Criminal Appeal No. 540-DB of 1999 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 540-DB of 1999 Date of decision : 4.7.2008 Chhotu Ram .....Appellant Versus State of Haryana ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. Raman B. Garg, Advocate as Amicus Curiae for the appellant Mr. P.S.Sullar, Deputy Advocate General, Haryana S. D. ANAND, J. The Criminal Appeal No. 540-DB of 1999 has been filed by the appellant through a counsel; whereas Criminal Appeal No. 464-DB of 2002 has been filed though jail by the appellant. The judgment is being rendered in Criminal Appeal No. 540-DB of 1999. The appellant (Chhotu Ram son of Budh Ram) is in appeal against his conviction under Section 302 IPC and 27 of the Arms Act. Under the former head, the appellant was sentenced to undergo rigourous imprisonment for life and to pay a fine of Rs. 10,000/-; In default of payment of fine, he was directed to undergo further rigourous imprisonment for two years. For the latter offence, Criminal Appeal No. 540-DB of 1999 -2- **** the appellant was directed to undergo rigourous imprisonment for a period of three years The substantive sentences were ordered to run concurrently. On the evening of 29.9.1996, appellant Chhotu Ram went over to the house of deceased Bajrang (who was living over there along with his wife PW-6 Savitri Devi and their son PW-7 Har Lal) and asked for 20 Kgs. of millet (Bajra). Bajrang expressed his inability to meet the demand because the quantity available was barely sufficient for the use of his own family. On the following day, at about 10.30 P.M., appellant again came over to the house of Bajrang while the former was carrying a Kulhari. Out over there, the appellant held out a threat that he would teach Bajrang a lesson for denying millet to him. He left the spot and announced that he would return shortly. He again appeared on the scene after about 10 minutes thereof. At that time, he was carrying a .12 bore licensed gun. Appellant raised a lalkara daring Bajrang to come out of the house. On hearing it, Bajrang came out at the door of his house. He was closely followed by Har Lal and Savitri PWs. Appellant fired a shot at Bajrang. The pallets hit Bajrang on latter's left hand and also left side of abdomen, thereby felling him upon the ground. When the appellant was in the process of re-loading the gun, PW-7 Har Lal gave a lathi blow on his head thereby impelling the former to flee from the spot. He carried along the weapon of offence too. Initially Bajrang was taken in a jeep to Government Hospital, Fatehabad, where he was medico-legally examined by PW-8 Dr. D.K. Dadhich Criminal Appeal No. 540-DB of 1999 -3- **** who found six injuries on his person vide MLR Ex. PF. PW-8 Dr. Dadhich notified the offence to the police of Police Station, Fatehabad vide ruqqa (Ex. PE). PW-11 ASI Hari Chand filed a plea (Ex. PL) before the Doctor to find out if Bajrang was fit to make a statement. The medical Officer, vide opinion (Ex. PL/1), declared that Bajrang was fit to make a statement. It was thereafter that PW-11 ASI Hari Chand recorded statement Ex. PM of Bajrang. Formal FIR (Ex. PM/1) came to be recorded on the basis thereof. Bajrang died thereafter. The fact of death was notified vide ruqqa (Ex. PG) which Dr. Dadhich sent to SHO, Police Station, Fatehabad. The prosecution allegations were proved, at the trial, by PW-1 Constable Sukhdev Singh, PW-2 HC Dharambir, PW-3 Constable Munshi Ram, PW-4 Zile Singh, Clerk, PW-5 SI Karan Singh, PW-6 Savitir Devi, PW-7 Har Lal, PW-8 Dr. D.K. Dadhich, PW-9 Jai Singh, PW-10 Mohan Lal, Draftsman and PW-11 ASI Hari Chand. PW-1 Constable Sukhdev Singh, PW-2 HC Dharambir and PW-3 Constable Munshi Ram are formal witnesses who tendered their affidavits Ex. PA, Ex. PB and Ex. PC respectively into evidence. PW-4 Zile Singh, an official posted in the Arms Licence Branch in the office of S.D.M., Hisar, made a record based statement to the effect that licence Ex. P1 had been issued by that office in favour of Chhotu Ram son of Budh Ram resident of Dhand, Criminal Appeal No. 540-DB of 1999 -4- **** Tehsil Adampur, District Hisar. He identified the signature of the then S.D.M. upon the licence which was averred to have been renewed upto the year 1997. PW-5 SI Karan Singh had partly investigated this case. PW-6 Savitri and PW-7 Har Lal are wife and son respectively of Bajran deceased. PW-8 Dr. D.K.Dadhich had medico legally examined Bajrang on 1.10.1996 and found the following injuries on his person:- “1. Lacerated wound with inverted margins size 2.5 cm x 2.5 cm on the left anterior side of abdomen. Below the costal margins, 5 cm medial to anterior auxiliary line. Around wound, blackening of skin present. Corresponding whole was present in wearing banian. Bleeding was present from the wound. Advised X-ray and Surgeon opinion. 2. Lacerated wound with inverted margins size 1 cm x 1 cm on the left anterior side of abdomen. Situated medial to injury No.1 Around the wound blackening of skin was present. Corresponding whole was present in wearing banian. Bleeding was present from the wound. Advised X-ray and Surgeon's opinion. 3. Lacerated wound badly crushed. Sioze was 10 cm X 7 cm with inverted margins on the left forearm including elbow joint medally. Underlying msucles Criminal Appeal No. 540-DB of 1999 -5- **** tendones. Bones were fractured and cut. Bleeding was present surrounding skin blackening was present. Corresponding whole was present in wearing banian. Advised X-ray. 4. Lacerated wound 5 cm X 2 cm on the posterior. Lateral side of forearm and elbow joint. Surrounding skin of blackening was present. Bleeding was also present. Advised X-ray. 5. Lacerated wound 2 cm X 2 cm on the posterior lateral side forearm just to adjacent injury no. 4 is medial size. Extended upto elbow joint. Bleeding was present. Skin blackening was present. Advised X-ray Whole was present on the clothes. 6. Lacerated would size 4 cm x 1 cm skin deep on the interior side of left forearm over elbow joint. Blackening of skin was present. Whole was present on the clothes.” Thereafter, on a police plea preferred on 1.10.1996 he conducted the post-mortem examination on the dead body of Bajrang and found the following injuries on it:- “1. Lacerated wound with inverted margins size 2.5 cm x 2.5 cm on the left anterior side of abdomen. Below the costal margins, 5 cm medial to anterior auxiliary line. Around wound, blackening of skin present. Clotted blood was present in the wound. Criminal Appeal No. 540-DB of 1999 -6- **** On dissection sub cataneous blood infiltration was present. Underlying peritoneum was lacerated. Spleen was also lacerated in an area of 5 cm X 4 cm. Abdominal cavity was full of blood. Stomach was lacerated. Small intestine punctured at some places Pallets recovered from left side of abdomen cavity posteriorly. 2. Lacerated wound with inverted margins size 1 cm x 1 cm on the left anterior side of abdomen. Situated medial to injury No.1 Around the wound blackening of skin was present. Clotted blood was also present in the wound. On dissection sub cotaneous blood infiltration was present. Underlying peritoneum was lacerated. Abndomenial cavity was full of blood. Spleen, stomach was small intestine were lacerated and punctured. 3. Lacerated wound badly crushed. Size was 10 cm X 7 cm with inverted margins on the left forearm including elbow joint medally. Bone was exposed. On dissection underlying muscles tendones, veins artery and both bones were fractured in pieces. Blackening of skin around the wound was present. Pallets recovered. 4. Lacerated wound 5 cm X 2 cm on the posterior lateral side of forearm and elbow joint. Skin Criminal Appeal No. 540-DB of 1999 -7- **** blackening was present. On dissection under lying muscles tenderness and bones were cut and fractured. Lower end of humorous bone was also fractured. 5. Lacerated wound 2 cm X 2 cm on the posterior lateral side forearm just to adjacent injury no. 4 is medial side extended upto elbow joint. Skin blackening was present. On dissection underlying bone were found fractured. Muscles tendens were cut. Pallets recovered. 6. Lacerated would size 4 cm x 1 cm skin deep on the interior side of left forearm over elbow joint. Blackening was present on skin. On dissection sub cotaneous blood infiltration was present” PW-9 SI Jaipal Singh is the investigating Officer of the case. He only who had received the ruqqa and recorded the formal FIR on the basis thereof. Thereafter, he inspected the spot and seized blood stained earth. On that very day, he had taken into possession an empty cartridge and a live cartridge. . PW-10 Mohan Lal is a formal witness. He was posted as Draftsman in the office of Superintendent of Police, Hisar. He had prepared scaled site plan Ex. PU on the pointing of Har Lal. PW-11 ASI Hari Chand had conducted the other part of the investigation of the case. Ex, PY, Ex. PY/1 and Ex. PY/2 are the FSL reports. Criminal Appeal No. 540-DB of 1999 -8- **** Appellant pleaded innocence with the following averments in the course of his statement under Section 313 Cr.P.C. “I am innocent. On 30.9.96 at about 8.00 P.M. when my wife had gone to Kirayana shop in village Dhand and when she was returning and in front of the house of Har Lal, Har Lal caught hold of her and kissed her. My mother was informed by my wife and my mother thereafter went to the house of Bajrang and lodged the protest about this wanted incident. The village also gathered there. There was some altercation in between my mother and the family members of Bajrang. After having lodged the protest my mother returned to my house. After the return of my mother, Bajrang armed with gandasi, Har Lal and Garsi armed with lathis and come to my house and they started abusing me and my family members. On hearing the abuse I came out of my house. Bajrang gave me a gandasi blow on my head and I fell down. Meanwhile, Sultan my brother had come at the spot and fired at Bajrang with his licensed gun to save me. I remained unconscious for seven days in civil Hospital, Hisar. The police has twisted the facts and by siding the complainant I have been falsely booked in this case.” DW-1 Dr. Daya Nand had medico legally examined Chhotu Ram on 1.10.1996 at 11.20 A.M. and had found the Criminal Appeal No. 540-DB of 1999 -9- **** following injuries on his person:- “1. There was sharp edged wound over left partial region of scalp of size 8 cm x 2 cm x bone deep. Clotted blood was present. 2. There was red abrasion over left side of neck of size 3 cm x 0.5 cm.” DW-2 ASI Satbir Singh was posted at Police Station, Bhattu Kalan as an investigating officer on 1.10. 1996. On that date he had filed an application (Ex. DC) to obtain the opinion of Medical Officer, Civil Hospital, Hisar about the medical condition of the appellant. It is in his testimony that the Medical Officer made his endorsement Ex. Mark A to the effect that the partient was not fit to make a statement. DW-3 Mst. Chandro is the wife of Chhotu Ram. She enetered the witness box to own up the defence plea that it was Har Lal who had misbehaved with her as averred by the appellant in the course of plea in the statement under Section 313 Cr.P.C. DW-4 Sultan Singh, a real brother of appellant Chhotu Ram testified that he was returning to his house on 30.9.1996 at about 9.00 P.M. when he found Gandasi-wielding Bajrang and lathi weilding Gharsi and Har Lal standing in front of the appellant's house. The moment appellant came out of the house, Bajrang deceased felled him upon the ground by a Gandasi blow on his head. Thereafter, Har Lal PW-7 gave a lathi blow on the neck of the appellant. On finding that Bajrang etc. were inclined to do away with Criminal Appeal No. 540-DB of 1999 -10- **** his brother, DW-4 Sultan Singh fired a shot with his licenced gun which hit Bajrang. Learned Amicus Curiae, appearing on behalf of the appellant, argues that the prosecution plea cannot be held to have been proved beyond doubt in view of the fact that prosecution presentation is supported only by the relation witnesses and also because the possibility of defence version being true cannot be ruled out in the circumstances of the case. In the context, he points out that Mst. Chandro had herself entered the witness box and proved appellant's plea of innocence. Though there cannot be any dispute with the fact that PW-6 Savitri and PW-7 Har Lal are wife and brother respectively of the deceased, it is equally true that learned Amicus Curiae is not in a position to invite our attention to any judicial pronouncement which would ordain the outright discarding of testimony of relation witnesses. It is only when there is proven availability of independent witness and there is some apparent lacuna in the testimony of relation witnesses that the Court would insist upon the corroboration of testimony of relation witnesses. We would not approve the advocated plea. That the testimony of relation witnesses must be compulsively, and on each occasion, be corroborated/buttressed by independent evidence to have a finding of conviction. In that view of things, the deposition on oath of PW-6 Savitri and PW-7 Har Lal cannot be faulted with on any valid score. In a fairly forthright presentation, Mst. Savitri told the Criminal Appeal No. 540-DB of 1999 -11- **** Court that appellant had been to their house to obtain 20 Kgs. Of millet but her husband pleaded inability as “we had only 5/7 (onwards) of millet with us which was even not sufficient for our family for the year”. She proceeded to aver that the appellant, disgruntled by the refusal of her husband to agree to the demand made by him, left only to return few minutes thereafter while he was armed with a Kulhari that the appellant again left the spot after announcing that he would be back and further held out a threat that he would teach them a lesson for not providing millet to him. Then she proceeded to aver that appellant gave a lalkara daring Bajrang to come out of the house. It was further only when Bajrang came to the door of the house that the appellant fired at him. It was only when the appellant was in the process of reloading his gun that PW-7 Har Lal gave a lathi blow on his head. It was on account of the impact of the lathi blow that the cartridge fell down upon the ground and accused succeeded in fleeing from the spot with his gun. Her statement is in complete tandem with that of her son. PW-7 Har Lal too testified on oath that he picked up a lathi lying in the courtyard and gave a blow with it on the head of Chhotu Ram appellant when the latter was in the process of re-loading his gun. In the course of cross-examination, the defence did put up to them that it was the Har Lal who had caught hold of DW-3 Mst. Chandro wife of appellant and kissed her. Though Mst. Chandri entered the witness box to own up the attribution, learned Trial Judge discarded the defence plea of innocence for reasons which Criminal Appeal No. 540-DB of 1999 -12- **** are valid in character. Neither Mst. Chandro nor her husband complained to the police against the alleged act on the part of PW-7 Har Lal. They also did not file any private complaint against PW-7 Har Lal. The appellant did sustain injury on his head but he got himself medico legally examined only at 11.30 A.M. on 1.10.1996. Bajrang had earlier died prior to 6.00 A.M. Though there is no law that prosecution case must be negatived only on account of inability on the part of the prosecution to explain injuries on the person of accused, the present is not a case of that category at all. The case before the Court is one in which Har Lal PW-7 claimed having given a lathi blow on the head of appellant when he was in the process of re-loading his gun. The fact that neither DW-3 Mst. Chandro nor her husband i.e. appellant made any grievance of the 'indecent' act on the part of PW-7 Har Lal before the police or the Panchayat and also the further fact that they also did not file any private complaint in the Court and that appellant got himself medico legally examined only after Bajrang had died are factors which point to the falsity of the defence plea of innocence. In particular, the testimony of DW-4 Sultan is not worthy of credence for the simple reason that he could not have been carrying his licenced gun on his person while he was returning from his fields to his house. His testimony, thus, that he fired a shot (which hit Bajrang) with his licensed gun is neither here nor there. The credence, of the plea put forward by the defence in the statement of DW-3 Mst. Chandri and DW-4 Sultan Singh, stands completely eroded on account of the facts indicated above. Criminal Appeal No. 540-DB of 1999 -13- **** That aspect had been adequately dealt with by the learned Trial Judge in paras 25 and 26 of the judgment under challenge. We find ourselves in complete agreement with the line of reasoning adopted by him in discarding it. The deposition on oath of PW-6 Savitri and PW-7 Har Lal with regard to number and nature of injuries given by appellant to deceased Bajrang is in complete accord with the medical evidence. Our attention has not been invited to any fact to assail inter-se supporting character of the ocular version and the medical version. The fact that appellant did hold an arm licence is proved by the record based testimony of PW-4 Zile Singh. The present is, thus, a case in which the prosecution has adduced reliable and clinching evidence of affirmative character to prove the charge against the appellant. As against it, the appellant has not been able to prove his plea of innocence. We have, accordingly, no hesitation in holding that appeal deserves to be dismissed and it so ordered accordingly. ( S. D. ANAND ) JUDGE July 04, 2008 (ADARSH KUMAR GOEL) Pka JUDGE