IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.428-DB of 1998 Date of decision: 25.02.2008 Chand Ram & others. -----Appellants. Vs. The State of Haryana. -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S. D. ANAND Present: Mr. Vinod Ghai. Advocate for the appellants. Mr. Kulvir Narwal, Addl.A.G., Haryana. ----- Adarsh Kumar Goel, J. The appellants Chand Ram, Prem, Karambir @ Pappu, Ajmer and Dilbagh challenge their conviction under Sections 302/148/149 IPC for which they have been awarded life imprisonment and other lesser sentences. Case of the prosecution is that the deceased Krishan alongwith his brothers PW-1 Prem Singh and PW-4 Baljit was in the agricultural field for agricultural operations on 8.10.1994 at 1- 00 P.M. Appellant Ajmer and his brother Samunder took their cart through the mustard crop causing damage to the crop which was Criminal Appeal No.428-DB of 1998 objected to by the deceased. The appellant Ajmer Singh challenged the deceased and gave a threat that he will come back soon. Thereafter, at 3-00 P.M., Ajmer Singh came back with his father Chand Ram, brother Dilbagh and co-accused Karambir @ Pappu and Prem sons of Raj Pal. Dilbagh, Chand Ram, Prem and Ajmer were carrying jellies and Pappu was having pharsa. Prem Gave a jelly blow on the chest, Pappu gave a pharsa blow on the head, Chand Ram gave a blow in the abdomen, Ajmer gave jelly blow on the left knee and Dilbagh gave jelly blow lathiwise on the back of Krishan. Prem Singh PW-1 raised an alarm and ran towards his brother Baljit PW-4. Krishan fell down. The accused ran away with their respective weapons. Krishan succumbed to his injuries. Prem Singh proceeded to inform the police. His statement was recorded by Inder Singh, SHO PW-6 at Police Station Meham. PW-6 Inder Singh prepared inquest report and sent the dead body for post-mortem examination. He then went to the place of occurrence, prepared rough site plan, lifted bloodstained earth, recovered the clothes of the deceased, arrested the accused, recovered the weapons of offence and after completing the investigation, sent up the accused the trial. PW-2 Dr. Narender Singh conducted post-mortem examination on the dead body of the deceased on 9.10.1994 at 11-00 A.M. He, inter-alia, observed:- 2 Criminal Appeal No.428-DB of 1998 “I found the following injuries on the person of deceased. 1. A contusion reddish colour 8 cm. x .5 cm. about 7 cm. below right axilla on right chest. 2. A semi circular wound (punctured) .9 cm. x .0.6 cm. x 4 cm. (punctured wound) just above sternal notch. 3. A semicircular wound (punctured) .9 cm. x .6 cm. x 5 cm. away from above injury on left chest just below left sternoclavicular joint.” On dissection, on removing sternal, there was clotted blood below sternum and in between two lungs. There was punctured wound over left lung and the punctured would over the left heart chamber. Both heart chambers were empty. The pericardial cavity was full of blood and clots. The pleural cavity of left side was full. There was an incised wound 7 cm. x 1 cm. x 2 cm. on left parietal region 1.2 cm. away from mid line. On dissection, removing the scalp, there was very small effusion of blood below the injury. Other organs were found healthy. The cause of death of the deceased in my opinion is due to shock and haemorrhage. The injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. The said doctor also gave opinion on 25.10.1994 that the injuries on the deceased could be caused by weapons Ex.P-5 to Ex.P-9, allegedly recovered from the accused. 3 Criminal Appeal No.428-DB of 1998 The prosecution, apart from examining PW-1 Prem Singh, and PW-4 Baljit, eyewitnesses, PW-2 Dr. Narender Singh, PW-6 SI Inder Singh, also examined PW-3 Om Parkash, Patwari, to prove the site plan, PW-5 Constable Ram Dhari to prove handing over of copy of special report to the Magistrate. The accused denied the prosecution allegations and stated that the deceased was a bad character and may have been killed by some one else. The trial Court after considering the evidence on record, accepted the case of the prosecution mainly on the basis of evidence of PW-1 Prem Singh and PW-4 Baljit, the eyewitnesses. We have heard learned counsel for the parties and perused the record. Contention raised on behalf of the appellants is that case of the prosecution was not proved and even if the case of the prosecution is accepted, there was scope for exaggeration. The injuries attributed to all the five accused are not corroborated by medical evidence. The injuries could have been caused by accused Prem only, who was said to have given blow on the chest. Injury attributed to Karambir @ Pappu was a simple injury. He had no common intention to cause death. Injuries attributed to Chand Ram, Ajmer and Dilbagh in the abdomen, on the knee and on the back, have not found in the medical examination. 4 Criminal Appeal No.428-DB of 1998 We find merit in the contention raised qua the case of Chand Ram, Ajmer and Dilbagh. The role attributed to accused Chand Ram, Ajmer and Dilbagh is not corroborated by medical evidence and on that account, they are entitled to benefit of doubt. The appeal qua Chand Ram, Ajmer and Dilbagh is liable to be accepted but appeal qua Prem and Karambir @ Pappu is liable to be dismissed. There is direct evidence of clinching nature against Prem and Karambir @ Pappu. The occurrence took place in the broad day light. PW-1 Prem Singh put the injured Krishan in a four wheeler and went to the police station immediately. FIR was lodged at 5-00 P.M. and copy of the special report reached the Magistrate at 7-30 P.M. on the same day. There could be no mistake of identity. PW-1 Prem Singh and PW-4 Baljit, being real brothers of the deceased, will be the last persons to leave out the real accused and implicate the appellants. Their presence in the fields was quite natural. Their version has remained unshaken in the cross-examination. No major discrepancy has been pointed out in the testimony of PW-1 Prem Singh and PW-4 Baljit. We are of the view that there is no reason to reject the testimony of PW-1 Prem Singh and PW-4 Baljit qua appellants Prem and Karambir @ Pappu. Adequacy or absence of alleged motive has no significance where reliable eyewitnesses’ account is available. As regards Karambir @ Pappu, who has been attributed simple injury on the head, we are of the view that both 5 Criminal Appeal No.428-DB of 1998 the accused clearly shared common intention. They came prepared with deadly weapons and both have assaulted the deceased on vital parts of the body. It is not a case of sudden occurrence. The deceased died almost immediately as a result of the injuries received. There is no reason to doubt sharing of common intention by Karambir @ Pappu. He cannot, thus, avoid responsibility for causing of the death. Even if injury individually attributed to him is held to be simple, it cannot be held that he could not have pre-conceived the result of the assault. Accordingly, while conviction and sentence of Chand Ram, Ajmer and Dilbagh are set-aside and qua them, the appeal is allowed and they are acquitted, conviction and sentence of Prem and Karambir @ Pappu is upheld and qua them, the appeal is dismissed. ( ADARSH KUMAR GOEL ) JUDGE February 25, 2008 ( S. D. ANAND ) ashwani JUDGE 6 Criminal Appeal No.428-DB of 1998 The appellant challenges his conviction under Section 302 for which he has been sentenced to undergo life imprisonment and to pay fine of Rs.1,000/-, in default, to undergo further RI for six months. Case of the prosecution is that on 19.9.1996 at 7-00 P.M., deceased Raj Kumar and his cousin PW-6 Satbir Singh alongwith appellant Surjit @ Sheelu, resident of Village Chiror had gone to Siwani by a Ford tractor to leave cotton. While returning, they halted at a hotel for refreshmet. The appellant brought liquor from his tractor and consumed the liquor alongwith the deceased. Satbir Singh PW-6 took tea. When Satbir Singh was making payment to the owner of the hotel, the appellant made the deceased to sit on his tractor and drove away the tractor speedily towards Village Barwa. Satbir Singh PW-6 shouted for stopping the tractor, but the appellant did not listen and sped away the tractor. Satbir Singh followed on foot and at 10-45/11-00 P.M., he saw the tractor-trolley standing on the kutcha path on the side of the road. The appellant had made Raj Kumar fall on the ground and was driving the tractor backward and forward. Raj Kumar was shouting that the appellant will kill him and he had already run the tractor over him. Satbir Singh did not intervene out of fear and went to his village and informed the wife of Raj Kumar as well as Balbir and Ved Pal, brother and nephew of Satbir Singh. He came back to Barwa, at the place of occurrence and met Jia Lal, Chowkidar PW-4 and Roshan Lal, who were sitting on a cot on the 7 Criminal Appeal No.428-DB of 1998 side of the road in front of their shop. They told him that the appellant had sped away with his tractor, leaving the trolley their. They had informed the police and Raj Kumar had been taken to Siwani. Satbir Singh went to the Police Station, Siwani where they were advised to go to the hospital. Satbir Singh went to the hospital and after seeing Raj Kumar in unconscious condition, he went back to Village Chiror to collect money, leaving Balbir on the spot. When they came back, Raj Kumar had died. According to him, the appellant had caused the death of Raj Kumar on account of altercation at the hospital as the deceased had money dealaings with the appellant. His statement was recorded by ASI Om Parkash PW-8 at 9-10 A.M. which led to registration of FIR. 8