Crl.Appeal No.767-SB of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 3.8.2010 (I) Crl.Appeal No.767-SB of 1999 Bobby ... Appellant versus State of Haryana ... Respondent (II) Crl.Appeal No.850-SB of 1999 Gurbir ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Ashok Kumar Sharma, Advocate, for Mr.R.S.Sihota, Sr. Advocate, for the appellant in Crl.Appeal No.767-SB of 1999. Mr.G.S.Hooda, Advocate, for the appellant in Crl.Appeal No.850-SB of 1999. Mr.Paramjit Batta, Addl.AG, Haryana. ... JORA SINGH, J. Crl.Appeal No.767-SB of 1999 was preferred by Bobby whereas Crl.Appeal No.850-SB of 1999 was preferred by Gurbir to impugn the judgment of conviction and order of sentence dated 3.8.1999 rendered by Sessions Judge, Faridabad, arising out of FIR No.246 dated 3.6.1998 under Sections 304/34 IPC, Police Station Sadar, Ballabgarh. By the said judgment, they were convicted under Section 304 Crl.Appeal No.767-SB of 1999 2 Part-II read with Section 34 IPC and sentenced to undergo RI for five years each. Prosecution story, in brief, is that on 2.6.1998, Umrao Singh in a bus was going to his village Maujpur from Ballabgarh. Manoj r/o Village Maujpur, Bobby, Kulbir @ Gurbir, Charan Singh, Sita Ram and other passengers were also travelling in the said bus. Bus had started at 6.30 PM from Ballabgarh for going to Village Mohna. When the bus was at some distance from Village Dayalpur, then Bobby, Kulbir and Charan Singh started abusing Manoj. They gave fist/leg blows to Manoj by saying that he had teased the women. Sita Ram, Balbir and Umrao Singh had rescued Manoj from the clutches of the accused. Bus was stopped on the request of Umrao Singh and other passengers near the fields of Charan, r/o Village Dayalpur. Manoj was requested to alight from the bus and was made to sit on the scooter of Rohtas, who came in the meantime from the side of Ballabgarh. Bobby, Kulbir and Charan Singh continued their journey in the same bus with Umrao Singh, complainant, Sita Ram and Balbir. Bus was near the Bus Stand of Village Atali, then noticed Manoj while lying dead on a wooden table. On enquiry, they came to know that near Bus Stand of Village Atali, Manoj had gone to answer the call of nature in the fields, where he had collapsed. Dead body was kept on the wooden “takhataposh”. After recording the statement of Umrao Singh, statement was sent to the police station, on the basis of which, formal FIR was recorded. Investigating Officer had gone to the spot after receipt of information. Inquest report (Ex.PB) was prepared. Dead body was sent to hospital for postmortem examination. Rough site plan with correct marginal notes was prepared. Accused were arrested and after completion of Crl.Appeal No.767-SB of 1999 3 investigation, challan was presented in the Court. Accused were charged under Sections 304/34 IPC, to which they pleaded not guilty and claimed trial. PW1 Dr. S.C.Jain had conducted postmortem examination on the dead body of Manoj and found the following injuries on his person:- “1. Bleeding from mouth due to injuries to gums. 2. Multiple abrasions of various sizes on right elbow. 3. 2 inch x 1 inch swelling on left side of forehead with haemotoma formation underneath. 4. Ecchymosed skin on testicles, i.e., scrotum. On dissection, left testicle was having haematoma formation with surrounding congestion & right testicle was also congested.” PW2 Umrao Singh, complainant, stated that he along with Manoj, Sita Ram and the appellants was travelling in a private bus. While travelling in the bus, then accused party started abusing Manoj by saying that he had teased the women. Fist/leg blows were given to Manoj. Manoj was rescued from the clutches of the accused and was made to alight from the bus and take lift on the scooter of Rohtas. Bus was near the Bus Stand of Village Atali, then noticed dead body of Manoj lying on the wooden takhtaposh. PW3 Sita Ram is one of the eye witnesses. He has also supported the version of Umrao Singh by saying that in his presence, appellants had given fist/kick blows to Manoj. PW4 Rohtas stated that on 2.6.1998, he was going to Village Atali on a scooter. At about 6.30 PM, he was near the crusher, then noticed Crl.Appeal No.767-SB of 1999 4 that a bus had stopped and the passengers had alighted from that bus. He was signalled to stop by the passengers, and he stopped his scooter. Then passengers reported that a quarrel had taken place inside the bus and he was requested to take Manoj on his scooter and drop him at the Bus Stand of Village Atali. Manoj had occupied pillion seat of the scooter. On enquiry, Manoj disclosed that he was feeling pain in his testicles. Manoj was dropped near the Bus Stand of Village Atali. PW5 SI Niranjan Lal stated that on receipt of information that a quarrel had taken place in a private bus, in which a boy received injuries and died, he had gone to Village Atali, where Umrao Singh met him. Statement of Umrao Singh (Ex.PC) was recorded. After making endorsement (Ex.PC/1), statement was sent to police station, on the basis of which, formal FIR (Ex.PC/2) was recorded. He had prepared inquest report. Dead body was sent to hospital for postmortem examination. PW6 Constable Ashok Kumar had prepared scaled site plan (Ex.PD). PW7 SI Vishnu Dutt stated that on receipt of ruqa (Ex.PC) along with endorsement (Ex.PC/1), he had recorded formal FIR (Ex.PC/2). After that, he had gone to spot and prepared rough site plan (Ex.PE) with correct marginal notes. Statements of witnesses were recorded. After getting copy of postmortem report, accused were arrested on 4.6.1998. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of Bobby was that case is false, whereas defence version of Gurbir was that on the day of occurrence, he was not Crl.Appeal No.767-SB of 1999 5 present in the village because he was on duty as a driver of Truck No.HR- 38-B-1878. He was coming from Bangalore side towards Ludhiana. Entry was made when he had crossed UP border. Due to party faction, he was falsely implicated in this case. Opportunity was given to lead defence evidence, but no defence was led. Learned counsel for appellant Bobby argued that appellant and complainant party are from the same village. Occurrence is dated 2.6.1998. Bobby was 20 years' old at that time. According to prosecution story, only leg/fist blows were given in the bus. Intention was not to murder. Bobby has already suffered mentally as well as financially. He is facing trial for the last about 12 years. He has already undergone 4 months and 26 days. Appellant Bobby is ready to compensate the complainant party. Argued that judgment of trial Court is not challenged on the point of conviction. Requested that lenient view may be taken qua sentence. Learned counsel for appellant Gurbir argued that before the present occurrence, there was no dispute amongst the parties. Motive as per prosecution story to commit the crime was that Manoj used to tease the women of the village, but earlier to the present occurrence, no complaint to any authority. No lady came forward to state that she was teased by the deceased. Injuries No.1 and 2 were possible by fall against a hard surface. Injuries No.1 to 3 were possible by fall from a motorcycle or scooter. Injury No.4 was possible if by accident a collision took place with some other vehicle. PW2 Umrao Singh is the complainant, but was declared hostile and did not support the prosecution story. Balbir was not examined for the Crl.Appeal No.767-SB of 1999 6 reasons best known to the prosecution. Sita Ram appeared as PW3, but his statement also inspires no confidence because he failed to name father and brother of Gurbir. He is related to the deceased and is very much interested in the success of this case. Evidence on file was not scrutinized properly by the trial Court. Learned State counsel argued that learned counsel for appellant Bobby did not contest the appeal seriously and rather stated that parties have effected compromise, whereas learned counsel for appellant Gurbir argued that prosecution story inspires no confidence, but contention of learned counsel for Gurbir is not correct one. Manoj used to tease women. On the day of occurrence, he was travelling in a private bus. Bobby and Gurbir were also in the same bus. Umrao Singh, Sita Ram and Balbir were also travelling in the said bus. While travelling in the bus, appellants started abusing Manoj and gave fist/kick blows to Manoj. 4 injuries were noticed on the person of Manoj. Injury No.4 cannot be self suffered or self inflicted. Unnatural death was due to injury No.4. Umrao Singh or Sita Ram had no enmity with the appellants. Without enmity, there was no reason to name the appellants. There were other passengers in the bus, but no one appeared in defence to state that there was no altercation amongst the deceased and the appellants while travelling in the bus. Umrao Singh and Sita Ram are the eye witnesses and have specifically stated that in their presence, appellants had given fist/kick blows to the deceased. According to postmortem report, injuries were ante mortem in nature. Injuries were not self suffered or self inflicted. So without motive, there was no idea to suffer injuries simply to implicate the appellants. Undisputedly, revision was filed by Lakhmi Chand, father of Crl.Appeal No.767-SB of 1999 7 the deceased, but the same was dismissed as withdrawn in view of the compromise on file. Bobby filed appeal separately but learned counsel for appellant Bobby stated at the Bar that impugned judgment is not challenged on the point of conviction and requested that lenient view may be taken qua sentence. But learned counsel for appellant Gurbir argued the appeal and his first contention was that there was no motive to commit the crime. No lady came forward to state that she was teased by the deceased. I agree that no lady came forward to state a word that before the present occurrence, deceased used to tease her, but the appellants and deceased are from the same village. They were travelling in the same bus. When a lady is teased, then to save the honour of family, she is not to report the matter to the police. Sometime, matter is reported to Panchayat. When there is a direct evidence, then motive looses importance. Allegation of Gurbir was that he was not present at the time of occurrence, but in support of this contention, no defence. Allegation of Gurbir was that he was a driver of No.HR-38-B- 1878 and was coming from Bangalore side towards Ludhiana, but no one came forward in defence to state that on the above said truck, Gurbir was the driver. Copy of driving licence was not produced to show as to whether Gurbir was the driver. Owner of the truck could easily be produced to state that above said truck was away to Bangalore and Gurbir was the driver. Umrao Singh while appearing as PW2, then in examination-in- chief stated that while travelling in the bus, deceased had altercation with the appellants. Similar is the statement of Sita Ram. In case, prosecution failed to lead evidence qua motive, then on this short ground, prosecution story is not to be ignored when there is a direct evidence. Crl.Appeal No.767-SB of 1999 8 Second contention of learned defence counsel for Gurbir was that Umrao Singh was declared hostile and his statement was without any value, but submission of learned defence counsel seems to be not correct one because Umrao Singh while appearing in Court categorically stated that Manoj was travelling in the bus. Appellants were also travelling in the same bus. Appellants had a dispute with Manoj and appellants had given fist/kick blows to Manoj. Both the eye witnesses stated that fist/kick blows were given on the testicles of Manoj by the appellants. In the last lines of his examination, Umrao Singh stated that there were only two boys in the bus, who had caused injuries to Manoj. Then Umrao Singh was declared hostile because Charan Singh was also facing trial. Sita Ram appeared as PW3 and stated that the accused while travelling in the bus told that Manoj was teasing the women. Then appellants had given fist/kick blows to Manoj. In cross-examination, Sita Ram stated that appellants were known to him for the last about 4-5 years. He further stated that he can tell the name of father of Bobby. Deceased was his nephew. No doubt, Sita Ram did not disclose about the father's name of Bobby, but Bobby has effected compromise with the complainant party. If there was no occurrence and appellants had not given fist/kick blows to the deceased, then there was no question of compromise. Filing of compromise at the instance of Bobby shows that prosecution story is genuine one. Sita Ram was related to the deceased but Umrao Singh had no relation with the deceased. Umrao Singh was not inimical towards the appellants. No reason to disbelieve Umrao Singh and Sita Ram when there was an occurrence. When occurrence is witnessed by a close relative, then mere relation is no Crl.Appeal No.767-SB of 1999 9 ground to discard the statement of the witness because in these days, only close relatives appear in Court to support the prosecution story. Independent witnesses are not willing to depose in order to avoid enmity with the accused party. If earlier to the present occurrence appellants had no enmity with the complainant party, then question is why they were named when number of other passengers were in the bus. Immediately after the occurrence, Manoj was requested to alight from the bus. Rohtas was requested to give lift to Manoj. Manoj was dropped near the Bus Stand of Village Atali. When bus came near the Bus Stand of Village Atali, then dead body of Manoj was found lying there. As per postmortem report, injuries were found to be ante mortem in nature. Injury No.4 cannot be self suffered or self inflicted. Manoj was 22/23 years old. Nothing on the file that he was a heart patient or was suffering from any other serious disease and death was due to heart attack or any other disease. So statements of the eye witnesses coupled with the statement of doctor lead to this conclusion that crime was committed by the appellants. Evidence was rightly scrutinized by the trial Court. No reason to differ. Judgment of trial Court on the point of conviction is upheld. Occurrence is dated 2.6.1998. At that time, Bobby was 20 years' old, whereas Gurbir was 22 years' old. There was a sudden fight while travelling in a bus. Appellants were not armed. They had simply given fist/leg blows to Manoj. After the occurrence, Manoj had taken lift on the scooter of Rohtas. When Manoj was dropped near the Bus Stand of Village Atali, then he had gone to answer the call of nature. He complained of pain. Ultimately, unnatural death near the Bus Stand of Village Atali. That means, appellants had no intention to murder. They had the intention Crl.Appeal No.767-SB of 1999 10 to simply cause injuries. Appellant Bobby has already undergone 4 months and 26 days, whereas Gurbir has already undergone 4 months and 25 days out of actual sentence. They are the first offenders and belong to poor family. In 2004 (1) RCR (Crl.) 697, Mohan Singh and another versus State of Punjab, appellants were convicted under Section 306 IPC. Incident was 13 years old. Sentence of appellants was reduced to already undergone (one month). Keeping in view the facts of this case, I am of the opinion that ends of justice would be fully met if lenient view is taken. Instead of directing the appellants to undergo imprisonment as ordered by the trial Court, they are directed to undergo imprisonment already undergone (4 months and 26 days in case of Bobby and 4 months and 25 days in case of Gurbir). Appellants are further directed to deposit Rs.25,000/- each as fine within two months before the trial Court, payable to Lakhmi Chand, father of the deceased, as compensation. For the reasons recorded above, Crl.Appeal No.767-SB of 1999 and Crl.Appeal No.850-SB of 1999 without merit are dismissed with the modification qua sentence. 3.8.2010 ( JORA SINGH ) pk JUDGE