Crl. Appeal No. 16-DB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 16-DB of 2000 Date of Decision : January 09, 2009 Murlidhar and others .... Appellants Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. J. S. Bedi, Advocate and Mr. V. K. Vashishta, Advocate for the appellants. Mr. S. S. Randhawa, Addl. A. G., Haryana. * * * L. N. MITTAL, J. : Muralidhar and his two sons Devender and Deepak Kumar have preferred this appeal assailing judgment of conviction dated 25.11.1999 and order of sentence dated 29.11.1999 passed by learned Sessions Judge, Narnaul, thereby convicting the appellants under Section 302 read with Section 34 of the Indian Penal Code (in short – the IPC) and sentencing them to undergo life imprisonment and to pay fine of Rs.2,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for one year. Crl. Appeal No. 16-DB of 2000 2 Prosecution case in nutshell may be narrated as under :- Dilbag Singh (since deceased) and his brother Parbhati had leased out their 7-1/2 acres of land situated in village Jatwas Tehsil and District Mahendergarh, to Muralidhar (appellant no.1). Appellant No.1 installed brick kiln in the said land and was also lifting earth from the said land for bricks. Lease money of Rs.27,000/- per annum was to be paid in half-yearly instalments. Electricity bills of tubewell were to be paid by appellant no.1, but he did not pay the same and rather got installed a separate electricity meter in his own name, leaving the electricity bills of the previous connection unpaid. Appellant no.1 was also not payming lease money in time and had not paid the same for about 1-1 ½ years before the occurrence inspite of demands by the deceased. The deceased and his brother had also filed a suit against appellant no.1 inter-alia to the effect that the condition in the lease deed that the lessors were to pay the electricity bills, was illegal and against facts and in fact, lessee was liable to pay the electricity bills. On 17.05.1996, at about 08:00 P.M., Deepak Kumar (appellant no.3) came to the house of the deceased and told him that his father i.e. Muralidhar (appellant no.1) was calling the deceased at brick kiln for settling the lease accounts. However, being night time, the complainant party replied that they would not go to the brick kiln at that time. Again, on 18.05.1996, at about 09:00 A.M., Devender (appellant no.2) came to the house of the deceased and told that his father i.e. Muralidhar was asking the deceased to come for settling accounts. Accordingly, Dilbag Singh (since deceased) accompanied Devender to the brick kiln. However, Dilbag Singh did not return home till 02:00-02:30 P.M. for taking meals. Munni Devi – complainant, who is wife of Dilbag Singh, sent her son Bijender to the brick kiln at about 03:00 P.M. However, Bijender, on reaching the brick kiln, found that there was nobody there and in the nearby field of Dharam Chand, Dilbag Singh was lying dead. Bijender returned home and informed his Crl. Appeal No. 16-DB of 2000 3 mother Munni Devi. Thereupon, she along with her family members and other villagers went to the spot and saw the dead body of Dilbag Singh with injuries of scratches on left ribs, left arm and both legs and also appeared to have some internal injuries. Munni Devi believed that all the three appellants had caused injuries to Dilbag Singh resulting in his death, on account of dispute of lease money and electricity bills. Munni Devi made statement Ex. P-E to SI Zile Singh, Station House Officer of Police Station Mahendergarh and thereupon FIR was registered. Zile Singh went to the spot near the brick kiln of appellant no.1. Dead body of Dilbag Singh was lying there. The spot was got photographed. Zile Singh prepared inquest report Ex. P-B and sent the dead body for autopsy. Zile Singh also prepared rough site plan Ex. P-K and recorded statement of witnesses, including Bijender, who made statements similar to that of Munni Devi. Parkash stated that on the same day i.e. on 18.05.1996, at about 10:00 A.M., while going on foot from his village Jatwas to market of Mahendergarh, while passing from the back side of brick kiln office of appellant no.1 on the road, he heard noise of all the three appellants and Dilbag Singh coming from the said office. They were speaking loudly about their accounts. Altercation was going on between them. Kapoor Singh similarly stated that on 18.05.1996, at about 08:00 A.M., Devender (appellant no.2) had come to call Dilbag Singh. Devender had also purchased a cigarette from the shop of Kapoor Singh, located opposite the house of Dilbag Singh. Kapoor Singh had seen Dilbag Singh and Devender going together. Statements of some other witnesses were also recorded. All the three appellants were arrested on the same day. Post mortem examination on the dead body of Dilbag Singh was conducted by board of doctors comprising Dr. S. N. Sharma, Dr. M. P. Lamoria and Dr. Vijay Singh on 19.05.1996. The deceased was aged 36 years. Following injuries were found on the dead body :- 1. A lacerated wound 2.5 x 1.5 cms on medial side of left fore- Crl. Appeal No. 16-DB of 2000 4 arm 2.5 cms above the left wrist. 2. An abrasion 4.5 x 3 cms on the front of left elbow joint. 3. 5 x 1.8 cms abrasion on the meddle of left fore-arm. 4. There were two abrasions on the left lower chest below the nipple, 2 cms apart, measuring medial one 6.5 x 3.5 cms and second 7.5 x 5 cms. 5. Abrasion 1 x 1 cm on the left lower eye lid. On dissection, the peritoneal cavity was found to contain about 2 liters of blood. Spleen was healthy and of normal size. There was 2 cms eliptical laceration at the hilum. Splenic vessels were torn. Cause of death, in the opinion of the doctors, was shock and hemorrhage, as a result of injuries to the spleen and splenic vessels. All the injuries were ante-mortem and sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was within hours. Scale site plan was got prepared. Other investigation formalities were completed and all the three appellants were sent up for trial. Charge under Section 302 read with Section 34 IPC was framed against the appellants. They pleaded not guilty and claimed trial. To bring home the charge against the appellants, the prosecution examined 15 witnesses. Dr. S. M. Sharma PW-1 stated about post mortem examination. Jagdish Parshad, Patwari Halqa, PW-2 stated that he prepared site plan. Roop Kishore, Photographer, PW-3 stated that he had photographed the spot and he proved the photographs. Head Constable Bir Singh PW-4 stated that he recorded formal FIR Ex. PE/1 on receipt of statement Ex. P-E. Constable Hanuman PW-5 tendered his affidavit Ex.P-F in his evidence affirming that he had delivered special reports of the case to the Illaqa Magistrate and other officers well in time. Azad Singh, Registration Clerk, PW-6 proved copy of registered lease deed Ex.P-G as per record. Badri Parshad Sharma PW-7 stated that he had scribed the aforesaid lease deed at the instance of Parbhati Lal and Dilbag Singh lessors Crl. Appeal No. 16-DB of 2000 5 and Maralidhar lessee. Raj Kumar PW-8 is from Electricity Board and proved electricity bills Ex.P-H and Ex. P-H/1. SI Siri Chand PW-9 stated that he had recorded statements of some witnesses and also prepared report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.). Parkash PW-10, Munni Devi PW-12, Kapoor Singh PW-13 and Bijender PW-14 broadly stated according to their statements made to the police as noticed herein above. Ram Kishan PW-11from the Electricity Board proved photocopy of ledger Ex.P-J as per entries made by him as Meter Reader. SI Zile Singh PW-15 stated about the investigation of the case conducted by him. Prosecution witnesses Man Singh, Dalbir Singh and Narain Singh were given up as won over by the accused, whereas some other witnesses were given up as unnecessary. On conclusion of prosecution evidence, the accused-appellants were examined under Section 313 Cr.P.C. In their statements, the appellants denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They stated that they have been falsely implicated in the case at the instance of the complainant party. In their defence, the appellants examined three witnesses. S. C. Sanghi DW-1 from Punjab National Bank stated from record that four cheques dated 20.04.1994, 17.10.1994, 06.04.1995 and 20.10.1995 for Rs.13,500/-, Rs.12,500/-, Rs.10,000/- and Rs.9,500/- respectively were issued by Muralidhar (appellant no.1), Proprietor of Sharma Enterprises in favour of Dilbag Singh and were duly encashed. Kishan Lal DW-2 proved lease deed Ex.D-D, whereby Parbhati and Dilbag Singh had leased out their land to Muralidhar. Vijay Rustagi DW-3 is handwriting and finger print expert. He stated that disputed signatures of Dilbag Singh and disputed thumb impressions of Parbhati on receipt dated 13.05.1996 and three other receipts Ex.D-1 to Ex.D-4 were affixed by Dilbag Singh and Parbhati respectively, who had affixed their comparison signatures and thumb Crl. Appeal No. 16-DB of 2000 6 impressions. Learned Sessions Judge, Narnaul vide impugned judgment dated 25.11.1999 found that the appellants had committed murder of Dilbag Singh and accordingly convicted the appellants under Section 302 read with Section 34 IPC. After hearing the parties on quantum of sentence, the appellants were sentenced to life imprisonment and fine and imprisonment in default of fine as already noticed. Feeling aggrieved, all the three convicts have preferred the instant appeal. We have heard learned counsel for the appellants and learned State counsel and carefully examined the case file. The prosecution case is based on circumstantial evidence. In case of circumstantial evidence, the evidence has to satisfy the following tests :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established – Circumstances concerned “must” or “should” and not “may be” established – There is legal distinction between “may be proved” and must be or should be proved. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the Crl. Appeal No. 16-DB of 2000 7 accused and must show that in all human probability the act must have been done by the accused. In the instant case, the prosecution evidence establishes complete chain of evidence to prove the guilt of the appellants and to reasonably exclude the hypothesis of their innocence. The evidence led by the prosecution satisfies all the aforesaid five tests. The prosecution has proved motive for the occurrence. There is also evidence that the appellants and the deceased were last seen together. The FIR was lodged promptly naming the appellants and narrating the detailed version of the occurrence. Dead body was recovered from near the brick kiln office of the appellants. Medical evidence also corroborates the prosecution case. As regards motive, admittedly, appellant no.1 had taken on lease land from the deceased and his brother and established a brick kiln there. Admittedly, there was dispute between them regarding payment of electricity bills of the tubewell installed in the said land. As per recital in the lease deed, the lessors were to pay the electricity bills, but the lessors i.e. the deceased and his brother alleged that the said recital in the lease deed was illegal and against facts and the lessee-appellant no.1 was liable to pay the electricity bills. The lessors had even filed a suit to seek this relief vide plaint Ex.P-L/1. Perusal of the said plaint reveals that next date of hearing in the said suit was 01.02.1997. It would show that the said suit having been instituted on 06.10.1990, was pending on the date of occurrence i.e. 18.05.1996. Consequently, admission of complainant Munni Devi PW-12 that the said suit since stood dismissed, is immaterial because the said suit was pending on the date of occurrence. Thus, even from admitted facts, it is established that there was dispute between the parties on account of liability to pay the electricity bills and motive on the part of appellants, to murder the deceased, is thus proved. There was also dispute regarding payment of lease money as Crl. Appeal No. 16-DB of 2000 8 according to the prosecution version, appellant no.1 was not paying the lease money in time and had not paid the same for 1-1 ½ years prior to the occurrence. There are statements of Munni Devi PW-12 and Bijender PW-14, wife and son respectively of the deceased, regarding non-payment of lease money by the lessee i.e. appellant no.1. Learned counsel for the appellants, however, emphasized that lease money stood paid in advance up to the date of occurrence. Reference in this regard has been made to cheques Ex.D-E dated 20.04.1994 for Rs.13,500/-, Ex.D-F dated 17.10.1994 for Rs.12,500/-, Ex.D-G dated 06.04.1995 for Rs.10,000/- and Ex.D-H dated 20.10.1995 for Rs.9,500/- and receipts Exs.D-2 to D-4 and Mark A-5 regarding payment of half yearly instalments of the lease money. Some amount was paid in cash vide these receipts to make up the half yearly instalments of Rs.13,500/- of lease money. Vide these receipts, lease money stood paid up to 30.03.1996. Learned trial court has also not adversely commented on these receipts. Learned counsel for the appellants next referred to receipt Ex.D-1 dated 13.05.1996 according to which a sum of Rs.4,500/- was paid in April 1996 and the remaining amount of Rs.9,000/- on 13.05.1996, the date of the receipt, in cash as instalment of lease money from 01.04.1996 to 30.09.1996. However, this receipt has to be taken with a pinch of salt because vide other receipts, lease money was paid through cheques wholly or in part, but vide receipt Ex.D-1, entire lease money was allegedly paid in cash. Moreover, there is no separate receipt of alleged payment of Rs.4,500/- in the month of April 1996. That apart, this Court is not to adjudicate upon the civil rights and liabilities of the parties. This aspect of the matter is being examined only to see whether there was motive for the appellants to commit the crime or not. The motive stands established beyond any reasonable doubt. In this context, it has to be noticed that it was specifically suggested on behalf of the appellants to Munni Devi- complainant PW-12 in her cross-examination that a further sum of Rs.13,500/- as lease money was paid to her by the accused on 17.10.1996 Crl. Appeal No. 16-DB of 2000 9 i.e. five months after the occurrence and during the pendency of the case in the trial court and she had given receipt for the same to the accused. The suggestion was denied by the witness. It is improbable that Munni Devi would have accepted any such amount from the appellants just after five months of the murder of her husband allegedly at the hands of the appellants. It is also improbable that the appellants would have paid any such amount to Munni Devi on 17.10.1996. In addition to it, it is specific version of the appellants put to Munni Devi that she had even issued a receipt for the said amount to the appellants. However, no such receipt has seen the light of the day. It may also be noticed that it was also suggested to Munni Devi that cheque for Rs.9,000/- was paid by appellant no.1 to Dilbag Singh and Parbhati and a sum of Rs.4,500/- was paid in cash by Murlidhar to the deceased. However, no such payment has either been proved. Learned counsel for the appellants referred to cheque Ex.D-H and receipt Ex.D-3 and contended that these documents pertain to the aforesaid payments as suggested to Munni Devi in her cross-examination. However, cheque Ex.D-H is for Rs.9,500/- and not for Rs.9,000/- as suggested to Munni Devi. Similarly, vide receipt Ex.D-3, cash amount of Rs.4,000/- was paid whereas suggestion to Munni Devi was regarding cash payment of Rs.4,500/-. It is thus apparent that cheque Ex.D-H and receipt Ex.D-3 do not relate to the aforesaid payments, as suggested to Munni Devi in her cross-examination. From the aforesaid, it can be safely concluded that the prosecution has successfully established the motive part. Learned counsel for the appellants relying on a judgment of Hon'ble Supreme Court of India in the case of Ramesh Baburao Devaskar and others vs. State of Maharashtra , reported as 2007 (4) R.C.R. (Criminal) 671, contended that proof of motive by itself may not be a ground to hold the accused guilty. However, this legal proposition does not help the appellants because in the instant case, other circumstances mentioned herein above have also been Crl. Appeal No. 16-DB of 2000 10 established. There is trust worthy evidence led by the prosecution to prove that the deceased soon before his death was last seen alive together with the appellants. To prove this fact, there are statements of Munni Devi PW-12 and Bijender PW-14, wife and son respectively of the deceased. They have stated that on 17.05.1996 in the evening, Deepak Kumar-appellant no.3 had come to the house of the deceased to call him to the brick kiln for settling lease accounts, as desired by appellant no.1. They have also stated that on 18.05.1996 in the morning, Devender-appellant no.2 similarly came to the house of the deceased to call him to the brick kiln for settling accounts, as required by appellant no.1 and thereupon, the deceased accompanied Devender to the brick kiln. Kapoor Singh PW-13 has also stated that he had seen Devender and Dilbag Singh going together towards the brick kiln. The prosecution has also examined Parkash PW-10, who has stated that on 18.05.1996, at about 09/10:00 A.M., he was going on foot from his village Jatwas to Mahendergarh and when he reached near the brick kiln office of appellant no.1, he noticed all the three appellants and the deceased sitting in the said office talking loudly and Dilbag Singh was asking for the amount. Parkash even peeped through the door. When Dilbag did not return home till 02:30 P.M., Bijender went to the brick kiln but found nobody at the brick kiln. However, Bijender found that in the nearby field of Dharam Chand, dead body of Dilbag Singh was lying. From this evidence, it is established that soon before his death, the deceased was seen together with the appellants. This is a very strong circumstance to prove the prosecution case. Learned counsel for the appellants vehemently contended that Parkash PW-10 has falsely stated that he was not related to the deceased in any degree. However, Munni Devi PW-12 has admitted that Parkash PW-10 is grandson of Teja Ram, whereas Dilbag Singh was son of Chhanga Ram. She also stated that Kapoor Singh PW-13 is grandson of Kishan Crl. Appeal No. 16-DB of 2000 11 Sahai. She also stated that Kishan Sahai, Chhanga Ram and Teja Ram were brothers. However, this distant relationship of Parkash PW-10 with the deceased is not sufficient to discard his testimony. Here it would be significant to notice that statement of Parkash under Section 161 Cr.P.C. was recorded on the day of occurrence itself. Similarly, statement of Kapoor Singh PW-13 was also recorded under Section 161 Cr.P.C. on the day of occurrence itself. So, statements of these witnesses are very credible. Learned counsel for the appellants contended that Parkash PW- 10 has made material improvements in his testimony in the Court over his statement Ex.D-A made to the police and he was duly confronted with the same. Learned counsel for the appellants, relying on a judgment of Hon'ble Supreme Court of India in the case of Hans Raj vs. State of Haryana , reported as 2004 (2) R.C.R. (Criminal) 58, contended that if improvements are made at the time of trial regarding some facts not mentioned in the FIR or during investigation, such facts cannot be taken into consideration to convict the accused. However, in the instant case, there is no material improvement in the statement of Parkash at the time of trial except that in the witness-box, he deposed that he peeped in through the door, which fact was not mentioned in his statement Ex.D-A made to the police under Section 161 Cr.P.C. However, even if this fact is ignored or excluded from consideration, the statement of Parkash establishes that at about 10:00 A.M., the deceased was with the appellants in their brick kiln office. Learned counsel for the appellants contended that Parkash, in his statement Ex.D-A made to the police, did not state that the appellants and the deceased were `sitting' in the office although he stated about their presence in the office. The fact, that they were sitting or otherwise present in the office, is sufficient to establish the factum of last seen together. The witness could not be expected to make verbatim statement in the Court after one year. Thus, it is not an improvement, much less material one. Learned counsel for the appellants also contended that in the witness box, Parkash Crl. Appeal No. 16-DB of 2000 12 stated that the deceased was asking for the amount, but this fact was not stated by him in his statement Ex.D-A made to the police. However, in Ex.D-A, Parkash stated before the police that the deceased and the appellants were speaking loudly about the accounts and there was altercation between them. It is thus apparent that there is no material improvement made by the witness even on this aspect. The testimony of Parkash is thus reliable. Statements of Munni Devi, Kapoor Singh and Bijender are also reliable. Their statements could not be impeached in any manner in cross-examination. It is thus established from their evidence that the deceased soon before his death was last seen together with the appellants. Learned counsel for the appellants emphatically argued that there was gap of about 5 ½ hours between the time of last seen together and the time of spotting the dead body of the deceased by his son Bijender. It was contended that Devender had allegedly taken the deceased with him at about 09:00 A.M. and Bijender was sent at about 02:30 P.M. i.e. after gap of 5 ½ hours and therefore, merely on the basis of last seen together 5 ½ hours before spotting the dead body, the appellants cannot be held to have murdered the deceased. The argument is completely unacceptable. Kapoor Singh had seen the deceased together with the appellants at about 10:00 A.M. and thus, there was gap of 4 ½ hours only as the dead body was spotted thereafter at 02:30 P.M. This gap cannot be said to be a long gap so as to give any benefit to the appellants. On the other hand, it is apparent that the deceased, soon before his death, was lastly seen in the company of the appellants and so, the only inference that can be drawn is that the appellants had murdered the deceased. Here, it would not be out of place to notice that the deceased was seen with the appellants in their brick kiln office and the dead body was also recovered just from near the said office, as proved by unchallenged evidence of the prosecution in the form of site plan Ex.P-K and statements of Munni Devi PW-12, Bijender PW-14 and Crl. Appeal No. 16-DB of