In the High Court of Punjab and Haryana at Chandigarh 1. Criminal Appeal No.327-DB of 2006 Date of decision: 25.11.2008 Inder ......Appellant Versus State of Haryana .......Respondent 2. Criminal Appeal No.464-DB of 2006 Montu ......Appellant Versus State of Haryana .......Respondent CORAM: HON'BLE MR.JUSTICE S.S.SARON HON'BLE MRS. JUSTICE SABINA Present: Mr. Aman Chaudhary, Advocate for appellant Inder (in CRA No.327-DB of 2006) Ms. Anju Arora, Advocate for appellant Montu (in CRA No.464-DB of 2006). Mr. H.S. Sran, Addl.A.G.Haryana. **** S.S.SARON, J. This order will dispose of Criminal Appeal No.327- DB of 2006 filed by Inder son of Mai Chand and Criminal Appeal No.464-DB of 2006 filed by Montu son of Bhagwan against the CRA Nos.327-DB & 464-DB of 2006 [2] judgment and order dated 29.11.2005, whereby the respective appellants have been held guilty and convicted for the offence punishable under Section 302 read with Section 34 Indian Penal Code ('IPC' – for short) as also the order dated 30.11.2005 whereby both the respective appellants have been sentenced to undergo imprisonment for life; besides, to pay a fine of Rs.5,000/- each and in default of payment of fine, the convict defaulting has been ordered to undergo further rigorous imprisonment for one year each. The FIR (Ex. PU) in the case has been registered on 17.11.2002 on the statement (Ex. PA) of Heera - complainant (PW-1) who is the brother of Ram Niwas (deceased) and is also the brother of Inder (appellant in CRA No.327-DB of 2006). It is alleged by Heera - complainant (PW-1) in his statement (Ex. PA) on the basis of which FIR (Ex.PU) has been registered that he is a resident of Shamshan Road, Kishanpura, Police Station Chandni Bagh, District Panipat and he runs a shoe shop at the said place. They are three brothers. The eldest is Inder (appellant) and Ram Niwas (deceased) was younger than him. The complainant Heera (PW1) is the youngest of all. Inder (appellant) was living separate from them for the last eight years at Kabari Road, Panipat. The complainant Heera and Ram Niwas (deceased) were staying with their parents. His parents had six killas (acres) of land. Inder (appellant) had separated from his parents eight years earlier to the lodging of the FIR (Ex.PU) by giving him money in cash in lieu of the land. Inder (appellant), however, used to come to their house on many occassions and demanded land in division but his parents CRA Nos.327-DB & 464-DB of 2006 [3] and Ram Niwas (deceased) used to tell him that he had taken money in cash and now what was the share in the land to be given for. On this account, Inder (appellant) had nursed an inner jealousy against Ram Niwas, but despite that he had been coming to their house quite often. On 16.11.2002 at about 4.30 p.m., when the complainant reached home then Inder (appellant) had come to their house. His sister-in-law (Bhabi) Kamlesh, wife of Ram Niwas (deceased) was also at home. The complainant Heera (PW1) and his brother's wife (Bhabi) Kamlesh asked Inder (appellant) to sit but he refused and said that he was in a hurry and he had to go with Ram Niwas (deceased) to see a plot. Ram Niwas (deceased) was, however, not at home at that time and Inder (appellant) went back. At about 9.30 p.m. at night their relative Suresh Kumar son of Om Parkash (PW-3) had come from Jeetgarh to their house and informed them that near village Ram Nagar some persons had inflicted injuries to Ram Niwas and he was admitted in the Civil Hospital, Panipat. The complainant Heera, and his father Mai Chand (PW-2) reached the hospital at Panipat. There they saw that the face of Ram Niwas (deceased) was smeared with blood and he had suffered many injuries with a sharp edged weapon. On asking Ram Niwas (deceased) for quite some time, he (Ram Niwas) was only able to say that Inder (appellant) with the help of his companions had inflicted injuries on him. Thereafter, Ram Niwas due to the injuries that he had suffered died. The complainant, Heera, had complete suspicion that his brother Inder (appellant) had committed the murder of his other brother Ram Niwas with the help of his companions on account of CRA Nos.327-DB & 464-DB of 2006 [4] the grudge that he (Inder-appellant) nursed for not getting his share in the land from his parents. The statement (Ex. PA) of Heera (PW-1) was recorded by Balwant Singh, ASI (PW-11) Police Station, Model Town, Panipat. On 17.11.2002, the police recorded its proceedings (Ex. PA/1), which are to the effect that Balwant Singh, ASI (PW11) had through a VT message at Police Post Bus Stand, Panipat received information that Ram Niwas son of Mai Chand resident of Kishanpura on account of a fight was admitted at General Hospital, Panipat. Balwant Singh, ASI (PW11) along with Constable Parveen reached General Hospital, Panipat and submitted an application to the doctor for recording the statement of the injured. The doctor informed them that the injured had died. Then ASI Balwant Singh (PW 11) looked for the heirs of the deceased Ram Niwas and he met Heera complainant whose statement (Ex. PA) was recorded and after recording the statement, Heera complainant accepted it as correct and signed the same in Hindi. The doctor in terms of the Medico Legal Report of Ram Niwas (deceased) had mentioned that there were three injuries, which were grievous and had been caused with a sharp edged weapon. From the statement of Heera complainant (PW-1) and the Medico Legal Report of Ram Niwas (deceased), a case for the commission of an offence under Sections 302/34 IPC was found to be made out. A writing in this regard was sent to the Police Station through Constable Parveen No.1005 for registration of a case (FIR) and its number was asked to be intimated; besides, the higher officers were also asked to be informed through special report. On receipt of the writing at the Police station, FIR (Ex.PU) CRA Nos.327-DB & 464-DB of 2006 [5] was registered by ASI Randhir Singh. Balwant Singh, ASI (PW- 11) was asked to carry out further investigations in the case. Balwant Singh ASI (PW-11) obtained 'rukka' (memo) (Ex.PQ/1) from General Hospital, Panipat regarding the death of Ram Niwas. The inquest report (Ex.PR) of the deceased Ram Niwas was prepared by Balwant Singh ASI (PW 11). The dead body of Ram Niwas was identified by Heera (PW-1) and Mai Chand (PW-2) (father of the deceased and the appellant). The inquest report (EX.PR) was initialed by Dr.K.L.Chopra (PW-9). The statements of the witnesses in terms of Section 161 of the Code of Criminal Procedure (Cr.P.C. – for short) were recorded by the investigating officer Balwant Singh ASI. An application (Ex.PM) was submitted by Balwant Singh ASI on 17.11.2002 before the Senior Medical Officer, Panipat for conducting the postmortem examination on the dead body of Ram Niwas and the relevant documents were handed over to Constable Parveen. The Investigating Officer Balwant Singh, ASI (PW-11) then visited the place of occurrence. At that time Om Parkash (PW-3) ( who is the father's brother's son-in-law of the appellant, deceased and the complainant) accompanied him. Other villagers and Rameshwar, Panch also met Balwant Singh, ASI (PW-11) at the spot. Blood stained earth was lifted from the spot; besides, one chappal (Ex.P1) was also taken. The same were sealed in separate parcels with the seal of RS, which after use was handed over to Om Parkash (PW-3). The parcels were taken in possession vide recovery memo Ex.PB, which were signed by Om Parkash (PW-3) and Rameshwar, Panch. Rough site plan (Ex.PV) of the place of occurrence was CRA Nos.327-DB & 464-DB of 2006 [6] prepared at the instance of Om Parkash (PW-3). Thereafter Rattan Singh, SI/SHO (PW-12) reached the spot and the investigation file was handed over to him. On 18.11.2002, Balwant Singh, ASI (PW-11) joined the investigation of the present case along with Rattan Singh, SI/SHO (PW-12). When they reached at Garhi Sikandarpur turn Rameshwar Panch met them and he produced accused Inder and Montu (appellants) before SI SHO Rattan Singh (PW-12). The statement of Rameshwar, Panch under Section 161 Cr.P.C. was recorded. Thereafter, Rajbir (PW-8) met them and he was joined in the investigation by Rattan Singh, SI/SHO (PW-12). Rattan Singh, SI/SHO (PW-12) interrogated Inder Singh and during interrogation he disclosed that he along with his co-accused Montu murdered Ram Niwas on the 'Patri' (embankment) of the canal. He disclosed that he was having a 'Dao' and Montu caught hold of the hands of Ram Niwas and thereafter, he (Inder - appellant) caused injuries with 'Dao' to Ram Niwas. He further disclosed that after causing the injuries, the 'Dao' was thrown in the 'kikker' trees near the 'patri' (embankment) of canal and he could get the same recovered. His disclosure statement (Ex.PC) in this regard was recorded. Appellant Montu was thereafter interrogated by Rattan Singh, SI/SHO (PW-12) and he made a disclosure statement (Ex.PD) that he had caught hold of the hands of Ram Niwas, while Inder (appellant) caused injuries with his Dao. The disclosure statement (Ex.PD) was signed by ASI Balwant Singh (PW 11) and Rajbir, sarpanch. In pursuance of the disclosure statements the accused (appellants) took them near burji 41 of the canal. Inder (appellant) identified the place where he CRA Nos.327-DB & 464-DB of 2006 [7] caused the injuries to Ram Niwas along with his co-accused Montu (appellant); besides, he got recovered the 'Dao' from the 'kikker' trees near the place of occurrence. A rough sketch (Ex.PE) of the 'Dao' was prepared by Rattan Singh, SI/SHO (PW-12), which was sealed in a parcel with the seal of RS. The seal after use was handed over to Rajbir (PW-4). In this regard recovery memo and farad nishandehi (memo of demarcation) (Ex.PF) was prepared by Rattan Singh, SI/SHO (PW-12) and was signed by Balwant Singh, ASI (PW-11) as also Rajbir (PW-4). The Dao (Ex.P2) was got recovered by Inder Singh (appellant). Montu (appellant) thereafter identified the place of occurrence. In this regard memo of identification of the place of occurrence (Ex.PG) was prepared by Rattan Singh, SI/SHO (PW-12). Montu (appellant) took the police party to Purewal Colony in Sainik Factory and he got recovered his blood stained pant (Ex.P3) and shirt (Ex.P4) from his room. The pant (Ex.P3) and shirt (Ex.P4) were taken in possession vide recovery memo (Ex.PH) and sealed in a parcel by Rattan Singh, SI/SHO (PW-12) with the seal of RS. The seal after use was handed over to Rajbir (PW-4). The parcel was taken in possession vide recovery memo (Ex.PH), which was signed by Balwant Singh, ASI (PW-11) and Rajbir (PW-4). After completion of the investigation, charge report (challan) was filed in the Court of the Illaqa Magistrate, Panipat. In view of the fact that offence punishable under Section 302 IPC was found to be made out which was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the said Court for trial. The learned Additional Sessions Judge, CRA Nos.327-DB & 464-DB of 2006 [8] Panipat, to whom the case was assigned, chargesheeted the appellants in terms of the charge sheet dated 16.12.2003 on the allegation that on 16.11.2002 at about 8-9 p.m., in the area of Ram Nagar, Police Station Model Town, Panipat, both the respective appellants in furtherance of their common intention committed murder by intentionally causing the death of Ram Niwas by 'Dao' (sharp edged weapon used in agriculture) and, thus, they both committed an offence punishable under Section 302 IPC read with Section 34 IPC and appellants were directed to be tried by the said Court. The accused pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as 12 witnesses; besides, documents were tendered in evidence. The statements of the respective appellants in terms of Section 313 Cr.P.C. were recorded. The substance of the evidence appearing against the appellants was put to them. Both the respective appellants took the stand that they were innocent and had been falsely implicated in this case. In defence the appellants examined Kamla wife of Hawa Singh as DW-1 and Malo Devi wife of Roshan Lal as DW2. It is stated by Kamla (DW-1) that she knew Inder (appellant) whose house was situated at a distance of 10/12 houses away from her house. It is stated that in the morning of 17th (17.11.2002) at about 2.30/3.00 a.m. three persons came to her residence. She did not know whether they were police officials or somebody else. At that time on her asking they told her that they were police officials. She was asked about the house of Roshan Lal. She stated that his house was situated at a distance of 2 houses from her house. Thereafter, the police persons went to CRA Nos.327-DB & 464-DB of 2006 [9] the house of Roshan Lal. They heard a noise in the mohalla and saw three/four persons with police officials including the lady in whose house the police went. In cross-examination, it is stated that she had seen Inder (appellant) along with the police on that night and the police had brought/apprehended Inder (appellant) from his house. It is stated that it was incorrect to suggest that Inder (appellant) was accompanying the police officials at the time when they first knocked the door of their house. Malo Devi (DW2) stated that she knew Inder (appellant) being her neighbour. The distance between their house and the house of Inder (appellant) was about 10/12 houses. At mid-night three persons knocked at the door and asked about the house of Inder (appellant). At that time, the said persons told her that they were police officials. Malo Devi (DW2) accompanied them to the residence of Inder (appellant). On calling Inder (appellant), he came down along with his family members. Thereafter, Inder (appellant) was apprehended. In cross-examination it is stated by Malo Devi (DW2) that Inder (appellant) was her relative. Kamla (DW1) is neighbour of Inder (appellant). She stated that it was incorrect to suggest that she was deposing in favour of Inder (appellant) being her relative. She denied the suggestion that the police officials had come to her residence on the night of 17.11.2002. It is also denied as in correct that police officials apprehended Inder (appellant) on that night from his residence. The learned trial Court after considering the evidence and material on record, as already noticed, convicted and sentenced the appellants in pursuance of the impugned judgment and order which is assailed in this appeal. CRA Nos.327-DB & 464-DB of 2006 [10] Sh. Aman Chaudhary, Advocate learned counsel appearing for Inder (appellant) as amicus curiae, has contended that the prosecution has miserably failed to prove and establish its case against the appellants. It is submitted that the present is not a case of any eye witness account and is based only on circumstantial evidence, which does not inspire confidence so as to record a finding of guilt. It is further submitted that even in case of circumstantial evidence there is no evidence of last seen nor there is any dying declaration. A reference has been made to the deposition of Dr.K.L.Chopra (PW-9), who has stated that at the time of examination of Ram Niwas (deceased) he was unable to speak properly. It is further submitted that the extra judicial confession before Ram Mehar (PW-8) is not believable and he, in fact, was a total stranger; besides, no reliance can be placed on the disclosure statement (Ex.PC) of Inder (appellant). Lastly it is submitted that there was no motive or any thing to connect Inder (appellant) to commit the murder of his own brother Ram Niwas. In fact, the witnesses had deposed against the appellants for their own selfishness. Ms. Anju Arora, Advocate learned counsel appearing for Montu (appellant) as amicus curiae, has submitted that the identity of the appellant, Montu, is not at all established. It is submitted that apart from the appellant Montu having no motive he is not a family member of Inder (appellant), the complainant and deceased. A reference has been made to the deposition of Balwant Singh, ASI (PW-11), who it is submitted did not collect any documentary proof regarding Inder (appellant) serving at the CRA Nos.327-DB & 464-DB of 2006 [11] Sainik factory, where he was alleged to be serving; besides, it is submitted that Rattan Singh, SI/SHO (PW-12) has deposed that during investigation he could not find any proof of the appellants being close friends or even on visiting terms with each other. Therefore, it is submitted that the appellant Montu in any case is liable to be acquitted. In response Sh.H.S.Sran, Addl.A.G.Haryana, learned counsel appearing for the State has submitted that Rajbir (PW-14), who is the brother-in-law of the appellant and deceased as well as the complainant, has supported the prosecution case. It is submitted that the involvement of Montu (appellant) is clearly established inasmuch as he was a close friend of Inder (appellant) and, therefore, his role is also clearly established. It is submitted that the learned trial Court after considering the entire evidence and material on record reached at a clear finding regarding the involvement and role of the appellants, which would not warrant any interference by this Court in the well reasoned judgment and order passed by the learned trial Court. We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the record of the case. In order to appreciate the contentions of the learned counsel for the parties, it may be noticed that the deceased Ram Niwas and Inder (appellant) are brothers and Montu (appellant) is stated to be a close friend of Inder (appellant). The following pedigree table would be of help to ascertain the relationship:- CRA Nos.327-DB & 464-DB of 2006 [12] Gorkha Ram Mai Chand (PW2) Duli Chand Om Parkash Murti (daughter) (PW3) Husband of Murti Inder Ram Niwas Heera Daughter (appellant) (deceased) (Complainant) married to (PW1) Rajbir (PW4) A perusal of the above shows that Gorkha Ram had two sons namely Mai Chand (PW-2) and Duli Chand. Duli Chand had a daughter namely Murti, who was married to Om Parkash (PW-3); besides he (Duli Chand) had four sons also and one of them had died. However, they are not relevant for the purposes of the present case. Mai Chand (PW-2) son of Gorkha Ram had three sons and a daughter. Inder (appellant) is the eldest son of Mai Chand, Ram Niwas (deceased) is the second son and Heera (complainant) is the third son. The daughter of Mai Chand was married to Rajbir (PW-4). The complainant Heera (PW-1), who is brother of the appellant Inder and also the deceased Ram Niwas, has supported the prosecution case. He has stated that he and Ram Niwas (deceased) used to live with their parents while Inder (appellant) had separated from them and was residing at Arjun Nagar, Kabri Road, Panipat. His father namely Mai Chand (PW2) had sold four killas (acres) of land out of six killas. Cash amount CRA Nos.327-DB & 464-DB of 2006 [13] of the share of Inder (appellant) was paid to him in lieu of the land of his share. Therefore, Inder (appellant) was not left with any share in the remaining land. However, he used to come to their house and used to demand his share again from his brother Ram Niwas (deceased) and his father Mai Chand (PW-2). On 16.11.2002 at about 4.30 p.m., Inder (appellant) came to their house. Kamlesh, wife of Ram Niwas (deceased) and the complainant Heera were present in the house at that time. The complainant and Kamlesh asked Inder (appellant) to sit but he refused by saying that he was in a hurry. He (Inder-appellant) said that he wanted to take Ram Niwas (deceased) with him for showing a plot. However, Ram Niwas (deceased) was not present at home at that time and Inder (appellant) went back. On 16.11.2002 at about 9.30 p.m. their reletive Suresh Kumar son of Om Parkash (PW-3) resident of Jeetgarh had come to their house and informed that some persons had caused injuries to Ram Niwas in the area of village Ram Nagar and he was admitted in the Civil Hospital, Panipat. The complainant Heera and his father Mai Chand (PW-2) went to the Civil Hospital at Panipat and found that the face of Ram Niwas (deceased) was smeared with blood and he had suffered many injuries on his face and head which had been caused with a sharp edged weapon. On enquiry Ram Niwas (deceased) told them that Inder (appellant) and his companion had caused injuries to him. Ram Niwas died after about 15-20 minutes. Due to enmity of not giving a share in the land, Inder (appellant) had murdered Ram Niwas with the help of his companion. The complainant Heera (PW-1) was cross-examined by the learned CRA Nos.327-DB & 464-DB of 2006 [14] counsel for the respective appellants. In cross examination on behalf of Inder (appellant) it is stated by Heera (complainant PW1) that his brother Ram Niwas (deceased) was an agriculturist. He was working in village Thirana and on 16.11.2002 he had gone to village Thirana during working season. There was no particular time for him to go to the fields and return home. His father had six acres of land in village Thirana. The complainant (PW1), his father (Mai Chand) and Ram Niwas (deceased) used to look after the fields. It is further stated by the complainant (PW1) that Duli Chand who is the elder brother of his father did not transfer any land in favour of Inder (appellant). The agricultural land at village Thirana near Assan was purchased by his father. Inder (appellant) it is stated had separated from the joint family about 10 years ago and he was paid an amount of Rs.4,50,000/- as his share. When Inder (appellant) had separated, a writing was done. The amount of Rs.4,50,000/-, it is stated, was not paid in his presence nor he signed the proceedings. It is stated that Rs.1 lac was arranged from their own savings and Rs.1,50,000/- was obtained from the relatives and one tractor and other agricultural equipments amounting to Rs.2 lacs were given to Inder (appellant). The tractor was of Escort make and he could not tell the model of the tractor. He could not tell the exact cost of tractor and other equipments which were assessed at that time. They borrowed Rs.70,000/- from his brother-in-law (Jija) namely Pala resident of Murthal and Rs.70,000/- were borrowed from his maternal uncle namely Pala resident of Tarori. His father had brought the cash from village Tarori and his brother Ram Niwas (deceased) had brought the cash CRA Nos.327-DB & 464-DB of 2006 [15] from Murthal. He, however, could not tell the date, time and place when the money was given to Inder (appellant). No share was given to him (complainant) and Ram Niwas. Neither was it disclosed as to how much amount would come to their share. It is further stated that Rs.4,50,000/- came in share of each i.e. Inder (appellant), Ram Niwas (deceased) and the complainant himself. He had not brought the document in which the share was mentioned. The said document was written in the Tehsil Panipat. None of the relatives had signed that document. In further cross- examination on behalf of Inder and Montu (appellants), it is stated by Heera (complainant PW1) that it was wrong to suggest that father-in-law of Om Parkash (PW3) transferred some agriculture land in favour of accused Inder. It was also wrong to suggest that accused Inder was adopted by Duli Chand, father-in-law of Om Parkash. It was also wrong to suggest that wife of Om Parkash was demanding her share from Inder. It was also wrong to suggest that on that account a quarrel had taken place at any time between Inder and wife of Om Parkash who