Crl. Appeal No.282-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.282-DB of 1998 Date of Decision: 16.05.2008 Sunder and another ....Appellants. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Jora Singh. Present: Mr. Baldev Singh, Sr.Advocate with Mr. Arshwinder Singh, Advocate for the appellants. Mr. Ravi Dutt Sharma, D.A.G., Haryana for the respondent. ... J.S. Khehar, J. Through the instant appeal the accused/appellants Sunder and Sant Raj (both sons of Balbir) have impugned the judgement rendered by the Additional Sessions Judge, Hisar, in Sessions Case No.42 of 1995, on 20.5.1998, by which both the accused/appellants Sunder and Sant Raj have been held guilty of having intentionally committed the murder of Jaswant, and as such, have been convicted of the offence under Section 302 read with Section 34 of the Indian Penal Code. They have also been convicted for having caused simple and grievous injuries to Sunita PW7, under Sections 325/323 read with Section 34 of the Indian Penal Code. The accused/appellants Sunder and Sant Raj have also impugned the order Crl. Appeal No.282-DB of 1998 2 passed separately on 20.5.1998 whereby, both the accused/appellants Sunder and Sant Raj have been sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- each, under Section 302 read with Section 34 of the Indian Penal Code. The accused/appellants Sunder and Sant Raj have also been sentenced to undergo imprisonment for a period of five years and to pay a fine of Rs.1,000/- each, under Section 325 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, the defaulting convict(s) has/have been ordered to undergo further rigorous imprisonment for two months. The accused/appellants Sunder and Sant Raj have also been sentenced to undergo imprisonment for a period of one year, under Section 323 read with Section 34 of the Indian Penal Code. All the substantive sentences awarded to the accused have been directed to run concurrently. The prosecution version of the incident is based on the statement made, in the first instance, by Wazir Singh PW8, to ASI Madan Lal PW10, on 7.7.1995 i.e. on the date of occurrence itself, and thereafter, the statement made by Sunita PW7, to ASI Madan Lal PW10, on 11.7.1995. The statements of Wazir Singh PW8 and Sunita PW7, as have been noticed hereinabove, are being detailed in the following two paragraphs. Wazir Singh PW8 made a statement to ASI Madan Lal PW10 on 7.7.1995, wherein he asserted that he was a resident of village Bass Akbarpur and was engaged in agriculture. He stated that he had three other brothers. Balbir was his only elder brother, whereas Kapur was younger to the complainant Wazir Singh PW8. He described the name of his youngest brother as Dharam Pal. In his statement to the police, Wazir Singh PW8 asserted that all the brothers jointly owned 44 acres of land, which had been Crl. Appeal No.282-DB of 1998 3 amicably partitioned amongst the brothers, and which, the brothers were independently cultivating. There was neither any dispute on the issue of partition nor any dispute on the issue of cultivation. He stated that on the preceding day i.e. on 6.7.1995 at about 7.30 AM, his son Jaswant alongwith the two sons of his brother Balbir, namely, the accused/appellant Sunder and Sant Raj had gone to their agricultural land for hoeing. Sunita PW7 wife of the accused/appellant Sunder had also gone to the fields for the same purpose. The brother of the complainant (Wazir Singh PW8) Kapur was present on the fields as he was grazing his buffalos. As per the statement of Wazir Singh PW8, at about 9.30 AM, the accused/appellant Sunder had an altercation with his wife Sunita PW7. Whereupon, Sunita PW7 stopped working and threw away the “kasola” (spade) with which she was working. At her aforesaid gesture, the accused/appellant Sunder started abusing her. Sunita PW7 responded to her husband i.e. the accused/appellant Sunder in the same manner. Whereupon, the accused/appellant Sunder got more enraged and started to beat Sunita PW7 with his “kasola” (spade). The accused/appellants Sant Raj, who was also engaged in hoeing at the same place, tried to separate the accused/appellant Sunder from his wife Sunita PW7, but the accused/appellant Sunder continued beating Sunita PW7. The son of the complainant Wazir Singh PW8 i.e. Jaswant, who was working on the portion of the land partitioned in favour of Wazir Singh PW8, on seeing the altercation between the accused/appellant Sunder and his wife Sunita PW7, went up to them so as to separate them. At this juncture, the accused/appellant Sunder also hit Jaswant with the “kasola” (spade). The brothers of the complainant, Kapur and Jang Pal, who were also close by, came running to the spot to separate Crl. Appeal No.282-DB of 1998 4 the quarreling parties and were successful in separating Sunita PW7 and Jaswant, from the clutches of the accused/appellant Sunder. Thereafter, the accused/appellant Sunder fled away from the place of occurrence. On account of the injuries inflicted by the accused/appellant Sunder to Sunita PW7 and Jaswant, they were profusely bleeding. The complainant's brothers Kapur and Jang Pal took the injured Sunita PW7 and Jaswant to the house of Kapur. Wazir Singh PW8 was present at the house of Kapur when the two injured persons were brought to the house. On reaching the house, Kapur (brother of Wazir Singh PW8) and Jang Pal narrated the occurrence (described above) to Wazir Singh PW8. The same factual position was also narrated to Wazir Singh PW8 by the accused/appellant Sant Raj. Since blood was profusely oozing from the injuries suffered by Sunita PW7 and Jaswant, Wazir Singh PW8 immediately removed them to the Primary Health Centre, Bass, where the attending doctor advised Wazir Singh PW8 to take the injured to the General Hospital, Hansi. A conveyance was arranged and the injured Sunita PW7 and Jaswant were taken to the General Hospital, Hansi. After treating the injured, the attending doctor referred them to the Medical College and Hospital, Rohtak. Wazir Singh PW8 in his complaint asserted, that the accused/appellant Sunder son of Balbir (brother of the complainant Wazir Singh PW8) had beaten his (Sunder's) wife Sunita PW7 and my (Wazir Singh PW8) son Jaswant with a “kasola” (spade), leading to the injuries suffered by them. He pleaded that appropriate action be taken. It would be pertinent to mention, that Sunita PW7, as is apparent from the narration recorded in the foregoing paragraph, came to be admitted at the Medical College and Hospital, Rohtak. She was declared fit Crl. Appeal No.282-DB of 1998 5 to make a statement by Dr. K. Pari PW4, on 8.7.1995. Despite the same, she recorded her statement for the first time to ASI Madan Lal PW10, on 11.7.1995. As per the statement of Sunita PW7, her husband i.e. the accused/appellant Sunder, and the younger brother of her husband i.e. the accused/appellant Sant Raj had gone to their fields for weeding the cotton crop. Sunita PW7 had remained home in order to finish the house-hold work. After having finished the house-hold work, she also joined her husband i.e. the accused/appellant Sunder, and his brother i.e. the accused/appellant Sant Raj on the fields. Since she had got late, an altercation took place between Sunita PW7 and the accused/appellant Sunder. During the course of the aforesaid altercation, the accused/appellant Sunder started abusing Sunita PW7. Whereupon, Sunita PW7 fed up with the behaviour of her husband i.e. the accused/appellant Sunder proceeded to leave the farm and started walking towards their residence. While she was walking on the “kacha” water channel, adjoining a sugarcane field, her husband i.e. the accused/appellant Sunder, who had a “kasola” (spade) in has hand, came upto her and started hitting her. In the first instance, he slapped Sunita PW7 and she started weeping. The accused/appellant Sunder then threatened Sunita PW7. In the meantime, her husband's younger brother i.e. the accused/appellant Sant Raj, who also had a “kasola” in his hand, came to the spot. Likewise, Jaswant son of the complainant Wazir Singh PW8 also came to the spot to rescue Sunita PW7. On seeing Jaswant, the accused/appellant Sant Raj told the accused/appellant Sunder, that a sympathiser of Sunita PW7 had arrived. He also instigated the accused/appellant Sunder by telling him that Sunita PW7 and Jaswant were made for one another. Additionally, the accused/appellant Sant Raj Crl. Appeal No.282-DB of 1998 6 instigated the accused/appellant Sunder by saying that Sunita PW7 manages to get cosmetics like “tiki” and “bindi” etc. from Jaswant. On hearing all this, the accused/appellant Sunder gave Sunita PW7 a slap. Jaswant intervened to help. Whereupon, the accused/appellant Sunder, who was holding a “kasola”, gave Jaswant a blow with the “kasola” on his head. Jaswant fell down on the receipt of the aforesaid blow. At that juncture, the accused/appellant Sant Raj gave another blow with the “kasola” on Jaswant's hand. He then gave a blow from the reverse side on the head of Sunita PW7. Likewise, the accused/appellant Sunder gave a “kasola” blow on the head of Jaswant from the reverse side. According to the statement of Sunita PW, the accused/appellants Sunder and Sant Raj gave blows to Jaswant and Sunita PW7 with their respective “kasolas” (spade). Sunita PW7 raised an alarm “bachao-bachao” (help-help). Hearing her, the uncle of her husband Kapur, who was grazing his buffalos in the adjoining fields and Jang Pal, came running to the place of occurrence. On the arrival of Kapur and Jang Pal, the accused/appellants Sunder and Sant Raj fled away alongwith their respective “kasolas”. Thereafter, Kapur and Jang Pal took both the injured Sunita PW7 and Jaswant to the house of Kapur, in a bullock cart. Sunita PW7 became unconscious on the way, and allegedly did not remember anything thereafter. In her statement, Sunita PW7 stated that her husband i.e. the accused/appellant Sunder, and the younger brother of her husband i.e. the accused/appellant Sant Raj, had wounded her (Sunita PW7) and Jaswant with “kasolas”. Action be taken against them. ASI Madan Lal PW10 received a V.T. message from Police Station, City Hansi, regarding the admission of Sunita PW7 and Jaswant at the General Hospital, Hansi, in an injured condition. Accordingly, ASI Crl. Appeal No.282-DB of 1998 7 Madan Lal PW10 went to the General Hospital, Hansi, to record their statements. On reaching the General Hospital, Hansi, ASI Madan Lal PW10 was informed that Sunita PW7 and Jaswant had been referred to the Medical College and Hospital, Rohtak. On 7.7.1995, ASI Madan Lal PW10 went to the Medical College and Hospital, Rohtak and moved an application Ex.PH so as to seek the opinion about the fitness of Sunita PW7 and Jaswant for making a statement. In the first instance, the attending doctor gave his opinion that both Sunita PW7 and Jaswant were not fit to make a statement (Ex.PJ/1 and Ex.PH/1, respectively). ASI Madan Lal PW10 met Wazir Singh PW8 at the hospital and recorded his statement Ex.PV. On the basis of the statement of Wazir Singh PW8, a Daily Diary Deport bearing No.18 was recorded on 7.7.1995. On 8.7.1995, ASI Madan Lal PW10 again went to the Medical College and Hospital, Rohtak to record the statement of Sunita PW7 and Jaswant. At this juncture, Sunita PW7 was declared fit to record a statement (Ex.PJ/2) whereas, Jaswant was still unfit to record a statement (Ex.PH/2). Despite the aforesaid, Sunita PW7 did not record a statement on 8.7.1995. Likewise, on 9.7.1995, as well as, on 10.7.1995, the statement of Sunita PW7 was not recorded. On the aforesaid dates i.e. on 9.7.1995 and 10.7.1995, the statement of Jaswant also could not be recorded because in the opinion of the attending doctor, he was still unfit to record a statement. On the basis of the statement made by Wazir Singh PW8, leading to the registration of the Daily Diary Report No.18, First Information Report bearing No.180 was registered at Police Station, Narnaud, on 10.7.1995 at 4.25 PM. It is, therefore, apparent that the aforesaid First Information Report was based solely on the statement of Crl. Appeal No.282-DB of 1998 8 Wazir Singh PW8 , as the statement of Sunita PW7 had not been recorded by then. On 10.7.1995, ASI Madan Lal PW10 went to the place of occurrence alongwith Kapur and Jang Pal. He prepared the rough site plan Ex.PBB. From the spot, he lifted blood stained earth from two places. The same was then converted into two separate sealed parcels. He also lifted bangles from the place of occurrence and prepared three sealed parcels thereof. The parcels of blood stained earth and bangles were taken into possession vide Memo Ex.PCC, which were attested by Kapur and Jang Pal. On 11.7.1995, ASI Madan Lal PW10 received a V.T. message from the Medical College and Hospital, Rohtak, Ex.PDD to the effect that Jaswant had died. ASI Madan Lal PW10 immediately went to the Medical College and Hospital, Rohtak and held inquest proceedings of the dead body of Jaswant, and prepared the inquest report Ex.PC1-8. The dead body of Jaswant was then sent for postmortem examination. On the same day, ASI Madan Lal PW10 recorded the statement of Sunita PW7, details whereof have been narrated in the foregoing paragraph. ASI Madan Lal PW10 took into possession clothes of Sunita PW7 and the deceased Jaswant, vide recovery memo Ex.PEE. On the receipt of the postmortem report Ex.PB, the Investigating Officer commenced a search for the accused/appellants Sunder and Sant Raj. On 11.7.1995, the articles of the case property recovered, were handed over to the Moharrir Head Constable, at Police Station, Narnaud for safe custody. Both the accused/appellants Sunder and Sant Raj were arrested on 14.7.1995 and presented before the Court. On the interrogation of the accused/appellant Sant Raj, he made a disclosure statement Ex.PX, narrating where he had concealed the “kasola”, Crl. Appeal No.282-DB of 1998 9 with which he had inflicted injuries on Sunita PW7 and the deceased Jaswant. Thereafter, he led the police party to a heap of “kikkar” branches in front of fodder room constructed in his fields, and got recovered a “kasola”, whereupon, the “kasola” was taken into possession vide recovery memo Ex.PZ. Likewise, on the interrogation of the accused/appellant Sunder, he made a disclosure statement and led the police party to the recovery of the “kasola” with which he had inflicted injuries on Sunita PW7 and the deceased Jaswant. The aforesaid “kasola” was taken into possession vide recovery memo Ex.PZ/1. The aforesaid “kasolas” were also put into sealed parcels and handed over to the Moharrir Head Constable at Police Station, Narnaud for safe custody. After completion of the investigation and other police formalities, a challan was presented in the Court of the Sub Divisional Judicial Magistrate, Hansi, on 30.9.1995. The Sub Divisional Judicial Magistrate, Hansi, arrived at the prima-facie conclusion, that the evidence gathered during the course of investigation revealed the commission of offences punishable under Sections 325, 323 and 304 of the Indian Penal Code. Since the offence under Section 304 of the Indian Penal Code is exclusively triable by the Court of Session, the Sub Divisional Judicial Magistrate, Hansi, by his order dated 13.10.1995 committed the case for trial to the Court of Session. The Additional Sessions Judge, Hissar, by his order dated 25.10.1995 charged the accused/appellants Sunder and Sant Raj for intentionally having committed the murder of Jaswant by causing his death in furtherance of a common intention, punishable under Section 302 read with Section 34 of the Indian Penal Code. The accused/appellants Sunder and Sant Raj were also charged of having caused grievous, as well as, Crl. Appeal No.282-DB of 1998 10 simple hurt to Sunita PW7 with common intention, under Sections 325 and 323 read with Section 34 of the Indian Penal Code. The accused/appellants Sunder and Sant Raj were then confronted with the charges framed against them. They pleaded not guilty, and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarised hereunder. The prosecution first of all, examined Dr. Suman Bishnoi, Medical Officer, General Hospital, Rohtak, as PW1. Dr. Suman Bishnoi PW1 had conducted the postmortem examination on the dead body of Jaswant. According to the testimony of Dr. Suman Bishnoi PW1, the dead body of Jaswant bore the following injuries:- “1. After dissecting the bandage of the upper limb, there was disfigurement at the elbow. A stitched wound of 2 cm. present over the back of left elbow. On further dissection, there was commuted fractures of upper and of ulna and the lower end of humerus was dislocated from the upper end of the radius. Clotted blood was present in the surrounding structures. 2. A stitched wound of 7 cm. length was present on the right side of skull about 4” above the right pinna. 3. A stitched wound 3 cm. in length present 2” lateral and posterior to injury No.2. 4. Stitched would of 3 cm present interiorly 2 cm. posterior to half line in the mid-line. 5. A stitched wound 2 cm. present on left side of the scalp 8 Crl. Appeal No.282-DB of 1998 11 cm. above the left pinna. 6. A stitched wound of 1.5 cm. present on the left side of scalp 2 cm. posterior to injury No.5. 7. An old contusion irregular in shape of about 7 x 3 cm. present on the left side of the neck, starting just below the left ear. 8. An old contusion of about 12 x 3 cm. present on the right lower hand.” In the opinion of Dr. Suman Bishnoi PW1, the death of Jaswant had been caused as a result of a head injury and other injuries, mentioned in the postmortem report. It was further opined that all the injuries were ante- mortem in nature, and were sufficient to cause death, in the ordinary course of nature. The statement of Dharam Pal was recorded as PW2. Dharam Pal PW2 produced before the trial Court the medical record pertaining to the treatment of Sunita PW7 and the deceased Jaswant at the Medical College and Hospital, Rohtak. The statement of Dr. Rakhi Gupta, Postgraduate Student in the Department of Radiology, Medical College and Hospital, Rohtak, was recorded as PW3. She stated that she had conducted the radiological examination of the deceased Jaswant and found multiple fractures on the fronto-parieto-temporal region of the skull and fracture of the left ulna. She produced in Court her report Ex.PD/1, as well as, the X- ray films Ex.PD/2-5. She also stated that she had radiologically examined Sunita PW7 and found a fracture on the right parietal region of her skull, besides a fracture on her mandible, on the left side. She tendered into evidence her report Ex.PE/1 and the X-ray films Ex.PE/2-9. The statement of Dr. K. Pari, House Surgeon, Medical College and Hospital, Rohtak was Crl. Appeal No.282-DB of 1998 12 recorded as PW4. Dr. K. Pari PW4 deposed about the fitness of Sunita PW7 as had been declared by him on 8.7.1995, for the purpose of recording her statement. The statement of Dr. O.P. Charaya was recorded as PW5. Dr. O.P. Charaya PW5 had conducted the medico-legal examination of Sunita PW7 on 6.7.1995, wherein he found the following injuries on her person:- “1. There was a lacerated wound 3 x 1.5 cm. x bone deep on the fore-head at the outer canthus of left eye. Margins were lacerated non-oedematous. Fresh bleeding was present. X-ray was advised. 2. There was a lacerated wound 2 x 1 cm. x bone deep on chin, margins were lacerated non-oedematous. Fresh bleeding was present. 3. A red contusion 5 x 2 cm. below the left eye. 4. A red contusion 8 x 5 cm. on left side of neck. X-ray of neck was advised. 5. A lacerated wound 4 x 2 cm. x bone deep on the fore-head right side. Margins were lacerated. Fresh bleeding was present. X-ray of skull was advised. 6. A lacerated wound 6 x 1 cm. x bone deep on the scalp posteriorly. The wound was lacerated non-oedematous. Fresh bleeding was present. X-ray skull was advised. 7. A lacerated wound of size 5 x 1 cm. x bone deep on the scalp right side. Margins were lacerated and non-oedematous. Fresh bleeding was present. X-ray skull was advised. 8. A red contusion on right side of face lateral to eye. Crl. Appeal No.282-DB of 1998 13 9. A triangular contusion mark on scalp right side anteriorly, 4 x 1 cm. x bone deep. Margins were lacerated non-oedematous. Fresh bleeding was present. X-ray skull was advised.” Dr. O.P. Charaya PW5 had also conducted medico-legal examination of the deceased Jaswant when he was brought to the General Hospital, Hansi, alongwith Sunita PW7. Dr. O.P. Charaya PW5 found the following injuries on the person of Jaswant:- “1. There was a lacerated wound 7 x 1 cm. x bone deep on right side of skull, 4 inches above the right pinna. Margins were lacerated non-oedematous. Fresh bleeding was present. X-ray of skull was advised. 2. There was a lacerated wound 3 x 1 cm. x bone deep on the skull, 2 inches lateral and posterior to injury No.1. Margins were lacerated non-oedematous. No pus discharge. Fresh bleeding was present. X-ray of skull was advised. 3. There was a lacerated triangular shaped wound of scalp anteriorly, 3 x 2 cm. x bone deep, margins were lacerated and fresh bleeding was present. X-ray of skull was advised. 4. There was a lacerated wound 2 x 1 cm. x bone deep on left side of scalp. Margins were lacerated. Non-oedematous. Fresh bleeding was present. X-ray skull was advised. 5. There was a lacerated wound 1 x .5 cm. on the scalp left side. Margins were lacerated non-oedematous. No pus discharge. Fresh bleeding was present. X-ray skull was advised. 6. A red contusion mark 7 x 3 cm. on neck left side below the left pinna. Crl. Appeal No.282-DB of 1998 14 7. There was a punctured wound on left elbow 2 x 1 cm. depth not measured. Margins were lacerated. Oedema was present above 5 cm. in size around it. X-ray of left fore-arm was advised. 8. A contusion mark 12 x 3 cm. on right lower hand.” The statement of Jagdish Patwari was recorded as PW6. He deposed before the trial Court that he had prepared the scaled site plan of the place of occurrence. The statement of Sunita was recorded as PW7. In her statement, Sunita PW7 reiterated the factual position disclosed by her on 11.7.1995 to ASI Madan Lal PW10. The statement of Wazir Singh was recorded as PW8. While recording his statement Wazir Singh PW8 reiterated the factual position which he had narrated while making his complaint on 7.7.1995 to ASI Madan Lal PW10. The statement of Kuldeep was recorded as PW9. It would be pertinent to mention, that Kuldeep PW9 is the son of Wazir Singh PW8, and the brother of the deceased Jaswant. He stated that he had attested the disclosure statements, as well as, the recovery memos prepared consequent upon the statements made by the accused/appellants Sunder and Sant Raj, in furtherance whereof “kasolas” were recovered at the instance of the accused. The statement of ASI Madan Lal was recorded as PW10. While appearing before the trial Court, ASI Madan Lal PW10 narrated the details of the investigation carried out by him, particulars whereof have already been narrated above. After recording the statement of ASI Madan Lal PW10, the prosecution evidence was closed by order. The statement of the accused/appellants Sunder and Sant Raj were then recorded under Section 313 of the Code of Criminal Procedure. Crl. Appeal No.282-DB of 1998 15 In the first instance, the accused/appellants Sunder and Sant Raj were confronted with the incriminating evidence appearing on the record of the case. Both the accused/appellants Sunder and Sant Raj denied the correctness of the same. In his defence,