IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 155 -DB of 2000 Dated of Decision:- April 24, 2009 Jarnail Singh and another ....APPELLANTS VERSUS State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Sh. Vinod Ghai, Advocate for the appellants. Sh. Kulvir Narwal, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 8.2.2000/ 9.2.2000 of the learned Sessions Judge, Kurukshetra, whereby he convicted Jarnail Singh @ Babli and Karnail Singh @ Minto both sons of Sukhdev Singh under Section 302 read with Section 34 IPC and sentenced them to undergo life imprisonment. He directed them to pay a fine of Rs.10,000/- each, in default of payment of fine to further undergo R.I. for three years. A sum of Rs.15,000/- was ordered to be paid as compensation to the widow of victim Ajaib Singh out of the fine recovered. 2 Criminal Appeal No. 155 -DB of 2000 Sukhdev Singh, father of both the appellants, was tried separately and was acquitted by the learned trial Court. State has not filed an appeal against his acquittal. The case of the prosecution is unfolded by the statement Ex.PA of Malkiat Singh given to Ram Kumar SI, Police Station Jhansa in the area of Village Rohti. Malkiat Singh stated, that he is 13 years old and is a resident of Village Majri Khurd. On the day of occurrence, he was studying in Class 8 in M.S. High School, Jhansa. On 20.10.1998 at 3.00 p.m., he along with his cousin Ajaib Singh son of Jasmer Singh went from Village Majri Khurd to Village Jhansa for bringing medicine on their motorcycle, make Hero Honda bearing No.UP-10A/7398. At about 4.00 p.m., when they were returning from Village Jhansa to their Village Majri Khurd after getting medicine and when they reached near Village Rohti which was about 3-4 Killas (acres) away from Village Majri Khurd, then from the side of Village Majri Khurd, Karnail Singh and Jarnail Singh sons of Sukhdev Singh were seen coming on a motorcycle, Hero Honda make. Jarnail Singh was driving the motorcycle, while Karnail Singh, who was siting on the pillion, had two iron rods in his hand. When Malkiat Singh and Ajaib Singh reached near the sugarcane fields of Gurmukh Singh, Jarnail Singh stopped them by putting his motorcycle in front of their motorcycle. Karnail Singh got down from his motorcycle and gave a Saria blow thrustwise on the forehead of Ajaib Singh. Both Malkiat Singh and Ajaib Singh fell down from the motorcycle. In the meanwhile, Sukhdev Singh came out from the nearby sugarcane fields with a gun in his hand. He was concealing himself by sitting there. He exhorted his sons Jarnail Singh and Karnail Singh to kill 3 Criminal Appeal No. 155 -DB of 2000 Ajaib Singh and teach him a lesson for making false allegation of stealing of a hen. Both Jarnail Singh and Karnail Singh gave several Saria blows on the head and neck of Ajaib Singh. Malkiat Singh made a hue and cry. Jasmer Singh son of Daya Singh and another uncle Jasmer Singh son of Gurbachan Singh, who were coming behind, saved them. Jarnail Singh and Karnail Singh before fleeing gave 3-4 slaps and fist blows on the face of Malkiat Singh. Ajaib Singh with these injuries died on the spot. On the basis of this statement, FIR Ex.PA/2 was recorded on 20.10.1998 at 8.00 p.m. and the special report reached the A.C.J.M., Kurukshetra at 12.25 a.m. on 21.10.1998. The prosecution to prove its case brought into the witness box, Malkiat Singh PW1, Jasmer Singh son of Daya Singh PW2, Dr.Jagmal Singh PW3, ASI Ram Udit PW4, HC Mam Raj PW5, HC Waryam Singh PW6, Constable Subhash Chand PW7, SI Khushal Singh PW8, Amrik Singh PW9, Jasmer Singh son of Gurbachan Singh PW10, Constable Mukesh Kumar PW11, SI Ram Kumar PW12 and Dilbagh Singh PW13. Learned counsel for the appellants has argued, that the statements of the eye witnesses are not believable. Malkiat Singh has turned hostile and retracted from his statement. Jasmer Singh son of Daya Singh PW2 is the father of the deceased and is an interested witness. The other eye witness Jasmer Singh son of Gurbachan Singh PW10, is the cousin brother of the deceased; he also is an interested witness. There was no need for the appellants to go to the house of Amrik Singh PW9 and to shout at him, that their lion had been killed. If they had committed the crime, they would not have gone to the brother of 4 Criminal Appeal No. 155 -DB of 2000 the deceased and shouted this in broad day light. He is an implanted witness. Jasmer Singh son of Daya Singh PW2 is the father of the deceased and Jasmer Singh son of Gurbachan Singh PW10 is the cousin brother of the deceased. Both are related to the deceased and are not natural witnesses, but are chance witnesses. They have given a version in favour of the deceased, which is because of the close relationship. They are interested witnesses. In FIR Ex.PA/2, it has been stated by Malkiat Singh PW1, that both Jasmer Singh, the father of the deceased and Jasmer Singh son of Gurbachan Singh were coming from behind. It is clear from this, that they had not seen the occurrence. In statement Ex.DA made by Amrik Singh PW9, the names of both Jasmer Singh son of Daya Singh and Jasmer Singh son of Gurbachan Singh have not been mentioned as being at the place of occurrence. It is strange, that a 13 year old boy i.e. Malkiat Singh PW1 was sent to lodge the FIR, when Jasmer Singh PW2, the father of the deceased and Jasmer Singh son of Gurbachan Singh PW10 , the cousin of the deceased, had seen the occurrence also. They were both elderly persons, who should have lodged the FIR, if they had seen the occurrence. In Site Plan Ex.PH, presence of these witnesses has not been shown. Jasmer Singh PW10 has stated, that 15 to 20 injuries were caused to the deceased, but this is not corroborated by the medical evidence, which only shows five injuries on the person of the deceased, out of which two are contusions. In the Inquest Report Ex.PD/3, it has been shown that rigor-mortis was present; meaning thereby that the occurrence had not taken 5 Criminal Appeal No. 155 -DB of 2000 place at 4.00 p.m. on 20.10.1998, but at an earlier time. In fact first the police came and saw the body and thereafter the FIR was registered. Learned counsel for the State has argued, that FIR Ex.PA/2 is prompt. Occurrence had taken place on 20.10.1998 at 4.00 p.m. and FIR Ex.PA/2 came into existence on the same day at 8.00 p.m. The special report reached the A.C.J.M., Kurukshetra at 12.25 a.m. on 21.10.1998. Names of the accused are given, weapons of offence are given, names of the eye witnesses have been mentioned and role played by the appellants in giving injuries to the deceased has also been clearly elaborated. Both the weapons i.e. iron rod Ex.P1 recovered from appellant Jarnail Singh @ Babli and iron rod Ex.P4 recovered from appellant Karnail Singh @ Minto have the same blood group as that of the deceased, as per the FSL Report Ex.PK. It is clear from the FIR and the statements of Jasmer Singh PW2, the father of the deceased and Jasmer Singh son of Gurbachan Singh PW10 that they saw the occurrence and were only 3 killas away. What has been stated by the Investigating Officer Ram Kumar SI PW12, while preparing the Inquest Report Ex.PD/3, that rigor-mortis was present, is not an opinion given by an expert i.e. a doctor. He only examined the overall body and found that probably rigor-mortis was setting in. The motive for the commission of the offence is that the appellants had stolen a hen of the complainant party, but instead of returning it to them, they ate it, which was a challenge to the complainant party. We have heard the learned counsel for the parties and perused the record with their assistance. 6 Criminal Appeal No. 155 -DB of 2000 Both the parties are closely related to each other. The pedigree table is as under: - Daya Singh Baldev Singh Jasmer Singh Sukhdev Singh (PW2) (Acquitted accused) Malkiat Singh (PW1) Ajaib Singh Amrik Singh (Deceased) (PW9) Jarnail Singh Karnail Singh (Accused) (Accused) Malkiat Singh PW1 is a young boy of 13 years, who gave statement Ex.PA to Ram Kumar SI PW2, on the basis of which FIR Ex.PA/2 was recorded. Seeing the pedigree table, Malkiat Singh PW1 is equally related to both, the complainant party and the accused party. He is the only issue of Baldev Singh. This probably is the reason that he retracted and resiled from his statement and had to be declared hostile by the learned trial Court. He did not want to get into the dispute, which was going on between his cousin brothers. The other eye witnesses to the occurrence Jasmer Singh PW2, the father of the deceased and Jasmer Singh son of Gurbachan Singh PW10 are not chance witnesses, but are natural witnesses, as they were in the periphery of Village Majri Khurd. Both have categorically stated in their testimony, that they were coming on foot from the side of their Village Majri Khurd and when they reached about 2-3 acres away, they saw Ajaib Singh driving his motorcycle. Malkiat Singh PW1 was on the pillion. Ajaib Singh saw them while walking on foot. He stopped the motorcycle 7 Criminal Appeal No. 155 -DB of 2000 and asked them to sit on his motorcycle. But both Jasmer Singh PW2 and Jasmer Singh PW10 stated that they would prefer to walk on foot. Ajaib Singh and Malkiat Singh PW1 went on the motorcycle towards the side of Village Majri and when they reached about 2½/3 acres, ahead of them, Jasmer Singh PW2 and Jasmer Singh PW10 saw appellants Jarnail Singh and Karnail Singh, who were coming from the opposite side, stopping the motorcycle of Ajaib Singh. Thereafter in their presence, appellants gave iron rods injuries on the head of Ajaib Singh deceased. After giving the injuries, they ran away. By no stretch of imagination could they be chance witnesses. The cause of grudge was that on the day of Diwali festival, appellants had killed their hen and ate it. Ajaib Singh deceased had gone to their house to lodge a complaint and an altercation had taken place between both the parties. Ajaib Singh deceased then wanted to lodge a complaint with the police, but was persuaded not to do so by his father Jasmer Singh PW2. Learned counsel for the State has rightly argued, that FIR Ex.PA/2 is prompt. Occurrence had taken place on 20.10.1998 at 4.00 p.m. in broad day light. FIR Ex.PA/2 came into existence on the same day at 8.00 p.m. and the special report reached the A.C.J.M., Kurukshetra on 21.10.1998 at 12.25 a.m. The distance between the place of occurrence and the police station being 9 K.Ms. Names of the accused, weapons of offence, nature of injuries given and the eye witnesses have been clearly mentioned in FIR Ex.PA/2. The occular account further gets corroboration from the medical evidence as per the postmortem report Ex.PD and statement of Dr.Jagmal Singh PW3. 8 Criminal Appeal No. 155 -DB of 2000 Ex.DA is the statement under Section 161 Cr.P.C. given to the Investigating Officer. The non-mentioning of Jasmer Singh PW2 and Amrik Singh PW9 in this statement will not have any relevance, as already their names have been mentioned in FIR Ex.PA/2. The non-mentioning of the witnesses in Site Plan Ex.PH prepared on 6.12.1998 also will not have any material bearing on the case, as names of the witnesses have already been clearly mentioned in FIR Ex.PA/2. FSL Report Ex.PK clearly shows that rods Ex.P1 and Ex.P4 were smeared with human blood. With the above discussion and observations, we do not find any infirmity in the judgment of the learned trial Court. Appeal is dismissed. (MEHTAB S.GILL) JUDGE (DAYA CHAUDHARY) April 24, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO