IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.250-DB of 1998 Date of decision: 11.01.2008 Rambir & others. -----Appellants. Vs. State of Haryana. -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S. D. ANAND Present: Mr. Ramesh Hooda, Advocate for the appellants. Mr. S.S. Pattar, Sr. DAG, Haryana. ----- Adarsh Kumar Goel, J. This appeal has been preferred by the appellants against their conviction under Sections 302/34 IPC, for which, they stand sentenced to undergo life imprisonment and to pay fine of Rs.5,000/- each and in default, to undergo further rigorous imprisonment for three months. 75% of the amount has been directed to be paid to the legal heirs of the deceased, Jai Bhagwan, as compensation. Case of the prosecution is that buffalo of Mange Ram was stolen by Jaibir son of Ram Kumar and Ajeet (acquitted co-accused) 4-5 days prior to the occurrence. They were arrested, but granted Criminal Appeal No.250-DB of 1998 bail. Jaipal (PW-8) brother of deceased Jai Bhagwan was the neighbour of Ajeet. On 28.9.1995, Bijender @ Ballu (acquitted co-accused) came to the house of the deceased, Jai Bhagwan to smoke Huka, but the deceased told him that since Ballu was involved in illegal activities, he should not come to his house. Bijender felt offended and threatened Jai Bhagwan with dire consequences. On 29.9.1995 at 6.30 A.M., Jai Bhagwan, deceased, and his wife Munni Devi (PW-9) were going towards their Gher to look after their cattle. At Chowk Shamlat, near the house of Hazari, Satte accused (appellant No.2), Rambir (appellant No.1), Bijender @ Ballu (acquitted co-accused) and Jagdish (acquitted co-accused) met him. Jagdish caught hold of Jai Bhagwan and exhorted that he be taught a lesson for calling them bad elements. Other accused attacked Jai Bhagwan with their respective weapons – kulhari (axe), pharsa, and jelly. Jai Bhagwan and Munni Devi raised alarm, on which, Jaipal and Rajinder reached the spot. Satte gave a kulhari blow on the head of Jai Bhagwan. Bijender gave a pharsa blow on the left side of the head of Jai Bhagwan. Jai Bhagwan fell down. Ajeet inflicted injuries with a jelly. Rambir inflicted pharsa blow on the right ear of Jai Bhagwan. Bijender gave pharsa blow on the head of Jai Bhagwan. Jaipal, Rajinder and Munni Devi rescued Jai Bhagwan. Many people gathered there. The accused fled away. Jaipal, Munni Devi and Ram Bhagat brought the injured to the hospital, where he was declared dead. Jaipal went to the village to inform the family members. ASI Raj Kumar received intimation from 2 Criminal Appeal No.250-DB of 1998 hospital at 8.30 A.M. He went to the hospital where two three persons of the village met him and told him that Jaipal had gone to the village to inform about the death. Statement of Jaipal, Ex.PK, was recorded by ASI Raj Kumar (PW-12) at 11.30 A.M. Formal FIR was registered at 12.30 P.M. and a copy of special report was received by the Magistrate at 3 P.M. After investigation, he challaned all the five accused. The prosecution examined MHC Dharam Pal as PW-1, Azad Singh, Ahlmad as PW-2, Constable Surjeet Kumar as PW-3, Head Constable Krishan Kumar as PW-4, Dr. Ram Kumar, Medical Officer as PW-5. Dr. Kumud Sharma as PW-6, Constable Chander Bhan as PW-7, complainant Jaipal as PW-8, Munni Devi eyewitness as PW-9, ASI Sunehra Singh as PW-10, Sub Inspector Daya Ram as PW-11, ASI Raj Kumar as PW-12 and MHC Ajeet Singh as PW-13 and also tendered in evidence the report of Forensic Science Laboratory Ex.PU and Ex.PU/1, besides other documents. The accused denied prosecution allegations and stated that they had a plot. In its adjoining passage, Jaipal tried to carry his tractor after damaging edges of the plot. On objection being raised, he used filthy language and he was nursing a grudge against the accused. He had earlier committed murder of one Umed Singh and he also had a quarrel with one Sukhbir. His family had also occupied house of Gaddi of Dev Dass and he had several enemies. This was a blind murder. Ram Bhagat found the injured and took him to the hospital in an attempt to save his life, but the doctor declared him dead. Not knowing the real culprits, the complainant in connivance 3 Criminal Appeal No.250-DB of 1998 with the police concocted a false motive and a false version to take revenge from the accused. After considering the evidence on record, the trial Court acquitted three of the co-accused namely Jagdish @ Jaggar, Bijender @ Ballu and Ajeet @ Sonu and convicted the appellants. In substance, the findings recorded by the trial Court are:- (i) Delay in lodging FIR was duly explained. The occurrence took place at 6.30 A.M. The deceased was carried to the hospital at 7.15 A.M. On receipt of information, ASI Raj Kumar went to the hospital at 8.15 A.M., where he was told that Jaipal and Munni Devi had gone to the village. ASI Raj Kumar reached the village at 11.30 A.M. and recorded the statement of Jaipal. Ram Bhagat, whom ASI Raj Kumar had met earlier in the hospital, was not aware about the facts and was not an eyewitness. FIR was registered at 12-30 P.M. Special report reached the Magistrate at 3 P.M. It was natural for Jaipal to first rush the injured to the hospital instead of going to police station to lodge the report; (ii) Delay in sending the report to the Magistrate could not be attributed to the complainant; (iii) Presence of Jaipal and Munni Devi along with the deceased was natural and version of eyewitnesses was reliable. Nothing substantial could be elicited in their cross-examination. They had no reason to substitute real culprits; 4 Criminal Appeal No.250-DB of 1998 (iv) Jagdish, Bijender and Ajeet were entitled to benefit of doubt. All the accused were real brothers. Jagdish @ Jaggar was empty handed. Ajeet @ Sonu was attributed jelly blows while Bijender was attributed pharsa blow on the left side of head to the deceased but no such injuries were found. There were only two injuries – one on the right ear attributed to Rambir and one on the head attributed to Satbir with kulhari. Their false implication was, thus, not ruled out. Their being members of unlawful assembly, was also not clearly proved. We have heard learned counsel for the parties and perused the record. Contentions raised by learned counsel for the appellants are:- (i) Statement of Ram Bhagat was not recorded, though he was found first in the hospital by ASI Raj Kumar, PW-12; (ii) Sri Bhagwan, brother of the deceased who is said to have been present on the previous day occurrence, was not examined; (iii) Jaipal and Munni Devi were not found in the hospital and therefore, it could be presumed that they did not accompany the injured. If they had been eyewitnesses, they would have accompanied the injured to the hospital; 5 Criminal Appeal No.250-DB of 1998 (iv) The prosecution had exaggerated the version by implicating three persons who have been found to be innocent; (v) The deceased was involved in a murder case and had grabbed the property of a dera and thus, could have been killed by any one. We do not find any merit in the contentions raised. Before dealing with the submissions made on behalf of the appellants, it will be appropriate to have an overview of the matter. PW-8 Jaipal and PW-9 Munni Devi have categorically deposed that they saw the occurrence. The said witnesses have given cogent and convincing account of the occurrence. Jaipal is brother of the deceased and was living with him. Munni Devi is wife of the deceased. They have mentioned about an incident which took place a day before causing annoyance to Bijender accused. They have also stated that they saw the occurrence and have given detailed account of the occurrence. Nothing adverse could be elicited from their version in the cross-examination. Minor discrepancies cannot be given any significance. Such discrepancies may take place on account of error of observation, error of memory, shock and horror at the time of occurrence. Being close relatives of the deceased does not in any manner discredit the version of the witnesses. In fact, they will be interested in having the guilty punished. Evidence of the witnesses is to be seen as a whole on the test of broad probabilities. The witnesses have clearly implicated the appellants and roles 6 Criminal Appeal No.250-DB of 1998 assigned to the appellants have been duly corroborated by the medical evidence. Dr. Kumud Sharma, PW-6, who conducted the post-mortem examination, found the following injuries:- “1. Lacerated wound was present on pinna and lacerated wound was present at the base of right ear. 2. Incised wound 6 x 2 cm. x bone deep was present in parieto occipital region of left side of skull underlying bone was fractured. Haemetoma under skull was present under scalp parieto temporal and parieto occipital region of skull on left side. Haemetoma was present on right temporal region. Subdural haemetoma was present on right side and on left side also. Intra cerebral haemetoma was present on left side of temporal region.” The cause of death was the head injury caused by a sharp-edge weapon, which was sufficient to cause death in ordinary course of nature. Common intention is patent in the circumstances. The place of occurrence has been duly established. The weapons of offence were duly recovered from the accused. PW-1 Dharam Pal, MHC and PW-2 Azad Singh, Ahlmad proved the earlier FIR against Ajeet and Jaibir. There is no unexplained delay in recording the FIR. The question is whether testimony of Jaipal and Munni Devi, eyewitnesses, should be rejected only on the ground that they were not found in the hospital when PW-12 ASI Raj Kumar visited the hospital or on the ground that Ram Bhagat, who was found in the 7 Criminal Appeal No.250-DB of 1998 hospital along with the deadbody, was not examined or on account of non-examination of Sri Bhagwan. Mere fact that Sri Bhagwan, brother of the deceased who was said to be present on the earlier day occurrence was not examined, is of no consequence. Witnesses necessary to unfold the prosecution version were examined and it is not necessary to multiply the witnesses. Ram Bhagat is not claimed to be an eyewitness. He had merely accompanied the eyewitnesses. There is nothing unnatural in Jaipal and Munni Devi having gone to the village after being told by the doctor that Jai Bhagwan was dead. There is no set pattern for human conduct. It is not always necessary that a person attending the victim, must go to the police station first. Direct version of eyewitnesses, if otherwise truthful, cannot be rejected on the ground of their having not followed a set pattern. Principle of Uno in Falsus Falsus in Omnibus is not applicable. If a doubtful or untrue version can be clearly separated from reliable and truthful version, there is no reason to reject the version which is clearly reliable. The role attributed to the three acquitted co-accused may not be true, but this alone is not enough to reject the version of the prosecution against the appellants. The injured was immediately taken to the hospital is an undisputed fact, which corroborates the version of eyewitnesses having seen the occurrence. Admittedly, the witnesses were present in the village. There was no reason for them not to have gone with the injured to the hospital. There was no reason for Ram Bhagat alone to have taken the injured to the hospital without 8 Criminal Appeal No.250-DB of 1998 informing the family members of the injured when the death had taken place in the village itself. The police was immediately informed and came to the hospital and then to the village. Delay in recording the FIR is fully explained. The version given by Jaipal and Munni Devi cannot be held to be untruthful or false. The version of the prosecution against the appellants, thus, stands fully established. Accordingly, we affirm the conviction and sentence of the appellants. The appeal is dismissed. ( ADARSH KUMAR GOEL ) JUDGE January ___, 2008 ( S. D. ANAND ) ashwani JUDGE 9