Criminal Appeal No.380-DB of 1998 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Anil Kumar APPELLANT VERSUS Sukhbir Singh RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE JORA SINGH Present:- Shri Baldev Singh, Senior Advocate with Shri Ashul Singh, Advocate for the appellant. Shri S.S.Randhawa, Additional A.G. Haryana assisted by Shri Ramesh Hooda, Advocate. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 18.8.1998/20.8.1998 of the learned Sessions Judge, Sonepat whereby he convicted Anil Kumar under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/- , in default of payment of fine, to further Criminal Appeal No.380-DB of 1998 -2- undergo RI for six months. A fine of Rs.20,000/- was imposed upon him to be paid to the LRs of Narender deceased as compensation. The case of the prosecution is unfolded by the statement of Hukam Singh given in Police Station Kharkhoda on the basis of which F.I.R. Ex.PE was recorded, on 26.5.1997 at 9.15 a.m. Hukam Singh stated, that he is a resident of Village Thana Kalan and does agriculture work. He has three sons. The eldest being Virender, younger to him is Raj Singh and the third being Narender who has a spare-parts shop at Rohtak Bye-pass, Kharkhoda. He was married about 3 years before the occurrence. After a few days of marriage, their neighbour Anil Kumar son of Sukhbir misbehaved with Babita wife of Narender. Narender gave a beating to Anil Kumar because of this. Some respectables of the village intervened and pacified both the sides. About a year before the occurrence Anil Kumar again misbehaved with the wife of Narender. He was again beaten up by Narender. Though the matter was compromised, Anil Kumar and his father Sukhbir felt insulted due to this beating. In the presence of Hukam Singh and others Sukhbir told his son Anil Kumar, that when he gets the first opportunity, he should kill Narender. A few days before the occurrence, Ranbir and Sukhbir sons of Tara Chand while standing in the street were telling Anil Kumar, that Narender goes every day to Kharkhoda on a scooter and you still have not finished him off. He should be killed at the earliest by running a truck over him. They were ready to face the consequences. Sube Singh son of Roop Chand had heard them saying these words. Sube Singh son of Roop Chand told this to Narender. On 26.5.1997 Hukam Singh along with Randhir Singh son of Suraj Mal and Jage Ram son of Bhup Singh were going to Kharkhoda for some work on the tractor of Randhir. It Criminal Appeal No.380-DB of 1998 -3- was about 8.30 a.m. When they reached in the area of Kharkhoda, Narender who was going to his spare parts shop at Kharkhoda on his scooter No.HR-13-5521 crossed them. After some time, Anil Kumar son of Sukhbir who was driving truck No.DL-IGA-6876 crossed them and within their sight they saw that the Driver's side of the truck hit the scooter of Narender from behind. Narender fell down on the Kacha berm. Anil Kumar thinking that Narender was still alive, put the truck into back gear and crushed the head of Narender. Thereafter he fled away. The Special report reached the Illaqa Magistrate on 26.5.1997 at 3.30 p.m. The prosecution to prove its case, brought into the witness-box Dr.S.P.Sharma PW-1, Inder Pal PW-2, Shiv Kumar PW-3, Naresh Kumar PW-4, Inspector Nar Singh PW-5, Constable Naresh PW-6, Hukam Singh PW-7, Dr.R.K.Kaushal PW-8, Constable Jagmender Singh PW-9, Munnu PW-10, Sube PW-11, Babita PW-12, Randhir Singh PW-13, Ravinder Kumar PW-14 and SI Suresh Kumar PW-15. Learned counsel for the appellant has argued that Hukam Singh PW-7 appears to be a chance witness. He in fact was not present at the time of occurrence. The other eye-witness to the occurrence Randhir Singh on whose tractor they were sitting has turned hostile. Jagga Singh, the third eye-witness was given up as being unnecessary. The only witness the prosecution is left with is Hukam Singh PW-7. There is a delay in the special report reaching the Illaqa Magistrate. The occurrence had taken place at 8.30 a.m. on 26.7.1998 and the special report reached the Illaqa Magistrate at 3.30 p.m. There is no explanation coming forward from the prosecution side, as to why there was a delay of 12 hours. In fact, the Criminal Appeal No.380-DB of 1998 -4- case is of a simple accident, but the complainant party has made it a case of culpable homicide, amounting to murder. The road as per the evidence on record is 12 feet wide and was damaged at several places. The photographs show that there is no damage, in front of the truck. The motive does not seem to be so serious that the appellant would go to this extent of committing the murder of Narender deceased. It is a case of a simple accident. Learned counsel for the State has argued that there are two versions before the Court. The first one is that deceased Narender was crushed to death intentionally by the appellant and the second is a suggestion put to Hukam Singh PW-7 that it was a case of pure simple accident, which was later intentionally converted into murder. The best witness to corroborate the statement of Hukam Singh PW-7 is that of Dr.S.P.Sharma PW-1 who prepared the post-mortem report Ex.PA. Dr.S.P.Sharma PW-1 has categorically stated, that the cause of death is due to crushing of the head. Though opportunity was given to the defence to cross-examine this witness, but it did not do so for the reasons best known to it. The suggestion put to Hukam Singh PW-7 was that Narender deceased got entangled with the silencer of the truck and thereafter got crushed under the wheels. If the deceased had got entangled with the silencer, there would have been some burn marks on the body and not only the head would have got crushed, but other parts of the body would have also got crushed. There is a strong motive for the commission of the offence. Babita PW-12 wife of the deceased has come into the witness-box and has supported the case of the prosecution. She has stated, that Anil Kumar used to misbehave with her. Munnu PW-10 an independent witness of the village corroborated the Criminal Appeal No.380-DB of 1998 -5- statement of Babita PW-12. Randhir Singh PW-13 who is an eye-witness to the occurrence, has supported the case of the prosecution. He was cross-examined. But at a later stage he was won over by the accused and that he submitted affidavit Ex.DC on 7.5.1998 and thereafter resiled from his statement. The second statement of Randhir Singh PW-13 is an after-thought, after he had been won over by the accused. It should not be taken into consideration. The F.I.R. In this case was prompt. The promptness of the F.I.R. Is of great significance. The occurrence had taken place at 8.30 a.m. on 26.5.1997. F.I.R. was registered at 9.15 a.m. on 26.5.1997 and the special report reached the Illaqa Magistrate at 3.30 p.m. Dr.S.P.Sharma PW-1 prepared the post-mortem report Ex.PA at 4 p.m. on the same day i.e. 26.5.1997. This itself goes a long way in proving the case of the prosecution. Though suggestions have been put to the witnesses regarding the accident having taken place with the truck of appellant Anil Kumar and scooter of Narender deceased, but nothing has been stated by the appellant to this effect in his statement under Section 313 Cr.P.C. We have heard the learned counsel for the parties and perused the record with their assistance. The eye-witnesses to the occurrence are Hukam Singh PW-7, Randhir Singh PW-13 and Jagga Singh. Hukam Singh PW-7 is the father of the deceased. He came into the witness-box and supported the version put forward by the prosecution. In his examination-in-chief he has reiterated the version given by him in the F.I.R. Ex.PE. He stated that when Anil Kumar was beaten up for the first time when he had misbehaved with Babita PW-12, 8/10 persons from the Criminal Appeal No.380-DB of 1998 -6- village had gathered. He has given the names of these persons. He has further stated that the Kacha part of the berm is about 3 feet, the metaled part is 12 feet. His son used to leave at about 8.30 a.m. Everyday, to go to his spare-parts shop. When he saw the occurrence, Narender was at a distance of half an acre. After the appellant hit the truck with the scooter of the deceased, appellant then put the truck into reverse gear and crushed the head of Narender killing him on the spot. The statement of Hukam Singh PW-7 gets corroboration from the medical evidence. Dr.S.P.Sharma PW-1 who performed the post-mortem and prepared the post-mortem report Ex.PA, has stated in his statement, that the skull, face and neck on the left side were crushed, with brain matter visible outside. Left arm was crushed and contused. Left shoulder was contused and left chest contused and bruised. Right fore-arm bruised anteriorly. The pharynx was crushed. The mouth, maxilla and mandible on left side were crushed. The cause of death was injuries and multiple injuries on the face and neck. Opportunity was given to the defence to cross-examine Dr.S.P.Sharma PW-1, but he was not cross- examined. Hukam Singh PW-7 has stated in his testimony, that major portion of the body of the deceased was on the road and his head was on the Kacha berm. It is clear that when Narender was hit, the appellant who was driving the truck while reversing must have opened the Driver's door and then reversed the truck and crushed the head of Narender. The prosecution has not denied the occurrence. Hukam Singh PW-7 has in his cross-examination been put such type of questions by the defence. The occurrence has been admitted, that Narender was crushed under the truck. It has tried to make out a case of accident. To one of the suggestions put to this witness Criminal Appeal No.380-DB of 1998 -7- in the cross-examination, PW-7 stated as under :- “It is incorrect to suggest that when the deceased after overtaking the tractor was going on the right side, he saw an electric pole on the right side of the road and he swerved to his left to steer clear of the electric pole ahead of him and in doing so he got his scooter and himself entangled with the silencer of the truck and while he got entangled, he fell down and was run over by the rear wheel of the truck. It is also wrong to suggest that it was negligence of deceased Narender which led to his death.” The other eye-witness to the occurrence Randhir Singh PW-13 came into the witness-box on 31.3.1998 and he supported the case of the prosecution in his examination-in-chief and in cross-examination. On 7.5.1998 he submitted an affidavit Ex.DC before the trial Court, as he wanted to resile from his statement. Randhir Singh was summoned under Section 311 Cr.P.C. and his statement was again recorded on 8.6.1998, where he resiled from his previous statement. Affidavit dated 7.5.1998 and his statement before the Court dated 8.6.1998 is all an after-thought. He has given these statements after being won over by the accused. It is difficult for us to take the affidavit Ex.DC and his statement dated 8.6.1998 into consideration, so that any benefit could be given to the appellant. The appellant in his statement under Section 313 Cr.P.C. has not admitted anything regarding that an accident had taken place, but has denied everything put to him. The promptness with which the F.I.R. has been recorded, also goes Criminal Appeal No.380-DB of 1998 -8- a long way in proving the case of the prosecution. The occurrence had taken place at 8.30 a.m. on 26.5.1997 and the F.I.R. Ex.PE, was recorded in Police Station Kharkhoda on the same day at 9.15 a.m. The special report also reached the Illaqa Magistrate at 3.30 p.m. on the same day. The post-mortem was conducted by Dr.S.P.Sharma PW-1 and the report Ex.PA was prepared by him on the same day at 4 p.m. There is no delay in lodging of the F.I.R. The motive for the commission of the offence has not only been proved by Hukam Singh PW-7, but also by Babita PW-12 wife of the deceased. She has stated that she was married with the deceased about 4 years ago. Appellant Anil Kumar lived in the house which is only 2/3 houses away from their house. After about 6/7 months of her marriage, she had gone to urinate at 6 or 8 p.m. in the street. Appellant Anil Kumar misbehaved with her. She raised an alarm and her husband Narender came out and caught hold of Anil Kumar and gave him a beating. The argument of the learned counsel for the appellant that Hukam Singh PW-7 is a chance witness, does not cut much ice. Hukam Singh PW-7 was coming from his village. It has been categorically stated by Hukam Singh PW-7 and Randhir Singh PW-13 in their statements that they were going on a tractor along with Jagga Singh. Hukam Singh PW-7 is an eye-witness to the occurrence. He in fact is a natural witness, as he was on his way from his village to Kharkhoda, a route he took very often. As discussed above, it is not a case of accident, but to cover up the murder, appellant has tried to make it a case of accident. Criminal Appeal No.380-DB of 1998 -9- With the above observations and discussion, appeal is dismissed. ( MEHTAB S.GILL ) JUDGE ( JORA SINGH ) August 6, 2008 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO