Crl. Appeal No. 164-DB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 164-DB of 2000 Date of Decision : March 02, 2009 Anil and another .... Appellants Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. N. Kush, Advocate for the appellants. Mr. Kulvir Narwal, Addl. A. G., Haryana. * * * L. N. MITTAL, J. : Anil and Subhash both brothers have preferred this appeal against judgment of conviction dated 11.02.2000 and order of sentence dated 16.02.2000 passed by learned Additional Sessions Judge, Hissar thereby convicting the appellants under Section 302 of the Indian Penal Code (in short – the IPC) and sentencing them to undergo life imprisonment and to pay fine of Rs.1,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for two months. Prosecution case is as under :- Chander Bhan complainant was getting tiles affixed in his new Crl. Appeal No. 164-DB of 2000 2 house in Parav Mohalla, Hissar on 10.09.1997. Jagdish was also present there. At about 11:30 P.M., Shakti Singh (since deceased) (nephew of complainant in relationship) came there on motorcycle. At about 12:30 A.M. (0030 hours), Shakti Singh left the said place on his motorcycle bearing No. HR-20-A/5107. However, about ten minutes thereafter, Mittar Pal came and told the complainant that the person (Shakti Singh), who had gone from there, was lying injured on the road near P.G.S.D. High School and motorcycle was lying in lane. The said person was having many injuries on his head. Thereupon, Chander Bhan complainant and Jagdish went to the said place and found many injuries on the head of Shakti Singh lying there. He was bleeding profusely and was unconscious. The complainant along with Jagdish removed Shakti Singh in a jeep to General Hospital, Hissar, where the doctor declared Shakti Singh as dead. About a year prior to it, Subhash appellant had a quarrel with Shakti Singh (since deceased) and therefore, Subhash murdered Shakti Singh by causing injuries on his head on account of said grudge. Doctor sent intimation Ex.P-U to the police that Shakti Singh was brought dead. On receiving this intimation, SI Dungar Singh of Police Station City Hissar, along with other police officials, went to the hospital, where Chander Bhan made statement Ex.P-A to him. SI Dungar Singh made endorsement Ex.P-V on the said statement and sent it to the Police Station, where FIR Ex.P-A/1 under Section 304 IPC was recorded on its basis. SI Dungar Singh prepared inquest report Ex.P-N of the deceased and sent the dead body for post-mortem examination with request Ex.P-M. Dr.Suresh Kumar conducted post-mortem examination on the dead body and found six incised wounds on scalp/skull and one incised wound on left arm. Brain matter was coming out of injuries no.4 to 6. Injuries no.1 to 3 were bone deep. Cause of death was opined to be shock and haemorrhage due to aforesaid injuries, which were ante-mortem and sufficient to cause Crl. Appeal No. 164-DB of 2000 3 death in ordinary course of nature. SI Dungar Singh went to the spot, from where blood stained earth was lifted vide memo Ex.P-B and aforesaid motorcycle of the deceased was seized vide memo Ex.P-C. He also prepared rough site plan Ex.P-W of the place of occurrence. Statements of prosecution witnesses Rajinder, Partap Singh, Satbir Singh, Krishan and Mittar Pal were recorded. Rajinder and Partap Singh claimed to be eye-witnesses of the occurrence and stated that they had seen both the appellants and one Rajinder @ Havaldaar, who allegedly committed suicide 2-3 days after the occurrence, causing injuries to Shakti Singh on his head with barchha and sword, while Shakti Singh was lying on the ground. Both these witnesses asked them as to why they were causing injuries to Shakti Singh. Thereupon all the three assailants came towards the witnesses, who got scared and went home. After sometime, they again went to the spot, where large quantity of blood was lying on the road and motorcycle was lying in the street. The witnesses then went to the house of Shakti Singh and learnt that he had succumbed to his injuries in the hospital. They then went to the hospital, where Chander Bhan complainant asked them to reach the spot. They accordingly went to the spot, where the police came and recorded their statements. Sealed parcel of clothes of the deceased given by the doctor was seized by SI Dungar Singh. Search for the accused proved futile. On 17.09.1997, one Leela Ram produced accused Anil before SI Dungar Singh. Anil, after making disclosure statement Ex.P-D, got recovered a barchha vide memo Ex.P-F. Sketch Ex.P-E of the barchha was prepared. Rough site plan Ex.P-X of the place of recovery was also prepared. On 06.11.997, accused Subhash surrendered in the Court of Chief Judicial Magistrate, Hissar. On 08.11.1997, with permission of Court, accused Subhash was arrested in the present case. On 09.11.1997, Crl. Appeal No. 164-DB of 2000 4 accused Subhash, after making disclosure statement Ex.P-R, got recovered a sword vide memo Ex.P-S. Sketch Ex.P-T of the sword and rough site plan Ex.P-Y of the place of recovery were prepared. After completion of investigation, accused Anil and Subhash were sent for trial, whereas Havaldaar @ Rajinder named by the witnesses had already died. Charge under Section 302 read with Section 34 IPC was framed against both the accused. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined 14 witnesses. Chander Bhan complainant (PW-1) stated according to the prosecution version as contained in the FIR lodged by him. Krishan (PW-2) stated about seizure of blood stained earth and motorcycle from the spot and recovery of barchha at the instance of Anil accused pursuant to his disclosure statement. Girish Kumar Draftsman (PW-3) stated that he inspected the spot and prepared scaled site plan Ex.P-G. Constable Sohan Lal (PW-4), MMHC Om Parkash (PW-5), Constable Jai Pal (PW-6), Constable Krishan Kumar (PW-8) and Constable Ramesh Chander (PW-12) being formal witnesses, tendered their respective affidavits in evidence. Inspector Kuldip Singh (PW-7) stated that he recorded formal FIR Ex.P- A/1. He also stated that on 28.09.1997, he altered the offence from under Section 304 IPC to that under Section 302 IPC and sent special report Ex.P- A/2 to the Illaqa Magistrate. Dr. Suresh Kumar (PW-9) stated about post- mortem examination of the deceased. Rajinder (PW-10) and Partap Singh (PW-11) narrated eye-witness account of the occurrence stating that Anil accused was inflicting injuries with barchha and Subhash with sword to Shakti Singh and also that Rajinder @ Havaldaar (since deceased) was also inflicting injuries to Shakti Singh. They also stated further version leading to making of statements by them to police. Another Rajinder (PW-13) stated about recovery of sword at the instance of accused Subhash pursuant Crl. Appeal No. 164-DB of 2000 5 to his disclosure statement. SI Dungar Singh (PW-14) stated about investigation of the case conducted by him. The prosecution also tendered in evidence Forensic Science Laboratory's reports Ex.P-Z and Ex.P-Z/1. According to the said report, human blood was detected on blood stained earth seized from the spot, clothes of the deceased and on sword and barchha recovered from the accused, except that origin of blood on socks and barchha could not be ascertained as material disintegrated. Both the accused in their examination under Section 313 of the Code of Criminal Procedure (in short – the Cr.P.C.) denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They alleged that they were taken into custody by the police on the very next day of the death of Shakti Singh and false recovery of weapons has been shown and they have been implicated in the case merely on suspicion. In defence, the accused examined five witnesses. Lalit Kumar, Additional Ahlmad (DW-1) brought file of a criminal complaint under Sections 341, 342, 323 and 506 read with Section 34 IPC instituted on 25.02.1997 by Subhash accused against three police officials of Police Station City Hissar, in which Anil accused was cited as witness. Mittar Pal (DW-2) stated that while he was at his house, he had seen Shakti singh coming from the house of Chander Bhan on motorcycle, but he could not identify Shakti Singh at that time. Near Ice Factory, Shakti Singh was attacked by only one assailant. The witness went there to save Shakti Singh. The assailant inflicted some more injuries to Shakti Singh in the presence of this witness. When the witness reached near Shakti Singh, he got up and ran towards the road, whereas the assailant ran towards Nand Cinema. Shakti Singh fell down on the corner of street and became unconscious. The witness informed Chander Bhan. The witness also stated that the present accused were not the assailants. The witness also stated that Crl. Appeal No. 164-DB of 2000 6 Chander Bhan also called other relatives including Partap Singh and Rajinder eye-witnesses, and Shakti Singh was removed to hospital. Ravinder Kumar Mehta Draftsman (DW-3) stated that he prepared scaled site plan Ex.D-C after inspecting the spot. Constable Sahab Singh (DW-4) from the office of Superintendent of Police (SP), Hissar stated from the record that Jog Raj had made complaint against Shakti Singh and Ram Kumar to SP, Hissar. K.C.Khurana (DW-5), an official from Civil Hospital, Hissar, stated from Casualty Register of the hospital that there is no entry of admission or outdoor treatment of Shakti Singh deceased on the night between 10/11.09.1997. There was no entry regarding the time when the dead body of Shakti Singh was received in mortuary. We have heard learned counsel for the parties and perused the case file with their assistance. On careful consideration of the entire material on record and contentions advanced by both sides, for reasons to be recorded hereinafter, we have reached the conclusion that Anil (appellant no.1) deserves benefit of doubt, whereas guilt of Subhash (appellant no.2) has been proved beyond reasonable doubt. As regards Anil, he deserves benefit of doubt because he was not even named in the FIR as a suspect. Not only that, even in inquest report, only Subhash was named as suspect and Anil was not named. There is general tendency to rope in innocent also with the real culprit. Rajinder (PW-10) and Partap Singh (PW-11) eye-witnesses are none else but real nephew and real brother of the deceased. On the other hand, Anil (appellant no.1) is real brother of Subhash (appellant no.2) who alone was named as suspect in the FIR. Consequently, false implication of Anil at later stage by the eye-witnesses cannot be reasonably ruled out. Barchha allegedly recovered at the instance of Anil had blood on its blade, but origin thereof could not be detected due to disintegration of a material and therefore, it cannot be said that it was human blood, whereas on the sword recovered at Crl. Appeal No. 164-DB of 2000 7 the instance of Subhash (appellant no.2), human blood was detected. This circumstance alone may be insignificant, but coupled with other circumstances noticed herein above, it also creates some doubt about the complicity of appellant no.1 Anil in the crime. Motive for the occurrence was also alleged to be qua appellant no.2 Subhash only and there was no motive for appellant no.1 to commit the crime. Taking an overall view of the material on record, we are, therefore, of the considered opinion that benefit of doubt should be extended to Anil – appellant no.1. As regards Subhash, his guilt is proved beyond reasonable doubt. He was named in the FIR, which was lodged very promptly. The occurrence took place at about 12:30 A.M. Statement Ex.P-A made by the complainant along with police endorsement Ex.P-B thereon concluded at 03:15 A.M. and the FIR was registered at 03:25 A.M. The FIR being for offence under Section 304 IPC was not sent as special report but nevertheless it reached the Magistrate at 10:30 A.M. Inquest report was also prepared in the meanwhile and version contained in the FIR was also reproduced in the inquest report. Statement of one Sanjay was also recorded in the inquest proceedings. He also named Subhash being the culprit. Dr.Suresh Kumar conducted post-mortem examination at 10:30 A.M. and inquest report was given to him along with body before he started the post-mortem examination. It is thus manifest that the FIR was lodged very promptly and Subhash was named as culprit in the FIR and inquest proceedings also. FIR is thus a very valuable piece of evidence. Chander Bhan, while appearing in the witness-box, has corroborated the version contained in the FIR. Motive for the occurrence is also proved from the prosecution evidence. There are also statements of eye-witnesses Rajinder (PW-10) and Partap Singh (PW-11). All the injuries were incised wounds and could therefore be caused by sword recovered at the instance of Subhash (appellant no.2). Both the eye-witnesses have also stated that Crl. Appeal No. 164-DB of 2000 8 Subhash was inflicting injuries with sword to the deceased. Thus, prosecution evidence is sufficient to bring home the charge against accused Subhash beyond reasonable doubt. Learned counsel for the appellants emphatically contended that Mittar Pal, cited as prosecution witness, was given up by the prosecution, but has been examined in defence by the accused. However, statement of Mittar Pal (DW-2) also corroborates the prosecution version to a great extent. It was mentioned in the FIR itself by Chander Bhan complainant that he had been informed by Mittar Pal that Shakti Singh was lying injured. Mittar Pal has also stated so while appearing as DW-2 that he had informed Chander Bhan that Shakti Singh was lying injured on the road. Mittar Pal has also stated that there was one assailant, who caused injuries to the deceased. This statement of Mittar Pal also corroborates our conclusion that guilt of Subhash appellant is proved beyond reasonable doubt, whereas Anil appellant may be extended benefit of doubt. Mittar Pal admitted in cross- examination that he had not mentioned in his statement before the police that he had seen the assailant causing injuries to Shakti Singh. This admission also corroborates the prosecution version contained in the FIR that Mittar Pal was not eye-witness of the occurrence. Mittar Pal also stated that earlier, one Ishwar son of Raghbir had been murdered and Raju Magli etc., accused of that case, were distant relatives of Shakti Singh deceased. In cross-examination, Mittar Pal stated that Raghbir, father of said deceased Ishwar, is from his (Mittar Pal's) family. Thus, Mittar Pal had reason to depose against the complainant party. Moreover, Mittar Pal cannot be said to be eye-witness of the occurrence because in cross-examination, he stated that the weapon being used by the assailant was danda type. However, all the injuries found on the deceased were incised wounds caused with sharp edged weapon. It clearly reveals that Mittar Pal had not seen the occurrence. Crl. Appeal No. 164-DB of 2000 9 Learned counsel for the appellants argued that motive for the occurrence is not proved because the alleged quarrel between Subhash accused and Shakti Singh deceased had taken place about one year ago, for which no report was lodged nor there is evidence of any injury caused to anybody in the said quarrel. The argument cannot be accepted because this motive was stated in the prompt FIR, in which Subhash was named as the culprit. Moreover, there are also two eye-witnesses of the occurrence. Learned counsel for the appellants also contended that the appellants were falsely implicated because appellant no.2 had instituted a criminal complaint against police officials of the same Police Station and appellant no.1 was witness in the said complaint. This contention is without substance because the said criminal complaint was instituted on 25.02.1997 i.e. about seven months before this occurrence. Moreover, merely on the basis of said criminal complaint, the appellants would not have been falsely implicated in a murder case. In any event, all the prosecution witnesses including the complainant and eye-witnesses and the witnesses of recovery, who had no concern with the police officials named as accused in the criminal complaint instituted by Subhash accused, would not have deposed falsely against the appellants at the instance of the said police officials. No suggestion was even put to SI Dungar Singh, the Investigating Officer, in his cross-examination that he had falsely implicated the appellants at the instance of police officials against whom Subhash accused had instituted a criminal complaint. It is thus manifest that appellant Subhash cannot be said to have been falsely implicated on this account. Learned counsel for the appellants vehemently and emphatically contended that the statements of alleged eye-witnesses Rajinder (PW-10) and Partap Singh (PW-11) are doubtful because they had reached the hospital at about 03:00-04:00 A.M. and had even told Chander Bhan there that they were eye-witnesses, but still their statements were Crl. Appeal No. 164-DB of 2000 10 recorded at the spot by SI Dungar Singh at about 07:00 A.M. It was also pointed out that statements of these two eye-witnesses were also not recorded in inquest proceedings. It was contended that according to Constable Sohan Lal (PW-4), statements of these witnesses were recorded at 03:00 A.M., whereas according to SI Dungar Singh, these witnesses met him at the spot at 07:00 A.M. We have carefully considered these contentions. Merely for these so-called discrepancies, statements of these two eye-witnesses cannot be discarded in toto. However, as already noticed herein above, because there is some tendency of implication of innocent with the culprit, we have arrived at the conclusion that benefit of doubt should be extended to Anil (appellant no.1). However, the same benefit cannot be extended to Subhash (appellant no.2), who is not on parity with appellant no.1, for the reasons already recorded herein above. Learned counsel for the appellants also contended that Krishan (PW-2) has stated that Kalia, Joginder, Yog Raj and Puran were summoned in the Police Station as suspects in the murder of Shakti Singh 2-3 days after the occurrence i.e. before the arrest of the present appellants and it would show that the statements of eye-witnesses allegedly recorded on 11.09.1997 were not being believed by the Investigating Officer or the said statements were recorded later on and were ante-dated. The argument cannot be accepted because this circumstance would only show that Investigating Officer was not blindly relying on the statements of eye-witnesses and other witnesses and was investigating the case with open mind from all angles. To conclude the above discussion, we find that Anil (appellant no.1) deserves benefit of doubt and accordingly, the instant appeal qua him is allowed and this conviction and sentence are set aside. If in custody, Anit be set at liberty forthwith, if not required in any other case. However, we find that guilt of appellant no.2 Subhash stands established beyond Crl. Appeal No. 164-DB of 2000 11 reasonable doubt and the appeal qua him is accordingly dismissed. If on bail, Subhash (appellant no.2) shall surrender to his bail bonds or shall be arrested to undergo the remaining part of his sentence. ( L. N. MITTAL ) JUDGE March 02, 2009 ( MEHTAB SINGH GILL ) monika JUDGE