove its case. On completion of prosecution evidence, statements of the appellants – accused were recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to them, which they denied, pleaded innocence and false implication. Babita (A-2) further stated as under: “I was alone in my house and my husband was away in field for thrashing the wheat crop in the night intervening 29/30 April, 1999. Deceased Ram Chander entered in our house on the night and tried to molest my modesty and in my defence, I inflicted injuries to Ram Chander.” CRIMINAL APPEAL NO. 161-DB OF 2001 -6- To the same effect is the statement made by Om Parkash (A-1). They also led evidence in defence to show that the complainant party has no concern with the alleged liquor vend and further that no altercation had ever taken place three years earlier to the date of occurrence, as stated in the FIR. The trial Court, on appraisal of evidence, found both the appellants guilty, convicted and sentenced them, as mentioned in earlier part of this order. As per version of the prosecution, death had occurred around 2.45 PM on April 30, 1999. Shri R.S. Cheema, learned Senior Advocate, has vehemently contended that death had occurred much earlier thereto. He suggested the time of death is in the mid-night of April 29, 1999, i.e., about 18 hours earlier to the time of death, shown by the prosecution. To strengthen his argument, he has referred to the following portion of cross- examination of PW1, which reads thus: “In my opinion the death may have occurred on the night of 29.4.1999 after 9.45 p.m. It is evident from memo Ex. PD that it was recorded at 4.45 p.m. on 30.4.1999. I have seen the column of the date and hour of death in Ex. PA where it is recorded 30.4.1999/5.05 p.m. Volunteered this time merely indicates the hour at which the police had learnt about the death and nothing more.” Shri Cheema further made reference to the entries in the inquest report Ex. PC, especially columns No. 8 and 9, which read as under: “8. Position of limbs and mouth: Mouth ajar, eyes slightly opened, rigor mortis present. 9. Expression of countenance: Rigor Mortis present.” CRIMINAL APPEAL NO. 161-DB OF 2001 -7- Shri Cheema has further argued that no trail of blood was seen at the spot. Cot, lying in the trolley, on which Ram Chander deceased was transported, was not taken into possession. Blood stained clothes of the witnesses were also not taken into possession. He has further argued that there was no motive with the accused to cause injuries to the deceased and further that the story of the deceased going to the house of the accused is not convincing. He also stated that there is no independent corroboration to the prosecution story. He further pleaded, in the alternative, without conceding anything, that participation of Babita (A-2) in the crime was not proved on record. She has been shown to have caught the deceased from his shoulders. By making reference to pictorial diagram of the injuries, prepared by the Doctor, he argued that such an act was not possible and would be only a futile exercise. Injuries could have been caused to the deceased when he was lying or in the standing position. He tried to show that her conviction was not justified. He prayed that the impugned judgment and order be set aside and the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by the State counsel. By making reference to the statement made by Angrej (PW7) , and Vijender (PW9), the alleged eye witnesses, he argued that commission of crime, by the appellants was proved on record. He further argued that the statements of the eye witnesses have been corroborated by medical evidence on record. To show that weapon of offence was recovered from the appellants, he has made reference to the statement made by Ram Dhan (PW11) to the police. To prove that investigation was prompt and fair, he CRIMINAL APPEAL NO. 161-DB OF 2001 -8- has made reference to the statement made by SI Mohinder Singh (PW10). He further argued that if contention of Shri Cheema regarding time of death is accepted, then at the time of post-mortem examination, rigor mortis on the dead body should not have been present. However, post -mortem report indicates to the contrary. He further argued that the recovery of weapon of offence from the appellants was proved on record. He prayed that the appeal, having no substance, be dismissed. After hearing counsel for the parties, this Court is convinced that participation of Om Parkash alias Om (A-1) is fully proved on record. A vivid description as to how the deceased was persuaded by the above said appellant to go to his house, is proved on record by PW7 Angrej and PW9 Vijender Singh. Both have categorically stated that in their presence, the deceased and appellant No. 1 went to house of the appellant, after about 20 minutes, they saw injuries being caused to the deceased by appellant No. 1 and his wife. Appellant No. 2 had caught hold of the deceased from his shoulders. Lengthy cross-examination of these witnesses has failed to shatter their testimony. Contention of Shri Cheema is that the prosecution story appears to be false because there is nothing on the record to show that the deceased was a doctor and he had been practicing medicine in the adjoining village. During their cross-examination, both the above named witnesses have stated that the deceased continued to work with a doctor, for about 10 years and procured a diploma of medicine etc. for him. Otherwise also, it is a case of eye witness account. The above said argument is not material in the present set of circumstances. The primary contention of Shri Cheema that death had CRIMINAL APPEAL NO. 161-DB OF 2001 -9- occurred at mid-night on April 29, 1999, is not believable. To support his contention, he has placed reliance upon statement of the doctor and also entries, made in columns No. 8 and 9 of the inquest report. We have seen the original inquest report. Against columns No. 8 and 9, after giving description of position of mouth and eyes, it is mentioned “Murdni Chhai Hui Hai'. This Court is of the view that wrong translation of inquest report Ex. PC has been placed on record. In ordinary parlance rigor mortis would mean stiffness of the joints and the body of a deceased. As per Oxford Hindi to English Dictionary , meaning of words “Murdni Chhai Hui Hai”, in vernacular, would mean 'a death pallor to come'. As per above said Dictionary, 'Murdni' would also mean deathly stillness. It appears that above said word has been compared wrongly with rigor mortis, which in vernacular would mean “Akrna”. As per Oxford Dictionary, the meaning of rigor mortis would be stiffening of body after death and meaning of Akarna would be to become stiff or hard, to become numb or frozen. The Court is further of the opinion that if time given by Shri Cheema about death of Ram Chander, i.e., mid night of April 29, 1999, is accepted, then at the time of post-mortem examination, which was conducted on May 1, 1999, at 9.45 AM, rigor mortis on the body should have disappeared. However, to the contrary, in the post-mortem report Ex. PA, it is mentioned that rigor mortis was present in all the four limbs of the body. As per Modi's Medical Jurisprudence and Toxicology, 23rd Edition, to start the rigor mortis, average period may be between 3 to 6 hours after death in temperate climates and it may take 2 to 3 hours to develop. In India, it usually commences after 2 to 3 hours of death. Regarding duration, CRIMINAL APPEAL NO. 161-DB OF 2001 -10- it has been stated that in temperate region, rigor mortis usually lasts for 2 to 3 days. In Northern India, the usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. It is further said that in general, rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours. Modi has also given an instance, where, after death, rigor mortis developed and disappeared within 1½ hour. Generally, it is believed that rigor mortis will start in Northern India in 12 hours. It will stay for 12 hours and vanish in next 12 hours. If time given by Shri Cheema is accepted, then rigor mortis should not have been there on the dead body when it was subjected to post-mortem examination. Otherwise also, investigation in this case appears to be quick. Death is stated to have occurred at about 3 PM on April 30, 1999. Dead body reached the Hospital at 4.45 PM. Statement of the complainant was recorded at 6.15 PM and FIR was registered at 6.40 PM. Special report reached the Ilaqa Magistrate at 8.35 PM. If death had occurred 18 hours earlier to the time shown by the prosecution, the doctor may have stated so. During cross-examination of the Investigating Officer, he was not asked whether word “Murdni” would mean rigor mortis or not. Motive shown by the prosecution may be very stale in this case, however, in the presence of eye -witness account, motive becomes a pale shadow. Similarly, because trail of blood was not noticed by the Investigating Officer, at the site of occurrence or the blood-stained clothes of the witnesses were not taken into possession, the prosecution story cannot be disbelieved. There may be some callousness on the part of the Investigating Officer. Unless that is material, benefit of the same would not go to the accused. After going through the statements of PW7, PW9 and CRIMINAL APPEAL NO. 161-DB OF 2001 -11- PW10, this Court is convinced that they were truthful witnesses. The trial Court has rightly disbelieved the defence version, given by the accused. Death, admittedly, had occurred in house of the appellants, for which they have failed to give any reasonable explanation. It has also come on record that the appellants surrendered before the Magistrate on April 6, 1999. Regarding their false implication in the crime, during this period, they did not move any application to the higher authorities. Before the Magistrate, no such plea is shown to have been taken. Weapon of offence was recovered on a disclosure statement made by the accused. It was sent for examination and as per report of the Forensic Science Laboratory, prongs of the Jaili were found stained with human blood. Recovery of weapon of offence at the instance of the appellant No.1– accused is proved on record. Facts, indicated above, prove participation of Om Parkash alias Om (A-1) in the crime. So far as appellant Babita (A-2) is concerned, in FIR it is stated that eye witnesses saw Ram Chander lying on the cot and Babita was holding him from his shoulders. Injury was caused by Om Parkash (A-1) with a Jaili. We have seen seats of injuries on the person of the deceased in pictorial diagram and are convinced that holding of the deceased from the shoulder by Babita (A-2) is not possible. To hold the deceased in the lying condition from his shoulder, she will have to bend upon the deceased and in that event, there were chances of her also receiving injuries. A-1 would not have taken that risk. It appears that injuries were caused to the deceased either in the lying condition or in the standing condition. There is more possibility of the injuries having been caused to the deceased in a standing posture and thereafter he might have fallen down on a cot. CRIMINAL APPEAL NO. 161-DB OF 2001 -12- Besides as above, no other overt act has been attributed to Babita (A-2). It appears that her name was added with a view to implicate her in the crime, being wife of the main accused. Babita is stated to have undergone four years of sentence. In view of the facts, mentioned above, we are of the opinion that the prosecution has failed to prove participation of Babita (A-2) in the alleged crime. Accordingly, we partly allow this appeal. It is dismissed qua Om Parkash alias Om (A-1). His conviction and sentence are maintained. He be taken into custody to undergo remaining part of his sentence. However, appeal is allowed qua Babita (A-2). Her conviction and sentence are set aside and she is acquitted of the charge framed against her. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE November 30, 2009. DKC