IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.176-DB of 2001 Date of Decision: 03.12.2009 Vijay Pal and another Appellants Versus The State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.Baldev Singh, Senior Advocate with Mr.Deepender Singh, Advocate for the appellants Mr.S.S.Randhawa, Additional Advocate General, Haryana Mr.Amit Goel, Advocate for Mr.R.M.Singh, Advocate for respondents in Criminal Appeal No.109-DBA of 2002 Mr.R.S.Sihota, Senior Advocate with Mr.B.R.Rana, Advocate for the petitioner in Criminal Revision No.1917 of 2001 …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.176-DB of 2001, Criminal Appeal No.109-DBA of 2002 and Criminal Revision No.1917 of 2001, arising out of an FIR bearing No.134 dated 21.10.1994, Police Station Hassanpur, district Faridabad. For facility of reference, facts are being mentioned from Criminal Appeal No.176-DB of 2001. Appellants Vijay Pal and Rampal both sons of Ramji Lal have filed this appeal against judgment and order dated 22.3.2001, vide which, Criminal Appeal No.176-DB of 2001 they were convicted for commission of an offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- each, with a default clause. Vide judgment mentioned above, their brothers, namely, Bir Singh, Phirey, Ranjeet Singh and one Kiranpal were acquitted of the charges framed against them. Against their acquittal, State and the complainant have filed appeal and revision respectively, as mentioned above. It was allegation against the appellants that they, along with four others, named above, had committed murder of Heera Lal on 20.10.1994, by causing injuries to him at about 8.30 am in village Khatka district Fardiabad. Case of the prosecution, as noted by the trial Court in paragraph No.2 of the impugned judgment, reads thus:- “….that on 20.10.94 Ram Avtar ASI went to Safdarjung Hospital, Delhi after coming to know that the injured Heera Lal has been referred there. There he recorded statement Ex.PA of Rishi Pal son of Heera Lal who alleged that he is resident of village Khatka and is an agriculturist and their father are four brothers: that the eldest one is Ramji Lal- Lumberdar and his father was the youngest one: that their land was earlier joint khewat and ,the girdawari was in the name of their uncle Ramji Lal. He got the same entry in the name of their son of Ram Pal: that because of this fact, there was a quarrel among them for considerable period: that their uncle Ramji Lal filed an application for declaring him as occupancy tenant before the Deputy Commissioner but that application 2 Criminal Appeal No.176-DB of 2001 was decided in favour of the complainant: that they filed an application for correction of Khasra girdawari and the same is pending before Tehsildar, Palwal: that on that date at about 8.30 a.m. his father Heera Lal was going to attend that date at Palwar: that he was also accompanying him to palwal: that when they reached on Khatka turn and were waiting for arrival of bus, in the meanwhile, the sons of his uncle, namely, Rampal, Vijay Pal, Bir Singh, Phirey, Ranjit and grand son of his uncle Kiran Pal armed with lathies came towards them: that he got frightened and ran away: that all of them inflicted injuries with their respective lathies upon their father. The first injury was inflicted by Rampal on the head of his father towards right side. Another injury was inflicted by Vijay Pal on the left side of his head. Phirey inflicted injury on the left shoulder whereas Ranjit, Kiran Pal and Bir Singh inflicted injuries with their respective weapons, which hit on the head, right hand, left knee of his father: that he has seen the occurrence with his own eyes: that he raised alarm of mar- diya, mar-diya and the villagers should come to save them: that after hearing the alarm, his brothers Ramchandi and Sat Pal arrived at the spot. Number of people also arrived there. All the six persons referred above ran away with their respective weapons: that he alongwith his brothers Ramchandi and Satpal brought their father initially to Palwal. He was referred to Safdarjung Hospital, Delhi by the doctor: that his father Heera Lal had died at about 4.30 p.m.” 3 Criminal Appeal No.176-DB of 2001 As per case of the prosecution, ASI Ram Avtar (PW10) made an endorsement (Ex.PA/1) at 9.15 pm and sent statement of Rishi Pal (PW1) for registration of an FIR, which was recorded in Police Station Hassanpur at 2.30 am on 21.10.1994. Investigation was taken over by SI Puran Chand (PW11) on 21.10.1994. He recorded statements of other prosecution witnesses, went to the spot and got prepared a scaled site plan. He arrested Vijay Pal on 9.11.1994. On interrogation, he suffered a disclosure statement, which led to the recovery of weapon of offence (a wooden stick). After investigation, final report was put in Court only against Vijay Pal (A1). On an application moved, under Section 319 Cr.P.C., other five accused were also summoned to face the trial. On completion of investigation, final report was put in Court for trial. All the accused were charge sheeted, to which, they pleaded not guilty and claimed trial. The prosecution produced twelve witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of all 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. All the acquitted accused took up a defence of alibi and they also led evidence to prove the same. The trial Court, on appraisal of evidence, as led by both the parties, found the appellants guilty and they were convicted and sentenced as found mentioned in earlier part of this order. However, the others, who are respondents in Criminal Appeal No.109-DBA of 2002, were found innocent and were acquitted. Hence, these appeals and revision. Counsel for the appellants, Mr.Baldev Singh, Senior Advocate has vehemently contended that FIR was ante-timed. The prosecution has 4 Criminal Appeal No.176-DB of 2001 made an attempt to suppress the true facts. Alleged eye witnesses have contradicted each other and their presence, at the spot, is not believable. He further argued that the inquest report was prepared by Brij Kishori ASI of Delhi Police on 21.10.1994, which clearly indicates that ASI Ram Avtar (PW10) did not record statement of Rishi Pal (PW1) in Safdarjang Hospital on 20.10.1994, as stated by the prosecution. He further argued that the defence version was more probable, which the trial Court has discarded without any justification. Injuries were caused to the deceased by unknown persons. The appellants were named only on account of suspicion. He prayed that appeal be allowed and the appellants be acquitted of the charges framed against them. Regarding respondents in Criminal Appeal No.109- DBA of 2002, he argued that their acquittal was justified. Their presence at the spot was not proved. The trial Court has rightly said so by taking note of injuries on the person of the deceased and other evidence on record. He prayed that Criminal Appeal No.176-DB of 2001 be allowed and Criminal Appeal No.109-DBA of 2002 and Criminal Revision No.1917 of 2001 be dismissed. Mr.S.S.Randhawa, Additional Advocate General, Haryana has vehemently opposed the arguments raised by counsel for the appellants. He, by making reference to the statements made by Dr.Banwari Lal (PW7) and Dr.Arvind Thergaonkar (PW9), argued that the injuries caused by the appellants had resulted into death of Heera Lal. By making reference to statements of Rishi Pal (PW1) and the investigating officer, namely, Ram Avtar (PW10) and SI Puran Chand (PW11) argued that the prosecution has successfully proved its case against the appellants and also the acquitted accused. He further argued that the trial Court was not justified in acquitting the respondents in Criminal Appeal No.109-DBA of 2002. He 5 Criminal Appeal No.176-DB of 2001 prayed that appeal filed by the appellants be dismissed, whereas, appeal filed by the State against acquittal of Bir Singh, Phirey, Ranjeet Singh sons of Ramji Lal and one Kiranpal be allowed and they be convicted for the offence with which they were charged and accordingly sentence be also awarded to them. After hearing counsel for the parties, we feel that so far as appellants in this appeal are concerned, in view of evidence on record, no interference is possible in conviction and sentence awarded to them by the trial Court. It has come on record that injuries were caused to Heera Lal deceased by the appellants at about 8.30 pm in village Khatka. Immediately, he was removed to the Civil Hospital at Palwal by PW1 and his brothers, where he was medico legally examined by Dr.Banwari Lal, who found the following injuries at his person:- “1. Lacerted wound on the right parietal region 4 inch x 2 cm in size. Skin deep. Fresh bleeding was present. X- ray was advised. 2. Raddish contusion on left shoulder 3 inch x 1 inch in size. 3. Raddish contusion of right fore-arm on its middle part 2- ½ inch x 1 inch in size. Diffused swelling and tenderness was present. X-ray was advised. 4. Raddish contusion on left side of parietal region 2 inch x ½ inch in size. X-ray was advised. 5. Raddish contusion with abrasion on left knee 2 cm x 1 ½ cm in size. BP was 100 mmhg pulse was 92 per minute. Pupil slightly dilated and sluggishly reactive to light. 6 Criminal Appeal No.176-DB of 2001 Patient was unconscious. History of vomiting was present. General condition was poor.” Condition of the injured was serious. In view of that, he was referred to Safdarjang Hospital at Delhi, where he died on that very day at about 4.30 pm. It has come on record that on receipt of VT Message from police station Palwal, ASI Ram Avtar reached the hospital at Palwal. He was intimated that the injured has been referred to Safdarjang Hospital, New Delhi. Thereafter, he went to the village of the deceased and then, reached Safdarjang Hospital and where he recorded statement of Rishi Pal (PW1) at about 9.15 pm, which led to the registration of an FIR (Ex.PC/2) at 2.30 am on 21.10.1994. Special report reached the concerned Magistrate at 9.00 am on 21.10.1994. Contention of counsel for the appellants that because inquest report on the dead body was prepared by ASI Brij Kishore (PW12) on 21.10.1994, presence of ASI Ram Avtar (PW10) in Safdarjang Hospital at Delhi on 20.10.1994 is doubtful, is not justified. May be, there is some lapse on the part of ASI Ram Avtar in not preparing the inquest report, which does not mean that he has not recorded statement of Rishi Pal (PW1). ASI Brij Kishori (PW12) has stated that on receipt of intimation, he reached the hospital on 20.10.1994, moved an application (Ex.PK) to the doctor regarding fitness of the deceased to make a statement. Doctor declared him unfit to make the same. Heera Lal expired on that very day and vide DDR No.21A of police station Vinay Nagar, this witness was deputed to prepare an inquest report and to perform other formalities. Delhi Police was dealing with the case, may be, on account of that, the inquest report was not prepared by ASI Ram Avtar and it was prepared by ASI Brij Kishori. On the basis of above said fact, no benefit can be extended to the appellants. It 7 Criminal Appeal No.176-DB of 2001 also does not support argument of counsel for the appellants that the statement of Rishi Pal was ante-timed to falsely implicate the appellants. To falsify story of the prosecution, further reliance has been placed upon a statement written by Brij Kishori (PW12) of Ram Chandi son of the deceased wherein it was stated that he and his brothers, including Rishi Pal (PW1) reached at the spot on hearing the noise. This Court feels that in view of vivid description given by PW1 as to how the occurrence had taken place, statement made by Ram Chandi under Section 161 Cr.P.C. makes no difference at all. PW1 has categorically stated that he was present at bus stand of the village along with his father, he saw the appellants and other accused coming to that place armed with sticks and thereafter, causing injuries to his father one by one. It appears that Rishi Pal made an attempt to implicate all members of the family. The trial Court made a critical analysis of the evidence on record and then acquitted the four accused named by Rishi Pal and conviction was awarded only to the appellants in this appeal. This Court feels that to that extent, the trial Court was perfectly justified. Injuries on the persons of the deceased also indicate that it was handy-work of one or two persons and not six persons, as stated in the FIR. By making reference to deposition made by Rishi Pal (PW1), counsel for the appellants argued that this witness has stated that on arrival of the accused, he ran away from the spot, as such, he had not seen the occurrence. We have perused the statement in vernacular, wherein this witness has stated that he went away from his father at 12 paces, then stopped and saw the occurrence. If that is so, version of this witness cannot be disbelieved. Recovery of weapon of offence is also proved on record. 8 Criminal Appeal No.176-DB of 2001 Further contention of counsel for the appellants that Satpal (PW2) has stated that Rishi Pal (PW1) had accompanied him from the house, as such, presence of Rishi Pal at the spot, is doubtful, is also liable to be rejected. This witness in examination-in-chief, has clearly stated that Rishi Pal (PW1) was present at the spot, raised hue and cry, which attracted this witness and another son of the deceased. They reached at the spot and saw the accused running from the spot. One stray line in the cross- examination, to the contrary, will not make any difference. Dr.Arvind Thergaonkar (PW9), in his statement, has deposed as under:- “Brief The deceased was brought to GH Palwal on 20.10.94 at 11.30 am with alleged history of assaulted in quarrel. He was referred to Safdarjung Hospital when he expired on 20.10.1994 at 4.30 p.m.” Statement made above, clearly indicates that receipt of injuries by deceased Heera Lal in a quarrel was mentioned by the complainant and his family members even to the doctor at Palwal, where the deceased reached at about 11.00 am. Minor contradictions in the statements of PW1 and PW2 are ignorable and bound to happen when a witness is examined after a lapse of time from the date of occurrence. So far as acquittal of the respondents in Criminal Appeal No.109-DBA of 2002 and Criminal Revision No.1917 of 2001 is concerned, this Court feels that it was perfectly justified. The trial Court’s findings to that extent are as per evidence on record. State counsel has failed to indicate any mis-reading of evidence, on the basis of which, interference can be made in order of acquittal passed in favour of above said 9 Criminal Appeal No.176-DB of 2001 respondents. There is evidence on record, which suggests that four acquitted accused were not present at the spot. In view of facts mentioned above, Criminal Appeal No.176-DB of 2001 fails and is dismissed. Conviction and sentence awarded to the appellants i.e. Vijay Pal and Rampal sons of Ramjit Lal is upheld, they be taken in custody to undergo remaining part of their sentence. Criminal Appeal No.109-DBA of 2002 and Criminal Revision No.1917 of 2001 are dismissed. (Jasbir Singh) Judge 03.12.2009 (Daya Chaudhary) gk Judge 10