Crl. Appeal No.259-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.259-DB of 1998 Date of Decision: 06.02.2008 Naresh and another ....Appellants. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. Arshwinder Singh, Advocate for the appellants. Mr.J.S. Toor, Addl. A.G., Haryana for the respondent. ... J.S. Khehar, J. Through the instant order, we propose to dispose of Criminal Appeal No.259-DB of 1998, filed at the hands of appellants – Naresh and Suraj Bhan, as well as, Criminal Appeal No.473-SB of 1998 filed at the hands of Naresh, by a common order. Criminal Appeal No.259-DB of 1998 has been filed against the order dated 27.4.1998 passed by the Additional Sessions Judge, Hisar, in Case No.37 of 1996. By the impugned judgement, the appellants – Naresh and Suraj Bhan have been held guilty for having committed the murder of Dal Bahadur, under Section 302 read with Section 34 of the Indian Penal Code. The appellants have also impugned the order dated 29.4.1998 by which both the appellants – Naresh and Suraj Bhan have been sentenced to Crl. Appeal No.259-DB of 1998 2 undergo life imprisonment under Section 302 of the Indian Penal Code and to pay a fine of Rs.2,000/- each. The prosecution version of the incident emerges from the complaint made by Krishan Bahadur PW6, the father of the deceased – Dal Bahadur, to the police, on 26.9.1995. In his complaint, Krishan Bahadur had asserted, that he had two sons and one daughter. He alongwith his two sons, was employed at the stud farm at Hisar. While the elder son of Krishan Bahadur i.e. Dil Bahadur was employed on daily wage basis, his younger son Dal Bahadur was employed as a horse attendant. About three years before the date of occurrence of the incident under reference, a quarrel is stated to have taken place between his son Dal Bahadur and accused/appellant – Naresh. The accused/appellant – Naresh is also stated to be a horse attendant at the said farm. On the basis of the complaint made by Naresh in the aforesaid incident, his son Dal Bahadur was challaned, but was subsequently acquitted. It was alleged that the accused/appellant – Naresh was bitter on account of the fact, that Dal Bahadur was not punished. In order to take revenge from Dal Bahadur, the accused – Naresh alongwith his friend Suraj Bhan picked up a quarrel with Dal Bahadur at 11.00 AM on 26.9.1995. The factum of the aforesaid quarrel was communicated to the complainant – Krishan Bahadur PW6 by Sat Pal. On being informed about the quarrel between his son Dal Bahadur, on the one side and the accused/appellants Naresh and Suraj Bhan, on the other, the complainant – Krishan Bahadur PW6 allegedly proceeded towards the place of the quarrel. At the spot, the complainant – Krishan Bahadur PW6 saw his son Dal Bahadur being beaten by the accused/appellants – Naresh and Suraj Bhan. He, accordingly, raised an alarm. On hearing the alarm raised Crl. Appeal No.259-DB of 1998 3 by the complainant – Krishan Bahadur PW6, Ramesh a resident of the stud farm, who was on duty, came to the spot. On seeing the complainant – Krishan Bahadur PW6 and the aforesaid Ramesh, the two accused/appellants Naresh and Suraj Bhan allegedly ran away. When the complainant – Krishan Bahadur PW6 went to the spot where his son Dal Bahadur was lying, he found him to be unconscious, and in a pool of blood, he also found that a number of injuries had been caused on his person by a sharp edged weapon. The complainant – Krishan Bahadur PW6 then allegedly took his son Dal Bahadur in a government vehicle to the MI room located in the stud farm itself, where he was examined by the doctor on duty, and was declared dead. The complainant – Krishan Bahadur PW6 then took the dead body of his son Dal Bahadur to the Government Hospital, Hisar in the same vehicle. Thereafter, while he was on his way to the police to make a report, he met SI Sat Narain PW10 and recorded his statement. On the basis of the statement of the complainant – Krishan Bahadur PW6, FIR bearing No.511 was registered at Police Station Sadar Hisar in District Hisar, on 26.9.1995. On the completion of the investigation, a challan was presented by the prosecution in the Court of the Additional Chief Judicial Magistrate, Hisar, on 22.12.1995. The Additional Chief Judicial Magistrate, Hisar, concluded that a prima-facie case punishable under Section 302 of the Indian Penal Code was made out against the accused. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Additional Chief Judicial Magistrate, Hisar, by an order dated 22.12.1995 committed the case to the Court of Session. The Additional Sessions Judge, Hisar, by his order dated Crl. Appeal No.259-DB of 1998 4 4.1.1996, having arrived at the conclusion, that the accused/appellant – Naresh had prima-facie committed the murder of Dal Bahadur, charged him having committed the offence under Section 302 of the Indian Penal Code, whereas Suraj Bhan, having participated in the aforesaid act on account of entertaining a common intention for the aforesaid purpose with accused – Naresh, was charged with the offence, punishable under Section 302 read with Section 34 of the Indian Penal Code. The accused when confronted with the charges levelled against them pleaded not guilty and claimed trial. In order to substantiate the charges levelled against the accused, the prosecution examined a number of witnesses. A brief description of the deposition of the witnesses examined by the prosecution before the trial Court, is being summarised hereunder. The prosecution first of all, produced DSP Hukam Singh as PW1. In his deposition, he stated, that he was posted as SHO, at Police Station, Sadar Hisar and was holding the rank of Inspector on 14.7.1991. He further stated, that ASI Ramesh Chand had investigated the case FIR No.265 dated 26.5.1991 under Section 324 read with Section 34 of the Indian Penal Code, registered at Police Station Sadar Hisar. After the completion of the investigation, he had prepared a challan against Dal Bahadur (the deceased in this case) and his brother Dil Bahadur, sons of the complainant Krishan Bahadur PW6. He also produced on record Ex.PA i.e. the First Information Report, registered under Section 154 of the Code of Criminal Procedure which had been signed by him in respect of FIR No.265 dated 26.5.1991. It would be pertinent to mention, that the instant evidence was produced at the hands of the prosecution in order to demonstrate the motive for Naresh for having Crl. Appeal No.259-DB of 1998 5 committed the murder of Dal Bahadur in the instant case. The prosecution produced Shamsher Singh, Draftsman, Hansi, as PW2. He is stated to have visited the place of occurrence and prepared the scaled site plan Ex.PC. Constable Ashok Kumar was produced by the prosecution as PW3 and deposed that he had delivered the special report to the Ilaqa Magistrate, Hisar, at 5.30 PM. It would also be pertinent to mention, that the aforesaid assertion at the hands of Constable Ashok Kumar PW3 was disputed by asserting, that the time recorded on the special report when it was delivered to the Ilaqa Magistrate, was 8.00 PM and not 5.30 PM, as stated by him. On 13.12.1996, the public prosecutor made a statement giving up Tara Chand, Sant Lal and Sudan on account of the fact, that they had been won over by the accused. He also gave up Vimal Singh and Raj Kumar as unnecessary. The statement of Dr. Rama Jain, Medical Officer, Civil Hospital, Hisar, was recorded as PW4. Dr. Rama Jain PW4 had conducted the postmortem examination on the dead body of Dal Bahadur. The postmortem report noticed the following injuries on the dead body of Dal Bahadur:- “1. A lacerated wound was present on right lower chest measuring 2.5 cm x 2 cm, in a transverse position, probe went 1 cm deep in the wound. On dissection, the sub-cutaneous tissues were permeated with blood. 2. An incised wound was present in the right lumber region on the back of the size of 3.5 cm x 2 cm. On dissection, the under lying tissues were permeated with blood. The probe went deep (Blindly) in the cavity. 3. Lacerated wound was present on left leg of the size of 1 cm x 5 cm in the middle portion on antero-lateral aspect. The tissues Crl. Appeal No.259-DB of 1998 6 were permeated with blood.” As per the statement of Dr. Rama Jain PW4, in her opinion, the cause of death of Dal Bahadur was due to shock and haemorrhage, as a result of the injuries found on his body. It was also opined, that the injuries were ante- mortem in nature, and were sufficient to cause death in the ordinary course of nature. The prosecution produced Dr. B.L. Bagri, Medical Officer, General Hospital, Hisar as PW5. He deposed, that on 26.9.1995, at 1.00 PM, he had conducted medico-legal examination on accused – Naresh and found the following injuries on his body:- “There was lacerated wound 4½ x 2 cm in the mid of left parietal region, placed horizontally, 6 cm, away from left ear. Fresh bleeding was present X-ray was advised and was referred to surgeon for expert opinion. He also examined accused – Suraj Bhan and found the following injuries on his person:- “1. There was scabbed injury 2 x 2cm on the palmer aspect and proximal part of right index finger, placed horizontally. 2. There was scabbed injury 2 x 2 cm on the palmer aspect and mid of middle finger of right hand, placed obliquely.” In the opinion of Dr. B.L. Bagri PW5, all the injuries on the person of accused/appellants – Naresh and Suraj Bhan, were simple in nature, and that, the said injuries could have been caused by a fall on a hard surface. The statement of Dr. Major A.K. Singh was recorded as PW7. He deposed that he had examined Dal Bahadur on 26.9.1995 at 11.15 AM when he had been brought to the MI room on the stud farm by Krishan Bahadur PW6. After making efforts of cardio-respiratory resuscitation, he had declared Dal Crl. Appeal No.259-DB of 1998 7 Bahadur dead at 12.10 PM. The dead body of Dal Bahadur was then taken to Civil Hospital, Hisar, and Dr. Major A.K. Singh PW7 had accompanied the dead body to the Civil Hospital, Hisar. The statement of Inspector Jai Parkash Gautam was recorded as PW8. He deposed, that he had, on completion of the investigation, challaned both the accused in this case. The statement of Dil Bahadur son of the complainant Krishan Bahadur PW6, as also, the brother of the deceased – Dal Bahadur was recorded as PW9. Dil Bahadur PW9 was a witness to the disclosure statement made by the accused/appellant – Naresh i.e. that he had concealed the knife with which he had inflicted injuries on the body of Dal Bahadur, behind the Pirbaba Majar, in the bushes. The disclosure statement of the accused/appellant – Naresh was recorded as Ex.PS, and was witnessed by Dil Bahadur PW9. The aforesaid disclosure statement also indicated the place where the accused/appellant – Naresh had kept concealed in his house the clothes he had worn at the time of occurrence. On the basis of the disclosure statement made by the accused/appellant – Naresh, the knife (Ex.P1) used in the incident was recovered from the bushes near the Pirbaba Majar, whereupon recovery memo Ex.PT was recorded. A separate recovery memo was recorded in respect of the clothes recovered from his house (Ex.PV). SI Sat Narain was produced by the prosecution as PW10. In his deposition, he affirmed that on 26.9.1995, he recorded the statement of the complainant Krishan Bahadur PW6, on the basis whereof, First Information Report (Ex.PT) was registered by SI Mange Ram. He also claimed to have prepared the report Ex.PA at the place of occurrence and having recorded the statement of Vimal Singh and Raj Kumar (since given up) on the same date as he had recorded the complaint of Krishan Bahadur. Crl. Appeal No.259-DB of 1998 8 He also claims to have lifted blood stained earth and made a parcel thereof, as also, a separate parcel containing the clothes of the deceased – Dal Bahadur and had handed over the same to Constable Om Parkash, with seals intact. He also affirmed, that he had arrested the accused – Naresh whilst he was loitering at the local bus stand, near the court complex, after he was identified by Dil Bahadur PW9. He also deposed that he had recorded the disclosure statement of accused – Naresh and made the recoveries on the basis thereof. He also stated, that Sat Pal and Ramesh were eye witnesses to the occurrence, and that, he had recorded the statements of Sudan, Tara Chand and Sant Lal. It was clarified, that according to their statements, Sudan, Sant Lal and Tara Chand, who had taken deceased – Dal Bahadur from the place of occurrence to the MI room. He acknowledged, that in their statements, there was no mention that the complainant Krishan Bahadur PW6 had taken the deceased – Dal Bahadur from the place of occurrence to the MI room. On 27.3.1997, the Public Prosecution made a statement giving up Head Constable Pat Ram as unnecessary. He tendered into evidence the report of the Assistant Director, Biology, Forensic Science Laboratory, Madhuban, and the report of the Assistant Director, Physics, Forensic Science Laboratory, Madhuban and closed the prosecution evidence. The statement of the accused/appellant – Naresh was recorded under Section 313 of the Code of Criminal Procedure on 24.4.1997, whereas the statement of accused – Suraj Bhan under Section 313 of the Code of Criminal Procedure, was recorded on 25.4.1997. In his statement, the accused/appellant – Naresh asserted, that he had been implicated in this case due to previous enmity, and on account of suspicion, whereas the Crl. Appeal No.259-DB of 1998 9 accused/appellant – Suraj Bhan stated, that he has been falsely implicated, and that, he was innocent. Without producing any ocular or other evidence, defence evidence was closed on 24.3.1998 on the basis of the statement of the accused. The Additional Sessions Judge, Hisar delivered the judgement in Case No.37 of 1996, on 27.4.1998, wherein the accused/appellant – Naresh was held guilty under Section 302 of the Indian Penal Code for having committed the murder of Dal Bahadur, whereas the accused/appellant - Suraj Bhan was held guilty and convicted under Section 302 read with Section 34 of the Indian Penal Code. Having heard the accused on the question of sentence, the Additional Sessions Judge, Hisar, by an order 29.4.1998 sentenced the accused/appellants – Naresh and Suraj Bhan to undergo imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code and to pay a fine of Rs.2,000/- each. A perusal of the evidence produced by the prosecution, as well as, the judgement rendered by the Additional Sessions Judge, Hisar, reveal that while holding the appellants guilty of the murder of Dal Bahadur, the trial Court, strongly relied on the statement of the complainant – Krishan Bahadur PW6, who was also the father of the deceased – Dal Bahadur. The statement of complainant – Krishan Bahadur PW6 was given effective weightage as he was eye witness to the occurrence. The evidence produced through DSP Hukam Singh PW1 in connection with the challan produced against the deceased – Dal Bahadur and his brother Dil Bahadur PW9, was relied upon to establish the motive for the accused/appellant Naresh for having committed the crime. The disclosure statement made by the accused/appellant – Naresh, as also, the recovery memos recorded Crl. Appeal No.259-DB of 1998 10 thereupon on the basis of which the knife used by accused – Naresh for inflicting injuries on the deceased – Dal Bahadur, as well as, the clothes worn by him at the time of occurrence, were also relied upon to link the the accused/appellant – Naresh with the occurrence. The medical evidence of Dr. B.L. Bagri PW5, who had conducted the medico-legal examination of the accused/appellants – Naresh and Suraj Bhan, depicting that they had simple injuries on their bodies, was also taken into consideration to arrive at the conclusion, that the parties had quarrelled amongst themselves before the accused/appellant – Naresh inflicted injuries with a knife on the body of deceased – Dal Bahadur. The aforesaid statement of Dr. B.L. Bagri PW5, was accepted as the basis for substantiating the statement made by Sat Pal to Krishan Bahadur PW6 which had in turn prompted Krishan Bahadur PW6 to rush to the place of occurrence. On the basis of the aforesaid evidence, the trial Court recorded the guilt of the accused/appellant – Naresh and Suraj Bhan for the murder of Dal Bahadur. It is the vehement contention of the learned counsel for the appellants, that this Court should totally discard the statement of complainant – Krishan Bahadur PW6 since the same is false. It is asserted by the learned counsel for the appellants, that there is sufficient material on the record of this case to establish, that the complainant – Krishan Bahadur PW6 was not at the place of occurrence, when the alleged incident had taken place, and that, Krishan Bahadur PW6 had made up a false and fabricated story so as to implicate the accused. In order to demonstrate, that the complainant – Krishan Bahadur PW6 did not witness the occurrence, learned counsel for the appellants invited the Court's attention to the statement of complainant – Krishan Bahadur PW6, wherein he had stated, Crl. Appeal No.259-DB of 1998 11 that his son deceased – Dal Bahadur had been held by Suraj Bhan, whereas the accused/appellant – Naresh was giving knife blows to him. Coupled with the aforesaid factual position, learned counsel for the appellants has invited the Court's attention to the report of the postmortem examination conducted on the dead body of Dal Bahadur, revealing that only one incised wound was found on his dead body. It is, therefore, the contention of the learned counsel for the appellants, that statement of complainant – Krishan Bahadur PW6 is clearly falsified by a medical evidence placed on the record of this case. Whereas, the medical evidence depicts only one injury that could have been inflicted by a knife, the statement of complainant – Krishan Bahadur PW6 reveals, that accused – Naresh had given “knife blows” to his son in his very presence. Secondly, in order to demonstrate, that complainant – Krishan Bahadur PW6 could not have been at the place where the incident had taken place so as to witness of the occurrence, learned counsel for the appellants invited the Court's attention to the statement of Dil Bahadur PW9, wherein he had affirmed that the place of occurrence was at a distance of 1 km. from their residence. It is, therefore obvious, that the complainant – Krishan Bahadur PW6 must have taken some time to reach the place of occurrence after an equal amount of time was taken by Sat Pal, who, had come from the place of occurrence to his residence to inform him that a quarrel was taking place between his son Dal Bahadur, and the accused/appellants – Naresh and Suraj Bhan. In other words, first Sat Pal covered a distance of 1 km. to inform complainant – Krishan Bahadur PW6, and then, Krishan Bahadur travelled the same distance of 1 km. to reach the place of occurrence. It is the contention of the learned counsel for the appellants, that covering a distance of 2 kms. Crl. Appeal No.259-DB of 1998 12 would have taken 10 or more minutes even if the entire distance was covered running, and that, it cannot be believed that the accused/appellants Naresh and Suraj Bhan would have waited for Krishan Bahadur PW6 to reach the spot, before they inflicted knife injuries on Dal Bahadur. Thirdly, it is the contention of the learned counsel for the appellants, that Sat Pal who had communicated the factum of the quarrel between the deceased – Dal Bahadur and the accused – Naresh and Suraj Bhan, was not produced by the prosecution to prove its case. Additionally, it is pointed out that Ramesh who had come to the spot when the complainant – Krishan Bahadur PW6 had raised an alarm, has also not been examined. These witnesses, according to the learned counsel, had not been examined because their statements would have been against the prosecution version. Lastly, the learned counsel for the appellants, in order to demonstrate that the complainant – Krishan Bahadur PW6 was not at the place of occurrence, has invited the Court's attention to the statement of SI Sat Narain PW10 wherein he had affirmed, that he had recorded the statements of Sudan, Sant Lal and Tara Chand who had, according to their statements, taken the the deceased – Dal Bahadur from the place of occurrence to the MI room on the stud farm, and that, in their statements, there was no mention that the complainant – Krishan Bahadur PW6 had taken the deceased – Dal Bahadur from the place of occurrence to the MI room, can also not be ignored. Additionally, it is submitted, that the occurrence allegedly took place at 11.00 AM, the First Information Report is stated to have been registered at 3.40 PM, and the special report in connection therewith was delivered to the Ilaqa Magistrate at 8.00 PM. It is the submission of the learned counsel for the appellants, that there is no explanation for the delay. It is, therefore submitted, that the Crl. Appeal No.259-DB of 1998 13 aforesaid delay was the result of the prosecution in making up a fake and concocted story to implicate the accused/appellants Naresh and Suraj Bhan. Having considered the aforesaid submissions advanced at the hands of the learned counsel for accused/appellants, we find merit therein. The submissions advanced by the learned counsel for the accused/appellants to the effect, that the medical evidence only substantiates one knife injury (besides two other lacerated wounds) on the body of deceased – Dal Bahadur, whereas, the eye witness account of the occurrence by the complainant Krishan Bahadur PW6, expresses that deceased – Dal Bahadur was held back by Suraj Bhan whilst the accused/appellant – Naresh was giving him blows with a knife. If deceased – Dal Bahadur had actually been held back by the accused Suraj Bhan, there would be ample opportunity for the accused Naresh to give a number of blows to him. The statement made by the complainant Krishan Bahadur PW6, would have been fully justified, if a number of blows inflicted with a knife had been found on the person of deceased – Dal Bahadur. Since the fact, that the body of Dal Bahadur bore only one incised injury, it will be natural to conclude, that his body had just one injury which could have been caused with a knife. There is no explanation to the submission made by the learned counsel for the accused/appellants, which in our view, is a serious discrepancy. Had there been any other witness to the occurrence, the matter may have been different. In the instant case, the only witness to the occurrence is the complainant Krishan Bahadur PW6. One cannot lose sight of the fact, that there were a number of witnesses closely associated to the occurrence, as for instance, Sat Pal who had gone to the residence of Krishan Bahadur PW6 to inform him that the rival parties to the occurrence were quarrelling. And Crl. Appeal No.259-DB of 1998 14 also, Ramesh who allegedly raised an alarm alongwith Krishan Bahadur PW6 at the place of occurrence. Sat Pal and Ramesh were both independent witnesses and their testimony in the case, would have made all the difference and would have gone