IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 672-DB of 2006 DATE OF DECISION : 08.09.2011 Kamal and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Vinod Ghai, Advocate, Mr. K.D.S. Hooda and Mr. Pawan Hooda, Advocates, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. This appeal has been directed by appellants Kamal and Jasbir alias Nanha against the judgment of conviction dated 18.8.2006 and the order of sentence dated 19.8.2006, passed by the court of Additional Sessions Judge, Panipat. Vide the judgment of conviction dated 18.8.2006, both the appellants have been convicted under Sections 302 read with Section 34, 307 and 392 IPC, for committing murder of Rohtash and Daya Nand, attempting to cause death of Siromani – PW.1 and Sanjay - PW.2, and committing robbery of a ` 2,200/- and ` 2,500/- from Sanjay and deceased Rohtash. Appellant No.1 Kamal has also been convicted under Section 25 of the Arms Act, 1959 for keeping in his conscious possession Crl. A. No. 672-DB of 2006 -2- one country made pistol of .315 bore without any lawful authority. Vide the order of sentence dated 19.8.2006, both the appellants have been sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 5,000/- each, in default to undergo further rigorous imprisonment for three years each under Section 302 read with Section 34 IPC; to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 3,000/- each, in default to undergo further rigorous imprisonment for two and half years each under Section 307 IPC; to undergo rigorous imprisonment for a period of fourteen years and to pay a fine of ` 5,000/- each, in default to undergo further rigorous imprisonment for three and half years each under Section 392 IPC. In addition to this, appellant No.1 has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 2,000/-, in default to undergo further rigorous imprisonment for six months under Section 25 of the Arms Act, 1959. 2. Along with the appellants, Rajesh (brother of appellant No.2 Jasbir alias Nanha) was also tried for the offence under Section 216 IPC on the allegation that he harboured both the appellants. However, vide the aforesaid judgment dated 18.8.2006, he has been acquitted of the charge framed against him. 3. The case of the prosecution was launched on the basis of the statement (Ex.PA) made by Siromani (PW.1), a resident of Bamnoli, District Muzaffar Nagar (U.P.), who was doing the work of sending Buggis on hire from U.P. to Haryana. He stated that they were seven brothers. On the Crl. A. No. 672-DB of 2006 -3- intervening night of 22/23.6.2004 at about 10.10 PM, he along with his brothers Sanjay (PW.2), Rohtash and Daya Nand (both deceased) was going from Shamli (U.P.) to the State of Haryana on two tractors attached with 12 Buggis. At about 3.00/3.30 AM, when they reached ahead of village Sewah near the bridge of two canals, two young boys (later on identified as the appellants) came on a Hero Honda motor cycle, bearing registration No. HR-06J-3227. They stopped their motor cycle in front of their tractors. After alighting from the motor cycle, by showing country made pistols, both of them took out ` 2,200/- from the pocket of Sanjay (PW.2) and ` 2,500/- from the pocket of Rohtash (deceased). Thereafter, they threw the complainant and his brothers in the canal turn by turn with an intention to cause their death. The complainant and his brother Sanjay came out of the canal at a distance of 3/4 killas, whereas his two brothers Rohtash and Daya Nand did not come out. Thereupon, he (the complainant) and Sanjay searched them, but they could not find them. In the morning, after leaving his brother Sanjay at the place of occurrence with the tractor and Buggis, the complainant went to Police Station to lodge the report and in the way, at Sanjay Chowk, the police party headed by Inspector Sube Singh SHO Police Station Chandni Bagh, Panipat, met him, where his statement (Ex.PA) was recorded on at 10.40 AM, on the basis of which the formal FIR (Ex.PA/2) was registered on the same day at 11.05 AM. 4. After registration of the case, the police and the complainant searched for Rohtash and Daya Nand. On 24.6.2004, the dead body of Crl. A. No. 672-DB of 2006 -4- Rohtash was recovered from the canal bridge of village Kubru, and on 25.6.2004, the dead body of Daya Nand was recovered from near Tevri bridge. Inquest reports were prepared and both the dead bodies were sent for post mortem examination. 5. On 25.6.2004, Dr. S.K. Dhattarwal (PW.10) conducted the post mortem examination on the dead body of Rohtash and found contusions on the body of the deceased, as mentioned in the Post Mortem Report (Ex.PM). On the same day, Dr. Rajiv Sethi and Dr. V.K. Gupta examined the dead body of Daya Nand in the mortuary and referred the body to the Department of Forensic Medicines, PGIMS Rohtak, for post-mortem examination by Forensic Expert as the body was in a stage of decomposition. Accordingly, the post mortem examination on the body of Daya Nand was conducted on 25.6.2004 at 7.15 PM and the injuries, as mentioned in the Post Mortem Report (Ex.PR) were found on his body. 6. On 28.6.2004, appellant Kamal was arrested and on 30.6.2004, during interrogation, in pursuance of his disclosure statement, he got recovered one country made pistol, one purse containing ` 1,100/-, one photograph of Sanjay. The motor cycle bearing registration No. HR 06J- 3227 was also taken into possession vide recovery memo (Ex.PC/2). 7. On 17.7.2004, Rajesh (acquitted accused) was arrested on the allegation that he had harboured his brother Jasbir alias Nanha (appellant No.2), who was wanted in this case. 8. On 3.10.2004, appellant No.2 Jasbir alias Nanha was arrested Crl. A. No. 672-DB of 2006 -5- in another case (FIR No. 378 dated 2.10.2004 under Sections 398/401 IPC and Section 25/54/59 of the Arms Act, registered at Police Station Chandni Bagh, Panipat), and during interrogation, a pistol was recovered and he was arrested in this case also. 9. After completion of investigation, the challan was filed against the appellants and their co-accused Rajesh (acquitted accused). Charge under Section 302 read with Section 34 IPC, 307 and 392 IPC was framed against both the appellants. In addition to this, charge under Section 25 of the Arms Act, 1959 was also framed against appellant No.1 Kamal, whereas charge under Section 216 IPC was framed against Rajesh (acquitted accused). Both the appellants as well as their co-accused Rajesh did not plead guilty to the charges and claimed trial. 10. In support of its case, the prosecution examined fifteen witnesses. 11. PW.1 Siromani (complainant) and PW.2 Sanjay, who are the eye witnesses, in their examination-in-chief, recorded on 20.5.2005, duly supported the prosecution version. However, on that day, the accused did not cross-examine these witnesses on the pretext that they had engaged a new counsel. Accordingly, the witnesses were bound down for 7.6.2005. But on that day, they did not turn up and sought exemption of their presence on the ground of illness of their father, which was allowed. However, on the subsequent date, both these witnesses did not appear, and ultimately when their presence was secured through non-bailable warrants, they did not Crl. A. No. 672-DB of 2006 -6- support the prosecution version. However, both of them had categorically admitted in their cross-examination that it is correct that on 20.5.2005, their statements were recorded in the court on oath, which bear their signatures and on that day, they were not under pressure to make the statement. 12. The other material witnesses, namely PW.4 ASI Vijay Singh, PW.5 ASI Bachan Singh, PW.12 HC Mahender Kumar and PW.15 Inspector Sube Singh, have fully supported the case of the prosecution. 13. PW.10 Dr. S.K. Dhattarwal, who conducted post mortem examination on the dead body of Rohtash, has proved the Post Mortem Report of the deceased as Ex.PM. 14. PW.11 Dr. Rajiv Sethi has proved the report Ex.PN, whereby he and Dr. V.K. Gupta examined the dead body of Daya Nand and referred the body to the Department of Forensic Medicines, PGIMS Rohtak for post- mortem examination by Forensic Expert, as the body was in a stage of decomposition. The Post Mortem Report of Daya Nand has been tendered in evidence as Ex.PR. 15. The remaining witnesses, examined by the prosecution, are formal in nature. 16. In their statements under Section 313 Cr.P.C., the appellants as well as their co-accused Rajesh (acquitted accused) denied the incriminating evidence appearing against them. They pleaded innocence and false implication in the case. However, in defence, they did not lead any evidence. Crl. A. No. 672-DB of 2006 -7- 17. The learned trial court, after relying upon the statements of both the eye witnesses in their examination-in-chief, recorded on 20.5.2005, and disbelieving their subsequent statements made during cross-examination, the same having been made by them under pressure and being won over by the accused, and further while relying upon the medical evidence as well as the recovery of country made pistol, purse containing ` 1,100/-, one photograph of Sanjay and the motor cycle bearing registration No. HR 06J- 3227, convicted and sentenced the appellants, as stated in the first paragraph of this judgment. 18. Learned counsel for the appellants argued that the trial court has committed grave illegality while relying upon the statements, made by both the eye witnesses in their examination-in-chief, and while totally ignoring their statements made in cross-examination, in which both the eye witnesses did not support the prosecution case. According to the learned counsel, the conclusion arrived at by the learned trial court that both the eye witnesses were won over by the accused is based on surmises and conjectures, as there is no evidence to this effect. Learned counsel further argued that even if the statements of the eye witnesses are to be relied upon, then from the said statements, identification of the appellants has not been established, as no identification parade was conducted. According to the learned counsel, undisputedly both the appellants were strangers to the eye witnesses. In the initial statement before the police, both the eye witnesses stated that they later on came to know that names of the accused were Crl. A. No. 672-DB of 2006 -8- Kamal and Jasbir alias Nanha, but it has not been disclosed that on what basis, names of these accused were given by them in the FIR. Learned counsel argued that even otherwise, the entire occurrence in this case is highly improbable and testimony of both the eye witnesses are unreliable and untrustworthy. Learned counsel further argued that at the time of recovery of the country made pistol as well as the purse containing the currency notes and photograph of Sanjay, from the possession of appellant Kamal, no independent witness was associated. Further, in the FIR, it was not stated by the complainant that purse of his brother Sanjay was snatched by the accused. Learned counsel further argued that even if it is taken that after committing robbery, both the deceased persons and both the eye witnesses were thrown by the appellants in the canal, the said act was without any intention to cause murder and their only intention was to commit robbery, therefore, their conviction under Section 302 IPC is not justified. 19. On the other hand, learned Additional Advocate General, Haryana, argued that the learned trial court has rightly relied upon the statements of both the eye witnesses, made by them in their examination-in- chief, while ignoring their subsequent statements in their cross-examination, in which they did not support the prosecution case, while coming to the conclusion that they were won over by the accused. Learned counsel further argued that recovery of the country made pistol as well as the purse containing the currency notes and photograph of Sanjay, in pursuance of the Crl. A. No. 672-DB of 2006 -9- disclosure statement of appellant Kamal, has been duly proved by the prosecution, and the trial court has rightly convicted and sentenced the appellants. 20. We have considered the rival submissions made by learned counsel for the parties and have carefully gone through the record of the case. 21. The case of the prosecution is based upon the testimonies of two eye witnesses, namely PW.1 Siromani and PW.2 Sanjay, who are real brothers of the deceased. According to them, on the intervening night of 22/23.6.2004, they along with their two brothers, namely Rohtash Daya Nand (both deceased), were going from Shamli (U.P.) to the State of Haryana to sell on hire the Buggis. They were on two tractors, with which 12 Buggis were attached. At about 3.00/3.30 AM, when they reached in the area of village Sewah, both the appellants came on a Hero Honda motor cycle, bearing registration No. HR-06J-3227. They stopped their motor cycle and on pistol point, they robbed ` 2,200/- from PW.2 Sanjay and ` 2,500/- from deceased Rohtash. Thereafter, they threw all the four brothers in the canal turn by turn, with an intention to cause their death. Both the eye witnesses came out of the canal at a distance of 3/4 killas, whereas their two brothers, namely Rohtash and Daya Nand, did not come out. They kept on searching them. When they could not find their two brothers, PW.1 Siromani, by leaving his brother PW.2 Sanjay at the place of occurrence, went and lodged the report to the police. Crl. A. No. 672-DB of 2006 -10- 22. Both the eye witnesses, in their examination-in-chief recorded on 20.5.2005, fully supported the prosecution case and identified both the appellants in the court. But on that day, learned defence counsel did not cross-examine the eye witnesses on the pretext that he was engaged on the same day. On the adjourned date, i.e. on 7.6.2005, both the eye witnesses did not turn up for cross-examination. Ultimately, their presence was secured through non-bailable warrants. When they appeared for cross- examination on 15.9.2005, after about four months, they did not support the prosecution case. They stated that the accused present in the court were not at the spot and they did not snatch the purse or money from them. However, in their cross-examination, they admitted that the occurrence had taken place at Siwah canal at about 3.30 AM on the intervening night of 22/23.6.2004. They further admitted that it is correct that on 20.5.2005, their statements were recorded in the court on oath, which bear their signatures and those statements were made by them without any pressure. 23. The learned trial court, after examining the statements of both the eye witnesses, made by them in their examination-in-chief recorded on 20.5.2005 as well as the cross-examination recorded on 15.9.2005, came to the conclusion that their conduct in earlier supporting the prosecution case and subsequently retracting from their earlier version shows that either they have been won over by the accused for some inducement or out of fear, they are not deposing correctly. It is further held that if statements of these two witnesses are read as a whole, then it is amply clear that both the Crl. A. No. 672-DB of 2006 -11- accused are guilty of the alleged offence. The learned trial court, while relying upon the decision of the Hon'ble Apex Court in S. Sudershan Reddy and others v. State of Andhra Pradesh, 2006 (3) RCR (Crl.) 764, observed that it is the duty of the Court to separate grain from chaff and where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. 24. Learned counsel for the appellants vehemently argued that in the facts and circumstances of the present case, the learned trial court has committed grave illegality while relying upon the testimony of these two witnesses for convicting the appellants under Section 302 IPC for committing the murder of two persons. Learned counsel argued that the conclusion arrived at by the learned trial court that both the eye witnesses have been won over by the accused either out of fear or for some inducement is based upon surmises and conjectures, and merely on the basis of such inference, it cannot be concluded that the subsequent statements made by both the witnesses in their cross-examination are not correct. Secondly, learned counsel argued that even if the statements of both the witnesses in their examination-in-chief are held to be acceptable, then from the said statements, identification of the accused has not been established. The argument of learned counsel is that the eye witnesses and the accused were strangers. Prior to the day of occurrence, they were not known to each other. Both the witnesses have stated that later on, they came to know that Crl. A. No. 672-DB of 2006 -12- the persons who robbed them and threw them in the water canal were the appellants, but it has not been disclosed as to on what basis they had identified them. It has also been argued that the manner, in which the occurrence has taken place, as stated by both the eye witnesses, is highly improbable, as two persons cannot compel four persons to jump in the canal. According to the learned counsel, there is variation in the ocular version and the medical evidence with regard to the head injury on the person of deceased Rohtash. On these submissions, learned counsel argued that even if the testimony of both the eye witnesses are to be looked into as an evidence against the appellants, then their testimony are not reliable and trust-worthy. 25. We have carefully examined the statements of both the eye witnesses, made by them in their examination-in-chief as well as cross- examination. We have noticed that frequently, the defence counsel got deferred the cross-examination of material prosecution witnesses on one pretext or the other, and subsequently, those witnesses turn hostile. We do not approve such practice and are of the opinion that the trial court should not adjourn the case for cross-examination of material prosecution witnesses. However,in exceptional cases, the adjournment can be granted to a shortest possible date, after recording reasons for the same. If we carefully examine the facts of this case, cross-examination of two material witnesses was got deferred by the learned defence counsel, without any valid reason. Thereafter, both the witnesses did not turn up for their cross-examination Crl. A. No. 672-DB of 2006 -13- and their presence could be secured only through non-bailable warrants. Both the witnesses, in their examination-in-chief, have fully supported the prosecution case. They had identified both the accused in the court. In their cross-examination, they have categorically stated that on 20.5.2005, their statements were recorded in the court, which bear their signatures and the said statements were made without any pressure. If the said statements were made without any pressure, then how in their cross-examination, recorded subsequently, they did not support the prosecution case. In these facts, the learned trial court, while reading the statements of these witnesses as a whole, has rightly come to the conclusion that at the time of their cross- examination, the witnesses were won over by the accused either out of fear or for some inducement, and therefore has relied upon their statements, made in examination-in-chief. In Radha Mohan Singh alias Lal Saheb and others v. State of U.P., (2006) 2 SCC 450, in the similar circumstances, when an injured witness who supported the prosecution case in his examination-in-chief, did not support the prosecution case in the cross- examination recorded on the next day and stated that on account of darkness he could not identify the assailants, the trial court relied upon the statement of the said witness in examination-in-chief, while coming to the conclusion that the said witness had tried to support the accused in his cross- examination on account of pressure exerted upon him by the accused. The said conclusion of the trial court was approved by the Hon'ble Supreme Court while observing that it is well settled that the evidence of a Crl. A. No. 672-DB of 2006 -14- prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. 26. In Khujji @ Surendra Tiwari v. State of Madhya Pradesh, (1991`) 3 Supreme Court Cases 627, where two eye witnesses were declared hostile to the prosecution by the Public Prosecutor, as they refused to identify the accused in the dock as the assailants of the deceased, the Hon'ble Supreme observed as under : “It seems to be well settled by the decisions of this Court – Bhagwan Singh v. State of haryana, Rabindra Kumar Dey v. State of Orissa and Syad Akbar v. State of Karnataka – that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye-witnesses was challenged by the prosecution in cross-examination because they refused to name the accused in the dock as the assailants of the deceased.” In the present case, all the four brothers were travelling on two tractors, with which 12 Buggis were attached. Their presence at the time of the occurrence is not doubtful, because in the night time, two tractors and 12 Buggis could not have been driven by two persons. Both the eye witnesses Crl. A. No. 672-DB of 2006 -15- were also thrown in the canal. However, they had been able to come out of the water, but their two other brothers could not come out. Thereafter, for quite long time, both the eye witnesses searched for their brothers from one corner to the other corner of the canal, but they could not find them. The search went on for four to five hours. During this long time, they came to know the names of the accused, which they had mentioned in the FIR. They had identified both the accused in the court. In this case, no test identification parade was conducted. So what has been stated by both the eye witnesses in the cross-examination that they did not identify the accused in the identification parade is incorrect. Since the accused and the eye witnesses spent considerable time, face to face, both the eye witnesses were full chance to have complete recognition of the accused, and on the basis of which they later on identified the accused in the court. We do not find any force in the argument of learned counsel for the appellants that in the present case, identification of the appellants has not been established. Though earlier the accused were not known to the witnesses, but at the time of the occurrence, the witnesses were having sufficient time to recognize the accused. Once the names of the accused were mentioned in the FIR, after their arrest, they were not put to test identification parade. It is well settled that identification of the accused in the court is a substantive piece of evidence and in the instant case, testimony of both the eye witnesses, who in their examination-in-chief had identified the accused, cannot