IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 32-DB of 2000 DATE OF DECISION : 28.01.2009 Chaman and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT Crl. A. No. 33-DB of 2000 DATE OF DECISION : 28.01.2009 Chaman .... APPELLANT Versus State of Haryana ..... RESPONDENT Crl. A. No. 34-DB of 2000 DATE OF DECISION : 28.01.2009 Ravinder .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. R.S. Cheema, Senior Advocate, with Mr. Pawan Girdhar, Advocate, for the appellants. Mr. Partap Singh, Senior DAG, Haryana, for the respondent. * * * Crl. A. No. 32-DB of 2000 -2- SATISH KUMAR MITTAL , J. This judgment shall dispose of three appeals bearing Criminal Appeal Nos. 32-DB to 34-DB of 2000. 2. Criminal Appeal No. 32-DB of 2000 has been filed by Chaman and Ravinder against the judgment of their conviction dated 12.11.1999 and the order of sentence dated 16.11.1999, passed by Sessions Judge, Gurgaon, in Sessions Case No. 10 of 22.4.1996, arising from FIR No. 848 dated 17.12.19995 under Sections 302/34, 120-B IPC, registered at Police Station Sadar, Gurgaon, whereby both the aforesaid accused have been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 34 IPC; and the remaining two accused, namely Bhagwat and Parkash have been acquitted of the charge framed against them. 3. Criminal Appeals No. 33-DB and 34-DB of 2000 have been filed by Chaman and Ravinder, respectively, against the separate judgments of their conviction dated 12.11.1999 and the orders of sentence dated 16.11.1999, passed by Sessions Judge, Gurgaon, in Arms Act Cases No. 11 and 12 of 22.4.1996, arising from two separate FIRs bearing No. 860 and 867 dated 20.12.1995 under Section 25 of the Arms Act, registered at Police Station Sadar, Gurgaon, whereby each of the accused has been convicted and sentenced to undergo imprisonment for six months under Section 25 of the Arms Act, 1959. 4. In the present case, FIR No. 848 (Ex.PD) was registered on 17.12.1995 at 5.10 P.M., on the statement of Amar Singh (PW.10), brother Crl. A. No. 32-DB of 2000 -3- of deceased Dharambir, recorded by HC Daya Ram (PW.12) on the same day at 4.00 P.M., at Palam Vihar Choma Chowk, Gurgaon. In his statement (Ex.PE), complainant Amar Singh stated that they were four brothers. About six months ago, a quarrel took place between his brother Dharambir and Chaman, who is brother-in-law of Bhagwat son of Jagdish, on account of touching the electric wires. The said matter was settled by respectable persons of the village and Chaman had gone to his village Mandhawali. He further stated that on the day of occurrence i.e. on 17.12.1995, at about 12.30 P.M., his brother Dharambir was tying the calf with Khunta. Then Chaman and one unknown boy, whose name and address was not known to the complainant Amar Singh, came there and both of them, all of sudden, attacked upon his brother Dharambir with knives in their hands. At that time, his brother was tying the calf in the vacant Gher, which struck on his back and beneath his shoulder. Thereafter companion of Chaman caught hold of Dharambir and Chaman gave one knife blow on the front right chest and the other on the thigh of Dharambir. He further stated that at the time of the said occurrence, he was sitting in the sunshine and he saw this occurrence with his own eyes. He stated that he also made noise “Maar Diya, Maar Diya” to save his brother Dharambir. He further stated that he was not feeling well for the last so many days, therefore, he could not caught hold the assailants and they ran away from the spot with their respective weapons. On hearing their cries/noise, several boys of the village chased both the assailants, but they could not be caught hold. Out of those Crl. A. No. 32-DB of 2000 -4- boys, Hari Ram son of Ram Pat and Bal Kishan son of Ram Phool residents of the village told that both the assailants had left the place in a tractor of Parkash son of Ram Chander, which was parked near the railway crossing, and they had rushed towards Palam Vihar. Thereafter, he (complainant Amar Singh), his brother and other villagers got the injured admitted in the Hospital at Gurgaon for medical treatment. He further stated that when he was going to lodge the report to the police, HC Daya Ram met him near Palam Vihar Choma Chowk, who recorded his statement. 5. On the basis of the said statement, FIR was initially registered under Section 324/34 IPC. The injured Dharambir, who was taken to General Hospital, Gurgaon, was examined by Dr. Pushpa Jain (PW.13). She found the following injuries on his person : 1. Elliptical clean cut wound 3 inches long into one inch broad skin muscle deep. Advised X-ray. Bleeding was present. 2. Elliptical wound with sharp edges on the left side of abdominal wall 3” x 2” into skin deep intestinal loops coming out of wound. Advised X-ray. Surgeon opinion and advised X-ray. 3. Swelling chest wall with a tenderness present. Advised X-ray. 4. Sharp edges wound 2 inches x half inch into skin deep at left side of back, 3 inches below the edge of scapula region. Advised X-ray. 5. One inch long incised wound sharp edges one inch into half centimeter skin deep. Advised X-ray. Crl. A. No. 32-DB of 2000 -5- Copy of the MLR is Ex.PY. Dr. Pushpa Jain also sent a ruqa Ex.PX to SHO Police Station Sadar Gurgaon at 2.00 P.M. Since condition of the injured was serious, he was referred to Safdarjung Hospital, where he died on 20.12.2005. Autopsy of the deceased was conducted on the same day at 12.35 P.M., by Dr. Chanderkant (PW.5). In his opinion, the cause of death was due to shock and haemorrhage and all the injuries (except injuries No.1 and 6) were ante mortem in nature caused by sharp edged weapon, which were sufficient to cause death in ordinary course of nature. After the death, the offence under Section 302/34 IPC was added. 6. During the investigation, on 20.12.1995, accused Chaman and Ravinder were arrested. During interrogation, accused Chaman took out a knife (Ex.P4) from back pocket of his pant, which was taken into possession by HC Daya Ram vide recovery memo Ex.PP, in the presence of Amar Singh (complainant), Rajpal and Prithvi Raj. With regard to the recovery of knife, a separate case i.e. FIR No. 860 dated 20.12.1995 under Section 25 of the Arms Act was registered against accused Chaman. On 23.12.1995, accused Ravinder made disclosure statement (Ex.PZ) before SHO Raj Singh and in pursuance of the same, in the presence of Subey Singh and Om Parkash, he got recovered one knife from the bricks lying under the pulia, which was having blood stains. The said knife (Ex.P5) was also taken into possession vide recovery memo Ex.PZ/2). Regarding this recovery also, a separate case i.e. FIR No. 867 dated 20.12.1995 under Section 25 of the Arms Act was registered against accused Ravinder. On 24.12.1995, accused Crl. A. No. 32-DB of 2000 -6- Parkash was arrested by SHO Raj Singh and the tractor along with trolley was taken into possession vide recovery memo Ex.PZ/3. Thereafter, on 28.12.1995, SI Jeet Ram arrested accused Bhagwat. 7. After completion of investigation, separate challans were filed against the accused in all the aforesaid main case as well as two other connected cases registered under the Arms Act. Charge under Section 302/34, 120-B IPC was framed against accused Bhagwat, Parkash, Chaman and Ravinder, to which they pleaded not guilty and claimed trial. Similarly, separate charges under Section 25 of the Arms Act were framed against accused Chaman and Ravinder in the connected cases, to which also they did not plead guilty and claimed trial. 8. In support of its case in the main case, the prosecution examined 14 witnesses and exhibited certain documents. 9. In their statements under Section 313 Cr.P.C., all the accused denied the evidence appearing against them and pleaded that they were falsely implicated in the case. Accused Chaman stated that he was falsely implicated because his brother in law Bhagwat Sarup used to support Krishan who was elected as Member Panchayat and he had initiated proceedings against deceased Dharambir and his brother Rampat for forcibly occupying the Panchayat land. In defence, the accused examined Chote Lal (DW1), who proved the proceedings against Dharambir regarding the illegal occupation of the Panchayat land, which were finally decided in the year 1993. Crl. A. No. 32-DB of 2000 -7- 10. The trial court, after hearing counsel for the parties and considering the evidence led by the prosecution and the accused, convicted and sentenced accused Chaman and Ravinder, as indicated in the earlier part of this judgment. However, accused Bhagwat and Parkash have been acquitted. 11. Learned counsel for the appellants submitted that both the appellants have been falsely implicated in the present case. PW.10 Amar Singh, the alleged eye witness, on whose statement the law was set into motion, actually had not seen the occurrence, as he was not present on the spot at the time of the alleged occurrence. His version that he had witnessed the occurrence, while sitting in the sunshine is highly improbable and not believable. Learned counsel submitted that in this case, when the injured Dharambir was admitted in Safdarjung Hospital on 17.12.1995, his statement was recorded by ASI Philip Kerketta, after obtaining the opinion of the Doctor regarding the fitness of the injured. In his statement (Ex.DA), injured Dharambir did not mention the name of Amar Singh. He only stated that when he was tethering the buffalo in his plot, suddenly two persons came and attacked him with knives, out of whom one was Chaman, whereas the name and address of the second person was not known to him. In that statement, he stated that Phool Singh got him admitted to General Hospital, from where the Doctor referred him to Safdarjung Hospital. He further stated that Gopi Chand and Daya Pal got him admitted in Safdardjang Hospital on 17.12.1995. Learned counsel further submitted that when MLR Crl. A. No. 32-DB of 2000 -8- (Ex.PY) of the injured was prepared by Dr. Pushpa Jain (PW.13), the same was signed by Phool Singh and Mahavir and not by Amar Singh. This fact also shows that Amar Singh was not present at the time of the alleged occurrence. Learned counsel further submitted that if Amar Singh had witnessed the occurrence and was accompanying the injured to the Hospital, then there was no occasion for him to left the Hospital. Learned counsel, while referring to the cross-examination of this witness (Amar Singh), contended that he stated that he came to know about the name of Ravinder on 17.12.1995 at 1.30 P.M. but when his statement was recorded by the police at 3.00 P.M., he did not mention the name of Ravinder. He has no where given any reason as to why he did not mention the name of Ravinder, when his statement was recorded by the Police. 12. Learned counsel further submitted that the prosecution has examined PW.11 Hari Ram, who stated that when he heard the voice of Dharambir and Amar Singh, he reached there and found Dharambir already having received injuries of knife. He enquired from him as to what had happened to him, who stated that Chaman, brother in law of Bhagwat, and one other person accompanying him had given him knife injury and had run away. This witness further stated that when he looked towards the back, he saw Chaman and Ravinder running via phirni towards the railway crossing. Bhagwat was already waiting at the railway crossing and in a tractor, which was parked there, both the accused ran away from there. Learned counsel submitted that the statement of this witness is also not reliable. In his Crl. A. No. 32-DB of 2000 -9- statement (Mark A) before the police, he did not state that he talked to the injured. To that extent, an improvement has been made by him. Learned counsel submitted that even the trial court has not relied upon the statement of this witness, while acquitting Bhagwat and Parkash for the charge under Section 120-B IPC. 13. Learned counsel further argued that arrest of the accused and the alleged recoveries from them are doubtful. HC Daya Ram (PW.12), the Investigating Officer, stated that on 20.12.1995, when he was going to village Sarai Alawat and reached near railway crossing of village Choma, Amar Singh met him and told that Chaman and Ravinder were going at Bajghera Chowk located in new Palam Vihar. Thereafter, the police party went there, surrounded them and they were arrested. He further stated that while arresting them, he did not associate any body from the shops, from where they were arrested, because at that time, there was no body available there. Learned counsel for the appellants submitted that arrest of these two accused in the aforesaid manner is highly improbable and it could be stage managed. 14. Learned counsel further submitted that as far as accused Ravinder is concerned, his identity has not been established by the prosecution and the evidence led by the prosecution is doubtful to prove that he was the person, who was present along with accused Chaman at the time of the alleged occurrence and he gave injury to the deceased. In this regard, learned counsel submitted that in the initial statement made by Amar Singh Crl. A. No. 32-DB of 2000 -10- before the police, it was stated that his brother Dharambir was attacked by Chaman and another person, whose name and address was not known to him (Amar Singh). In the Safdarjung Hospital, statement of the injured was recorded, in which also he did not mention the name and address of the other person, accompanying accused Chaman. For the first time, name of Ravinder was mentioned by PW.11 Hari Ram, who has stated that on hearing the voice of the complainant and the deceased Dharambir, he reached at the spot and found that Dharambir was having injuries of knife on his person. When he enquired from him, he stated that Chaman and one other person, accompanying him, gave him knife blow and both of them ran away. Then the said witness stated that he looked back and saw that Chaman and Ravinder running via phirni towards railway crossing and Bhagwat was already waiting at the railway crossing. Learned counsel submitted that PW.10 Amar Singh complainant in his statement has stated that after causing the injuries, when the accused ran towards railway crossing, many persons collected there and one of them was Hari Ram son of Ram Pat, who had told him that the accused had gone towards this side of the village after boarding the tractor make Ford of Om Parkash. In his initial statement before the police, he did not mention the name of accused Ravinder. Similarly, Hari Ram in his statement before the police recorded on 21.12.1995 did not state that on hearing the voice of injured and the complainant, he went at the spot. He has also not stated before the police that on making enquiry by him from injured Dharambir, he told him that Crl. A. No. 32-DB of 2000 -11- Chaman and his companion had given him knife injury. However, he has stated that Chaman and his companion were running via phirni towards railway crossing and then they ran away on the tractor of Parkash. In view of the statements of these witnesses, learned counsel for the appellants submitted that the presence of accused at the time of the alleged occurrence and his participation in the alleged offence is highly doubtful. He further submitted that PW.4 Bal Kishan, the other prosecution witness, who is alleged to have seen the accused running away from the place of occurrence, has not supported the prosecution version. Therefore, on the basis of statement of only Hari Ram, conviction of appellant Ravinder cannot be sustained. Learned counsel submitted that from the statement of PW.7 Shri R.K. Sharma, Judicial Magistrate Ist Class, Gurgaon, to the effect that accused Ravinder refused to join the identification parade, no adverse inference can be drawn, because the said accused was arrested at the instance of the complainant and hence, there was no justification to get him identified from the same person. 15. On the other hand, learned counsel appearing for the respondent-State submitted that the prosecution has fully established the offence committed by both the accused beyond shadow of reasonable doubt. The testimonies of PW.10 Amar Singh and PW.11 Hari Ram, who had seen the alleged occurrence, are fully reliable and the same cannot be discarded on the ground of minor contradictions. Learned counsel further submitted that the presence of these two witnesses at the place of occurrence cannot be Crl. A. No. 32-DB of 2000 -12- said to be doubtful as argued by counsel for the appellants. Both these witnesses, who are trust worthy, have categorically stated that both the accused had caused the knife injuries to the deceased. He further submitted that merely because one of the prosecution witnesses, namely Bal Kishan (PW.4) has not supported the prosecution version, as he was won over by the accused, the entire prosecution version cannot be doubted. He further submitted that recoveries of the knives from the accused has also been proved, which connect them with the alleged offence. Learned counsel further submitted that the trial court, after considering the entire evidence available on the record, has rightly convicted both the accused under Section 302 read with Section 34 IPC; and the said judgment of conviction and order of sentence do not require any interference in this appeal. 16. We have heard learned counsel for the parties and have carefully gone through the record of the case. 17. From the medical evidence available on the record i.e. MLR (Ex.PY), prepared by PW.13 Dr.Pushpa Jain, it has been established that Dharambir (injured) was brought to General Hospital, Gurgaon on 17.12.1995 at 1.35 P.M. He was examined by her and she found five injuries on his person. She also sent ruqa Ex.PX to SHO Police Station Gurgaon on 17.12.1995. Since the condition of the injured was serious, he was referred to Safdarjung Hospital, where he died on 20.12.1995. In the cross- examination, this witness stated that the injured was brought by his nephew Mahabir. PW.5 Dr. Chanderkant conducted the post mortem of the deceased Crl. A. No. 32-DB of 2000 -13- on 20.12.1995 at 12.35 P.M. In his opinion, the cause of death was due to shock and haemorrhage and all the injuries, except injuries No.1 and 6, were ante mortem in nature and caused by sharp edged weapon, which were sufficient to cause death in ordinary course of nature. Thus, the death of deceased Dharambir due to the injuries suffered by him has been proved. 18. As per the statement (Ex.PE) of Amar Singh (PW.10), who is the brother of the deceased, which was recorded by HC Daya Ram (PW.12) on 17.12.1995 at 4.00 P.M., on the basis of which FIR (Ex.PD) was registered, appellant Chaman and one of his companion, whose name and address was not known to him caused various injuries to the deceased with knives, when he was tying the calf in his vacant Gher. This witness stated that about six months prior to the day of occurrence, a quarrel had taken place between his brother Dharambir and Chaman, who is brother-in-law of Bhagwat son of Jagdish, on account of touching the electric wires. The said matter was settled by respectable persons of the village. Thereafter, Chaman had gone to his village Mandhawali. However, on 17.12.1995, when his brother was tying calf with Khunta, said Chaman along with one unknown boy came and suddenly attacked his brother with knives and caused injuries to him. He stated that he had seen the occurrence with his own eyes, while he was sitting in the sunshine. As per his statement, on hearing his cries, several boys of the village chased the assailants, but they could not be caught hold. Out of those boys, Hari Ram and Bal Kishan told him that both the assailants had left the place in a tractor of Parkash, which was parked Crl. A. No. 32-DB of 2000 -14- near the railway crossing. This witness has supported the prosecution version in the Court, while appearing as PW.10. 19. The prosecution has also examined PW.11 Hari Ram, who has stated that on hearing the voice of the complainant and deceased Dharambir, he reached at the spot and found that Dharambir was having knife injuries on his person. When he enquired from him, he stated that Chaman and one other person accompanying him gave him knife blows and both of them have run away. This witness further stated that when he looked back, he saw that Chaman and Ravinder were running towards the railway crossing via phirni, where Bhagwat was already waiting. PW.4 Bal Kishan, the other witness, who had also come on the scene after the alleged occurrence, has not supported the prosecution version, while stating that he had not witnessed the occurrence and that he had not seen any culprit running away. 20. Learned counsel for the appellants submitted that the entire prosecution version rests upon the testimony of PW.10 Amar Singh and PW.11 Hari Ram. The presence of PW.10 Amar Singh at the place of occurrence is highly doubtful. After appreciating the statements of this witness made before the police as well as in the Court, and the other connected evidence, we are of the opinion that the presence of PW.10 Amar Singh at the place of occurrence cannot be doubted. Merely because the MLR (Ex.PY), prepared by PW.13 Dr. Pushpa Jain, was signed only by Phool Singh and Mahabir, it cannot be presumed that complainant Amar Singh was not present at the time of the alleged occurrence. Learned counsel Crl. A. No. 32-DB of 2000 -15- for the appellants drew our attention towards the statement (Ex.DA) of the deceased, which was recorded by ASI Philip Kerketta (PW.1) on 17.12.195 itself in Safdarjung Hospital, wherein it was stated by him that on 17.12.1995 at about 12.30 PM, when he was tethering buffalo in his plot, suddenly two persons came and attacked him with knives, out of whom one was Chaman whereas the name and address of the second person was not known to him. In that statement, he had stated that Phool Singh got him admitted in General Hospital, Gurgaon. On the basis of this portion of the statement, learned counsel submitted that PW.10 Amar Singh was not present at the time of the alleged occurrence and that is why, he was not named by the deceased in his statement. After perusing the said statement and statement of PW.10 Amar Singh, we do not find any force in this contention. Merely in view of the fact that in his statement (Ex.DA), the deceased did not name the complainant Amar Singh, it cannot be taken that he was not present at the time of the alleged occurrence. Amar Singh in his statement as PW.10 has stated that after the occurrence, Dharambir was taken to Civil Hospital, Gurgaon. On one motor cycle, three persons namely Dharambir, Sis Ram and Hari Ram had gone and on the other motor cycle, he, Phool Singh and Amar Singh had gone to the Hospital. Since on two motor cycles, six persons, including Dharambir and Phool Singh went to the Hospital, the deceased might have named only Phool Singh to be the person, who had taken him to the Hospital. It has also come in evidence that after leaving Dharambir to the Hospital, complainant Amar Singh went to the Crl. A. No. 32-DB of 2000 -16- Police Station, therefore, his presence might not