Crl. Appeal No. 555-DB of 2000. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 555-DB of 2000. Date of Decision : 22.4.2009. Bhim Singh ...... Appellant Versus State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Baldev Singh, Sr. Advocate with Mr. Arshwinder Singh, Advocate, for the appellant. Mr. H.S. Sran, Addl. A.G. Haryana, for the respondent-State. NAWAB SINGH J. The accused-appellant, above named, was tried by learned Sessions Judge, Gurgaon for the offences punishable under Sections 302, 323 and 324 of Indian Penal Code (for short 'the IPC'). He was convicted and sentenced by judgment of conviction and order of sentence dated September 22nd, 2000 as under:- Offence Sentence Fine In default u/S 302 IPC Life imprisonment Rs. 2000/- Three months u/S 324 IPC One year --- -- 2. The accused-appellant preferred the appeal. 3. Story of the prosecution is:- 4. Sunil alias Raja (deceased) was brother of Anil Kumar (PW-15) author of First Information Report. Deceased, Anil and Narsi (PW-7) were running a television/radio repair shop in Hira Nagar, Pataudi road, Gurgaon. Both the brothers were residing in a rented house behind the shop. 5. On June 6th, 1998, at about 7 PM deceased and Narsi (PW-7) had gone to answer the call of nature. After 20-25 minutes, Narsi came back but the deceased did not. He (Anil) Crl. Appeal No. 555-DB of 2000. 2 inquired from Narsi as to where the deceased was. Narsi informed him that he would bring him. Anil kept on waiting for them. After half an hour, Bablu resident of Amar Colony, Gurgaon accompanied by another person came to Anil and informed that deceased was lying in an injured condition in Aryan Hospital, Gurgaon. Anil Kumar reached the Aryan hospital along with Bablu and found that his brother was lying dead having multiple injuries on his person. The Medical Officer of Aryan hospital asked Anil to take the deceased to Government hospital. By the side of the deceased, a lady was seen weeping. He brought the deceased to Government hospital, Gurgaon in a rickshaw. 6. Information (Exhibit PK) was sent by the Medical Officer to the Station House Officer, Police Station City, Gurgaon that dead body of Sunil alias Raja was brought in the hospital by Anil Kumar. Sukhdev Singh Investigator (PW-11) reached the hospital but nobody met him there to lodge the report. 7. On June 7, 1998, Sukhdev Singh (PW-11) again reached the hospital and met Anil Kumar (PW-15). Statement of Anil Kumar (Exhibit PA) was recorded. Sukhdev Singh appended his endorsement (Exhibit PA/2) on the statement and sent the same to Police Station City Gurgaon. Formal First Information Report (Exhibit PA/1) was recorded. Inquest proceedings (Exhibit PJ/1) were conducted. The dead body was sent for post-mortem examination. The scene of occurrence was photographed. Site plan of the spot (Exhibit PN) was drawn. One shoe stained with blood, broken bangles, a clip of hair and a packet of cigarettes were taken into possession vide recovery memorandum (Exhibit PM). Post-mortem examination was conducted by Dr. B.B. Aggarwal (PW-10). 8. On the same day viz. June 7th, 1998, Narsi (PW-7) met Sukhdev Singh Investigator (PW-11) and made statement that on June 6th, 1998, he along with the deceased had gone to answer the call of nature on the bicycle. Deceased asked him that he was to go to the house of Satbir (PW-9) husband of Suman (PW-8) to repair his fan. Both of them went to the house of Satbir. He (Narsi) came Crl. Appeal No. 555-DB of 2000. 3 back to the house of the deceased. Anil asked him as to where the deceased was. He (Narsi) informed him that he will call the deceased. He came back at the house of Satbir and noticed the dead body of Sunil alias Raja having multiple injuries, lying in front of the house of Bhim Singh accused-landlord of Satbir and a lady sitting by his side was weeping. On seeing all this, he became perplexed and tried to come to the house of Anil to inform him on his bicycle but on account of nervousness, he could not paddle the bicycle. In the night, he reached his village Wazirpur Utter Pradesh to inform the family members of the deceased but by that time, they had received the information about the death of Sunil alias Raja. 9. Satbir's (PW-7) statement was recorded by the Police on June 7th, 1998 when he was at the house of his father-in- law. According to him, on June 6th, 1998 he had gone to the shop of the deceased to ask him to visit his house for repairing fan. Deceased told him that he would visit his house as and when he is free from the shop. After his job, at about 8/8.15 PM, Sunil reached his house. Satbir noticed the deceased lying at the gate of the house having multiple injuries on his person and his wife Suman (PW-8) was weeping siting by the side of the deceased. Suman informed him that a quarrel took place between deceased and Bhim Singh. Bhim Singh caused knife injuries to the deceased. The deceased succumbed to his injuries. He asked his wife to take the deceased to Aryan hospital in the rickshaw and he himself proceeded to inform Anil brother of the deceased. 10. On June 8th, 1998, Suman narrated the occurrence to the Police. It was stated by her that on June 6th, 1998 at about 8 PM, she was lying on the roof of her house with her children. The accused came on the roof of the house. The accused was quarreling with her. On hearing the quarrel, deceased came on the roof. The accused asked the deceased as to why he had come on the roof. On this, accused and the deceased had an altercation. The accused pushed the deceased. He fell down. The deceased sat on his chest and caused multiple injuries on his person with knife. She tried to Crl. Appeal No. 555-DB of 2000. 4 intervene but she was also given injuries with knife. The accused dragged the dead-body to the ground-floor and fled away from the spot. Meanwhile, her husband reached the house and she informed him about the occurrence. Her husband went to inform brother of the deceased. She brought the deceased to Aryan Hospital. Out of fear, she along with her children and husband went to her father's house situated in Gandhi Nagar on Pataudi road, Gurgaon. Application (Exhibit DB) narrating the occurrence was also handed over to the Police by her. Suman was medically examined by Dr. R.K. Sachdeva (PW-16). 11. Search for the accused was made. On June 16th, 1998, the accused was arrested by Basant Lal, Assistant Sub- Inspector (PW-14) and was interrogated. He made disclosure statement (Exhibit PP) to the effect that he had kept concealed the knife (after washing it) and Tehmad and Banian worn by him at the time of commission of crime at house No.67 Firoze Gandhi Colony, Gurgaon (place of occurrence) and could get the same recovered. In pursuance to the disclosure statement, the accused led the Police party to the disclosed place and got recovered the knife vide recovery memorandum (Exhibit PM) and Tehmad and Banian smeared with blood which were taken into possession vide recovery memorandum (Exhibit PO). 12. Tehmad and Banian were sent to Forensic Science Laboratory, Haryana Madhuban, Karnal for analysis. The FSL vide opinion (Exhibit PT/1) found that the clothes were having human blood. 13. On completion of investigation and other formalities, the accused was arraigned for trial. 14. Charge, in respect of commission of offences punishable under Sections 302 and 324 IPC was framed against the accused. He pleaded not guilty and claimed trial. 15. In support of its case, prosecution examined sixteen witnesses in all viz. Saroj Bala, Assistant Sub-Inspector (PW- 1), Sharwan Kumar (PW-2), Mohan Lal (PW-3), Aas Mohd. Head- Crl. Appeal No. 555-DB of 2000. 5 Constable (PW-4), Bhim Singh Constable (PW-5), Ravinder Kumar Constable (PW-6), Narsi (PW-7), Suman (PW-8), Satbir (PW-9), Dr. B.B. Aggarwal (PW-10), Sukh Dev Singh (PW-11), Vinod Kumar, Inspector (PW-12), Jagdev Singh Constable (PW-13), Basant Pal (PW-14), Anil Kumar (PW-15) and Dr. R.K. Sachdeva (PW-16). 16. In his examination recorded under Section 313 of the Code of Criminal Procedure, the accused denied his complicity. It was stated by him that Satbir and his wife Suman along with their children were residing in his house. Satbir was doing the job of carpenter in his house in Gurgaon. He was residing at Delhi. 17. In defence, accused-appellant examined his brother Krishan (DW-1). His statement is to the effect that Bhim Singh was residing at Delhi. He had constructed a house at Gurgaon which was being supervised by Raju his son-in-law. 18. The evidence on record, material circumstances of the case and the arguments addressed by learned counsel for the appellant and learned counsel for the State have been appraised. 19. Post-mortem examination (Exhibit PH) on the dead body of Sunil alias Raja was conducted by Dr. B.B. Aggarwal (PW- 10). He found the following injuries on his person:- (i) Incised wound over left parietal area 5 cms from eyebrow and 10 cms from mid line which was muscle deep with clotted blood. (ii) Incised wound over right side of neck with clean cut margins 12 cms in length with tailing posteriorly. (iii) Stab wound over left side of external region 4 cms in length with clean cut margins and clotted blood. After proving it was 8 cms in depth. (iv) Stab wound over right external region 4 cms in length and about 10 cms in depth with clotted blood. There was separate of right costochoandral junction. (v) Stab wound over left side of chest in its upper Crl. Appeal No. 555-DB of 2000. 6 part 6 cms from mid clavicular and 8 cms from mid line. After probing it was 6 cms in depth. (vi) Stab wound over left side of abdomen in its lower part 4 cms from mid line 3.5 cms in depth in length and 8 cms in depth (after probing) (vii) Superficial incised wound 1 cm below injury No.6. However, it was mentioned as injury No.7 and it is 3.5 cms in length. (viii) Incised wound over left pelvic area 2 cms from mid line and half cm in length superficial this injury correspond to a cut over underwear which was sealed in a separate packet. (ix) Incised wound over front of right arm vertical with tailing downward 4 cms in length and it was superficial. (x) Superficial incised wound 4 cms in length over right thinner eminence with clotted blood. (xi) Incised wound over back of right thigh 3 cms in length and was muscle deep. (xii) Incised wound over medial aspect of left leg 6 cms below knee and 3 cms in length which was muscle deep. (xiii) Incised wound over lateral aspect of left leg 5 cms below knee. (xiv) Incised wound over lateral aspect of left knee superficial with clotted blood. (xv) Two incised wound over palmer aspect of left hand over middle and ring finger at proximal phalanx of middle and middle phalanx of ring finger. (xvi) Superficial incised wound over dorsum of left forearm. It was 5 cms in length. (xvii) Superficial incised wound over dorsum of left hand 6 cms in length with clotted blood. Crl. Appeal No. 555-DB of 2000. 7 He opined that deceased died on account of injuries to vital part, that is, chest and abdomen. It was also opined by him that injuries could be caused with knife (Exhibit P-15). From the evidence of Medical Officer, it is proved that Sunil alias Raja died on account of the injuries received on his person with knife (Exhibit P-15). 20. The only eye witness in this case is Suman (PW- 8). She has described the occurrence as narrated in paragraph 9 of this judgment. To avoid repetition, the same is not being reproduced here. She has categorically stated that accused caused injuries to the deceased with knife. Her presence on the spot cannot be doubted from any angle. She also received knife injuries at the hands of accused. She was medically examined by Dr. R.K. Sachdeva (PW- 16) on June 8th, 1998 and two injuries were found on her person, that is, abrasion 1 x 1 cm on left foot and incised wound 8 x ½ cm on left leg upper part. It was skin deep. The duration of the injuries was one to three days. The Medical Officer has also opined that these injuries could have been caused to Suman with knife (Exhibit P-15). She was cross-examined by the learned defence counsel quite at length but nothing material could be elicited from her sworn testimony which could create doubt on her veracity. 21. Appellant's counsel has contended that the evidence of Suman does not inspire confidence on the short ground that she was examined by the Police on June 8th, 1998 and in case, she had been the eye witness, she would have reported the matter to the Police immediately after the occurrence. It may be stated here that nothing substantial has been brought to the notice of this Court in the cross-examination of Suman for which this Court would come to the conclusion that she is not a trustworthy witness except that she was examined by the Police on June 8th, 1998. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some foul play by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case. In this regard, reference may be Crl. Appeal No. 555-DB of 2000. 8 profitably made to the judgment Ganesh Bhavan Patal and another Vs. State of Maharashtra, AIR 1979 SC 135 wherein, a three-Judge Bench of Hon'ble Supreme Court observed that delay in questioning a witness by itself cannot amount to any serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witness to be introduced. Admittedly, Suman was tenant of the accused. Deceased along with Narsi (PW- 7) came to her house on the asking of Suman's husband for repairing fan. The dead body of the deceased was lying on the gate of the house of the accused having multiple injuries which was witnessed by Narsi (PW-7) and Satbir (PW-9). Suman brought her to Aryan hospital. She was by the side of the deceased when Anil (PW-15) brother of the deceased came to the hospital. Suman has stated that out of fear, she had gone to her father's house after the occurrence along with her husband and children. Sukhdev Singh Investigator (PW-11) has testified that he tried to know the whereabouts of Suman but could not know as she had left her house owned by the accused. Suman's statement was recorded at her father's huose. Suman belongs to a poor strata of the society. The murder had taken place in her rented house in her presence. She originally belongs to Utter Pradesh. The family was residing in Gurgaon to make both ends meat. It was natural on her part to stay at her father's house than at the house where a person was brutally killed by the landlord. A suggestion was put to her by the learned defence counsel that in fact, deceased was killed by her husband as he had seen her and the deceased in compromising position but this suggestion is hollow and unsubstantiated. Otherwise too, the pant, shirt, Banian and underwear which the deceased was wearing at the time when he was killed had the cut marks as deposed by the Medical Officer (PW-11). The evidence of Suman is further strengthened from the fact that the accused got recovered the knife used by him in causing the murder of deceased and his blood stained Tehmad and Banian. Had he not Crl. Appeal No. 555-DB of 2000. 9 committed the crime, question of making the recovery of knife, blood stained tehmad and Banian at his instance would not have arisen. Suman in fact is, what in legal parlance is known as stamp witness. She has suffered some knife injuries at the time and place of occurrence. The statement of such a witness cannot be discarded lightly and it is in fact a clinching piece of evidence. There are then recoveries referred to above and the case was proved to the hilt. 22. As the inevitable result, the appeal is dismissed. 23. Bhim Singh accused-appellant was released on bail by this Court during the pendency of the appeal. His bail/surety bonds are cancelled. He be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court. (NAWAB SINGH) (K.S. GAREWAL) JUDGE JUDGE 22.4.2009. SN Whether to be referred to reporter : Yes