Crl. Appeal No.234-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.234-DB of 1998 Date of Decision: 15.02.2008 Iashwar and others ....Appellants. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. R.S. Ghai, Sr. Advocate with Mr. Vinod Ghai, Advocate for the appellants. Mr. J.S. Toor, A.G., Haryana for the respondent. ... J.S. Khehar, J. The instant appeal has been filed against the order passed by the Sessions Judge, Sonepat, in Sessions Case No.50 of 1996, decided on 2.5.1998. By the impugned judgement, the accused/appellants – Ishwar, Joginder, Bijender, Smt. Vidya and Smt. Krishna have been held guilty of having formed an unlawful assembly for committing the murder of Raj Pal with deadly weapons, under Section 148 of the Indian Penal Code. They have also been found guilty of committing the murder of Raj Pal under Section 302 read with Section 149 of the Indian Penal Code. By a separate order passed on 6.5.1998, they were sentenced to undergo rigorous Crl. Appeal No.234-DB of 1998 2 imprisonment for one year each under Section 148 of the Indian Penal Code. They were also sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 149 of the Indian Penal Code, besides being required to pay a fine of Rs.1,000/- each. In default of payment of fine, they were ordered to further undergo rigorous imprisonment for one year each. The aforesaid sentences were ordered to run concurrently. It was also directed, that in case the fine imposed on the accused was recovered, the same would be paid to the L.Rs. of the deceased Raj Pal. The prosecution version of the incident is based on the complaint made by Dharam Pal PW3, to SI Hari Singh PW7. The deceased Raj Pal was the brother of the complainant Dharam Pal PW3. On 9.8.1996 at about 5.00/5.30 PM, Raj Pal is stated to have left his residence to go to his fields. Soon after the departure of Raj Pal, and in his foot steps, the complainant Dharam Pal PW3 is stated to have left his residence so as to attend to his duty. When his brother Raj Pal reached the garage of the accused/appellant Ishwar, he noticed that Ishwar, Joginder, Bijender, Vidya and Krishna came to attack his brother Raj Pal and were inflicting injuries on him. According to the complainant Dharam Pal PW3, the accused/appellant Ishwar inflicted an injury on the head of Raj Pal with a “farsa”; the accused/appellant Bijender inflicted a blow on the right side of the hip of Raj Pal with a “dav”; the accused/appellant Bijender inflicted a blow on the right eye brow of Raj Pal with an “axe”; the accused/appellant Krishna inflicted a blow on the chest of Raj Pal near his collar bone with an “axe”; and the accused/appellant Vidya inflicted a blow on the left hand palm and the wrist of Raj Pal with an “axe”. According to the complainant Dharam Pal PW3, on seeing the aforesaid occurrence, he raised an alarm. Crl. Appeal No.234-DB of 1998 3 However, none from the neighbourhood came to the place of the occurrence. The complainant Dharam Pal PW3 then allegedly saw Krishan PW4, coming from the side of the bus stand. On seeing his brother Krishan PW4, the complainant Dharam Pal PW3 called out to him, asking him for help to save Raj Pal. Neither of the brothers, Dharam Pal PW3 or Krishan PW4, could intervene in the matter on account of the fact, that the accused/appellants threatened both the brothers. Accordingly, the complainant Dharam Pal PW3 and Krishan PW4 ran away out of fear. While Krishan PW4 ran away towards the bus stand, the complainant himself i.e. Dharam Pal PW3 ran towards the “abadi” of the village. On hearing the commotion, 5-10 villagers were allegedly attracted to the spot, whereupon, the accused left the spot taking away their respective weapons. When the complainant Dharam Pal PW3 and Krishan PW4 returned to the place of the occurrence, they discovered that their brother Raj Pal has breathed his last. Dharam Pal PW3, accordingly, set off for the police station to make a complaint. According to the complainant Dharam Pal PW3, Ram Lal i.e., the real brother of the accused/appellant Ishwar had filed a civil suit in connection with encroachment on a street, which was still pending. In reference to the aforesaid civil suit, it is alleged, that the accused/appellant Ishwar had made a threat about four days before the incident. In view of the aforesaid threat, the complainant Dharam Pal PW3 had reported the matter to the police. The statement of the complainant Dharam Pal PW3 on the said incident (which had occurred four days prior to the incident in question) was recorded by SI Hari Singh PW7. On the complaint made by Dharam Pal PW3 on 9.8.1996 (i.e. in respect of the incident which is subject matter of controversy in the present appeal), a First Crl. Appeal No.234-DB of 1998 4 Information Report bearing No.93 was registered at Police Station, Sadar Sonepat, on 9.8.1996 at 9.05 PM. After having recorded the statement of Dharam Pal PW3, SI Hari Singh PW7 went to the place of occurrence and recorded the statements of witnesses present at the spot. SI Hari Singh PW7 also prepared a rough site plan, and the inquest report of the dead body of the deceased Raj Pal. SI Hari Singh PW7 then sent the body of the deceased Raj Pal for postmortem examination through Constable Lal Singh. SI Hari Singh PW7 arrested the accused/appellants Joginder, Bijender, Smt. Vidya and Smt. Krishna on 11.8.1996. On 12.8.1996, the accused/appellant Ishwar himself surrendered to the police. On the basis of the disclosure statement made by the accused/appellant Ishwar, a “gandasa” was recovered from the garage of Ishwar. On the basis of the disclosure statement made by the accused/appellant Joginder, a “dav” was recovered from the garage of Ishwar. Likewise, on the disclosure statement made by the accused/appellant Krishna, a “gandasi” was recovered from the same garage. On the basis of the disclosure statement made by the accused/appellant Vidya, a “kulhari” was also recovered from the same garage of Ishwar. The recovery of the weapons used in the occurrence was witnessed by Jai Parkash and Om Parkash. On the completion of the remaining investigation, as well as, the necessary police formalities, a challan was presented by SI Hari Singh PW7 in the Court of Additional Chief Judicial Magistrate, Sonepat, on 10.10.1996. The Additional Chief Judicial Magistrate, Sonepat, vide his order dated 25.10.1996 arrived at the conclusion, that a prima-facie case was made out against all the accused, under Sections 148, 506 and 302 read with Section 149 of the Indian Penal Code. Since the offence under Section Crl. Appeal No.234-DB of 1998 5 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Additional Chief Judicial Magistrate, Sonepat, by his order dated 25.10.1996 committed the case to the Court of Session. By an order dated 7.11.1996, the Sessions Judge, Sonepat, charged the accused/appellants of having formed an unlawful assembly for committing the murder of Raj Pal with deadly weapons, under Section 148 of the Indian Penal Code. On having intentionally committed the murder of Raj Pal, the accused/appellants were also charged under Section 302 read with Section 149 of the Indian Penal Code. The accused when confronted with the charges levelled against them, pleaded not guilty and claimed trial. During the course of trial, the prosecution examined a number of witnesses. A brief description of the deposition of the witnesses produced by the prosecution before the trial Court, is being summarised hereunder. The prosecution first of all, examined Som Dutt as PW1. Som Dutt PW1 was a formal witness. He had taken the photographs Ex.P1 to P4, negatives whereof are Ex.P5 to P7, at the instance of the investigating officer at the place of the occurrence. Constable Rajesh Kumar was examined by the prosecution as PW2. He was also a formal witness. He had visited the spot and prepared the scaled site plan thereof. The statement of the complainant Dharam Pal, an eye witness to the occurrence, was recorded as PW3. In his statement, Dharam Pal PW3 reiterated the statement made by him to the police on 9.8.1996. It would be pertinent to mention, that in his examination-in-chief, he also reiterated the motive of the accused/appellants for having committed the crime, namely, the civil suit pending between the parties in respect whereof, four days prior to the Crl. Appeal No.234-DB of 1998 6 date of occurrence, the accused/appellants had threatened him, and that, he had made a report of the aforesaid threat to the police. It would also be relevant to mention, that in his cross-examination, the veracity of the statement made by the complainant Dharam Pal PW3 on the issue of motive, was not contested. The statement of Krishan, another eye witness to the occurrence, was recorded as PW4. In his statement, Krishan PW4 fully supported the version in respect of the occurrence, as had been narrated by Dharam Pal PW3 in his statement. Dr. Rakesh Giridhar, Medical Officer, Civil Hospital, Karnal was produced by the prosecution as PW5. Dr. Rakesh Giridhar PW5 had conducted the postmortem examination on the dead body of Raj Pal on 10.8.1996. According to the postmortem examination, Dr. Rakesh Giridhar PW5 had found the following injuries on the dead body of Raj Pal:- “1. 15 mm x 20 mm incised wound on right cheak with cut zygomatic bone and muscle. Margins of wound were sharp on both sides and infiltration of blood was seen in the tissue. 2. 90mm x 35mm cut on the anterior aspect of left wrist with cut muscles tendens and bones at the wrist. 3. 60mm x 20mm bone deep cut in the third wed space and basis of middle and oring finger of right hand. 4. 80mm x 30mm incised wound on left side of chest bone deep with cut muscles. Both margins of wound were sharp and tissue shoud infiltration of blood. 5. 45mm x 25mm skin deep cut on left shoulder joint. 6. 50mm x 10mm skin deep cut 3cm below injury No.5 on posterior aspect of left arm. 7. 80mm x 20mm muscle deep cut on posterior aspect of right arm mid third part. 8. 50mm x 10mm skin deep cut on right shoulder. 9. 20mm x 10mm muscle deep incised on left fore-arm mid- Crl. Appeal No.234-DB of 1998 7 third. 10. 10mm x 10mm skin deep incised wound on left elbow joint posterior aspect. 11. 10mm x 10mm skin deep incised wound on posterior aspect of right elbow joint. 12. 50mm x 20mm incised wound on posterior aspect of skull in occipital region. Exploration of wound showed cut in occupital wound with cut membrances of the brain with corresponding cut in the brain matter 2 cm deep and haemotoma formation in the adjacent area. 13. 95mm x 10mm skin deep cut on right side of chest at the level of nipple. 14. 60mm x 40 mms incised wound in the left lumber region of abdomen on anterior aspect 11 cm from anterior superior iliac spine with corresponding cut in the periotonium. Peritoneal cavity was full of blood in the lower part.” In the opinion of Dr. Rakesh Giridhar PW5, the death of Raj Pal had been caused due to neurogenic and haemorrhagenic shock, due to injuries on the brain and multiple injuries caused on the body of Raj Pal. He also opined, that all the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Dr. Rakesh Giridhar PW5 also opined, that all the injuries on the body of Raj Pal could have been caused by the weapons attributed to the occurrence. He also opined, that injuries No.5, 6, 8, 10, 11 and 13 were only skin deep, and that, injuries No.1, 2, 4, 12 and 14, could have been caused with a heavy sharp cutting weapon, like axe. Injuries No.4 and 14 could have been caused with a light sharp edged weapon like “dav”. The statement of ASI Ram Singh was recorded as PW6. He is a formal witness produced by the police. The statement of SI Hari Singh was recorded as PW7. In his statement, he affirmed that on Crl. Appeal No.234-DB of 1998 8 9.8.1996, the complainant Dharam Pal PW3 had made a statement to him, and that he had recorded the same. He also affirmed having visited the place of occurrence immediately after recording the statement of Dharam Pal PW3 and having recorded the statements of witnesses on the place of occurrence, and also having prepared the rough site plan, as well as, the inquest report of the dead body of Raj Pal. He stated that he had sent the dead body of Raj Pal for postmortem examination through Constable Lal Singh. He also affirmed having taken various samples from the place of occurrence. He acknowledged that he had arrested four of the accused/appellants, namely, Vidya, Krishna, Joginder and Bijender on 11.8.1996, and that the accused/appellant Ishwar surrendered himself on the following day i.e. on 12.8.1996. He also stated, that the accused/appellants were interrogated. Whereupon, they made disclosure statements. On the basis of the disclosure statement made by the accused/appellant Ishwar, a “gandasa” was recovered; on the disclosure statement of the accused/appellant Joginder, a “dav” was recovered; on the disclosure statement of the accused/appellant Krishna, a “gandasi” was recovered; and on the disclosure statement of the accused/appellant Vidya, a “kulhari” was recovered. The recovery of the weapons used by the accused/appellants was made from the garage of Ishwar. After recording the statements of the aforestated witnesses, the prosecution evidence was closed. The statements of the accused/appellants were then recorded under Section 313 of the Code of Criminal Procedure. When confronted with the incriminating evidence against them, they denied the same, claiming that the same was false and incorrect. The accused/appellant Ishwar alleged, that he was not even present at the village at the time of the Crl. Appeal No.234-DB of 1998 9 occurrence. The version of the accused/appellant Ishwar, as noticed by him on 26.2.1998 while making a statement under Section 313 of the Criminal Procedure Code, is being extracted hereunder:- “I am innocent. I was not present in the village. I had been serving in Delhi Maha Nagar Telephone Exchange and on the relevant date I was on duty at Delhi. I have been falsely involved alongwith my entire family.” The accused/appellant Joginder, as well as, the accused/appellant Bijender stated, that they were innocent. They were not present in the village at the time of the occurrence and they had been falsely implicated in the case alongwith other members of the family. According to the statement of the accused/appellant Smt. Vidya, the complainants were in fact, the aggressors. In tendering her explanation in respect of her innocence and the manner in which the occurrence had taken place, in her statement recorded on 28.2.1998 under Section 313 of the Criminal Procedure Code, she inter- alia, stated as under:- “I am innocent. The family members of the deceased and the deceased wanted to take forcible possession by encroachment of the street on which there was civil and revenue litigation which was resisted by Krishna and the deceased who was armed with deadly weapon attempted to assault her and she ran towards her house and saved herself from imminent danger to her lift. I came to her rescue and when deceased trespassed into our house we caused injuries to him to save our lives. Some persons also attracted to our house. The entire case was fabricated lateron by the police in collusion with Dharam Pal, Krishan and their relations.” The stance adopted by the accused/appellant Smt. Krishna, while making her statement under Section 313 of the Criminal Procedure Code was Crl. Appeal No.234-DB of 1998 10 identical to the one adopted by the accused/appellant Smt. Vidya in her statement recorded on 26.2.1998. She inter-alia, stated as under:- “I am innocent. The family members of the deceased and the deceased wanted to take forcible possession by encroachment of the street on which there was civil and revenue litigation which was resisted by me and the deceased who was armed with deadly weapon attempted to assault me and I ran towards my house to save myself from the imminent danger of my lief. Smt. Vidya, my jethani, came to my rescue and when the deceased trespassed into our house we caused injuries to him to save our lives. Some persons also attracted to our house. The entire case was fabricated lateron by the police in collusion with Dharampal, Krishan and their relations.” In their defence, the accused/appellants produced three witnesses, namely, Rajbir Singh as DW1, Ishwar Dass as DW2 and Constable Hoshiar Singh as DW3. Rajbir Singh DW1 was produced in order to prove the alibi taken by the accused/appellant Ishwar to the effect, that he was not in the village at the time when the occurrence took place, but was on duty. Ishwar Dass DW2 was also produced for exactly the same reason, namely, to substantiate the alibi of the accused/appellant Ishwar. Constable Hoshiar Singh DW3 was produced so as to summon the “roznamcha” from the police, pertaining to Case No.196. After producing the aforesaid witnesses in their defence, on the statement of the accused, their defence evidence was closed on 27.4.1998. The Sessions Judge, Sonepat delivered the judgement in Sessions Case No.50 of 1996, on 2.5.1998 The accused/appellants were held guilty of having formed an unlawful assembly for committing the murder of Raj Pal with deadly weapons. They were accordingly, convicted Crl. Appeal No.234-DB of 1998 11 under Section 148 of the Indian Penal Code. On account of having been found to have committed the murder of Raj Pal, the accused/appellants were convicted under Section 302 read with Section 149 of the Indian Penal Code. After having heard the accused/appellants on the question of sentence, all the accused/appellants were sentenced to undergo rigorous imprisonment for one year each under Section 148 of the Indian Penal Code. All the accused/appellants were also sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 149 of the Indian Penal Code, besides being required to pay a fine of Rs.1,000/- each. In default of payment of fine, they were ordered to further undergo rigorous imprisonment for one year each. Both the sentences were directed to run concurrently. In case of recovery of fine imposed on the accused/appellants, the same was directed to be paid to the L.Rs. of the deceased Raj Pal. A perusal of the evidence produced by the prosecution, as well as, the judgement rendered by the Sessions Judge, Sonepat, reveal that while convicting the accused/appellants Ishwar, Joginder, Bijender, Smt. Vidya and Smt. Krishna, reliance was placed on the ocular evidence of the two witnesses, namely, the complainant Dharam Pal PW3 and Krishan PW4, expert medical evidence produced through Dr. Rakesh Giridhar PW5 so as to demonstrate the injuries found on the dead body of Raj Pal, as also, to substantiate the statements of the complainant Dharam Pal PW3 and Krishan PW4 , who while appearing as prosecution witnesses, had tendered evidence in respect of the seat of the injuries caused by the accused/appellants, as also, the nature of weapons used by them for the said purpose. Reliance was also placed on the disclosure statements made by the accused/appellants on the basis of which the weapons used by the Crl. Appeal No.234-DB of 1998 12 accused/appellants during the course of the incident under reference, came to be recovered by the police. In order to repudiate the conclusion drawn by the trial Court in the impugned judgement dated 2.5.1998, as also, to demonstrate that the evidence relied upon by the trial Court in recording the conviction of the accused/appellants was not creditworthy, learned counsel for the accused/appellants, in the first instance, invited the Court's attention to the fact, that the evidence produced by the prosecution to substantiate motive at the hands of the accused/appellants to have committed the instant crime, is not worthy of acceptance. In this behalf, it is the contention of the learned counsel for the accused/appellants, that the suit under reference had been filed by Ram Lal against Dharam Pal PW3 and Krishan PW4. It is submitted that Raj Pal was not even a party to the aforesaid civil suit. As such, it was submitted that there was no motive at the hands of the accused/appellants to have committee the murder of Raj Pal as no litigation, whatsoever, was pending between the accused/appellants and Raj Pal. It is not possible for us to accept the aforesaid contention of the learned counsel for the accused/appellants in the background of the fact that it is not a matter of dispute that Ram Lal, the author of the suit between the parties and Ishwar, are brothers. Similarly, the defendants in the case, namely, Dharam Pal and Krishan are brothers of the deceased Raj Pal. It is, therefore apparent, that the suit under reference was a litigation with the family of the accused/appellants on the one side and the family of the deceased Raj Pal on the other. Additionally, it would be pertinent to mention, that in their statements, the complainant Dharam Pal PW3 and Krishan PW4 asserted, that four days prior to the incident under reference, Crl. Appeal No.234-DB of 1998 13 the accused/appellant Ishwar had hurled a threat at Dharam Pal PW3 in connection with the aforesaid pending civil litigation, and that, Dharam Pal PW3 had lodged a report to the police on the aforesaid issue. In the cross- examination of Dharam Pal PW3, the specific defence at the hands of the accused/appellants emerges from the suggestion put to him in response to which Dharam Pal answered, “It is incorrect to suggest that my family members including deceased wanted to take forcible possession or encroachment of the street in dispute which was resisted by the wife of Ram Lal...” It is, therefore apparent, that the aforesaid civil suit pending between the parties is not a matter of dispute. The statements made by the accused/appellants Smt. Vidya and Smt. Krishna, in their version of the incident (extracted in the instant order hereinabove) reveal that the occurrence had taken place on the basis of the litigation pending between the parties. It is, therefore, not possible for us to accept the first contention of the learned counsel for the accused/appellants. The second contention of the learned counsel for the accused/appellants was that, as a matter of fact, the incident under reference was a blind murder, and that, the complainant Dharam Pal PW3 and Krishan PW4 are introduced witnesses It is submitted that Dharam Pal PW3 and Krishan PW4 have been introduced in order to settle scores between the parties on account of the civil suit which had been filed by Ram Lal, the brother of the accused/appellant Ishwar. In order to substantiate the instant contention, it is also submitted that the statement of the Investigating Officer Hari Ram (who had visited the place of the occurrence immediately after the complainant Dharam Pal PW3) reveals that a number of persons were present at the place of occurrence. It is the contention of the learned Crl. Appeal No.234-DB of 1998 14 counsel for the accused/appellants, that there were independent witnesses at the place of occurrence who should have been associated to prove the guilt of the accused/appellants. It is submitted, that by the very fact, that the complainant Dharam Pal PW3 and Krishan PW4 were the real brothers of the deceased Raj Pal, and were the only ones to witness the occurrence raises a suspicion in the veracity of the prosecution version of the incident. Having given our thoughtful consideration to the second contention advanced by learned counsel for the accused/appellants, we are of the view, that the presence