CRIMINAL APPEAL NO. 115-DB OF 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: March 06, 2009 Parties Name Dhare Singh ...APPELLANT. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT:Mr. Sanjiv Sheoran, Advocate, for the appellant. Mr. S.S.Randhawa, Addl. A.G., Haryana JASBIR SINGH, J. JUDGMENT It was allegation against the appellant that on May 15, 1998, at about 5.30 AM, in the area of village Shamlo Kalan, district Jind, he committed murder of Wazir Singh (his real nephew). Vide judgment and order dated January 18, 2000, he was convicted for commission of an offence punishable under Section 302 of the Indian Penal Code, sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- with a default clause. Hence this appeal. CRIMINAL APPEAL NO. 115-DB OF 2000 -2- Case of the prosecution, as noticed by the trial Court in para No. 2 of the impugned judgment reads thus: “2. Prosecution case, as disclosed in the statement of Maha Singh (father of the deceased) made before the police Ex. PB is that he has two brothers, Phool Singh and accused Dhare Singh, and all of them are separate in residence. About two years prior to the occurrence, his son, Wazir Singh, had given a lathi blow to Dhare Singh accused during the course of a fight which took place between them. The matter was, subsequently, compromised. But, the accused started nourishing a grudge against Wazir Singh and the parties stopped speaking to each other. On 15.5.1998, at about 5.30 AM, Maha Singh complainant and his son, Wazir Singh, left their house for their field which they were to irrigate with tubewell water. The former was on foot while the latter had a cycle. Wazir Singh stopped on the way, near Mandi, for taking tea while the complainant proceeded ahead towards the fields. When the latter reached near the field of Zora Singh, his son (Wazir Singh) crossed him (on cycle). When Wazir Singh had covered a distance of about one killa ahead of the field of Zora Singh, the complainant noticed that the accused, who was holding a lathi, was going towards the fields, for grazing buffaloes. When Wazir Singh was about to cross the accused, the latter gave a lathi blow on his head. He (Wazir Singh) fell down, alongwith the cycle. Thereafter, the accused gave him several successive lathi blows. The complainant started running towards his son, CRIMINAL APPEAL NO. 115-DB OF 2000 -3- while making noise. The accused, thereupon, fled away towards the fields, alongwith his lathi. On reaching the spot, the complainant found that blood was oozing out of the head of Wazir Singh. The latter expired within his sight, at the spot.” The complainant Maha Singh (PW4) sent information to his family members, when they reached there, he left them to guard the dead body and proceeded to inform the Police . His statement Ex. PB was recorded by Sub Inspector Wazir Singh, S.H.O., (PW11), on the basis of which formal FIR Ex. PA was recorded against the appellant. The Investigating Officer went to the spot, prepared inquest report on the dead body and sent it for post-mortem examination. He also got photographs of the place of occurrence and picked up blood stained earth, against recovery memos. He also took into his possession other articles, which were found lying near the dead body. The Investigating Officer got prepared rough site plan and recorded statements of the witnesses. Post mortem examination on the dead body was conducted by Dr. Renu Aggarwal (PW10) on May 15, 1998, at 3 PM. She made the following observation in her report: “Blood was coming from ears. There was one contusion 4 cm x ½ cm on the right side of forehead. It was brownish black in colour. There were four contusions on the front of neck and chest extending upto shoulders, verying in size from 5 cm x 1 cm to 20 cm x 1 cm. Vague contusions were present on the upper side of left arm and few small contusions and abrasions were present on face and forehead. Cervical vetebra was fractured. On opening lower part of brain and spinal cord were CRIMINAL APPEAL NO. 115-DB OF 2000 -4- found lacerated. Neck was full of blood and carotid artery was torn on right side. Right clavicle was also fractured. Both the lungs and pleura were healthy and pale. Larynx and trachea contained blood. Right lung contained small amount of blood. Pericardium contained small amount of serum. Abdominal wall was healthy and pale. Peritoneum was also healthy and pale. Stomach contained few semi digested food particles and fluid. Small intestines contained chyme and gases. Large intestines were empty. Liver, spleen and kidneys were healthy and pale. Bladder was empty. Organs of generation were normal.” As per opinion of the doctor, death has occurred due to hemorrhage and shock as a result of the injuries, mentioned above and cardiac respiratory arrest, which was sufficient to cause death in ordinary course of nature. The witness has further stated that those injuries could have been caused with wooden stick Ex. P-13. On completion of investigation, final report was put in Court for trial. The appellant was charge-sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced oral as well as documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He, however, led no evidence in defence. The trial Court, on appraisal of evidence, opined that the prosecution was successful in bringing home guilt of the appellant- accused CRIMINAL APPEAL NO. 115-DB OF 2000 -5- and accordingly convicted and sentenced him, as mentioned in earlier part of this order. Shri Sanjeev Sheoran, Advocate, counsel for the appellant, has vehemently contended that the trial Court was not justified in convicting and awarding sentence to the appellant. By making reference to the contents of the statements made by the prosecution witnesses, he argued that the prosecution has failed to prove any motive on the part of the appellant to commit the crime. He further stated that the presence of PW4 Maha Singh (father of the deceased) at the spot was doubtful and that there was delay in recording the FIR. In the alternative, he stated that it was a chance meeting. The appellant was not armed with any deadly weapon. It appears that due to some altercation, between the appellant and the deceased, he might have caused injuries in a fit of anger. He further stated that the appellant is an old man of more than 70 years of age. His action at the maximum would fall under the provisions of Section 304, Part II IPC and not under Section 302 IPC. By stating as above, he prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charge framed against him. Prayer made has vehemently been opposed by Shri S.S.Randhawa, Addl. A.G., Haryana, counsel for the respondent – State. He stated that recording of FIR is very prompt in this case. Occurrence alleged to have taken place at 5.30 AM. Statement of PW4 was recorded at Bus Stand of the nearby village and FIR was recorded in the Police Station, at a distance of 12 KMs at 10.00 AM. The sequence of events shows that there was no delay in recording the FIR. He further argued that the way injuries have been caused by the appellant to the deceased (his real nephew) shows CRIMINAL APPEAL NO. 115-DB OF 2000 -6- that the attack was made with vengeance to kill the deceased. By making reference to the deposition made by PW10 Dr. Renu Aggarwal, counsel argued that the wooden stick was used with violent force, which resulted into fracture of survical vertebra. The neck was full of blood and carotid artery was torn on the right side. Right clavicle was also fractured. On account of head injury, blood was coming out from the ears. He also stated that the deposition made by PW4 Maha Singh is trust worthy. Motive to commit crime was proved on record. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, we are not inclined to interfere at the instance of the appellant in this case. Eye witness account of the occurrence has been given by Maha Singh (PW4), father of the deceased. He has specifically stated that early in the morning at about 5.30 AM, on May 15, 1998, he along with his son left for their field to irrigate the crop with tubewell water. Maha Singh went on foot. However, the deceased was on a cycle. Deceased, on his way, stopped near Mandi for taking tea. Maha Singh proceeded ahead to his tubewell, near the fields of Zora Singh, the deceased crossed him . When the deceased was at a distance of one Killa from the field of Zora Singh, Maha Singh saw the appellant – accused holding a Lathi. When Wazir Singh (deceased) came near to him, the appellant – accused gave a Lathi blow on his head. Wazir Singh fell down along with his cycle. The appellant accused continued his assault even when deceased was lying on the ground. On alarm being raised by Maha Singh, the appellant ran away from the spot along with his weapon. In the sight of Maha Singh (PW4), his son Wazir Singh died. No doubt, PW4 being father is closely related to the deceased but on this account no benefit CRIMINAL APPEAL NO. 115-DB OF 2000 -7- can be given to the appellant -accused. Cross-examination of this witness has failed to shatter his testimony. His statement was corroborated by his son Rajla (PW5), who has specifically stated that Maha Singh (PW4) had told him and other family members that deceased Wazir Singh was killed by the appellant – accused. Rajla has further stated that murder was committed by the appellant – accused to take revenge of the fight, which had taken place between the parties some time earlier to the occurrence. Rajla (PW5) was not cross-examined. The trial Court has rightly concluded that the appellant had a motive to commit the crime and further that Maha Singh (PW4) was a natural witness at the spot. At the time of post-mortem examination, PW10 Dr. Renu Aggarwal found that there were semi-digested food particles and fluid was present in the stomach. As per prosecution version, before leaving the house, the deceased had taken the curd and on his way, he also had taken a cup of tea. It was so said by PW4 Maha Singh. Above said facts also prove that Maha Singh has deposed the truth. Contention of counsel for the appellant that there was delay in recording the FIR is also liable to be rejected. As has been noticed earlier, occurrence has taken place 1 -1/2 KM away from the village at about 5.30 AM.After occurrence, Maha Singh (PW4) sent intimation to his family members through a resident of the village. When his family members reached at the spot, he narrated the entire story, left them near the dead body and then proceeded to intimate the police. The police party met him at the Bus Stand. After recording his statement, Wazir Singh, SI/SHO , (PW11) sent information to the Police Station, situated at a distance of 12 KMs and formal FIR was recorded at 10.00 AM. Sequence of events clearly indicates CRIMINAL APPEAL NO. 115-DB OF 2000 -8- that there was no delay in handing over information to the police except the time, which might have been consumed in intimating the family members and going to the Police Station. Alternative contention of counsel for the appellant that the offence would not fall under the provisions of Section 302 IPC is also not justified. Injuries were caused with a wooden stick. It was not a regular weapon of offence. However, in view of determination to kill, shown by the appellant, no relief can be given to him on that account also. Statement made by Dr. Renu Aggarwal (PW10), who had conducted post-mortem on the dead body on May 15, 1998, clearly indicates that after giving first blow on the head, the appellant did not stop and gave numerous blows to the deceased on his neck and chest, which resulted into fracture of survical vertebra and right clavical. Carotid artery was also torn on the right side. Repeated use of force indicates that the appellant was determined to kill the deceased. Motive to commit crime was also proved on record. PW4 Maha Singh had stated that there was a fight between the parties a few months prior to the present occurrence, though the matter was patched up with intervention of the respectables, however, the parties thereafter were not on speaking terms. It was also so stated by Rajla (PW5), who was not even cross-examined to negative above said fact. To PW4 also, it was suggested by the defence counsel, during cross-examination, that the appellant – accused had to remain admitted in the hospital on account of injuries received by him at the time when earlier fight had taken place between the parties. Facts, mentioned above, indicate that the appellant – accused was nursing a grudge against family of the deceased. Counsel for the appellant CRIMINAL APPEAL NO. 115-DB OF 2000 -9- has failed to indicate any misreading of evidence on the part of the trial Court, which may necessitate interference by us. Dismissed. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE March 06, 2009. DKC