Crl. Appeal No. 629-DB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 629-DB of 2002 Date of Decision : January 28, 2009 Prahlad .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. C. Sibal, Senior Advocate with Mr. V. S. Rana, Advocate for the appellant. Ms. Ritu Punj, DAG, Haryana. * * * L. N. MITTAL, J. : By this common judgment, we are disposing of two Criminal Appeals bearing Crl. Appeal No. 629-DB of 2002 and Crl. Appeal No. 1145-SB of 2002 as both these appeals have been preferred by Prahlad- convict and are inter-connected. Prahlad-appellant along with his brothers Dharambir and Kailash was sent for trial in FIR No. 428 dated 16.11.1995 of Police Station Sadar Ballabgarh under Sections 302 and 324 read with Section 34 of the Indian Penal Code (in short – IPC). During trial, Prahlad-appellant jumped Crl. Appeal No. 629-DB of 2002 2 interim bail and was ultimately declared Proclaimed Offender (PO). Learned Sessions Judge, Faridabad, vide judgment dated 06.10.1998, convicted both Kailash and Dharambir. However, when the judgment was being pronounced, it was pointed out that Kailash had committed suicide on 05.10.1998. Consequently, proceedings against Kailash were dropped. Vide order of even date, Dharambir was sentenced. He preferred Crl. Appeal No. 545-DB of 1998 against his conviction and sentence. However, today learned counsel for the said appellant stated that the said appellant had also since died. Accordingly, vide our separate order of today, said Crl. Appeal No. 545-DB of 1998 has been disposed of as having abated. Prahlad-appellant was subsequently arrested. Learned Additional Sessions Judge, Fast Track Court, Faridabad, vide judgment and order dated 27.04.2002, convicted Prahlad under Sections 302/34 and 324/34 IPC and sentenced him to undergo life imprisonment and fine of Rs.1,000/- and in default thereof, to undergo further rigorous imprisonment for six months under Section 302 IPC and also sentenced him to undergo rigorous imprisonment for six months under Section 324/34 IPC. Both the substantive sentences were ordered to run concurrently. Against the aforesaid conviction and sentence, Prahlad has preferred Crl. Appeal No. 629-DB of 2002. As an offshoot of the aforesaid murder case, the appellant was separately tried under Section 25 of the Arms Act vide FIR No.431 dated 20.11.1995 of Police Station Sadar Ballabgarh for possession of spring actuated knife. Vide separate judgment and order dated 27.04.2002, learned Additional Sessions Judge, Fast Track Court, Faridabad also convicted Prahlad under Section 25 of the Arms Act and sentenced him to undergo imprisonment for three years and fine of Rs.500/- and in default thereof, to undergo further imprisonment for three months. Against said conviction and sentence, Prahlad has preferred Crl. Appeal No. 1145-SB of Crl. Appeal No. 629-DB of 2002 3 2002. This is how both the appeals preferred by Prahlad are being disposed of by this common judgment. Prosecution case, in nutshell, may be narrated as under :- About two months before the present occurrence, some dispute had taken place between complainant party and Prahlad-appellant. The same was got compromised by Sukhbir Singh, Sarpanch. However, Prahlad etc. nursed grudge against the complainant party. On 16.11.1995 at about 05:30 P.M., complainant Naresh Kumar and his brother Dinesh Kumar, residents of Village Bukharpur, were going to their fields. On the way, all the three accused i.e. Prahlad-appellant and his brothers Dharambir and Kailash, accosted them. Prahlad raised lalkara. Thereupon, Dharambir and Kailash caught hold of Dinesh Kumar, whereas Prahlad inflicted two knife blows on left side of chest of Dinesh Kumar, who resultantly fell down. Then, Dharambir and Kailash caught hold of Naresh Kumar, whereas Prahlad inflicted knife blow on left side of his waist. He also fell down. Their noise attracted Harbhajan Singh and Chaman Singh. Both the injured were taken to General Hospital, Ballabgarh. Dinesh Kumar was declared dead. Doctor sent intimation Ex.P-E to the police. Thereupon, SI Naveen Kumar, SHO of Police Station Sadar Ballabgarh, along with other police officials, reached the hospital and obtained doctor's opinion Ex.P-E/1 that Naresh Kumar was fit to make statement. Thereupon, statement Ex.P-A of Naresh Kumar was recorded. After making endorsement Ex.P-A/1 on it, SI Naveen Kumar sent it to Police Station, where on its basis, FIR Ex.P-A/2 was registered. Dr. Vanita Singh (PW-4) medico-legally examined Naresh Kumar-complainant and found an incised wound over right lumber region of back measuring 1inch x ¼ inch. Depth could not be measured. Fresh bleeding was present. The injury was caused by sharp edged weapon. SI Naveen Kumar prepared inquest report Ex.P-L of Dinesh Crl. Appeal No. 629-DB of 2002 4 Kumar-deceased and sent the dead body for autopsy. Dr. M.R.Sharma conducted post-mortem examination on 17.11.1995 and found two incised wounds, one below the other, on mid part of mid axillary line on left side of chest, 3 ½ inch outer to the left nipple. On dissection of first wound, left ventrical of heart was having wound up to cavity. Left lung was also cut and thorasic cavity was full of blood. Under the second wound, ribs were fractured and lung was also cut. There were also corresponding cuts in the shirt. There was also a third incised wound on middle part of the left side of back with corresponding cut in the shirt. There were also abrasions on both the knees. Cause of death was opined to be shock and haemorrhage as a result of injuries to soft and bony-structure as described in the injuries, which were ante-mortem and sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was within a few minutes. Clothes of Naresh Kumar-injured were seized vide memo Ex.P-N. Rough site plan Ex. P-O of the place of occurrence was prepared. Clothes of the deceased were seized vide Ex.P-Q. On 20.11.1995, ASI Om Parkash arrested Prahlad-appellant and Dharambir. Prahlad, after making disclosure statement Ex.P-G/1, got recovered a spring actuated knife, which was seized vide memo Ex.P-I after preparing sketch Ex.P-H. Rough site plan Ex.P-J of the place of recovery was also prepared. Separate case under the Arms Act was got registered regarding the said knife. The doctor opined that injuries no.1 to 3 of the deceased could possibly be caused by the said knife. SI Naveen Kumar arrested Kailash-accused on 10.12.1995. Scaled site plan was also got prepared. On completion of investigation, all the three accused were sent for trial. Charge under Sections 302 and 324 IPC was framed against Prahlad-appellant and under Sections 302 and 324 IPC read with Section 34 IPC was framed against the remaining two accused. They pleaded not Crl. Appeal No. 629-DB of 2002 5 guilty and claimed trial. In support of its case, the prosecution examined seven witnesses. Complainant-injured Naresh Kumar (PW-1) and Harbhajan Singh (PW-2) have broadly stated according to the prosecution version. Constable Anoj Kumar (PW-3) stated that he prepared scaled site plan Ex.P-B. Dr. Vanita Singh (PW-4) stated about medico-legal examination of injured Naresh Kumar. ASI Om Parkash (PW-5) stated that he had arrested Prahlad and Dharambir on 20.11.1995 and that Prahlad, after making the disclosure statement, got recovered spring actuated knife Ex. P-1. Dr. M. R. Sharma (PW-6) stated about post-mortem examination of the deceased. SI Naveen Kumar (PW-7) stated about investigation of the case conducted by him. Some witnesses were given up as won over by the accused and affidavits of some formal witnesses were tendered in evidence. In the case under Arms Act, ASI Om Parkash appeared in the witness-box and stated about recovery of spring actuated knife at the instance of appellant-Prahlad in pursuance of his disclosure statement. The appellant-Prahlad in his statement under Section 313 of the Code of Criminal Procedure (in short – Cr.P.C.) denied all the incriminating circumstances appearing against him in the prosecution case and claimed to be innocent. He alleged that he intervened in a dispute between Harbhajan (PW-2) and Ram Bhajan (father of the deceased) and received injuries and thereafter both Harbhajan and Ram Bhajan, who are brothers, connived with each other and got the appellant falsely implicated. In defence, the appellant examined four witnesses. Kanwar Rattan Singh (DW-1) is a practicing Advocate at Faridabad. He has stated that he knew the appellant for the last about 25 years being his client. On 16.11.1995, at about 06:00 P.M., the appellant came to him at his residence and told that there was a quarrel with two boys in his Village Bukharpur. The appellant was drenched with blood. The appellant requested the Crl. Appeal No. 629-DB of 2002 6 witness to take him to hospital and then to police for surrender. However, the witness himself went to Police Station leaving behind the appellant at his (DW-1's) house. The witness met SI Naveen Kumar. The police was already alert having learnt of murder in the village. The witness got assurance from SI Naveen Kumar that the appellant would be got medically examined. Thereafter, the witness took Prahlad-appellant from his house to Police Station and handed him over to the police. Samay Singh (DW-2) stated that Ram Bhajan and Harbhajan are brothers. Dinesh Kumar, son of Ram Bhajan, was murdered. Police came to the village and arrested Prahlad. There was no dispute between Ram Bhajan and Harbhajan. In cross-examination, the witness stated accused-Prahlad got recovered knife from his gher (enclosed space). Sheoraj Singh (DW-3) also stated about relationship of Ram Bhajan and Harbhajan being brothers. House of Samay Singh is away from the house of witness and is about 50 meters away from the house of Prahlad. Kailash and Dharambir live separately. Sheoraj Singh stated that no recovery was made in his presence from Prahlad. In cross-examination, he admitted that as a result of fight given by the three accused, Dinesh Kumar had died and Naresh Kumar had suffered injuries. Asbir (DW-4) stated that on 16.11.1995, there was altercation between Ram Bhajan and Harbhajan, who are real brothers. Dinesh Kumar suffered injuries in that quarrel. Prahlad intervened and he also suffered injuries. Ram Bhajan and Harbhajan got Prahlad implicated in this case. Learned trial Judge, vide impugned judgments, convicted and sentenced Prahlad, as already noticed herein above. Feeling aggrieved, the convicts have preferred these appeals. We have heard learned counsel for the parties and examined the case file carefully with their assistance. In this case, FIR was lodged very promptly. The occurrence took place in Village Bukharpur at about 05:30 P.M. on 16.11.1995. Police Crl. Appeal No. 629-DB of 2002 7 Station Sadar Ballabgarh is about 08 kilometers from the place of occurrence, as mentioned in the FIR. Injured Naresh Kumar reached the hospital at about 06:00 P.M. and thereupon, intimation Ex.P-E was sent to the police. The police reached the hospital immediately thereafter and recorded statement Ex.P-A of injured Naresh Kumar after obtaining doctor's opinion that the injured was fit to make statement. The said statement, along with police endorsement Ex.P-A/1 concluded at 06:40 P.M. On its basis, FIR was registered at 07:30 P.M. and special report reached the Magistrate at Faridabad at 09:25 P.M. Detailed version has been narrated in the FIR naming all the three accused as well as the role played by them in the occurrence. Prompt lodging of FIR and receipt of special report by the Magistrate promptly without any delay whatsoever, is a very valuable circumstance in the instant case. In view of the aforesaid promptness, FIR assumes great significance. The prosecution case is supported by injured eye-witness Naresh Kumar (PW-1) and another eye-witness Harbhajan (PW-2). Naresh Kumar being injured, is a stamped eye-witness of the occurrence. Harbhajan was also named as eye-witness in the FIR itself. Another eye- witness Chaman Singh, who had also reached the spot, could not be examined because he had since died. Statements of Naresh Kumar and Harbhajan corroborated by the prompt FIR are sufficient to prove the guilt of the appellant beyond reasonable doubt. Medical evidence also corroborates the prosecution case. Fatal injuries were caused by the appellant with knife. An injury was also caused with knife by the appellant to Naresh Kumar-complainant. There is no reason for false implication of the appellant in the case. The veracity of the eye-witnesses could not be impeached in the cross-examination. Learned counsel for the appellant contended that Harbhajan was not an eye-witness of the occurrence because he reached the Crl. Appeal No. 629-DB of 2002 8 spot after injuries had been caused. The contention cannot be accepted because Harbhajan has stated that he witnessed the appellant-Prahlad inflicting the knife blow to Dinesh Kumar on his back and also inflicting a knife blow to Naresh Kumar, while the other two accused caught hold of them turn by turn when the blows were inflicted. Learned counsel for the appellant also contended that motive for the occurrence is not proved. However, without going into the merits of the contention, suffice to observe that motive pales into insignificance when there is direct ocular evidence corroborated by medical evidence. Learned counsel for the appellant submitted that in fact, motive was with the complainant party as in the earlier dispute, the appellant had allegedly abused the deceased. It was accordingly argued that the deceased and the injured had caused injuries to the appellant, who in self-defence, caused injuries to the complainant and the deceased. The argument cannot be accepted. The appellant has changed his version at every stage. It was suggested to Naresh Kumar (PW-1) in his cross-examination that he and Dinesh Kumar had way-laid the appellant and caused him injuries and in self-defence, the appellant caused injuries to them. The witness denied the suggestion. It was, however, not suggested as to why the appellant was way-laid by the complainant and the deceased. The appellant in his statement under Section 313 Cr.P.C. came out with a new version that he had intervened in a dispute between Harbhajan and Ram Bhajan and thereby suffered injuries. Asbir (DW-4) also made somewhat similar statement. However, the appellant in his statement did not state as to how the complainant and the deceased suffered injuries. Moreover, statement of the appellant and also that of Asbir (DW-4) completely negatived and ruled out the version of causing injuries to the complainant and the deceased by the appellant in self-defence. In fact, there is not even iota of material on record to suggest that appellant in self-defence caused injuries to the complainant Crl. Appeal No. 629-DB of 2002 9 and the deceased. However, the suggestion of the appellant to the complainant in cross-examination that the appellant caused injuries in self- defence further corroborates the prosecution version that the appellant had caused injuries to the appellant and the deceased and the occurrence also stands admitted by the appellant in this manner. However, as already noticed, there is not even a shred of evidence on record to demonstrate that the appellant was acting in self-defence or that he exceeded his right of self- defence, as sought to be contended by learned counsel for the appellant. In fact, there is no evidence whatsoever to suggest that the appellant had suffered any injury in the same occurrence. Learned counsel for the appellant emphasized that police got the appellant medico-legally examined on 20.11.1995 and annexed his MLR with challan. However, the said MLR has not been got proved nor the prosecution had opportunity to cross- examine the doctor concerned. Moreover, the said MLR does not reveal that the injuries found on the person of the appellant had been suffered in the same occurrence. The occurrence had taken place four days before the medico-legal examination of the appellant and duration of six of the seven injuries was stated to be more than 48 hours, but was not stated to be four days or 96 hours. Moreover, the said injuries can be said to be only simple injuries as there is nothing on record to show that any injury was grievous one. Consequently, the contention of learned counsel for the appellant, that non-explanation of the injuries suffered by the appellant in the same occurrence casts a doubt about the genesis or origin of the occurrence, cannot be accepted. Prosecution is not bound to explain any or every injury suffered by the accused. In the instant case, the injuries were simple and superficial and were, therefore, not required to be explained by the prosecution. It is also not established that the said injuries had been suffered by the appellant in the same occurrence. There was no occasion for exercise of right of self-defence by the appellant, as already noticed and so, Crl. Appeal No. 629-DB of 2002 10 the question of exceeding the said right does not arise. Consequently, it cannot be said that instead of murder, the appellant committed lesser offence under Section 304 IPC, as sought to be argued by learned counsel for the appellant. The defence version, as stated by Kanwar Rattan Singh (DW-1), is also completely unreliable. No such version was even pleaded by the appellant himself in his statement under Section 313 Cr.P.C. On the other hand, it was suggested to the prosecution witnesses that the appellant had himself gone to the Police Station on 16.11.1995 to lodge report and was illegally detained there since then. This suggestion given to ASI Om Parkash and also similar suggestion given to SI Naveen Kumar demolishes the version stated by Kanwar Rattan Singh (DW-1) that he had taken the appellant from his house and handed him over to the police. The version stated by Kanwar Rattan Singh (DW-1) was not suggested to any prosecution witness and is only an after-thought. Recovery of knife at the instance of the appellant is also proved from the testimony of ASI Om Parkash (PW-5) as well as Samay Singh (DW-2). Learned counsel for the appellant argued that since the appellant had abused the deceased in the earlier dispute, the appellant was way-laid by the deceased and the complainant on 16.11.1995. However, no such suggestion was given to Naresh Kumar (PW-1) in cross-examination nor stated by the appellant in his own statement under Section 313 Cr.P.C. that he was way-laid for the alleged reason. In fact, the appellant in his statement took a completely different stand that he had intervened in some dispute between Harbhajan and Ram Bhajan and suffered injuries. So, the question of the appellant being way-laid and given injuries and thereupon the appellant acting in self-defence causing injuries to the deceased and the complainant, does not arise. Crl. Appeal No. 629-DB of 2002 11 Learned counsel for the appellant also contended that Additional Superintendent of Police had found Dharambir and Kailash to be innocent. However, in the instant appeals, we are not concerned with the innocence or guilt of Dharambir or Kailash and therefore, we need not go into the aforesaid argument of learned counsel for the appellant. However, suffice to observe that learned Sessions Judge, vide judgment dated 06.10.1998, had found both Kailash and Dharambir also be to guilty. Learned counsel for the appellant emphasized that no witness from the neighbourhood of the place of occurrence has been examined, although Harbhajan (PW-2) stated that some persons from the locality were also attracted to the spot. In this context, it was also argued that Harbhajan is none else but real uncle of the deceased and the complainant. We have carefully considered this argument, but find no substance therein. Statement of Harbhajan cannot be discarded merely because he happens to be uncle of the deceased and the complainant. Merely on account of this relationship, Harbhajan cannot be said to be an interested witness. He also had no reason to implicate the appellant and his brothers falsely. Harbhajan was also named as eye-witness in the FIR, which was lodged very promptly. Moreover, Harbhajan on account of his aforesaid relationship would not like the real culprit to escape and would not implicate an innocent. In addition to it, we also have the testimony of stamped eye-witness Naresh Kumar, who also suffered injury in the same occurrence. So, non- examination of any other witness from the locality does not adversely effect the prosecution case. The Court may be required to examine the testimony of Harbhajan with greater care and caution. However, nothing transpired in his cross-examination to shake his credibility. Learned counsel for the appellant also submitted that Dr. M. R. Sharma stated that the parcel shown to him in the witness-box was not the same parcel, which was shown to him in the hospital for Crl. Appeal No. 629-DB of 2002 12 obtaining opinion on 23.11.1995. However, the parcel shown to the witness in the hospital had been opened to examine the knife and obviously, the knife was thereafter sealed in a new parcel. The witness has not stated that the knife taken out of the parcel in the Court, as shown to the witness, is also different from the knife that was shown to him in the hospital for obtaining opinion. Moreover, this is a very insignificant circumstance in the face of ocular and medical evidence. For the reasons recorded herein above, we find no merit in these appeals and therefore, both the appeals are dismissed. The appellant, if on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence. ( L. N. MITTAL ) JUDGE January 28, 2009 ( MEHTAB SINGH GILL ) monika JUDGE