Crl.Appeal No. 957-DB of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No. 957-DB of 2007 Date of decision:13.3.2012 Bijender Singh ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.R.S.Rai, Sr. Advocate, with Mr.D.S.Brar, Advocate, for the appellant. Mr. D.Khanna, Addl.AG, Haryana. ... JORA SINGH, J. This criminal appeal has been preferred by Bijender Singh son of Budhi Ram to challenge the judgment of conviction dated 17.10.2007 and order of sentence dated 18.10.2007 passed by Additional Sessions Judge, Faridabad, whereby he was convicted under Sections 302/323/342 IPC and was sentenced to undergo RI for life and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for two years under Section 302 IPC and to undergo RI for one year each under Sections 323 and 342 IPC, respectively, in Sessions Case No.34 of 2005, arising out of FIR No. 165 dated 12.7.2005 under Sections 302/323/342/34 IPC, Police Station Sarai Khawaja. However, all the substantive sentences were ordered to run concurrently. Prosecution story, in brief, is that Ajit Singh, complainant, along with his brother Surjit Kumar, deceased, was tenant in a room of Crl.Appeal No. 957-DB of 2007 2 House No. 122-A @ Rs.800/- per month owned by Bijender Singh son of Budhi Ram, situated in Street No.3, Durga Colony, Sehatpur Extension, Faridabad. On 11.7.2005 at about 7.00 PM, he along with his brother Surjit Kumar, was present in his room. Bijender Singh came and demanded rent. Surjit Kumar replied that rent shall be paid within 2-4 days. After threatening, Bijender Singh had left the room. After taking meals, they had slept in the room. On 12.7.2005 at about 5.00 AM, he, along with his brother Surjit Kumar, was present in the room. Then Bijender Singh and his father Budhi Ram came. Surjit Kumar was taken away by them to their room. He (complainant) was bolted inside his room. Surjit Kumar was crying while he was given beatings with danda by Bijender Singh and Budhi Ram. At about 12.45 PM, he was taken out from the room. He found Surjit Kumar tied with a rope to a cot. Surjit Kumar was screaming from injuries. He enquired from Bijender Singh as to why Surjit Kumar was given beatings. Bijender Singh picked up a danda and gave blows to him. After that, he went to the house of his cousin Dalbir Bhaskar and returned with Dalbir Bhaskar to the house of Bijender Singh. Surjit Kumar was untied from the cot. Surjit Kumar was caught hold by the appellant whereas Budhi Ram gave blows with his elbow. Bijender Singh gave danda blow on the head of Surjit Kumar. On receipt of blows, Surjit Kumar became unconscious. He (complainant) along with Dalbir Bhaskar shifted Surjit Kumar to B.K.Hospital, Faridabad, where he was declared brought dead by the doctor. He was also medico legally examined. On 12.7.2005, a telephonic message was received from Crl.Appeal No. 957-DB of 2007 3 B.K.Hospital, Faridabad, regarding admission of Surjit Kumar in the hospital. SI/SHO Prit Pal, PS Sarai Khawaja, went to B.K.Hospital, Faridabad. Ajit Singh (complainant) was present in the hospital, who produced written complaint (Ex.P25) along with his MLR. After making endorsement at 8.05 PM, written complaint was sent to the police station, on the basis of which, formal FIR (Ex.P17) was recorded. Inquest report (Ex.P2) was prepared. The Investigating Officer moved application (Ex.P3) for postmortem examination. Dead body of Surjit Kumar was handed over to police officials for postmortem examination. IO visited the spot and after inspection, prepared rough site plan (Ex.P22) with its correct marginal notes. Blood stained pochha (a piece of cloth) was lifted from the spot and was taken into police possession vide memo (Ex.P15) attested by the witnesses. After postmortem examination, HC Rajinder Singh produced one sealed packet of clothes worn by the deceased, which was taken into police possession vide memo (Ex.P14) attested by the witnesses. Accused were arrested on 13.7.2005 and were interrogated. Bijender Singh suffered disclosure statement (Ex.P7) and in pursuance thereof, got recovered a rope (Ex.P11) and a danda (Ex.P10) from the specified place, which were taken into police possession vide memo (Ex.P9) attested by the witnesses. Budhi Ram suffered disclosure statement (Ex.P8) and in pursuance thereof, got recovered a wooden danda (Ex.P13) from the specified place, which was taken into police possession vide memo (Ex.P12) attested by the witnesses. After completion of investigation, challan was presented in the Court. Crl.Appeal No. 957-DB of 2007 4 Case was committed to the Court of Session for trial as per order dated 22.9.2005 passed by JMIC, Faridabad. After hearing learned PP for the State, learned counsel for the accused and from the perusal of documents on the file, trial Court opined that a prima facie case is made out to frame charge against the accused under Sections 302/323/34 IPC. Accordingly, charge was framed, to which the accused pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined a number of witnesses. PW1 Dr.Smt. Urmila Wadhawan stated that on 13.7.2005, she had conducted postmortem examination on the dead body of Surjit Kumar and found the following injuries on his person:- “1. On the right shoulder posterior aspect mark of size 2'' reddish blue abrasion. 2. Right side of the chest, reddish blue abrasion of size 1.5 cm x .5 cm. 3. Left side of the forehead on the frontal region. Reddish colour of region 1'' in size. Cut wound present and bleeding from the left ear is present. 4. Left occipital region cut wound of size 1'' present. 5. Left forearm red/blue abrasion of size 13'' in length and 18'' in breadth. 6. Left region abrasion of size 2'' x .5 cm in size. Brown coloured abrasion present and on the left leg, 20'' x 4'' abrasion. 7. Right left abrasion of size 10'' x 4''. Reddish blue Crl.Appeal No. 957-DB of 2007 5 abrasion. On examination of the skull, a haemapomata present in the left parietal region and left occipital region under neither injured part. On right side, haemopomata in the right frontal region. Chest wall, ribs and cartilages were formal. Plourse was pale. Larynx and trachea both lungs were congested. Right side of the heart contained blood whereas left side was empty.” Cause of death was multiple injuries and injuries to the vital organs leading to shock and haemorrhage and ultimately to cardio respiratory arrest. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course. PW2 Constable Sarwan Kumar prepared site plan (Ex.P4). PW3 Constable Ramesh Kumar and PW4 HC Vijay Pal tendered in evidence their affidavits, Ex.P5 and Ex.P6, respectively. PW5 SI Raj Deep Singh stated that on 13.7.2005, Bijender Singh and Budhi Ram were arrested. They were interrogated and both suffered disclosure statements separately. In view of disclosure statements, they got recovered dandas and rope, which were taken into police possession vide separate memos attested by the witnesses. PW6 Dr.P.K.Chaudhary stated that on 12.7.2005 at about 4.15 PM, Ajit Singh was medico legally examined and following injuries were found on his person:- “1. Complaining of pain in abdomen. No external injury seen. Advised x-ray abdomen. Erect supine, AP lateral and surgeon opinion. 2. Bruises red colour over the back, 8 cm x 1 cm. Crl.Appeal No. 957-DB of 2007 6 Tenderness present. Advised x-ray chest. PA view and surgeon opinion. 3. Swelling and tenderness left wrist. Advised x-ray left wrist, AP lateral and ortho. opinion.” PW7 ASI Ramesh Chand stated that on receipt of written complaint, formal FIR (Ex.P17) was recorded. PW8 Dalbir Bhaskar stated that Ajit Singh and Surjit Kumar, his cousin brothers, were the tenants of Bijender Singh. On 12.7.2005 at about 12-12.30 noon, Ajit Singh came and told that some people had assaulted him and his brother Surjit Kumar. After that, he did not support the prosecution story and was declared hostile and cross-examined by learned PP for the State. PW9 SI Prit Pal is the Investigating Officer. P10 Ajit Singh is the complainant and has supported the prosecution story in accordance with the written complaint (Ex.P25). After closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. wherein he denied all the prosecution allegations and pleaded innocence. Appellant led defence by producing witnesses. In defence, Bijender Singh pleaded that on 11.7.2005, he along with his father Budhi Ram and sister Sukhbiri had gone to Village Khedla, Tehsil Sohna, District Gurgaon, to attend engagement ceremony of Anil Kumar son of his sister Roshna Devi. During night time, they had stayed at the house of Roshna Devi and came back on the next day, i.e., 12.7.2005 after noon. They were arrested by the police. DW1 Anil Kumar has stated that on 11.7.2005, appellant, along Crl.Appeal No. 957-DB of 2007 7 with his father and sister, came to attend his engagement ceremony. They had stayed in their house during night time and went back on 12.7.2005 at about 3.00 PM. DW2 Rajinder Singh is the father-in-law of Anil Kumar. He has also supported the version of DW1 Anil Kumar by saying that on 11.7.2005, appellant, along with his father and sister, had attended the engagement ceremony of Anil Kumar and went back on the next day in the evening. DW3 Shiv Charan and DW7 Chander Singh are the neighbours of Anil Kumar and DW4 Sukhbiri is the sister of the appellant. They have supported the defence version of the appellant. DW5 Surender Singh is the Photographer, who was engaged to click the photographs at the time of engagement ceremony of Anil Kumar. DW6 Jatinder Singh is the owner of factory and stated that Surjit Kumar was employee in his factory and he had attended the factory till 8.7.2005. After hearing learned PP for the State, defence counsel for the accused and from the perusal of evidence on the file, appellant was convicted and sentenced as stated at the outset of this judgment. Co-accused Budhi Ram was acquitted of the charge levelled against him. Against acquittal, no appeal was preferred by the State. Learned counsel for the appellant argued that occurrence was on 12.7.2005 at about 5.00 AM in the room of the complainant but at that time, appellant had simply demanded rent. Injuries were not caused by the appellant in the presence of complainant Ajit Singh, who, according to him, Crl.Appeal No. 957-DB of 2007 8 had simply heard cries of his brother Surjit Kumar. Second occurrence was at about 12.30 noon. At that time, appellant was alone and gave danda blow. Third occurrence was in the presence of Dalbir Bhaskar when Budhi Ram, who was acquitted by the trial Court, gave blow with his elbow on the person of Surjit Kumar and the appellant is alleged to have given a danda blow. Occurrence was witnessed by Dalbir Bhaskar but Dalbir Bhaskar, while appearing as PW, did not support the prosecution story. Dalbir Bhaskar is related to the complainant party and in case occurrence had taken place in the presence of Dalbir Bhaskar, he would have supported the prosecution story. Before the present occurrence, there was no previous dispute between the parties. Dispute was regarding payment of rent. The appellant is said to have given injuries to the deceased with a danda. In view of the statements of Ajit Singh and Dalbir Bhaskar, Budhi Ram was acquitted by the trial Court. So, on the basis of same evidence, appellant cannot be convicted and sentenced and even if this Court is of the view that injuries were caused by the appellant with a danda, even then appellant is not liable for the offence punishable under Section 302 IPC but can be made liable at the most for the offence under Section 304-II IPC. Learned State counsel argued that deceased was a tenant of the appellant. There was no dispute regarding rent. According to the appellant, rent was due. Appellant had gone to the room of the complainant party for getting rent. When complainant party replied that rent is to be paid within 2-4 days, then appellant came back after threatening the complainant party. On 12.7.2005, again in the morning appellant had gone to the room of the complainant party. In the presence of Ajit Singh, Surjit Kumar was taken by Crl.Appeal No. 957-DB of 2007 9 the appellant to his room. Complainant was locked inside the room. Appellant gave beatings to Surjit Kumar in his room. Surjit Kumar was heard crying by saying as to why he is being beaten by the appellant. Room of the appellant was near the room of the complainant party. In the house of the appellant, there was no other male member. At about 12.30 PM, complainant was taken out from his room. Surjit Kumar was found in the room of the appellant tied with a rope with the cot. When complainant enquired from the appellant as to why Surjit Kumar was given beatings and tied with the cot and injuries were given to him with a danda. Complainant had gone to the house of his cousin Dalbir Bhaskar. Both came back. Surjit Kumar was again caught hold of by the appellant and given a danda blow on his head. A number of injuries have been noticed on the person of Surjit Kumar. Injuries cannot be self suffered or self inflicted. On 11.7.2005 at about 7.00 PM the appellant demanded rent, then he threatened the complainant as to why rent is not being paid. On the next day in the morning the appellant went to the room of the complainant party. In the room of the appellant, injuries were caused to Surjit Kumar. At that time, complainant was locked inside his room. At about 12.30 PM, again when the complainant enquired from the appellant as to why injuries were given to Surjit Kumar, the appellant gave injuries to the complainant. In the presence of Dalbir Bhaskar, appellant gave danda blow on the head of Surjit Kumar. No doubt, injuries were given with a danda but intention was to murder. If intention was not to murder, then there was no reason to give injuries on vital parts. If rent was due, the remedy of the appellant was to file an ejectment petition. It is further submitted that interim order shows Crl.Appeal No. 957-DB of 2007 10 that complainant party was not feeling safe while appearing in the Court and, therefore, protection was provided to the witness. Dalbir Bhaskar, who is a poor man, failed to support the prosecution story out of fear. But one thing is clear that about 12.00-12.30 noon, Dalbir Bhaskar had gone to the room of the complainant and came to know that injuries were caused to the complainant and his brother. Surjit Kumar was seen in the room of appellant with injuries on his person. Appellant was the landlord. Except the appellant, there was no other male member in the room. Complainant was also given injuries. The only question is whether injuries were caused by the appellant or by some body else. When the complainant party had no enmity with the appellant, then there was no reason to falsely name the appellant, particularly, when occurrence was in the house of the appellant. Defence version of the appellant is that he had gone to attend engagement ceremony of Anil Kumar but would be worth saying that the DWs, except Photographer, are related to the appellant so they are very much interested for the acquittal of the appellant. According to the defence, appellant was arrested on 12.7.2005 but no complaint was made to any authority till today. When the occurrence was in the house of the appellant and injuries were not self suffered or self inflicted, then there is no reason to disbelieve the complainant or having no idea to leave the real culprit and name the appellant. Number and nature of injuries show that intention was to cause murder. Evidence on the file was rightly scrutinized by the trial Court. The appeal should, therefore, be dismissed. We have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on the file. Crl.Appeal No. 957-DB of 2007 11 First submission of learned counsel for the appellant is that before the present occurrence, there was no enmity between the parties. Deceased was a tenant of the appellant but no previous dispute regarding payment of rent has been alleged by the parties. There was no motive to commit the crime. As per prosecution story, appellant was demanding rent. When the complainant party failed to pay rent, then injuries were caused with danda. Intention of the appellant was not to cause murder but to cause injuries to recover rent. But after going through the evidence on the file, we are of the opinion that submission of learned counsel for the appellant carries little weight. Appellant was owning a house and one of the room from that house was on rent @ Rs.800/- per month with the complainant party. About one month and ten days before the present occurrence room was rented out to the complainant party. According to the complainant party, on 11.7.2005, appellant came to their room and demanded rent. Rent was not ready and appellant was requested that rent is to be paid within 2-4 days. Then the appellant went back after threatening the complainant party. Ajit Singh, complainant, appeared during trial as PW 10 and stated that they were occupying one room owned by the appellant. Rent was Rs.800/- per month and rent was due. Appellant came and demanded rent but complainant requested to pay rent within 2-4 days is well established on record because no suggestion was given by appellant's counsel to the complainant or Dalbir Bhaskar that the room, from the house of the appellant, was not on rent with the complainant party and secondly, that rent was not Rs.800/- per month and on 11.7.2005, rent was not due and thirdly, if the rent was not due, then suggestion could have easily been given to the Crl.Appeal No. 957-DB of 2007 12 complainant that rent was regularly paid and on 11.7.2005, rent was not due. So, there was no reason to visit the tenanted premises. Evidence on the file shows that one room of the appellant was on rent with the complainant party. Rent was Rs.800/- per month. More than one month prior to the occurrence, room was let out by the appellant and on 11.7.2005, rent was due. Complainant party requested to pay rent within 2-4 days. So, the appellant had a motive to threaten the complainant party to recover rent and cause injuries. Earlier to the occurrence, there was no dispute between the parties, except payment of rent. Occurrence was in the house of the appellant. Injuries on the person of the deceased cannot be self suffered or self inflicted. Suggestion was given to the complainant that deceased while returning from the factory was waylaid by some unknown assailants and received injuries at their hands. Family members of the appellant were staying in the same house. In case, deceased had received injuries at the hands of some unknown persons while returning from the factory, then any of family members of the appellant could have easily appeared in defence and stated that Surjit Kumar came back from the factory and at that time, he was in injured condition. Occurrence was on 12.7.2005, whereas Jatinder Singh, owner of the factory, while appearing as DW6, stated that Surjit Kumar had attended the factory only upto 8.7.2005. When Surjit Kumar did not attend the factory after 8.7.2005, then no question of receiving injuries at the hands of some unknown persons while returning from the factory ever arises. According to the prosecution story, appellant had a motive to commit the crime. Suppose, there is no cogent and convincing evidence on the file qua motive, then statement of Ajit Singh, complainant, is there on Crl.Appeal No. 957-DB of 2007 13 record which cannot to be rejected because he had no idea to leave the real culprit and implicate the appellant falsely. Sometimes even without motive, heinous crimes are committed. If no evidence regarding motive comes on record, then Court is required to scrutinize the entire evidence with great care and caution. But on this short ground, prosecution story cannot be rejected. Learned counsel for the appellant has further argued that Dalbir Bhaskar is the only eye witness but he did not support the prosecution story. The initial fact of acquittal of Budhi Ram, on the basis of same set of evidence on the file against the present appellant also, coupled with the statement of Dalbir Bhaskar, who did not support prosecution story, as such, the present appellant should also be acquitted. Further, Dalbir Bhaskar is related to the complainant party and in case he had witnessed the occurrence, then there was no reason to resile from his statement under Section 161 Cr.P.C. Dalbir Bhaskar should have stated on oath that in his presence, appellant had given injuries to the deceased. Undisputedly, Dalbir Bhaskar is related to the complainant party. On the request of the complainant, he came to the tenanted premises, visited the room of appellant, where Surjit Kumar was found lying tied with a cot. Surjit Kumar was untied from the cot but was caught hold by the accused party. Budhi Ram gave elbow blows on the person of Surjit Kumar. Appellant had given danda blow on the head of Surjit Kumar, as a consequence, he became unconscious. Surjit Kumar and Ajit Singh, complainant, were shifted to BK Hospital, Faridabad, by Dalbir Bhaskar. Dalbir Bhaskar, while appearing as PW8, stated that on 12.7.2005 at about 12.00-12.30 noon, Ajit Singh came to his room. Then, he, along with Ajit Singh, had gone to the room of the Crl.Appeal No. 957-DB of 2007 14 appellant. Surjit Kumar was found present in the room. But, further stated that appellant had not caused injuries to Ajit Singh or Surjit Kumar in his presence. But admitted, on being cross-examined by learned PP for the State and learned defence counsel for the appellant, that he had shifted the injured to the hospital. He had signed number of documents. So, one thing is clear from the statement of PW8 Dalbir Bhaskar that on 12.7.2005 at about 12.00-12.30 noon, Ajit Singh had gone to his room and on his request, Dalbir Bhaskar came to the room of appellant. Surjit Kumar was found present in room with injuries on his person. That is why, Dalbir Bhaskar had shifted Ajit Singh and Surjit Kumar to BK Hospital, Faridabad. 4-5 rooms were in the house of the appellant. One room of the appellant was on rent with the complainant party. Appellant, along with his family members, was residing in other rooms. Main door of the house of the appellant was in Street No.3. When other family members of the appellant were in the house, then, question arises is, who had caused injuries to Surjit Kumar and the complainant in a room, which belongs to the appellant. No family member of the appellant appeared in defence to state that some unknown persons came to their house at about 12.00-12.30 noon and had caused injuries to the complainant and his brother Surjit Kumar, deceased. On the day of occurrence, appellant had gone to attend engagement ceremony of Anil Kumar and came back on the next day at about 3.00 PM. Interim orders on the file show that complainant party, being poor, out of fear of the appellant failed to appear in the Court. When complainant party failed to appear in Court, then witnesses were directed to be summoned through bailable warrants and then through non-bailable warrants. Protection was given to the complainant party to appear in the Court and Crl.Appeal No. 957-DB of 2007 15 depose. So, out of fear of the appellant, Dalbir Bhaskar, half heartedly, supported the prosecution story by saying