Crl.Appeal No.400-DB of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.400-DB of 2003 Date of decision: 23.3.2010 Ram Sukh ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Dhruv Dayal, Advocate, Amicus Curiae, with Mr.Swaraj Arora, Advocate, for the appellants. Mr.S.S.Randhawa, Addl.AG, Haryana. ... JORA SINGH, J. Ram Sukh son of Nanku Ram, resident of Shivaji Colony, Hansi Raod, Karnal, preferred this appeal to impugn the judgment of conviction dated 25.3.2003 and order of sentence dated 26.3.2003 passed by Sessions Judge, Karnal, in Sessions Case No.33 of 2002 arising out of FIR No. 332 dated 19.7.2002 under Section 302 IPC, Police Station City Karnal. By the said judgment, he was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for one year for committing murder of two persons. Prosecution story, in brief, is that on 19.7.2002, police party headed by SI Som Nath was present at culvert of a drain near Bhagwaria Gas Agency, Karnal, where Om Parkash, complainant had met him and reported that he is the resident of Shivaji Colony, Karnal. His factory is adjoining to his residential house. Ramsukh and his younger brother Ramjas along with their families are living in separate rooms in the Crl.Appeal No.400-DB of 2003 2 house, adjacent to his house. Their house was constructed by their father Nanku Ram and after his death, Ramjas along with his family members and Parbho Devi was residing in the said house. About one year back, Ramsukh son of Nanku Ram along with his family members had shifted from the village and started residing in the said house. Regarding partition of the said house, there was a dispute amongst the brothers and their wives also used to quarrel qua partition of the house. Ramsukh used to quarrel with his mother Parbho Devi for constructing another house, like the same house, but Parbho Devi used to make her both sons and their wives understand. Ramsukh wanted that only he should reside in the house, but both were helpless. 2-3 days earlier, there was an altercation amongst the brothers and their families and mother Parbho Devi. They were requested to wait for 2-3 days to find out a solution. Today, i.e., 19.7.2002 at about 4.30 AM, while going to the bath room, he had heard a noise. Then he had gone to the roof of the house. Ramsukh was sighted while holding a gadala/sabal and giving 2-3 blows on the head of Amrawati @ Anita wife of Ramjas, who on receipt of sabal blows had succumbed to her injuries on the spot. In the meantime, on hearing noise, Ramjas woke up and was about to get up, then Ramsukh gave sabal blow on his head. He along with Parbho Devi tried to rescue Ramjas. Parbho Devi also received injuries on her hand. After committing the crime, Ramsukh had fled away from the spot with the weapon. Parbho Devi with the help of 2-3 persons had shifted Ramjas to Civil Hospital. Ved Parkash was deputed to guard the dead body. After recording the statement of Om Parkash, same was read over and explained to him, who had signed the same in token of its correctness. After making endorsement at 10.15 AM, statement was sent to the Police Station, on the basis of which, formal Crl.Appeal No.400-DB of 2003 3 FIR (Ex.PB) was recorded. SI Som Nath along with party had gone to the spot. Photographer was summoned. Photographs of scene of occurrence were got clicked. Inquest report was prepared. Then dead body of Amrawati was sent to the hospital for postmortem examination. Gadda, baan and pillow stained with blood were lifted from the spot and made into sealed parcels with seal bearing impression `SN'. Sealed parcels were taken into police possession vide separate memo attested by the witnesses. Blood stained earth was also lifted from the place of occurrence and made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. Ruqa was received from Police Post, Civil Hospital, Karnal, regarding admission of Ramjas. After that, Investigating Officer had gone to Civil Hospital, Karnal, and moved an application for getting opinion of the doctor regarding fitness of the injured. But the doctor reported that injured was referred to PGI, Chandigarh. SI Som Nath was present near the dead house of Civil Hospital, Karnal, where Parbho Devi informed him regarding the death of Ramjas on the way when he was being shifted to PGI, Chandigarh. Inquest report qua dead body of Ramjas was prepared. Dead body was handed over to the police official for postmortem examination. After postmortem examination, dead body was handed over to the relatives of the deceased for cremation. On 20.7.2002, SI Som Nath along with party was present near Committee Chowk, Karnal, where Ram Kishan, Municipal Commissioner, had produced Ramsukh before SI Som Nath. Accused was arrested in this case and interrogated. In pursuance of disclosure statement suffered by the accused, he got recovered sabal from the specified place. Rough sketch of Crl.Appeal No.400-DB of 2003 4 sabal was prepared and made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in the Court. Accused was charged under Section 302 IPC, to which he pleaded not guilty and claimed trial. Prosecution examined Dr.S.L.Verma as PW1, who stated that on 19.7.2002, on the request of the police (Ex.PA), he made endorsement (Ex.PA/1) to the effect that Ramjas was referred to PGI, Chandigarh, in the morning at 9.15 AM. PW2 Constable Ashok Kumar stated that special report was delivered to the Ilaqa Magistrate at 3.00 PM. PW3 Constable Sanjay Kumar, Photographer, stated that on the request of the police, he had gone to the spot and had taken photographs (Ex.P1 to Ex.P3). Negatives thereof are Ex.P4 to Ex.P6. PW4 Constable Prem Kumar had prepared scaled site plan (Ex.PC). PW5 ASI Prem Singh had recorded formal FIR (Ex.PB) on receipt of ruqa (Ex.PD). PW6 Head Constable Randhir Singh tendered his affidavit (Ex.PE). PW7 Head Constable Suresh Kumar tendered his affidavit (Ex.PF). PW8 Om Parkash is the complainant, who has supported the prosecution story. PW9 Parbho Devi, mother of the appellant, has supported the prosecution story by saying that in her presence, Ramjas and Amrawati were Crl.Appeal No.400-DB of 2003 5 murdered. Death of Amrawati was on the spot on receipt of sabal blows. Ramjas was shifted to Civil Hospital, Karnal, from where he was referred to PGI, Chandigarh, and on the way, he succumbed to his injuries. PW10 Ved Parkash is the eye witness, who has supported the version of Om Parkash (PW8) and Parbho Devi (PW9). PW11 Dr. Rakesh Girdhar stated that on 19.7.2002 at about 6.00 PM, he had conducted postmortem examination on the dead body of Amrawati and found to the following injuries on her person:- “1. 2x2 cm two abrasions on dorsum of second and third fingers and dorsum of wrist of right hand. 2. 5 cm x 1 cm lacerated wound on right side of forehead vertically placed starting at right eye brow at mid part, underlying bone was intact. 3. 5 cm x 1 cm lacerated wound on right fronto temporal region of scalp starting at hair line going backwards and upwards. Exploration of the wound revealed fracture of underlying skull bone with laceration of meninges and huge haemotoma of six 10 cm x 8 cm x 1 cm in right temporal region with laceration of superficial part of brain in region corresponding to fracture. 4. 4 cm x 1 cm lacerated wound in right temporal region of scalp, 8 cm above and in line with upper and of pinna underlying bone was intact. On the same day, i.e., 19.7.2002, at about 6.30, he had conducted postmortem examination on the dead body of Ramjas and found the following injuries on his person:- Crl.Appeal No.400-DB of 2003 6 “1. Bluish contusions on both the eyes with 2 cm stitched wound on left side of forehead with two stitches. 2. 1 cm stitched wound on left side of face, 2 cm in front of ear. 3. 5 cm stitched wound on the left temporal region of scalp, 5 cm above left pinna. 4. 2 cm x 2 cm abrasion on left pinna.” Injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Probable time that elapsed between the injuries and death was variable and between death and postmortem within 24 hours. PW12 SI Som Nath is the Investigating Officer. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that he was falsely implicated in this case. In defence, Dr. Rajinder Kumar Bajoria appeared as DW1 and stated that on 19.7.2002 at about 6.30 AM, Ramjas, injured, was brought to the hospital by Ved Parkash, Parbho Devi and others. Patient was serious. Attendants reported that no action was required against any one. After hearing learned Public Prosecutor for the State and defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced by the trial Court as stated aforesaid. We have heard learned counsel for the appellant, State counsel and gone through the evidence on the file. Crl.Appeal No.400-DB of 2003 7 Learned counsel for the appellant argued that there is a delay in lodging the FIR. Occurrence was at 4.30 AM. Injured Ramjas was admitted in the hospital at 6.30 AM. At 10.00 AM, police had met the party, but special report was received by the Ilaqa Magistrate at 3.00 PM. No explanation regarding delay. In fact, it was a case of blind murder. Occurrence was not witnessed by Om Parkash, Parbho Devi or Ved Parkash. Story was concocted to name the appellant. Presence of Om Parkash, Parbho Devi and Ved Parkash is doubtful at the time of occurrence because while preparing inquest report, Ved Parkash stated that he came to know about the occurrence. That means, occurrence was not witnessed by him. Parbho Devi stated that occurrence might have witnessed by Om Parkash. Ved Parkash in cross-examination stated that occurrence might have witnessed by Parbho Devi. Parbho Devi when appeared in Court then stated that some unknown assailants had committed the crime. If the occurrence was witnessed by Om Parkash, then his statement should have been recorded while preparing inquest report. All this shows that presence of Om Parkash, Parbho Devi and Ved Parkash at the time of alleged occurrence is doubtful. Story qua arrest of the accused is also doubtful when Investigating Officer stated that he did not record the statement of Municipal Commissioner Ram Kishan, who had produced the accused before him. Learned State counsel argued that the occurrence was witnessed by Om Parkash, Parbho Devi, mother of the appellant, and Ved Parkash. Om Parkash and Ved Parkash are the neighbours of the appellant. Eye witnesses had no dispute with the appellant, so there was no idea to name the appellant. Parbho Devi has admitted the entire occurrence, but Crl.Appeal No.400-DB of 2003 8 being the mother of the appellant, she has stated that some unknown assailants had committed the crime. Parbho Devi had two sons, one is the appellant, and second was the deceased. After the death of Ramjas, Parbho Devi had no alternative except to save another son, when appellant and deceased had four issues, each, and the children are in the custody of Parbho Devi. Appellant is the real brother of Ramjas (deceased). Amarwati @ Anita (deceased) was the wife of Ramjas. Father of the appellant was owning a residential house. After the death of father, house was in possession of Ramjas. Parbho Devi widow of Nanku Ram was residing with Ramjas. About one year earlier to the present occurrence, Ramsukh with his family had shifted to the ancestral house from the village. In the same house, appellant with his family was residing separately from Ramjas. Both the brothers had separate mess, but were residing in the same house in different rooms. Dispute amongst the brothers was regarding partition of the house. More portion of the house was in possession of the deceased. Appellant was intending to reside alone in the house. There was altercation amongst both the brothers regarding partition of the house. Wives of both brothers used to quarrel qua partition. This fact is clear from the statements of Om Parkash and Parbho Devi widow of Nanku Ram. So, there was a motive to commit the crime. Although motive is a double edged weapon, but complainant party had no motive to implicate the appellant by leaving the real culprit, because the complainant and second eye witness, namely, Ved Parkash, are the neighbours. They had no enmity with the appellant. Both the brothers were equal to them. Parbho Devi has admitted all the facts except this fact as to who had committed the crime. Crl.Appeal No.400-DB of 2003 9 According to the prosecution story, occurrence was at 4.30 AM. 2-3 blows were given to Amarwati in the presence of Om Parkash, Parbho Devi and Ved Parkash. Parbho Devi had also received injuries when she made an attempt to rescue Ramjas. Amarwati had died on the spot. Ramjas was shifted to Civil Hospital, Karnal, by Parbho Devi, Om Parkash and others. Admission of injured Ramjas in the hospital was at 6.30 AM Keeping in view the condition of the patient, he was referred to PGI, Chandigarh. When Ramjas was being shifted to Chandigarh, then in the area of Ambala, he had succumbed to his injuries. Patient was referred at 9.15 AM and the statement of Om Parkash was recorded by SI Som Nath at 10.15 AM. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded at 10.45 AM. Special report was delivered to the Ilaqa Magistrate at 3.00 PM on the same day. Death of Amarwati was on the spot. Condition of Ramjas was serious. When condition of injured was serious, then first priority of the attendants was to shift him to the nearest hospital for medical aid. By leaving the injured on the spot in critical condition, no prudent man was expected to go to the police station to lodge a report. Om Parkash, complainant, is the neighbour of the appellant. He had no enmity with the appellant. Om Parkash is the eye witness. So, his presence at the spot was natural. When only one accused was named, then there was no question of false implication by leaving the real culprit. When mother of the appellant had witnessed the occurrence and also received injuries, then injuries noted on the person of the deceased cannot be self suffered or self inflicted. Keeping in view the evidence on the file, we are of the opinion that there is no delay in lodging the FIR. If we presume that there is some delay, then delay Crl.Appeal No.400-DB of 2003 10 stands explained. Delay is one of the suspicious circumstances to scrutinize the evidence with great care and caution. Delay itself is not sufficient to discard the prosecution version. Om Parkash complainant is the neighbour of the deceased and appellant. At 4.30 AM on hearing noise, he had gone to the roof of the house, then had seen the appellant while causing injuries to Amarwati and Ramjas. Om Parkash along with Parbho Devi and some other respectables of the village had shifted Ramjas to the Civil Hospital, Karnal. Parbho Devi tried to rescue Ramjas and in that process, she also received injuries on her right hand. Parbho Devi stated that Ramsukh with his wife and children, and Ramjas, deceased, with his wife and children were sleeping on the roof of her house. She was also sleeping on the roof of the house. At about 3.00-4.00 AM, she woke up on hearing noise and sighted some body on the roof while causing injuries to Ramjas and Amarwati. She tried to intervene, then received injuries on her person. Om Parkash and many other persons from the neighbourhood came to the spot. Death of Amarwati was on the spot. She had shifted Ramjas to Civil Hospital, Karnal, and from Civil Hospital,, Karnal, Ramjas was referred to PGI, Chandigarh, but he had succumbed to his injuries on the way. As per Parbho Devi, appellant was present on the spot, but she stated that some unknown assailants had caused injuries. When Ramsukh was also sleeping on the roof and some unknown assailants had caused injuries, then why Ramsukh remained silent. Why he had not shifted his brother to the hospital. If on hearing noise, neighbours and Parbho Devi can wake up and witness the occurrence, then no explanation from the side of the appellant as to where he was at the time of Crl.Appeal No.400-DB of 2003 11 occurrence and if he was present on the roof, then why he remained mum. Parbho Devi while saving Ramjas had received injuries. Although she was not medico legally examined, but her presence on the spot at the time of occurrence is an admitted fact. Presence of Om Parkash at the time of occurrence was also admitted by Parbho Devi. Only dispute is whether the appellant had committed the crime or some unknown assailants had committed the crime. Ved Parkash is the second eye witness. He is also the neighbour of the parties. While preparing inquest reports, statement of Ved Parkash was recorded, where he has stated that he came to know about the occurrence. Meaning thereby, he did not witness the occurrence, but this fact is not correct one, because Ved Parkash was not confronted with his statement recorded while preparing inquest reports. Ved Parkash stated that he cannot tell the name of Municipal Commissioner, who had produced the accused before the police, but this line is not sufficient to ignore the statement of Ved Parkash because the appellant did not state a word that Municipal commissioner Ram Kishan had not produced him before the Investigating Officer. Ram Kishan could easily be produced in defence to state that he did not produce the appellant before the police on 20.7.2002. Minor discrepancies in the statements of eye witnesses and Parbho Devi, mother of the appellant, rather show that the story is natural one. Presence of neighbours at the time of occurrence cannot be doubted when Parbho Devi admitted that she had witnessed the occurrence and at that time, Om Parkash was also present. On 20.7.2002, Municipal Commissioner Ram Kishan had produced the appellant before the Investigating Officer while present near Crl.Appeal No.400-DB of 2003 12 the Committee Chowk. In pursuance of disclosure statement suffered by the appellant, he got recovered sabal from the specified place. Weapon of offence was sent to the laboratory, but as per report of the laboratory, weapon was not found to be stained with blood. But in view of the report of the laboratory, prosecution story is not to be doubted, when there is direct evidence in the shape of statements of Om Parkash and Ved Parkash, neighbours, and Parbho Devi, mother of the appellant and Ramjas (deceased). Occurrence was on 19.7.2002. FIR was registered on the next day. Till today, no complaint to any authority regarding false implication. No neighbour appeared in defence to state that at the time of occurrence, appellant was not in his house. After admission of Ramjas in the hospital, after first aid, he was referred to PGI, Chandigarh. DW1 Dr. Rajinder Kumar Bajoria in examination-in-chief stated that there was a writing on the bed head ticket but this writing was not in his hand. Writing was to the effect that injury has occurred of own and the complainant party did not want any action by the police. Om Parkash and Parbho Devi have specifically stated that they had not reported to the doctor that no action is required and no suggestion to the doctor that the injuries noted on the person of the deceased were self suffered or self inflicted. Rather the doctor stated that possibility of injuries with sabal cannot be ruled out. Eye witnesses in Court stated that sabal (Ex.P7) is the same with which injuries were caused by the appellant. Once Dr. Rajinder Kumar Bajoria stated that writing was not in his hand, then no question to doubt the prosecution story. Possibility of fabrication of record by some employee of the hospital to benefit the appellant cannot be ruled out. Something could be said if Dr. Rajinder Kumar Bajoria would have Crl.Appeal No.400-DB of 2003 13 stated that after admission of the patient in the hospital, attendants had reported that injuries were received by fall or were caused by some unknown assailants. Impugned judgment is to be set aside if the same is perverse and against the facts and law, but evidence on the file shows that the same was properly scrutinized by the trial Court. No reason to differ with the findings of the trial Court. For the reasons recorded above, appeal being without merit, is dismissed. ( JORA SINGH ) JUDGE 23.3.2010 ( SATISH KUMAR MITTAL ) pk JUDGE