CRIMINAL APPEAL NO. 558-DB OF 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 28th , 2008. Parties Name Mohinder ..APPELLANT VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE SABINA PRESENT: Mr. R.S.Rai, Sr. Advocate, with Mr. Rajeev Anand, Advocate, for the appellant. Mr. S.S.Randhawa, Addl. A.G., Haryana, for the respondent. JASBIR SINGH, J. JUDGMENT Appellant Mohinder has filed this appeal against judgment dated November 5, 1998, vide which he was convicted for commission of an offence punishable under Section 302 IPC. Further challenge has been laid to the order dated November 9, 1998, vide which the appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- for the above said offence with a default clause. Record reveals that the appellant, his son along with three other were put to face trial for commission of offences under Section 302 CRIMINAL APPEAL NO. 558-DB OF 1998 -2- read with Section 34 IPC and Section 201 IPC. Appellant was convicted and sentenced, as mentioned above. However, four other were acquitted. Briefly, prosecution story, as noticed by the trial Court in para No. 2 of the impugned judgment, reads thus: “Summarising the facts of the case as per prosecution version are that on 23.9.1996 Ajay Pal complainant came to the Police Station and made his statement that he was resident of village Chanot. They were four brothers having 4-1/2 acres agricultural land. His father Abhey Ram was a retired Head Master, who had contested election of Sarpanch against Jaibir. Rameshar and Ram Kishan , Mohinder son of Sarjit did not help his father in the election and he had helped Jaibir who eventually won the election. They were not on good terms for this reason. At about 11.30 p.m. On 23.9.1996 his father was returning from the fields. The complainant and one Satyawan son of Karan Singh were coming about 100 yards behind Abhey Ram. When his father Abhey Ram reached near the Ghair of Kanwar Singh, then Mohinder having Gandasa, Subhash having Barchha and Lal Singh empty handed at once came to the street. Lal Singh caught hold of Abhey Ram and made him to fall on the ground. Thereafter, Lal Singh sat on the body of his father and caught hold of both the hands of his father Abhey Ram. Then Mohinder and Subhash caused injuries on the mouth and head of Abhey Ram with their respective weapons. The complainant and Satyawan raised noise and thereafter Mohinder, Subhash and Lal Singh accused CRIMINAL APPEAL NO. 558-DB OF 1998 -3- ran away with their weapons. When they saw Abhey Ram, he had died. The complainant and Satyawan had witnessed the occurrence in the light of the bulb of the house of Udaibir. Due to the enmity in the election of Sarpanch Mohinder Singh, Subhash and Lal Singh murdered Abhey Ram with Gandasa and Barchha.” As is apparent from the passage, extracted above, criminal law was set in motion on a statement, made by Ajay Pal son of the deceased , on the basis of which formal FIR Ex. PF was recorded at 2 AM on September 23, 1996. The Investigating Officer, SI Sube Singh (PW10), went to the spot, prepared the inquest report and sent dead body of Abhey Ram deceased for post-mortem examination, which was done by Dr. Kuldeep Singh (PW3) on September 23, 1996. Following injuries were noticed on the dead body at the time of post-mortem examination: “1. An incised wound on the chin. It was muscle deep. Size was 4 cm x 2 cm. It had sharp margins. 2.There was incised wound just above upper lip on the right side. Size was 3 cm x 1 cm. 3.Incised wound of the size 9 cm x 2.5 cm over right temporal region of scalp. Margins were sharp and clear cut. It was 5 cm above top of right pinna and 4 cms above right eye ball. On dissection, it was found that the wound was deep. There was a cut in the bone completely and extra dural haemotoma was present.” CRIMINAL APPEAL NO. 558-DB OF 1998 -4- Cause of death was injury to the skull and the brain. Injury No. 3 was held sufficient to cause death in the ordinary course of nature. Injuries were ante mortem in nature. In the meantime, Investigating Officer lifted blood-stained earth from the spot and got prepared the rough site plan. Accused were arrested on September 26, 1996. On a disclosure statement, made by the appellant – accused and his son, weapons of offence, i.e. Gandasa and spear were recovered. On completion of investigation, final report was put in Court for trial. The accused were charge-sheeted, to which they pleaded not guilty and claimed trial. Prosecution produced eleven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them. They denied the same, pleaded innocence and false implication. Des Raj and Raj Pal, co-accused, took a further defence that they were on duty on the day of occurrence. They also led evidence in defence. The trial Court, on appraisal of evidence, convicted and sentenced the appellant u/S 302 IPC. However, benefit of doubt was given to the other accused and accordingly they were acquitted of the charges framed against them. Shri R.S.Rai, Senior Advocate, who has put in appearance on behalf of the appellant, has vehemently contended that the trial Court was not justified in convicting and sentencing the appellant – accused. By making reference to the statements of Ajaypal Singh (PW7) and S.I. Sube Singh (PW10), he has made an attempt to impress upon us that the alleged eye witness Ajaypal was not present at the spot. To support his contention, he argued that the occurrence is alleged to have taken place at 11.30 PM, it CRIMINAL APPEAL NO. 558-DB OF 1998 -5- was dark, there exists nothing on record to show as to how the accused were identified by the said eye witnesses. He further argued that conduct of PW7 Ajaypal Singh was not rational. If he was present at the spot, he would have made attempt to save his father. No effort was made to provide medical aid to the deceased. Counsel also argued that it is not clear as to who has caused the fatal injury, as the same could have been caused by a spear also. In such a situation, benefit of doubt must go to the appellant – accused. He, by stating that motive to cause injury by the appellant to the deceased is missing, prayed that the appeal be allowed, impugned judgment and order be set aside and the appellant – accused be acquitted of the charges framed against him. Prayer made has vehemently been opposed by Shri S.S.Randhawa, Additional Advocate General, Haryana. He argued that the trial Court has rightly convicted the appellant – accused. Benefit of doubt has been given to the other accused in view of evidence on record. He, by making reference to the statement , made by Dr. Kuldeep Singh (PW3) argued that the fatal injury to the deceased was not possible with a spear. By stating that recording of FIR was prompt, he prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, we are convinced that the appellant has failed to make out any case for interference by this Court. Ajay Pal (PW7) , son of the deceased, has categorically stated that on the fateful day, his father was returning from the fields to their house. He along with Satyawan were following the deceased at a short distance. His father was way-laid by the appellant and other accused. Injuries were caused to him with sharp edged weapons by the appellant and his son, namely, CRIMINAL APPEAL NO. 558-DB OF 1998 -6- Subhash. Others facilitated the causing of injuries by the above named accused. This witness, when noticed that his father was no more alive, went to the Police Station Sadar Hansi, situated at a distance of more than 11 Kms from the place of occurrence. After recording his statement, FIR Ex. PF was registered at 2 AM on September 23, 1996. This witness has specifically stated that for his journey to the Police Station, no vehicle was available. He took lift in a truck. The above mentioned process may have consumed some time. The special report reached Judicial Magistrate Ist Class at Hansi at 4.15 AM. The witness has further stated that occurrence was seen by him and Satyawan in the light of a bulb, which was fixed outside the house of Uday Bir. Light point has also been shown in the site plan got prepared by the Investigating Officer. It has also come on record that family of the deceased owned about 4 -1/2 acres of land. It was month of September. Going out to look after the standing crop, during that period, was not unnatural. PW7 has specifically stated that when injuries were caused to his father, he raised hue and cry, on this all the accused ran away along with their respective weapons. He saw his father lying motionless. He felt his pulse and was convinced that he was no more. Leaving Satyawan and his uncle Dalip Singh at the spot, he went to inform the police. Death appears to be instantaneous. In that situation, there was no question of making any effort to provide medical aid to the deceased. The accused were six in number. Two were armed with deadly weapons. PW7 and Satyawan, may be, out of fear, could not come forward to save the deceased. Contention of counsel for the appellant that fatal injury could have been caused by spear also appears to be unjustified. Dr. Kuldeep CRIMINAL APPEAL NO. 558-DB OF 1998 -7- Singh (PW3) has specifically stated as under: “I have seen the Gandasi without handle, if it was used as a weapon with a handle the injuries could be caused with it. In my opinion, the injuries could not be caused with the spear Ex. P6 because it has a pointed and tapering end of the blade. The injuries could not be caused with this weapon even if wielded thrustwise.” By taking note of statement, made by PW3, benefit of doubt was given to Subhash son of the appellant – accused and he was acquitted. Gandasa is a heavy weapon as compared to a spear. The extent of injury No. 3 is such that it could have been caused only with a heavy weapon like Gandasa and not by a spear as has rightly been said by Dr. Kuldeep Singh (PW3). Motive to cause injuries , no doubt, does not appear to be very convincing. However, in a case of eye witness account, when proved, motive becomes a pale shadow. Shri Rai has made an attempt to challenge testimony of Ajaypal Singh (PW7) by stating that he being son of the deceased was an interested witness, as such, reliance cannot be placed upon his statement. This Court is of the opinion that the argument raised is not justified. In view of facts and circumstances of the case, we feel that presence of Ajaypal was probable at the spot. Lengthy cross-examination has failed to shatter his testimony. In case where case of the prosecution rests uponstatement made by a relation witness, the Court is supposed to be on guard and to appreciate / analyse the statement of a relation witness in a careful manner. In this case, we have gone through the deposition , made by PW7 Ajaypal Singh and PW8 Dalip Singh , brother of the deceased, and are convinced CRIMINAL APPEAL NO. 558-DB OF 1998 -8- that the statements, made by above said witnesses, inspire confidence. Statement, made by Ajaypal Singh (PW7) finds corroboration from the statement, made by Investigating Officer – S.I. Sube Singh (PW10). This witness has narrated the sequence, in which information was received regarding the alleged offence, recording of FIR and spot inspection. It has also come on record that the appellant was arrested on September 26, 1996. He was interrogated on September 28, 1996 and his disclosure statement led to the recovery of weapon of offence, i.e., Gandasa (P-5). Cross-examination of witness, named above, has failed to create any suspicion with regard to recovery of weapon of offence and other events, detailed by the said witness. In view of facts, mentioned above, we are convinced that the prosecution was successful in proving guilt of the appellant – accused and he was rightly convicted and sentenced by the trial Court. As a result, this appeal fails and is dismissed. ( Jasbir Singh) Judge ( Sabina ) November 28th , 2008. Judge DKC