CRIMINAL APPEAL NO. 231-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 10, 2009. Parties Name Satyawan and another ..APPELLANTS VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. P.S.Hundal, Sr. Advocate, for the appellants. Mr. Ajay Kumar Gupta, Addl. A.G., Haryana, for the respondent. Mr. Anshuman Dalal, Advocate, for Mr. J.S. Bedi, Advocate, for the revision petitioner. JASBIR SINGH, J. ORDER. This order will dispose of Criminal Appeal No. 231-DB of 2001 and Criminal Revision No. 1805 of 2001, arising out of judgment and order dated March 20, 2001, passed by the Sessions Judge, Rohtak. For facility of dictating order, facts are being mentioned in Criminal Appeal No. 231-DB of 2001. Appellants have laid challenge to the judgment and order dated March 20, 2001, vide which both of them were held guilty and convicted for commission of an offence punishable under Section 302 read with Section CRIMINAL APPEAL NO. 231-DB OF 2001 -2- 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- with a default clause. Appellant No. 1 was also held guilty and convicted for commission of an offence punishable under Section 27 of the Arms Act, 1959, and sentenced to undergo further RI for a period of three years and to pay a fine of Rs. 500/-, with a default clause. Both the sentences were ordered to run concurrently. It was allegation against the appellants that they had committed murder of Daya Nand (brother of appellant No. 1) by causing him fire-arm and other injuries on July 18, 1998, at 6.30 AM, within the revenue estate of village Makrauli Kalan, Police Station Sadar Rohtak. Process of Criminal Law was set in motion on a statement made by Chander Singh (father of the deceased and appellant No. 1), whereupon formal FIR Ex. PA/2 was recorded at 11.40 AM on July 18, 1998. Special report reached the Ilaqa Magistrate at 12.50 PM at Rohtak. Case of the prosecution, as noted by the trial Court in para No. 2 of the impugned judgment, reads thus: “Brief facts of the prosecution case can be conveniently drawn from the statement Ex. PA, made by Chander Singh son of Mange Ram, father of Satyawan accused, before the police on 18.7.98, alleging therein that he was doing the job of an agriculturist and had three male and five female progenies, who are all married. His son Satyawan is residing at village Makrauli, alongwith his children and his eldest son Jagbir Singh, is residing alongwith his children, near Octroi Post, Gohana Road, Rohtak and that his son Daya Nand, who was employed in Delhi Police, was residing in their field known as CRIMINAL APPEAL NO. 231-DB OF 2001 -3- Gaguwala, alongwith him and his wife. On 18.7.98, around 6.30 a.m. he and his wife Smt. Bhagwani and his son Daya Nand and his wife Smt. Neelam were going to their old house situated in village Makrauli, from their field, to bring wheat grain and as they reached in Harijan (Chamar) Mohalla, in front of the house of Sube Chamar, accused Satyawan holding a gun and his wife Sunita holding a Jaili in their hand, came from the opposite side. Satyawan accused fired from his double barrel licensed gun, aiming at Daya Nand his son, with an intention to kill him, but they all had a narrow escape. Satyawan accused again aimed his gun at Daya Nand and fired, which hit in the centre of his abdomen, as a result of which he fell on the ground. Thereafter, accused Satyawan with the butt of his gun and accused Sunita, his wife with a Jaili which she was holding in her hands, caused several blows to Daya Nand, which hit on his face and head, on account of which there was haemorrhage of blood in abundance, as a result of which Daya Nand fell unconscious and taking Daya Nand to be dead, Satyawan and his wife Sunita alongwith their respective weapons, fled from the scene of occurrence. Thereafter, he and his family members took Daya Nand in a truck to the house of Jagbir, his son, at Rohtak, who got his son Daya Nand admitted in PGI MS Rohtak, where he succumbed to his injuries after some time. Accused Satyawan and his wife Sunita, in furtherance of their common intention, did commit the murder of Daya Nand. The motive behind the murder was that a couple of days before , CRIMINAL APPEAL NO. 231-DB OF 2001 -4- there had been some bickerings of the women folk in the fields. Wife of Satyawan accused came to their field and caused injuries to Neelam, wife of Daya Nand. Wife of Satyawan also sustained some injuries, in self defence, who got herself medico-legally examined from the doctor and got registered a false case against Daya Nand. On that account accused Satyawan was having a grudge, who took along his wife and opened an attack on his family members and did commit the murder of Daya Nand, his son.” It has come on record that the police reached PGIMS Rohtak on receipt of telephone message and thereafter the Investigating Officer – SI Ram Phal recorded statement of Chander Singh, named above. It is necessary to mention here that in the meantime, the deceased was medico- legally examined by Dr. Deepak Bhardwaj (PW4) on July 18, 1998. Following injuries were found at his person: “1. 6 x 3 cm lacerated wound present in midline region of umbilicus with inverted margins, depth not probed. Fresh bleeding was present. Advised Surgeon opinion. 2. 8 x 4 cm lacerated wound just above left side of forehead. Advised Surgeon opinion. 3. 1 x 2 cm lacerated wound just below left eye over face. Advised Surgeon's opinion. 4. Bleeding mouth, swelling upper lips. Dental Surgeon opinion.” Daya Nand succumbed to his injuries on that very date. The CRIMINAL APPEAL NO. 231-DB OF 2001 -5- Investigating Officer prepared the inquest report and sent the dead body for post-mortem examination, which was conducted by Dr. G.N.Aggarwal on July 18, 1998, who found the following injuries on the person of the deceased. “1. An oval shape lacerated wound 6 x 3 cm in midline vertically in the region of umbilicus with inverted margins. Blackening of the margin at many places. The treck was followed pointing downwards and backward. Dissection followed . And shows tearing of small cut loops, mesentery, fatty tissue, soft tissue, muscles, tearing rectum and rousing and reaching to sacrum curuture and bullet is taken out. Different pieces of bullet of metal, wooden taken and then sealed in a packet, having two seals handed over to the police along with sample seal. Five pieces of bullet were sealed in it. 2. 1 cm x 2 cm lacerated wound just below left eye with underlying blood and fracture of maxilla present. 3. 8 x 4 cm lacerated wound over the left side of forehead, transversely placed 5 cm above the left eye brow. Underlying blood seen. Fracture of frontal bone and blood collection was seen in subarachnoid, sub-dural extra dural space with hemisphere left. 4. A lacerated wound 1 cm x 0.5 cm over the front of neck just below chin, underlying echymosis, transversely placed. 5. 1 cm x 0.5 cm incised wound over the front of chin obliquely placed downward and upward with underlying blood. 6. 2.5 x 0.5 cm incised wound over the left cheek vertically CRIMINAL APPEAL NO. 231-DB OF 2001 -6- placed ½ cm deep reaching to the left side of nose. 7. Swelling of upper lip bluish red in colour with blood in mouth, nostrils extending upper incisor teeth region. 8. An incised wound 5 cm x 0.5 cm deep over the left parietal region vertically placed 5 cm above the injury No. 3, underlying blood present. 9. A contusion 2 x 2 cm bluish red in colour with underlying echymosis on left side of neck just below the angle of mandible.” As per opinion of the witness, cause of death was shock and haemorrhage, due to above mentioned injuries, which were ante mortem in nature and sufficient to cause death in ordinary course. It was allegation of the prosecution that Satyawan (A-1) was armed with a DBBL licensed gun , whereas his wife Sunita was armed with a Jaili. As per opinion of Dr. G.N.Aggarwal (PW12) dated October 16, 1998 (Ex. PT/1), injuries No. 5, 6 and 8 were found to have been caused with a Jaili, whereas injuries No. 2, 3, 4, 7 and 9 were caused with Butt of the gun. Injury No. 1 was fire-arm injury. After registration of FIR, SHO – SI Ram Phal (PW17) got prepared a rough site plan with correct marginal notes. He also lifted blood- stained earth from the spot and took the same into his possession against a recovery memo. He also lifted from the spot four teeth of the deceased Daya Nand, two slippers of black colour and took the same into his possession vide recovery memos. He also took into possession two pieces of wads and small pieces of pallet of .12 bore gun vide recovery memos. He CRIMINAL APPEAL NO. 231-DB OF 2001 -7- also developed foot print of the assailants from the spot with the help of plaster of Peris and it was removed and taken into possession. Appellants – accused were arrested on July 20, 1998. On interrogation, they suffered disclosure statement, which led to the recovery of .12 bore DBBL gun (Ex. P2) and a Jaili (Ex. P1). Two empties were recovered from the gun and were sent to the Forensic Science Laboratory for examination. On completion of investigation, final report was put in Court for trial. Appellants were charge-sheeted, to which they pleaded not guilty and claimed trial. Prosecution produced 17 witnesses and also brought on record documentary evidence to prove its case. On conclusion 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. They controverted the same, pleaded innocence and false implication. It was further asserted by both of them that they have falsely been implicated in this case at the instance of Jagbir PW, another brother of the deceased, who had an evil eye on their land. They also led evidence in defence. Trial Court, on appraisal of evidence, as led by the parties, found the appellants guilty , convicted and sentenced them, as mentioned in earlier part of this order. Shri P.S.Hundal, Senior Advocate, counsel for the appellants has vehemently contended that the prosecution has miserably failed to link the appellants – accused with the alleged crime. By indicating discrepancies in the statements made by the prosecution witnesses, he argued that their testimony was not believable. He made special reference to the statement, made by Chander Singh (PW14), at whose instance FIR CRIMINAL APPEAL NO. 231-DB OF 2001 -8- was recorded , to say that this witness has failed to support case of the prosecution. He further argued that Bhagwani, mother of the deceased, was summoned as a Court witness and in Court, she also failed to support case of the prosecution. To challenge statement made by Neelam wife of the deceased, he argued that she was an interested witness and at her sole testimony, without any corroboration, conviction of the appellants cannot be ordered. He further argued that there is a discrepancy so far as injuries, received by the deceased are concerned. Dr. Deepak Bhardwaj (PW4), who medico-legally examined the deceased, found only four injuries, on person of the deceased, whereas at the time of post-mortem examination, Dr. G.N.Aggarwal (PW12) found nine injuries on the dead body of the deceased. He further argued that the additional injuries found at the time of post-mortem examination were on face of the deceased and it was not possible to ignore them at the time of first medico-legal examination. He also argued that so far as presence of appellant No. 2 at the spot is concerned, the same is not proved. Weapon of offence, i.e., Jaili was not found stained with blood. In the alternative, without conceding anything, he argued that the injuries, caused by Sunita, were simple in nature. It cannot be said that she was sharing any common intention with her husband to kill Daya Nand. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellants be acquitted of the charges framed against them. Prayer made by counsel for the appellants has vehemently been opposed by Shri Ajay Kumar Gupta, Additional Advocate General, Haryana, who, by making reference to the statements of Neelam (PW11) (wife of the deceased) and Smt. Bhagwani (PW13), (mother of the CRIMINAL APPEAL NO. 231-DB OF 2001 -9- deceased), argued that the prosecution has fully proved its case, as per documentary evidence, which was collected during the investigation. He argued that the trial Court was justified in convicting and awarding sentence to the appellants – accused. He further argued that both the appellants came armed at the place of occurrence. A shot was fired by Satyawan (A-1) at the deceased, who fell down and then injuries were caused by both the appellants to ensure his death, as such Sunita cannot escape her liability for murdering Daya Nand. He prayed that the appeal, having no substance, be dismissed. After hearing counsel for the parties, this Court is convinced that both the appellants have participated in the alleged crime. A vivid description as to how Daya Nand was killed has been given by Neelam (PW11), wife of the deceased. She has authenticated the version, which is found mentioned in the FIR, as reproduced in earlier part of this order. The trial Court has noted that during the course of examination-in-chief, this witness, when in Court, continued to weep throughout. It was a day time occurrence. It is not possible that Smt. Neelam (wife of the deceased) will leave the real culprits out and falsely implicate Satyawan, her real brother- in-law, for murder of her husband. Despite lengthy cross-examination, defence has failed to shatter her testimony. She has given minute details of the occurrence, in which her husband was killed. She has also stated regarding motive on the part of the appellants to cause injuries to the deceased. She has made reference to her earlier altercation with Sunita (A- 2) in that regard. Case of the prosecution was further supported by Smt. Bhagwani (PW13), mother of the deceased and appellant No. 1. When she appeared in the witness-box on March 12, 1999, she fully supported case of CRIMINAL APPEAL NO. 231-DB OF 2001 -10- the prosecution. Version, given by her, was exactly the same as depicted by Smt. Neelam (PW11). Despite lengthy cross-examination, she did not faulter and stood the test. Thereafter, it appears that the appellants manipulated the things. Bhagwani executed an affidavit in favour of the appellant stating therein that they were falsely implicated at the instance of Jagbir, her another brother-in-law. She was called as a Court witness on January 7, 2000. Then in Court, she tried to favour the appellants – accused. When she appeared as a Court witness, she admitted that she had earlier deposed, on oath, in Court against the appellants. Under these circumstances, this Court feels that no benefit can be given to the appellants – accused on the basis of second statement made by Smt. Bhagwani (PW13). It is true that Chander Singh, complainant, (PW14) failed to support case of the prosecution and he was declared hostile. However, in the face of ample evidence on record, it can be said that this witness was won over by the appellants – accused. The witness has admitted his thumb- impression on his statement made to the police. However, it was stated that those were obtained on a blank paper. It was further stated that things were manipulated by Jagbir, brother of the deceased. Nothing has come on record to show that why Jagbir will side with the deceased and not the appellants, especially when on a complaint, made by the deceased, adverse order was passed against above said Jagbir regarding his entry in service. Medical evidence on record suggests that death was primarily the result of fire-arm injury. As per Doctor's opinion, shot was fired from a very close range. Dr. G.N.Aggarwal (PW12) has further said that other injuries were caused with Butt of the gun and Jaili by using it Lathiwise. Counsel for the appellants, by making reference to the CRIMINAL APPEAL NO. 231-DB OF 2001 -11- discrepancies regarding number of injuries on the person of the deceased, tried to argue that appellant No.2's participation was not proved on record. So far as gun shot injury to the deceased is concerned, the same is sufficiently proved on record. On a disclosure statement made, .12 bore DBBL gun was recovered with two empties therein. Jaili was recovered from Sunita (A-2). At the time of post-mortem examination, pallets were taken out from the dead body and the same were sent for examination. Similarly, gun , empties and the wads , taken into possession from the place of occurrence, were also sent for Forensic Science Laboratory's examination. As per report Ex. PX of the Forensic Science Laboratory, following was the result of examination: “1. The 12 bore DBBL gun marked W/1 is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working order. 2. 12 bore fired cartridge cases marked C/1 and C/2 have been fired from right and left barrels respective of 12 bore DBBL gun W/1 and not from any other fire-arm even of the same make and bore, because every firearm has its own individual characteristic marks. 3. The lead slug marked BC/1 is fired lead slug of weight 29.176 cm. Such lead slug is usually loaded in .12 bore cartridge. 4. The fired lead slug marked BC/1 has been fired from right barrel of 12 bore DBBL gun W/1 and not from any other firearm even of the same make and bore, because every firearm has got its own individual characteristic marks. CRIMINAL APPEAL NO. 231-DB OF 2001 -12- 5. Split wads contained in parcel No. III were found to be card- board split wards of 12 bore cartridge. 6. Non-metallic piece contained in parcel No. III could be piece black plastic wad.” Merely because, at the time, when gun was recovered, no independent witness was joined, case of the prosecution cannot be discarded. Further because there is no independent corroboration, the case of the prosecution will not fail. It has been so observed by their lordships of the Supreme Court in Rajinder Singh v. State of Bihar, AIR 1998 Supreme Court 2903. In that case, testimony of a relation witness was found to be trust-worthy. Same is the opinion of their lordships of the Supreme Court in Teja Singh v. Mukhtiar Singh, AIR 1995 Supreme Court 2411. In view of above evidence, motive to commit the crime is also proved on record. Consequently, it can be safely said that both the accused had participated at the time of alleged occurrence. It can be held that Satyawan (A-1) has committed murder of his brother Daya Nand. Now it is to be seen as to whether Sunita (A-2) had also shared common intention to commit that crime or not. At the time of arguments, an attempt has been made to show that A-2 was not present at the spot. To say so, reference was made to the injuries of the deceased, which were detected at the time of medico-legal examination and thereafter on post-mortem examination. Injuries, alleged to have been caused by Sunita (A-2) were not detected when deceased was originally examined by Dr. Deepak Bhardwaj (PW4). In cross-examination, this witness has stated that condition of the patient was very serious. Primary concern was to save his life, due to which some CRIMINAL APPEAL NO. 231-DB OF 2001 -13- minor injuries may have escaped notice at the time of medico-legal examination. This version appears to be correct. Injuries, alleged to have been inflicted with Jaili, are simple in nature. It is case of the prosecution that Smt. Sunita (A-2) was holding a Jaili. Fatal shot was fired upon the deceased by Satyawan (A-1). All injuries caused thereafter either by Satyawan or Sunita , appellants, were found simple in nature. It has also come on record that the Jaili was not found stained with blood. Appellant No. 2 never used Jaili thrustwise so as to cause grievous hurt to the deceased. As per case of the prosecution, weapon was used Lathiwise. Under these circumstances, it appears that Sunita (A-2) never shared any common intention, with her husband,to commit murder of Daya Nand. Otherwise also, it was a chance meeting between the parties. The motive to commit the crime was only a small altercation, which had taken place between the parties on some earlier date. Smt. Sunita (A-2) had remained behind bars for more than 4 ½ years. In view of above, no case is made out to hold her vicarious liable for any act done by Satyawan (A-1), her husband. Accordingly, she is held guilty for her own individual act only. In view of facts, mentioned above, Criminal Appeal No. 231- DB of 2001 qua Satyawan is dismissed and he is held guilty for commission of offences punishable under Sections 302 IPC and 27 of the Arms Act, 1959. Sentences awarded to him by the trial Court are maintained. Qua appellant No. 2, namely, Sunita, appeal is partly allowed. She is convicted for commission of an offence punishable under Section 324 IPC. Taking note a fact that she had already undergone 4 ½ years of actual sentence, it is presumed that her period of imprisonment is over. However, to settle equity between the parties and by invoking the CRIMINAL APPEAL NO. 231-DB OF 2001 -14- provisions of Section 357 Cr.P.C., it is ordered that Sunita (A-2) shall deposit an amount of Rs. 50,000/- in the trial Court, within two months from today. On deposit so being made, the trial Court shall disburse that amount to Smt. Neelam (PW11) wife of the deceased forthwith. If the amount is not deposited within the stipulated period, Smt. Neelam shall have the right to recover the same through process of law. Conviction and sentence of Sunita (A-2) under Section 302/34 IPC is set aside and she is acquitted of that charge, framed against her. In view of findings recorded above, Criminal Revision No. 1805 of 2001 is dismissed. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE November 10, 2009. DKC