Crl.Appeal No.679-DB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.679-DB of 2001 Date of decision: 10.2.2010 Sandeep @ Kala and another ... Appellants versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.R.K.Gupta, Advocate, for appellant No.1. Mr.Ashit Malik, Advocate for appellant No.2. Mr. S.S.Randhawa, Addl.AG, Haryana. Mr.Gorakh Nath, Advocate, for the complainant. ... JORA SINGH, J. Sandeep @ Kala son of Sant Ram and Ramesh son of Bhale Ram filed this appeal to challenge the judgment of conviction dated 18.10.2001 and order of sentence dated 22.10.2001 passed by Additional Sessions Judge, Sonepat, in FIR No. 5 dated 18.1.2000 under Sections 302/323/324/34 IPC, PS Baroda. By the said judgment, appellants were convicted under Sections 302/323/324/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5000/-, in default of payment of fine, to further undergo RI for two years each under Sections 302/34 IPC each, to undergo RI for six months under Sections 323/34 IPC each, and to undergo RI for one year and to pay fine of Rs.500/-, in default of payment of fine, to further undergo RI for one month each under Sections 324/34 IPC. Crl.Appeal No.679-DB of 2001 2 Case of the prosecution, in brief, is that Police Station Baroda received ruqa from the doctor and MLR No.PT/29/18.1.2000 of Raj Pal. Then ASI Daya Nand along with police party had gone to Civil Hospital, Gohana. Application was moved by ASI Daya Nand requesting the doctor to opine as to whether Raj Pal was fit to make statement or not. At 9.05 PM, Raj Pal was declared fit to make statement. Then statement of Raj Pal (Ex.PF) was recorded. He reported to the police that he was resident of Village Kathura. At about 7.00 PM, he was going from his house towards ghair. On the way, Ramesh caught hold him from the back side. Kala son of Satta gave knife blow on the right side of his chest. He gave another blow on the left hand near the elbow. `Raula' was raised and on hearing `raula', his brother Balwan Singh came to the spot and raised lalkara not to worry as he (Balwan Singh) was coming. In the meantime, Kala gave another knife blow on his left hand fingers. On receipt of injuries, he fell down. After causing injuries, the accused had fled away from the spot along with knife. After that, number of neighbours had collected on the spot on hearing noise. Balwan Singh shifted him to Civil Hospital, Gohana, for treatment after arranging a vehicle. Statement was read over to Raj Pal. He had signed the same in token of its correctness. After making endorsement, statement was sent to the Police Station, on the basis of which, formal FIR was registered under Sections 324/323/34 IPC on 18.1.2000 at 10.40 PM. Raj Pal was medico legally examined by Dr. Parveen Goel (PW1). Following injuries were noted on his person:- “1. Stab wound in the right chest along the mid clavicular line oriental size 3 cm x 1 cm x 2 cm spindle shape. Fresh bleeding was present. Clotted blood was present. Crl.Appeal No.679-DB of 2001 3 Margins were clear cut. X-ray was advised. 2. Incised wound on the left forearm on lateral border of elbow joint size is 5 cm x 2 cm. Spindle shape clear cut margin. Fresh bleeding was present. X-ray was advised. 3. Laceration on the index finger at distal digit, size 2 cm x 1 cm. Clotted blood was present. Probable duration of injuries was within 24 hours and weapon used for injury Nos.1 and 2 sharp and for 3 blunt." Raj Pal was referred to PGI, Rohtak, at 9.30 PM, but on the way, he had succumbed to his injuries. Dead body was brought back to Civil Hospital, Gohana. Ruqa was sent to the Police Station. Then offence under Section 302 IPC was added. Special report was sent to the Ilaqa Magistrate. SI Rajinder Singh had gone to Civil Hospital, Gohana. Inquest report (Ex.PJ) was prepared. After that, SI Rajinder Singh had gone to the spot. Blood stained earth was lifted from the place of occurrence and sealed in a parcel and then taken into police possession vide separate memo attested by the witnesses. While returning to the Police Station, near the chowk, Constable Ram Parshad had produced one parcel of clothes worn by the deceased along with postmortem report. Parcel was taken into police possession vide separate memo attested by the witnesses. After postmortem examination, dead body was handed over to the relations of the deceased for cremation. On 19.1.2000, Inspector Ram Sarup had arrested Sandeep @ Kala and Ramesh produced by Sat Pal. On 20.1.2000, Sandeep was interrogated. He suffered disclosure statement that he has kept concealed knife under the earth on the roof of house of Manjit. He knew about the Crl.Appeal No.679-DB of 2001 4 same and could get the same recovered. In pursuance of disclosure statement suffered by appellant Sandeep, knife was got recovered by him from the specified place. Sketch of the knife (Ex.PL/1) was prepared and after converting into parcel, same was taken into police possession vide separate memo attested by the witnesses. Case property was deposited with the MHC. After completion of investigation, challan was presented in the Court. Appellants were charged under Sections 302/323/324/34 IPC, to which they pleaded not guilty and claimed trial. In support of its case, prosecution examined PW1 Dr. Parveen Goel. He stated that on 18.1.2000, Raj Pal was got admitted in the hospital by Balwan at 9.00 PM. Raj Pal was medico legally examined. Intimation was sent to the concerned Police Station. As per request of the police, patient was declared fit to make statement. Statement of Raj Pal was recorded. Patient was referred to PGI, Rohtak, at 9.30 PM, but on the way, he had succumbed to his injuries and dead body was brought back to the hospital. On 19.1.2000, he had conducted postmortem examination on the dead body of Raj Pal and observed as under:- "Stitched wound on the right chest in the mid clavicular line at the liver 9th inter coastal space and a stitched wound on the left elbow joint 5 cm in length and laceration on the left index finger size is 2 cm x 2 cm, a mid lines incision was given. Abdominal cavity was found full of blood. The right lob of lever at the anterior surface was lacerated and the diaphragm lacerated on the right side on the lateral side. Scalp, skull and Crl.Appeal No.679-DB of 2001 5 vertebra normal. Membranes brain and spinal cord was normal. Stitched wound at the level of 9th plural was normal. Larynx was normal. Right and left lung was normal. Pericardium was normal. Left side of heart was full of blood and right side was empty. Large vessels normal. Pulse was nil. Peritoneum was lacerated over the liver. Bleeding from the mouth was present. Oesophagus is healthy. Stomach was pale and healthy. In the small intestines about 200 ml. of chyme was present. In the large intestines faecal matter was present. Liver was lacerated on the right lobe on the anterior surface. Spleen and kidneys were pale and healthy. Bladder was empty. The genital organ was normal.” Cause of death was due to laceration of liver. Injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. PW2 Constable Ram Parshad stated that dead body was handed over to him for postmortem examination. Parcel containing clothes worn by the deceased along with sample seals and postmortem report, was handed over to the Investigating Officer. PW3 HC Rampal stated that on 19.1.2000, blood stained earth was lifted from the spot and after converting it into sealed parcel, same was taken into police possession vide separate memo attested by the witnesses. PW4 Daya Nand had initially investigated the case in hand. He had recorded the statement of Raj Pal (Ex.PF), after getting opinion from the doctor as to whether patient was fit to make statement or not. Rough site plan (Ex.PG) was prepared. Crl.Appeal No.679-DB of 2001 6 PW5 SI Rajinder Singh had partly investigated the case, after ASI Daya Nand. PW6 Constable Jagbir Singh had prepared scaled site plan (Ex.PK). PW7 Balwan Singh is the brother of the deceased. He had witnessed the occurrence and supported the prosecution story by saying that in his presence, injuries were caused to Raj Pal by the accused. Raj Pal was shifted to the hospital. After MLR, patient was referred to PGI, Rohtak, but on the way, he had succumbed to his injuries. Dead body was brought back to Civil Hospital, Gohana. On 20.1.2000, accused Sandeep was interrogated and as per disclosure statement suffered by him, he got recovered knife from the specified place. Sketch of knife was prepared and knife was sealed. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. PW8 MHC Jai Parkash tendered his affidavit (Ex.PN). PW9 Inspector/SHO Ram Sarup had also partly investigated the case in hand. PW10 Constable Roshan Lal tendered his affidavit (Ex.PO). After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of accused-appellant Ramesh is that he was implicated in this case due to party faction in the village. Defence version of accused-appellant Sandeep @ Kala is as under:- “I am innocent and no offence as alleged has been committed Crl.Appeal No.679-DB of 2001 7 by me. The case has been registered due to the party faction in the village. The factums given against me and co-accused are totally false and fictitious, only to involve me in the above mentioned case. In fact the deceased has not received the injuries with my hand at the time as alleged by the prosecution. I have not given any injury blow on the person of the injured.” In defence, DW1 Constable Subhash appeared and stated that as per roznamcha dated 18.1.2000, there is no entry regarding receipt of information from the hospital. DW2 MHC Om Parkash stated that as per roznamcha dated 18.1.2000, there is no entry regarding receipt of information from the hospital regarding the death of Raj Pal. After hearing learned PP for the State, defence counsel for the accused-appellants and from the perusal of evidence on the file, the trial Court had convicted the appellants and sentenced them to undergo imprisonment as stated aforesaid. We have heard learned counsel for the parties and gone through the evidence on the file. Learned counsel for appellant Sandeep @ Kala argued that before the present occurrence, there was no enmity amongst the parties. Appellant had no motive to cause injury. There is no evidence on the file to show that after admission of Raj Pal in the hospital, intimation was sent to the concerned Police Station. After the death of Raj Pal, again no intimation was sent to the concerned Police Station. This fact is clear from the statements of DWs. Raj Pal had not received injuries at the hands of appellant Sandeep @ Kala, as alleged by the prosecution. In fact, one day Crl.Appeal No.679-DB of 2001 8 earlier to the present occurrence, there was a dispute regarding brick lining of the street. Raj Pal had received injuries in the morning, when fight had taken place between both the parties. Weapon of offence is alleged to have been recovered in pursuance of the disclosure statement suffered by appellant Sandeep @ Kala in the presence of Balwan Singh and Navbhar, but Navbhar was not examined. Balwan Singh is the brother of deceased and he is very much interested in the success of this case. In case prosecution story is taken to be correct one, then the appellant had no intention to murder Raj Pal. Appellant can only be held liable for the offence punishable under Section 304 Part-I and not under Section 302 IPC. Learned counsel for appellant Ramesh argued that he was not present at the spot. He was implicated being cousin brother of Sandeep @ Kala. There was no common intention to commit the crime. Ramesh had only caught hold the deceased. Injuries are possible on the person of the deceased without catching by Ramesh. Learned State counsel argued that occurrence had taken place at 7.00 PM on 18.1.2000 and after the incident, injured was shifted to the hospital and at 9.00 PM, the injured was in the hospital when he was medico legally examined. Keeping in view the condition of the injured, he was referred to PGI, Rohtak, but on the way, he had succumbed to his injuries. Statement of Raj Pal (deceased) was recorded by ASI Daya Nand at 9.05 PM. Ruqa was sent to the concerned Police Station, on the basis of which, formal FIR was recorded at 10.40 PM. According to the defence counsel, Raj Pal received injuries in the occurrence in the morning, but complainant party had no concern with the street going to be converted into pucca one by the panchayat. Dispute was amongst two parties when the street was being Crl.Appeal No.679-DB of 2001 9 converted into pucca one. House of the complainant party was not on that street, so no question of receipt of injury in the earlier fight. Appellants had waylaid the deceased. Deceased was caught hold by Ramesh. Sandeep had caused injuries with a knife. Blow was repeated. That means, accused- appellants had the intention to murder. First submission of learned counsel for the appellants is that there was a delay in lodging the FIR and delay was not explained, but after going through the evidence on file, we are of the opinion that submission of learned counsel for the appellants is without any force. Occurrence had taken place on 18.1.2000 at 7.00 PM, witnessed by Balwan Singh, brother of Raj Pal (deceased). After the occurrence, Raj Pal was shifted to CHC, Gohana, by Balwan Singh, and at 9.00 PM, Raj Pal was medico legally examined. Ex.PA is the copy of MLR. Three injuries were noted on the person of Raj Pal. Keeping in view the condition of the patient, he was referred to PGI, Rohtak, at 9.30 PM. Patient was being shifted to PGI, Rohtak, by Balwan Singh, but on the way, he had succumbed to his injuries. Dead body was brought back. Initially in view of the MLR (Ex.PA), case was registered under Sections 323/324/34 IPC. After the death of Raj Pal at 10.45 PM on 18.1.2000, offence punishable under Section 302 IPC was added. Special report was sent to the Ilaqa Magistrate. At 7.45 AM on the next day, special report was received by the Ilaqa Magistrate. Patient was declared fit to make statement at 9.05 PM. Ex.PA/1 is the fitness report. Then statement of Raj Pal was recorded and at 10.05 PM, statement was sent to the concerned Police Station. Formal FIR was recorded at 10.40 PM. First injury was on the chest. When injury on the Crl.Appeal No.679-DB of 2001 10 vital part, then an effort is made by the relations/attendants of the patient to shift him to the nearest hospital immediately for medical aid. Patient is not to be left at the spot with an idea that before shifting him to hospital, firstly matter be reported to the police. No delay in lodging the FIR and if there is some delay in lodging the FIR, then delay itself is not sufficient for acquittal of the appellants. Delay is one of the suspicious circumstances to scrutinize the evidence with great care and caution to avoid false implication of innocent persons. But in the present case, immediately after the occurrence at 7.00 PM, statement of Raj Pal was recorded before 10.00 PM. Appellants were named by the deceased. Before the present occurrence, appellants had no enmity with the deceased. So, the deceased had no reason to name the appellants by leaving real culprits when occurrence was near their residence. Next submission of learned counsel for the appellants is that Raj Pal did not receive injuries as alleged by the prosecution. In fact, he had received injuries in the occurrence in the morning amongst two parties. Evidence on file shows that katcha street was being converted into pucca one by the panchayat. There was a dispute amongst two parties one day earlier, i.e., on 17.1.2000, but the complainant party had no concern with the said street because their house was not on that street. Suggestion was given to Balwan Singh that there was a dispute in the morning and in that dispute, Charan Singh, Bhale Ram, Sant Ram, Dilbagh, Raja and Bijender received injuries. Balwan Singh replied that both the parties received injuries. Dr. Parveen Goel in cross-examination admitted that in the morning, he had medico legally examined, Charan Singh, Bhale Ram, Dilbagh, Bijender and Raj Singh. Bijender Singh has filed application against him. But no one Crl.Appeal No.679-DB of 2001 11 from the above said injured appeared in defence to state that they had a dispute qua the street with such and such person and in that dispute, they had received injuries including the deceased. That means, as per suggestion to Dr. Parveen Goel, there was a dispute in the morning on 18.1.2000 and in that dispute, Raj Pal received injuries, but Raj Pal was medico legally examined at 9.00 PM on 18.1.2000 and at that time, fresh bleeding was noticed. When there was fresh bleeding at the time of examination at 9.00 PM, then defence version seems to be not correct one. No question of receipt of injuries by Raj Pal during the fight amongst the parties in the morning. Sandeep @ Kala is son of Sant Ram, whereas second appellant Ramesh is son of Bhale Ram, who had received injuries in a fight amongst two parties in the morning, but they failed to appear in defence to state that in the morning, dispute was amongst two parties, i.e., one party from their side and second party from the side of such and such person. No suggestion to Balwan Singh that Raj Pal was from the side of appellants or he was from the side of second party. Both the parties had received injuries in the fight in the morning but when complainant party was not owning their house on the street going to be converted into pucca one, then question of fight amongst the party of deceased with the party of appellants does not arise. Balwan Singh in cross-examination admitted that he tried to save his brother but his clothes were not stained with blood. Further admitted that he did not try to catch hold the appellants. One of the appellants was armed with a knife. Three blows were given. Balwan Singh and the deceased were empty handed. When the injuries are being caused with a sharp edged weapon in the presence of close relation and close relation failed to apprehend the accused, then no ground to disbelieve the presence of the relation. All Crl.Appeal No.679-DB of 2001 12 depends upon the circumstances of the case as to how the witness reacts when injuries were caused in his presence with a sharp edged weapon. Bold and strong man can be expected to make an effort to catch hold the accused while causing injuries. Physically or mentally weak person is not to make an effort to catch hold the accused when armed with a sharp edged weapon. So, on the ground that Balwan Singh did not try to catch hold the appellants, his statement is not to be ignored, particularly when there is a statement of the deceased naming the appellants. Next submission of learned counsel for the appellants is that Ramesh was empty handed. Injuries were possible without catching the deceased. Earlier to the present occurrence, there was no enmity amongst the parties. So, there was no common intention to commit the crime. Presence of Ramesh at the time of occurrence is doubtful. If story is upheld that injuries were caused by appellant Sandeep, then he is liable for the offence punishable under Section 304 Part-I IPC and not under Section 302 IPC, but statement of learned counsel for the appellants is without any force. Raj Pal (deceased) was going towards his ghair. On the way, appellants were sighted. Ramesh had caught hold Raj Pal. Sandeep armed with a knife gave first blow on the right side of the chest and second on the left hand. Raula was raised and on hearing raula, Balwan Singh shouted not to worry as he (Balwan Singh) is coming on the spot. In the meantime, third blow was given by Sandeep. Raj Pal while lodging report did not state a word as to what was the reason to cause injuries, but Balwan Singh in Court stated that injuries were caused for brick paving the street. In the morning, there was a dispute amongst two parties. As per Balwan Singh, katcha street was being converted into pucca one by the Panchayat and there was a Crl.Appeal No.679-DB of 2001 13 dispute between two parties. House of the complainant party was not on that street. If complainant party had no dispute with the appellants, then there was no idea for the complainant party to name the appellants by leaving the real culprits. If appellants had no intention to murder, then why first injury with a knife on the right side of the chest. No suggestion to the eye witness that there was a sudden fight or in self defence, injuries were caused. Defence version of the appellants is that at 7.00 PM, injuries were not caused to Raj Pal. In fact, Raj Pal received injuries in the morning but as per MLR, injuries were not possible in the morning because fresh bleeding was noticed at time of examination by the doctor at 9.00 PM. No suggestion to the doctor that without catching the deceased, injuries noted on the person of the deceased were possible. If appellants had no intention to murder, then why blows were repeated. In fact, appellants had the motive to murder because public street was being converted into pucca one by the Gram Panchayat. Appellants suspected that the complainant party was siding with the other side. If we presume that there was no previous enmity amongst the parties, even then story is not to be ignored because motive is always in the heart of the accused. Some time without motive, heinous crimes are committed. Appellants were rightly convicted by the trial Court. No other submission was put forward. As a sequel to the above discussion, we are of the opinion that evidence was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment. Appeal being without merit is dismissed. As both the accused-appellants are on bail, so their bail bonds stand cancelled. The appellants are directed to surrender themselves before Crl.Appeal No.679-DB of 2001 14 the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law. ( JORA SINGH ) JUDGE ( SATISH KUMAR MITTAL ) 10.2.2010 JUDGE pk