IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 578-DB of 2001 DATE OF DECISION : 08.03.2010 Siri Bhagwan and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. J.S. Bedi, Advocate, amicus curiae, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellants Siri Bhagwan and Jogender were tried by Additional Sessions Judge, Sonepat, in case FIR No. 307 dated 31.7.1999 registered at Police Station City, Sonepat, under Sections 302/307/34 IPC and 25 of the Arms Act, 1959, for committing the murder of Jai Dev. The trial court, vide its judgment and order dated 25.9.2001, convicted and sentenced both the appellants. Both the appellants were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo further rigorous imprisonment for one year each, under Section 302/34 IPC. Appellant Jogender was also sentenced to undergo rigorous imprisonment for one year under Section 25 of the Arms Act. Both Crl. A. No. 578-DB of 2001 -2- the sentences inflicted upon appellant Jogender were ordered to run concurrently. 2. In the present case, the formal FIR (Ex.PC) was registered against both the appellants on the basis of the statement (Ex.PF) made by Krishan (PW.14), real uncle of deceased Jai Dev, to ASI Raj Singh (PW.13) on 31.7.1999 at 3.15 PM, which was sent to Police Station City, Sonepat, for registration of the case. 3. In his statement (Ex.PF), complainant Krishan stated that he was resident of village Baroda Mor. On 31.7.1999, he along with his nephew Jai Dev (deceased) and his relative Sunil Kumar resident of Lath had come to Sonepat for personal work. At about 2.00 PM, they were standing at Kakroi Chowk, Sonepat and were waiting for conveyance. His nephew Jai Dev was standing at a distance of 10/15 paces away from them. In the meantime, two young boys came on a motor cycle. Out of them, one was Siri Bhagwan, a resident of their village Baroda, and another was Jogender Singh, a resident of Chhota Khanda. After getting down from the motor cycle, Siri Bhagwan took out a Dao (iron weapon) from dub of pant and Jogender Singh took out a pistol from the dub of his pant. In their presence, Siri Bhagwan gave Dao blows to Jai Dev, which were inflicted on his head, neck, hands and feet. When they tried to apprehend him, Jogender fired shot by saying that if any person comes forward, he would be killed. Siri Bhagwan told that he had taught lesson to Jai Dev for restraining them from tethering the cattle in common land in the year 1995 during the floods. Crl. A. No. 578-DB of 2001 -3- Jai Dev was killed due to revenge on that account. Though with regard to the said altercation, a case was registered, but lateron, the same was compromised with the intervention of the Panchayat, but Siri Bhagwan had a grudge in his mind, due to which he in collusion with Jogender had killed Jai Dev. Action be taken against them. 4. After recording the aforesaid statement and sending the same to the Police Station for registration of the case, ASI Raj Singh (PW.13) came on the spot. By that time Jai Parkash Inspector (PW.16) had also reached at the spot on receiving the VT message. He prepared the inquest report (Ex.PH/1), rough site plan (Ex.PN) of the place of occurrence, lifted the blood stained earth, which was taken into possession vide recovery memo (Ex.PM) and sent the dead body for post mortem examination through Constable Rampal. 5. On 1.8.1999, Dr. R.N. Rehlan (PW.10) along with Dr. A.S. Ahlawat conducted post mortem examination on the body of the deceased. The body was identified by Krishan (complainant) and Sunil son of Satbir. During the post mortem examination, the following 15 injuries were found on the body of the deceased : 1. Incised wound left parietal area 10 x 1 cms x bone deep. Underlying bone was divided. Clotted blood was present around. Margins were clean-cut. 2. Incised wound 8 x 1 cm x bone deep transversely placed on occipital area. Margins were clean cut. Clotted blood was present. Crl. A. No. 578-DB of 2001 -4- 3. Incised wound occipital parietal area obliquely placed of the size 8 x 1 cm x bone deep. Margins clean cut. Clotted blood was present. 4. Incised wound 6 x 1 cm x bone deep right parietal area. Margins were clean cut. Clotted blood was present. 5. 2 incised wounds of size 5 x 1 cm x bone deep and 6 cms x 1 cm bone deep present on the right parietal occipital area. Margins clean cut. They were in confluence with injury No.5. Clotted blood present. 6. Incised wound right side of face 12 x 5 cms right ear – lobule was missing. The wound was extending 4 cms behind the chin to angle of mandible and back of the ear. Muscles and vessels were divided. Margins were clean-cut. Clotted blood was present around. 7. Incised wound posterior aspect of the neck 10 x 3 x 6 cms deep dividing skin muscles vessels bone and brain matter in the same line. Margins were clean cut and spinal cord was divided. 8. Incised wound 4 x 1 cms x muscle deep on the right side of the neck. 9. Incised wound 8 x 3 cms x bone deep on right arm just above the elbow. Clotted blood was present. Margins were clean cut. 10. Two incised wounds of size 5 x 2.5 cms and 4.5 x 2 cms on right fore-arm dorsal aspect. Bones vessels and muscles were divided. Clotted blood was present. Margins were clean-cut. 11. Incised wound 7 x 2.5 cms right dorsem of the hands bones and muscles divided. Clotted blood was present Margins clean cut. 12. Incised wound 3 x 1 cms left fore-arm. Clotted blood was present. Margins clean cut. 13. Incised wound left wrist, palmer aspect 6 x 5 x 3 cms bones Crl. A. No. 578-DB of 2001 -5- muscles and vessels divided. Hand was hanging down attached with skin and subcutaneous tissues. 14. Incised wound right thigh 6 x 4 cms muscle deep on medical aspect, Clotted blood was present. 15. There was punctured and lacerated wound 1 cm in diameter, right lower front of chest 6 cms below right nipple (wound of entry). On exploration right lobe of liver and right lung pierced. Bullet was lying on posterior wall at 11/12 ribs. 9th rib was fractured. Thorasic cavity on right side full of blood. Abdominal cavity full of blood. The bullet was confirmed vide radiological examination. Out of these, 14 injuries were incised wounds on various parts of the body and one injury was punctured and lacerated wound of 1 cm in diameter, which was a fire arm injury. A bullet was also recovered from the body of the deceased and the same was handed over to the police and after the post mortem examination, the Doctor handed over a sealed parcel containing clothes of the deceased and a small vial containing a bullet, which were taken into possession on 1.8.1999 vide recovery memo Ex.PG. In the opinion of the Doctor, the cause of death of the deceased was due to the injuries received by him, which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. 6. During investigation, both the accused were arrested on 14.8.1999, when they were seen coming on a motor cycle. The motor cycle was taken into possession vide recovery memo (Ex.PO). During interrogation, accused Siri Bhagwan and Jogender made disclosure Crl. A. No. 578-DB of 2001 -6- statements (Ex.PJ and Ex.PK) and in pursuance thereof, accused Siri Bhagwan got recovered a Dao (Ex.P7) from a room meant for fodder storing in his house and accused Jogender got recovered a country made pistol (Ex.P8) from a room containing a Jet Pump. After preparing the rough sketches (Ex.PJ/2 and Ex.PK/2) of the Dao and the pistol, the same were taken into possession vide separate recovery memos Ex.PJ/1 and Ex.PK/1, respectively. Rough site plans (Ex.PJ/3 and Ex.PK/3) of the places of recovery of Dao and the pistol were also prepared separately. 7. After completion of investigation, the challan was filed against both the accused and charges under Sections 302 read with Section 34 IPC were framed against them. In addition to this, charge under Section 25 of the Indian Arms Act, 1959, was also framed against accused Jogender. Both the accused did not plead guilty to the charges and claimed trial. 8. In support of its case, the prosecution examined as many as 17 witnesses. 9. PW.1 UGC Randhir Singh and PW.2 Constable Jagdish Chander are the formal witnesses, who tendered into evidence their affidavits Ex.PA and Ex.PB, respectively. PW.3 Constable Mohinder Singh has proved the delivery of special report (Ex.PC) to the Ilaqa Magistrate at his residence on 31.7.1999 at 6 PM. He stated that the said report was delivered to him by MHC at 4.30 PM and he travelled three kilometers distance on a bicycle and then delivered the special report to the Ilaqa Magistrate at 6.00 PM. PW.4 Constable Inder Pal is a formal witness, who Crl. A. No. 578-DB of 2001 -7- prepared the scaled site plan (Ex.PD). In cross-examination, he has stated that the place of occurrence was located in populated area of the town. PW.5 Constable Subhash Chander is another formal witness. PW.6 Chand Karan SI recorded the formal FIR on the basis of the statement of the complainant (Ex.PF) sent by ASI Raj Singh. PW.7 Constable Ram Pal is a formal witness, who had handed over parcel containing clothes of deceased Jai Dev and bullet sealed, to Inspector Jai Parkash. PW.8 Hawa Singh, Photographer, who had taken three snaps of the place of occurrence from different angles, proved photographs Ex.P1 to Ex.P3 and negatives Ex.P4 to Ex.P6. In his cross-examination, he has stated that he went to the place of occurrence on 31.7.1999 at 3.00 PM. At that time, near about 150/200 persons were present there. PW.10 Dr. R.N. Rehlan, who conducted the post mortem, has proved the post mortem report (Ex.PH) of the deceased. PW.11 SI Rajinder Singh had arrested the accused and recovered the Dav and the pistol, in pursuance of disclosure statements made by them. PW.12 Silaq Ram is Reader to District Magistrate, Sonepat and he has proved the sanction order for prosecution of the accused under Section 25 of the Arms Act, 1959. PW.13 ASI Raj Singh recorded the statement of Krishan complainant and sent it for registration of the case. In cross-examination, he stated that he recorded the statement of Krishan in front of the shop of Dr. Satbir Dahiya and after recording the statement, he went at the spot, where SI Jai Parkash came. Thereafter, the inquest report was prepared and further police proceedings were conducted. PW.14 Krishan is the complainant and Crl. A. No. 578-DB of 2001 -8- the eye witness, who had seen the occurrence along with Sunil. He has fully supported the prosecution case. Another eye witness Sunil did not appear in the witness box, in spite of the fact that he was summoned for many times. It has come on record that he was in custody in some other case. When he was granted interim bail from 27.11.2000 to 29.11.2000, then he has now absconded, therefore, he did not appear as witness and was given up by the prosecution. PW.15 Arjun Singh, who is brother of complainant Krishan, is witness to the recovery of the Dav and the pistol. PW.16 Jai Parkash DSP, CID Crime, Madhuban is the Investigating Officer. He stated that on 31.7.1999 at about 3.15 PM, when he was standing at Murthal Chowk, he received a VT message from Police Station City Sonepat. Thereupon, he rushed to the place of occurrence, where he reached at 3.35 PM and then prepared the inquest report. By that time, statement of the complainant had already been recorded and sent for registration of the FIR. He conducted the further police proceedings. He stated that when he reached the spot, both the eye witnesses, namely Krishan and Sunil were present there. 10. In their statements under Section 313 Cr.P.C., both the accused were confronted with the incriminating circumstances appearing against them. They denied all the allegations of the prosecution and pleaded innocence and false implication. However, they did not produce any witness in their defence, but tendered documents Ex.D1 to Ex.D3 on the record. 11. After considering the evidence led by the prosecution as well as the defence taken by the accused, the trial court convicted and sentenced Crl. A. No. 578-DB of 2001 -9- both the appellants, as indicated above. 12. Learned counsel for the appellants very vehemently argued that none of the eye witnesses, namely Krishan (PW.14) and Sunil (who has not been examined by the prosecution) had seen the occurrence. At the time of alleged occurrence, they were not present on the spot. Both the witnesses were subsequently called from their villages and were planted as witnesses. According to the learned counsel, a false story was fabricated at a later stage, in connivance with the complainant, by taking the benefit of delay in lodging the FIR. In order to support his contention, learned counsel referred to the VT message, which was produced on record by the appellants as Ex.D1. It was sent by PCR No. 6 and received by Police Station City Sonepat at 2.40 PM on 31.7.1999. In the said VT message, it was mentioned that two young persons on red Yamaha Motor Cycle No. HR 10C-1041 badly injured a young man and ran away Nakabandi be made. The injured had died at the spot. A chit was found in the cloth, according to which the deceased was Jai Dev son of Bharat Singh resident of Baroda. Information be sent to the parents of the deceased. According to the learned counsel, this VT message clearly indicates that none of the eye witnesses had seen the occurrence. They were called subsequently and their statements were recorded. Learned counsel, while referring to the statements of the prosecution witnesses, argued that there was delay in lodging the FIR, which was registered ante-timed and by taking benefit of the said time, complainant Krishan was called from his village and then a false statement Crl. A. No. 578-DB of 2001 -10- was recorded on his behalf, on the basis of which the case was registered. In this regard, learned counsel argued that the occurrence had taken place at 2 PM and the special report was delivered to the Illaqa Magistrate at 6 PM. By taking the benefit of four hours, the police foisted a false case upon the appellants, merely on the basis of suspicion and the fact that on earlier occasion, there was a dispute between the parties with regard to tethering of cattle. He submits that the distance between the place of occurrence and the Police Post was only 200 Meters and the police could not have taken much time for reaching the spot. He further argued that PW.13 Raj Singh ASI has admitted that he had sent the VT message, after reaching at the spot, but it has not been explained why he had not given the name of the accused in the VT message. 13. Learned counsel for the appellants further argued that recovery of Dao and pistol from the appellants has not been connected with the alleged crime. The blood found on Dao, recovered from appellant Siri Bhagwan, as per the report of the Forensic Science Laboratory (Ex.PP), has not matched with the blood of the deceased. It has been stated that the blood on Dao was disintegrated, therefore, it could not be compared. Similarly, only the pistol recovered from appellant Jogender, was sent for laboratory examinations, but the bullet, which was recovered from the body of the deceased, was not sent for examination, therefore, the pistol alleged to have been recovered from appellant Jogender has not been connected with the crime. In view of these grounds, learned counsel argued that recovery of Crl. A. No. 578-DB of 2001 -11- Dao and the pistol is doubtful and it does not connect both the appellants with the crime. He further argued that the motor cycle recovered from the possession of the appellants has not been connected with the appellants. These facts further create doubt in the prosecution version. 14. While referring to the infirmities and contradictions in the prosecution evidence, learned counsel further argued that the conduct of PW.14 Krishan, the eye witness, at the time of the alleged occurrence, was not normal. Admittedly, he did not make any effort to save his real nephew, when the appellants were causing injuries to him. He did not go towards the deceased and try to pick up him. This conduct of the eye witness indicates that he was not present at the time of the alleged occurrence. Learned counsel further argued that the occurrence has taken place at a busy place, where so many persons were present. But the prosecution did not associate any independent witness and examined him in order to corroborate the sole statement of complainant Krishan. According to the learned counsel, non- examination of the independent witness, in spite of availability, also raises doubt on the truthfulness of the prosecution story. 15. In the last, learned counsel for the appellants argued that the motive alleged by the prosecution is also doubtful. It has come on record that the earlier litigation had resulted into acquittal of Jai Dev and his family members, on the basis of the compromise between the parties. Under the said compromise, appellant Siri Bhagwan and his family members resiled from their statements and thereafter, the accused in the earlier occurrence Crl. A. No. 578-DB of 2001 -12- were acquitted. In view of these facts, learned counsel argued that there was no motive for the appellants to commit the murder of Jai Dev. This fact also indicates that the appellants have been falsely implicated in this case on the basis of version of a planted witness. Therefore, both the appellants are entitled for acquittal, as the prosecution has failed to prove the alleged guilt against them, beyond shadow of a reasonable doubt. 16. On the other hand, learned counsel for the respondent-State argued that the presence of Krishan and Sunil at the time of the occurrence was most natural. There was no delay in lodging the FIR. He submitted that statement of the complainant was recorded and completed by ASI Raj Singh at 3.15 PM and immediately thereafter, on the basis of the said statement, FIR was registered at 3.50 PM without any delay and special report was delivered to the Ilaqa Magistrate at 6.00 PM. He submits that the argument of learned counsel for the appellants that the complainant was summoned from his village Baroda after receiving the VT message and then he was planted as a witness, cannot be accepted, as it has come in evidence that for coming from village Baroda to Sonepat, one has to go to Gohana and then from Gohana to Sonepat and this process may take near about two hours. He further argued that another eye witness, namely Sunil, who has not been examined, is from a different village. Therefore, the argument of the learned defence counsel that both the eye witnesses were called from their villages by the police lateron, does not seem to be probable at all. Learned counsel further argued that in the instant case, the FIR was promptly registered and Crl. A. No. 578-DB of 2001 -13- there was no time left with the police to falsely implicate the appellants by introducing the false eye witnesses. Learned counsel further argued that once the eye witness has fully supported the prosecution version, then benefit of the minor defects in the investigation, like not sending the bullet recovered from the body of the deceased for laboratory examination, cannot be given to the appellants. He further argued that appellant Siri Bhagwan was also an accused in the earlier litigation. Though the same had resulted into his acquittal on the basis of the compromise, but he was still having a grudge against the deceased and had a motive to take revenge from him, on account of the earlier case registered against him at the instance of the complainant party. Therefore, according to the learned counsel, the trial court has rightly convicted both the appellants for the offence of committing murder and the impugned judgment of the trial court does not require any interference. 17. We have heard learned counsel for the parties and have gone through the impugned judgment and the trial court record. 18. According to the statement of PW.14 Krishan, who is the real uncle of the deceased, the occurrence had taken place at 2.00 PM on 31.7.1999. On that day, he along with his nephew Jai Dev and Sunil and come to Sonepat for some personal work. Both the accused came on the spot on a motor cycle. Accused Siri Bhagwan belong to the same village and accused Joginder was resident of Chhota Khanda, which is also a nearby village. Therefore, it cannot be said and argued that complainant Crl. A. No. 578-DB of 2001 -14- Krishan was not in a position to identify the accused. When both the accused caused injuries to the deceased, complainant Krishan was standing at a distance of 10/15 paces. He had seen the occurrence with his own eyes. According to him, accused Siri Bhagwan gave many blows from Dao to Jai Dev and accused Jogender fired a pistol shot. Due to the injuries received, Jai Dev died on the spot. This witness categorically stated that he could not save his nephew, because accused Jogender had threatened him that if he intervened, he would also be killed. In his cross-examination, PW.14 Krishan has stated that after the occurrence, when he was going to report the matter to the Police Station, ASI Raj Singh met him near the shop of Dr. Satbir Dahiya, where he made the statement. PW.13 ASI Raj Singh has corroborated this version and stated that Krishan met him in front of the shop of Dr. Satbir Dahiya, where he recorded his statement, which took one hour and thereafter, he went to the spot. In his cross-examination, this witness has categorically stated that Krishan has given names of both the accused at the spot. It has also come in evidence that PW.16 Jai Parkash on receiving the VT message, reached the spot at about 3.35 PM. He has categorically stated in his statement that both the eye witnesses were present at the spot and the dead body was lying there. On the basis of the statement of Krishan, the FIR was registered at 3.50 PM. It is true that the special report was received by the Ilaqa Magistrate at 6.00 PM, but PW.3 Constable Mohinder Singh has stated that the MHC had delivered the special report to him at 4.30 PM and he delivered the same at the residence of the Ilaqa Crl. A. No. 578-DB of 2001 -15- Magistrate at 6.00 PM, as he had to travel three kilometers on bicycle. In our opinion, in the instant case, it cannot be said at all that there was a delay in lodging the FIR. The evidence on record clearly indicates that in the instant case, the FIR was promptly recorded. Some delay in delivering the special report to the Ilaqa Magistrate has been satisfactorily explained by PW.3 Mohinder Singh, but admittedly special report was delivered within two and half hours of the registration of the FIR. The total time taken between the time of occurrence and the delivery of the special report to the Ilaqa Magistrate was only four hours.