IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 420-DB of 2002 DATE OF DECISION : 02.03.2010 Overseer .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Vivek Thakur, Advocate, for the appellant. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Appellant Overseer, who is in custody, has filed the instant appeal against the judgment and order dated 12.4.2002, passed by Additional Sessions Judge, Muktsar, in case FIR No. 42 dated 9.5.1999, registered at Police Station Kot Bhai, whereby he has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for a period of two years, under Section 302 IPC, for committing the murder of Budh Ram, aged about 45 years. 2. In the present case, the prosecution was launched against the appellant on the basis of statement (Ex.PA) made by Bimla Rani (PW.1) Crl. A. No. 420-DB of 2002 -2- wife of the deceased to Jaspal Singh Inspector (PW.7) on 8.5.1999 at 11.30 PM in the area of village Giljewala, when she was going to the police station for lodging the complaint. According to her statement, accused Overseer was residing in her neighbourhood. About one year prior to the day of occurrence, he came to her house by scaling over the joint wall at night time. Her husband foreboded the accused from doing so, who felt annoyed on the objection by her husband and threatened to kill him. At that time, her daughter Veerpal Kaur (aged 19 years) and other family members were present in the house. They also witnessed the said occurrence. On 8.5.1999 i.e. the day of occurrence, in the morning her husband had gone to Bohar Singh for doing the labour work. At about 8.30 PM, she and her daughter Veerpal Kaur were standing outside and were waiting for her husband. Then they saw that her husband was coming a little short of the Smadh of the Peer. The accused at once emerged out from the Thore plants (bushes), adjoining the passage. He was armed with an axe. He gave an axe blow from its sharp side on the neck of her husband from the back side. He gave another blow from the correct side of axe on the right side of the neck below the ear of her husband. As a result of those injuries, her husband fell down. She and her daughter Veerpal Kaur raised noise `Bachao-Bachao'. The accused then fled away from the spot along with the axe. Her husband died on the spot. 3. After registering the formal FIR (Ex.PA/2) on the aforesaid statement made by the wife of the deceased, the police party along with Crl. A. No. 420-DB of 2002 -3- Inspector Jaspal Singh went to the spot. The dead body was found lying there. The police prepared the rough site plan (Ex.PG), inquest report (Ex.PH). The blood stained earth was picked up from the spot. The dead body of the deceased was sent for post mortem examination through LC Nazar Singh (PW.4) and SPO Mehar Singh. During investigation, statement of Melo (PW.3), who had also witnessed the occurrence, was recorded. 4. On 9.5.1999, at about 11 AM, PW.5 Dr. H.N. Singh, Medical Officer, Civil Hospital, Gidderbaha, had conducted the autopsy of the deceased and the following two injuries were found on his body : 1. Incised wound 11 cm x 3 cm x bone deep on the dorsal aspect of the neck, 4 cm below posterior hair line. All the major vessels, soft tissues and spinal cord at the level of injury was cut, reddish blood clots were present in the wound. Margins of the wound were sharp, clear cut and the wound was transversely placed. 2. Incised wound 4 cm x 1 cm x 3 cm on the antero lateral aspect of the neck. The edges of the wound were sharp, clear cut. Reddish blood clots were present in the wound, the wound was oblique in direction, underlying major vessels and muscles were cut. In the opinion of the Doctor, the cause of death was due to injuries leading to shock and haemorrhage, which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. He opined that the probable time that elapsed between injuries and death was within few minutes; and between the death and the post mortem examination was within 24 hours. Crl. A. No. 420-DB of 2002 -4- The post mortem report of the deceased is Ex.PC. At the time of the post mortem examination, the blood stained shirt (Ex.P1), Payjama (Ex.P2) and underwear (Ex.P3), which were worn by the deceased, were taken and sent to the police by the Doctor. These clothes of the deceased were taken into possession by the police vide memo Ex.PK. 5. The accused was arrested on 9.5.1999 and during investigation, on 11.5.1999, he disclosed that he had kept concealed one Kulhari in the heap of wheat-chaff in his residential house, which only he could get recovered. In pursuance of his disclosure statement (Ex.PM), recovery of Kulhari (Ex.P4) was effected vide memo (Ex.PM/2) in the presence of Veer Singh and Gurchand Singh SI (PW.8). During the investigation, the blood stained earth, Kulhari and clothes of the deceased were sent to the Chemical Examiner, who gave his report (Ex.PR). 6. After completion of investigation, the challan was filed against the accused and charge under Section 302 IPC was framed, to which he did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined 12 witnesses and tendered into evidence report of the Chemical Examiner (Ex.PR). 8. In addition to PW.5 Dr. H.N. Singh, Medical Officer, the prosecution examined three eye witnesses, who had seen the occurrence. PW.1 Bimla Rani is the complainant, on whose statement the formal FIR was registered. PW.2 Veerpal Kaur is the daughter of the deceased, who had also witnessed the occurrence along with her mother. Both these witnesses Crl. A. No. 420-DB of 2002 -5- have fully supported the prosecution version. PW.3 Melo is a resident of the village, in front of whose house the occurrence had taken place. She has stated that on the day of occurrence, at about 8.30 PM, she was coming back to her house after easing herself. Budh Ram deceased was going ahead of her. He was at a distance of about 4-5 Karams from her, when the accused came out of the Thore plants. He was holding a Kulhari. He gave two Kulhari blows from its sharp side to the deceased and thereafter, he ran away from the spot along with the Kulhari. She had seen the occurrence in the light of the electric bulb which was lighting outside her house. The prosecution further examined Inspector Jaspal, the Investigating Officer, who recorded statement of the complainant, went to the spot, prepared the rough site plan, inquest report, lifted the blood stained earth, arrested the accused and recovered the Kulhari. PW.8 SI Gurchand Singh has proved the recovery of Kulhari from the disclosed place at the instance of the accused. PW.4 LC Nazar Singh, PW.6 Gurmeet Singh, Photographer, PW.9 HC Ram Singh, PW.10 C. Gurmit Singh and PW.11 Naib Singh, Oil Cleaner, are the formal witnesses. PW. 12 Sukhdev Singh, Patwari, has proved the scaled map Ex.PQ. 9. In his statement under Section 313 Cr.P.C., accused denied all the allegations appearing against him in the evidence led by the prosecution. He pleaded innocence and false implication on mis-guided suspicion. He stated that the FIR is ante-timed and ante-dated. 10. In defence, the accused examined DW.1 Makhan Singh, who stated that about 2 ½ years back at about 5 AM, he had gone to answer the Crl. A. No. 420-DB of 2002 -6- call of nature. Then he saw the dead body of Budh Ram, lying in the street. He raised alarm. Thereupon, many persons of the village, including the Panchayat, had collected there. Wife of deceased Budh Ram also came there. Then the Panchayat had summoned the police. The police arrived in the village at about 6 AM. He (DW.1) had talked with the wife of Budh Ram deceased. She told that she did not know how Budh Ram had died. The police took the dead body. 11. The trial court, while relying upon the medical evidence, statements of three eye witnesses, recovery of the Kulhari and other evidence, convicted and sentenced the appellant, as indicated above. Aggrieved against the same, he has filed the instant appeal. 12. Learned counsel for the appellant argued that in the present case, the prosecution has failed to prove the charge against the appellant beyond a shadow of reasonable doubt. He argued that in the instant case, no body had seen the alleged occurrence. All the three alleged eye witnesses have been planted later on by taking the benefit of delay in lodging the FIR. According to the learned counsel, the FIR is ante-timed and ante-dated. None of the three alleged eye witnesses had seen the occurrence. PW.1 Bimla Rani and PW.2 Veerpal Kaur are the wife and daughter of the deceased. Their testimonies, which are having contradictions, are not reliable and trust-worthy. Similarly, PW.3 Melo had not seen the alleged occurrence and she was later on planted as an eye witness. Bimla Rani (PW.1), in her statement (Ex.PA) before the police, had not mentioned that Crl. A. No. 420-DB of 2002 -7- Melo (PW.3) had also seen the occurrence. Learned counsel further argued that Veer Singh, who had witnessed the disclosure statement as well as the recovery of the Kulhari, has not been examined, therefore, the recovery of Kulhari at the instance of the appellant is also doubtful, as no independent witness from the village was associated and examined to prove the alleged recovery. He further argued that the the alleged motive in this case is very weak. On these arguments, learned counsel submits that the prosecution has failed to prove the alleged guilt against the appellant beyond a reasonable doubt, therefore, his conviction under Section 302 IPC for committing the murder of Budh Ram is not sustainable. 13. On the other hand, learned counsel for the respondent-State has supported the judgment of the trial court and argued that the trial court, after taking into consideration the reliable and trust-worthy statements of the eye witnesses and recovery of the Kulhari, has rightly convicted and sentenced the appellant for the offence of committing the murder of Budh Ram. 14. After considering the submissions made by learned counsel for the parties and going through the record of the case, we do not find any merit in the instant appeal. From the medical evidence led by the prosecution, the homicidal death of Budh Ram, aged about 45 years, has been proved. During the post mortem examination of the deceased, PW.5 Dr. H.N. Singh, Medical Officer, found two incised wounds on the neck of the deceased. In his opinion, both these injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. He Crl. A. No. 420-DB of 2002 -8- opined that the deceased died due to shock and haemorrhage. He further opined that the aforesaid injuries could have been caused by Kulhari (Ex.P4) which was got recovered at the instance of the appellant. 15. According to the prosecution, on the day of the occurrence, three witnesses had seen the appellant causing the aforesaid injuries with the Kulhari. PW.1 Bimla Rani and PW.2 Veerpal Kaur are the wife and daughter of the deceased. PW.3 Melo is an independent witness having no relation either with the deceased or with the appellant. The occurrence has taken place near her house and she had seen the occurrence in the light of the electric bulb. All these three eye witnesses have fully supported the prosecution version. It is the case of the appellant that none of these three witnesses had seen the occurrence. According to learned counsel for the appellant, no body had seen the occurrence, which had taken place in the night. Only in the morning, at about 5 AM, DW.1 Makhan Singh had seen the dead body of the deceased lying in the street. Thereupon, the police was called by the Panchayat and the matter was reported to the police. Later on, the police by taking the advantage of the delay, lodged the false FIR by making the same ante-dated and ante-timed. According to the learned counsel, the special report was received by the Magistrate on 9.5.1999 at 8.45 AM, which indicates that just before sending the special report, the FIR was registered on the wrong facts by making the same ante-dated and ante- timed. 16. We do not find any force in the contention of learned counsel Crl. A. No. 420-DB of 2002 -9- for the appellant. The occurrence has taken place on 8.5.1999 at 8.30 PM. In her statement, PW.1 Bimla Rani stated that she remained at the spot for about one hour. Then she had gone to lodge the report on foot. The police party met her at Bus Stand of the village and then her statement (Ex.PA) was recorded at 11.30 PM. In our opinion, three hours might have been taken in the said process. After recording the statement (Ex.PA), the FIR was registered on 9.5.1999 at 1.35 AM. Merely because the special report had reached the Magistrate at 8.45 AM, it cannot be inferred that the statement (Ex.PA) as well as the FIR (Ex.PA/2) were ante-timed and ante- dated. The presence of PW.1 Bimla Rani and PW.2 Veerpal Kaur at the place of occurrence was natural. They have categorically stated that both of them were waiting for the deceased near the Smadh of Peer Sahib near the house of Melo (PW.3) and they had seen with their own eyes the appellant causing injuries to the deceased. Both the witnesses have been cross- examined at length, but nothing material could be elicited, except the minor contradiction with regard to the height of the wall, which the appellant had scaled over on the earlier occasion. Though both these eye witnesses are related to the deceased, but their testimonies have been fully corroborated by PW.3 Melo, who is an independent witness. Her presence at the time of the occurrence, which has taken place near her house, was most natural. In her testimony, she has fully supported the prosecution case. The argument of learned counsel for the appellant that since this witness was not named as an eye witness in the first version made by Bimla Rani to the police, Crl. A. No. 420-DB of 2002 -10- therefore, testimony of this witness is not reliable, in our opinion, cannot be accepted. When the occurrence had taken place, this witness was coming from behind the deceased. She has stated that the deceased Budh Ram was going ahead of her. At the time of the occurrence, when the appellant came out of Thore plants (bushes), the deceased was at a distance of about 4/5 Karams ahead of her. She had seen the appellant giving Kulhari blows to the deceased from the back side. Since this witness was behind the deceased, there is possibility that she was not noticed by PW.1 Bimla Rani, who had seen the occurrence from front side. She was an independent and a most natural witness. There is no allegation against her that she was inimical towards the appellant. There is no reason for her to depose falsely against the appellant. Therefore, in our opinion, the testimonies of all the three eye witnesses are fully reliable and trust-worthy, and the trial court has rightly relied upon their testimonies, while convicting the appellant. 17. The defence taken by the appellant that death of the deceased was caused in the night by an unknown person and for the first time, the dead body was noticed by DW.1 Makhan Singh in the morning at about 5 AM and three eye witnesses were subsequently planted by the police, does not inspire any confidence. According to DW.1, the Panchayat had summoned the police, which arrived in the village at about 6 AM and only at that time, the wife of the deceased came on the spot. But this statement made by DW.1 Makhan Singh is not corroborated by any evidence. PW.7 Inspector Jaspal, the Investigating Officer, has categorically stated that after Crl. A. No. 420-DB of 2002 -11- recording the statement of the complainant at 11.30 PM on 8.5.1999, he went to the village along with the complainant and reached there at about 6.00/7.00 AM on 9.5.1999. No suggestion was given to him that he was called by the Panchayat. No member of the Panchayat has been examined in defence to prove this fact. No suggestion was given to PW.1 Bimla Rani that she told to Makhan Singh (DW.1) that she did not know how Budh Ram had died. Melo (PW.3) has deposed in the cross-examination that the police had arrived at the spot at 11.30 PM. All these facts clearly establish that the defence taken by the appellant is after-thought. 18. The prosecution has proved the use of the Kulhari in the commission of the offence. In the opinion of PW.5 Dr. H.N. Singh, Medical Officer, the injuries found on the body of the deceased could have been caused with the Kulhari (Ex.P5), which was got recovered at the instance of the appellant, in pursuance of his disclosure statement. PW.7 Inspector Jaspal and PW.8 SI Gurchand Singh have duly proved the recovery of the Kulhari. Their testimonies in this regard are consistent. Merely because Veer Singh, another attesting witness of the disclosure statement and the recovery memo, who was related to the deceased, was not examined by the prosecution, it cannot be inferred that the prosecution has failed to prove the said recovery. 19. Further, the prosecution has proved the motive for commission of the crime. In this regard, PW.1 Bimla Rani and PW.2 Veerpal Kaur have categorically stated that about one year prior to the day of occurrence, the Crl. A. No. 420-DB of 2002 -12- appellant had entered their house at night after scaling over the intervening wall and Budh Ram (deceased) had protested, upon which the appellant felt annoyed and had threatened him with dire consequences. Even though the motive has been proved, but when the direct evidence is available, the proving or not proving the alleged motive looses its significance. Therefore, we also do not find any substance in the argument of learned counsel for the appellant that the motive in this case is very weak and has not been established. 20. In view of the above, we are of the opinion that there is sufficient evidence available on the record, which establishes beyond a reasonable doubt that the appellant has committed the murder of Budh Ram. Thus, we do not find any illegality or infirmity in the impugned judgment and order passed by the trial court, and the same is upheld. Consequently, the appeal stands dismissed. ( SATISH KUMAR MITTAL ) JUDGE March 02, 2010 ( JORA SINGH ) ndj JUDGE