In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Appeal No.677-DB of 2005 ..... Date of decision:2.12.2008 Surender and others ...Appellants v. State of Haryana ...Respondent Coram: Hon'ble Mr. Justice S.S. Saron Hon'ble Mrs. Justice Sabina Present: Mr. Sameer Sachdev, Advocate for the appellants. Mr. H.S. Sran, Additional Advocate General, Haryana for the respondent-State. ..... S.S. Saron, J. This appeal has been filed by the appellants Surender Singh, Doon Bahadur, both sons of Ram Narain and Devender son of Ram Chander against the judgment and order dated 28.7.2005 passed by the learned Additional Sessions Judge, Panipat whereby the appellants have been convicted for committing the murder of Hawa Singh and thereby committing the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and also against the order dated 29.7.2005 whereby they have been sentenced to undergo imprisonment for life; besides to pay a fine of Rs.10,000/- each and in default of payment of fine by the defaulting appellant to undergo further rigorous imprisonment for three months. The facts of the case are that Rajbir Singh-complainant (PW-9) made a statement (Ex.PA) before Bachan Singh, ASI, Investigating Officer, Police Station, Chandni Bagh (PW-13) on 3.4.2003 to the effect that he was Cr. Appeal No.677-DB of 2005 [2] serving as Sub Inspector in a Cooperative Society, Bapoli. They were three brothers and one sister Roshani. He was the eldest of the brothers and Krishan and Hawa Singh (deceased) were younger to him. Krishan was serving as a Peon in the Government School, Chandoli and the youngest Hawa Singh (deceased) was unmarried and was residing at Baljit Nagar, Panipat where he had constructed rooms which he had let out on rent. In the upper storey rooms of his house, Doon Bahadur (appellant No.2) and Surender Singh (appellant No.1) sons of Ram Narain, and Devender (appellant No.3) son of Ram Chander were staying. Two days earlier i.e. earlier to the incident of 3.4.2003 a quarrel had ensued between his younger brother Hawa Singh (deceased) and the appellants in which there was a skirmish of causing beating also. A day earlier, Hawa Singh (deceased) had come to the village of Rajbir Singh-complainant (PW-9) i.e. Village Nimbari and informed him that the tenants (appellants) were indulging in notorious activities. Rajbir Singh-complainant (PW-9) reached Baljit Nagar, Panipat along with his brother Hawa Singh (deceased) and got the rooms vacated from the tenants (appellants). They wanted to take rooms nearby but his brother Hawa Singh refused to give them rooms on rent. Earlier to this i.e. after two days of the Holi festival, a quarrel had taken place between Satish son of Kiran Singh Gujjar, resident of Baljit Nagar, Panipat and Hawa Singh (deceased)-brother of the complainant. A compromise with regard to the same was effected at the Police Station. The complainant went back to his house on the evening of 2.4.2003 i.e. a day earlier to the occurrence. On 3.4.2003 at about 8.00 a.m. at his house Jitender who was earlier a tenant of Hawa Singh (deceased) informed the Cr. Appeal No.677-DB of 2005 [3] complainant Rajbir Singh that the dead body of Hawa Singh was lying on the bed in his room. The complainant Rajbir Singh (PW-9) along with his uncle (father's younger brother) Tek Chand; and Rajinder and Randhir sons of his uncle (father's elder brother) reached Baljit Nagar, Panipat at the house of Hawa Singh. They found the dead body of Hawa Singh lying on the bed. There were marks of scratches on his neck and face. The murder of Hawa Singh, brother of the complainant, it was stated, was due to the grudge on account of the quarrel that had occurred two days earlier with their tenants Surender Singh, Doon Bahadur and Devender (appellants) or due to the quarrel after Holi with Satish son of Kiran Singh Gujjar, resident of Baljit Nagar, Panipat who along with other companions, had committed the murder of Hawa Singh by strangulating his neck in conspiracy with each other as Satish had given threats at that time that he would later on take care of his brother. The complainant Rajbir Singh (PW-9) had come to know that at 12.00 a.m. (at night) dogs were barking in the street. It may be that somebody had seen the murderers of his brother at that time and still they did not disclose anything. He was going to the Police Station for giving intimation after leaving his uncle (father's younger brother) Tek Chand as also Rajinder and Randhir sons of his uncle (father's elder brother) near the dead body of his brother. Then Bachan Singh, ASI (PW-13) met him at the Babail booth and recorded his statement, which he accepted as correct. He requested for legal action being taken. Bachan Singh, ASI (PW-13) recorded the police proceedings (Ex.PA/II) to the effect that on 3.4.2003 at 1.30 p.m. he along with Mohinder Singh, Head Constable and Constable Jagdish Ram was present in connection with patrolling at the Babail Check Post (Naka), Sanoli Road, Cr. Appeal No.677-DB of 2005 [4] Panipat. The complainant Rajbir Singh (PW-9) had got his aforesaid statement (Ex.PA) recorded and he signed in English on the same after admitting it to be correct which was attested by ASI Bachan Singh (PW-13). From the statement that was recorded an offence under Section 302/34 IPC had been committed. So the said writing was sent to the Police Station through Constable Jagdish Ram for registration of the case and its number was asked to be intimated. Bachan Singh, ASI (PW-13) along with Head Constable Jagdish Ram proceeded to the spot for investigation. On the basis of the statement (Ex.PA), FIR (Ex.PB) was registered by Harinder Kumar, Sub Inspector (PW-1). The case was investigated by Bachan Singh, ASI (PW-13). The dead body was photographed by Sat Narain Singh (PW- 6) who took photographs (Exs.1 to P.4) of the dead body in Baljit Nagar, Panipat and the negatives of the photographs were Ex.P.5 to Ex.P.8. The photographs were taken by Sat Narain Singh (PW-6) and handed over by him to the Police. He had gone to the spot at about 12.00/12.30 p.m. Besides, site plan (Ex.PL) with correct marginal notes was prepared. Inquest proceedings (Ex.PJ) of the dead body of Hawa Singh was carried out. The dead body was identified by Rajinder and Randhir. Bachan Singh, ASI (PW-13) found scratch marks over the face. Thereafter, an application (Ex.PH) was submitted before the doctor at the Government Hospital, Panipat for getting post-mortem of the dead body conducted. The doctor vide opinion (Ex.PH/1) referred the dead body to PGIMS, Rohtak for post-mortem examination. On 4.4.2003, the dead body was taken to PGIMS, Rohtak for getting the post-mortem conducted which was conducted by Dr. Vijay Pal Khanagwal (PW-8). After post-mortem Cr. Appeal No.677-DB of 2005 [5] examination the doctor handed over to Bachan Singh, ASI (PW-13) a packet of viscera, a packet containing the underwear of the deceased and an envelope along with forwarding memo to the Director, Forensic Science Laboratory, Madhuban. Bachan Singh, ASI (PW-13) took the same in possession vide recovery memo (Ex.PK). The same was attested by Mohinder Kumar, Head Constable and Jagdish Rai, Constable. Thereafter, complainant Rajbir Singh (PW-9) produced one towel (Ex.P.9) before ASI Bachan Singh (PW-13) which was taken in possession vide memo (Ex.PL) (wrongly marked again). After sealing the same with the seal `BS' it was handed over to Mohinder Kumar, Constable which was attested by the latter. The statement of the witnesses were recorded. The photographs (Ex.P.1 to Ex.P.4) were taken from Sat Narain, Photographer (PW-6) along with their negatives (Ex.P.5 to P.8). Thereafter, the appellants were arrested. The scaled site plan (Ex.PC) prepared by Constable Jagbir Singh (PW-2) was also taken in possession. On completing investigation by the Police, charge-report (challan) in terms of Section 173 of the Code of Criminal Procedure (`Cr.P.C' – for short) was forwarded by Rattan Singh, Sub Inspector. The learned Judicial Magistrate Ist Class before whom the charge-report (challan) was filed vide order dated 17.7.2003 in view of the offence under Section 302 IPC having been alleged which was exclusively triable by the Court of Session committed the case to the said Court. The learned Additional Sessions Judge-I, Panipat, to whom the case was assigned, on 10.1.2004 framed charge against the appellants on the allegations that on the intervening night of 2/3.4.2003 in the area of Police Station, Chandni Bagh, Panipat, the appellants in furtherance of their Cr. Appeal No.677-DB of 2005 [6] common intention committed the murder of Hawa Singh by intentionally causing his death and thereby committed an offence punishable under Section 302 read with Section 34 IPC. The appellants pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as 13 witnesses besides tendered documents in evidence. The statements of the appellants in terms of Section 313 Cr.P.C. were recorded and the substance of the evidence appearing against them was put to them. The appellants pleaded innocence and false implication in the case. Each of them stated that he was never a tenant of deceased Hawa Singh and the Police had falsely implicated them in the present case at the instance of complainant Rajbir Singh (PW-9). In defence Virender Saini, Architect, Tees Hazari Court, Delhi (DW-1) was examined who proved the site plan (Ex.D.1) i.e. as prepared by him after visiting the spot. The defence evidence was then closed. The learned trial Court after considering the evidence and material on record has held the appellants guilty and convicted them for the offence under Section 302 read with Section 34 IPC for committing the murder of Hawa Singh. They have been sentenced to undergo imprisonment for life; besides to pay a fine of Rs.10,000/- each and in default of payment of fine the defaulting convict has been ordered to undergo further rigorous imprisonment for three months. The appellants aggrieved against the same have filed the present appeal. Shri Sameer Sachdev, Advocate, learned counsel appearing for the appellants has contended that there is an unexplained delay of nearly four hours in lodging the report which gave time to the prosecution to deliberate and falsely implicate the appellants. It is submitted that the Cr. Appeal No.677-DB of 2005 [7] testimony of the witnesses appearing for the prosecution; besides being discrepant are that of highly interested witnesses and no reliance can be placed on the same. It is submitted that the case is based only on circumstantial evidence and the statements of last seen witnesses i.e. Prem Singh (PW-11) and Rajender Singh (PW-12) were recorded on 28.5.2003 i.e. almost after two months of the occurrence. In any case, it is also submitted that Prem Singh (PW-11) and Rajender Singh (PW-12) as per their deposition had stayed at night at the house of Ajaib Singh whereas there was no occasion for them to stay at night at his house as admittedly Ajaib Singh was not at his house. Besides, the village of the last seen witnesses Prem Singh (PW-11) and Rajender Singh (PW-12) is nearby and there was no reason for them to stay at night at Baljit Nagar, Panipat in the house of Ajaib Singh. Therefore, it is submitted that the witnesses had been introduced. It is also submitted that there was no motive for the appellants to murder Hawa Singh and this is more so for the reason that it has not been established by the prosecution that the appellants were tenants of Hawa Singh. The medical evidence, it is submitted is highly discrepant and it is not clear as to whether death was caused on account of smothering or due to organo phosphorous poisoning. In response, Shri H.S. Sran, learned Additional Advocate General, Haryana for the State has submitted that the prosecution has proved its case in all material aspects. The discrepancies pointed out by the learned counsel for the appellants, it is submitted, are not such which would warrant the setting aside of the well reasoned judgment and order of the learned trial Court. It is submitted that delay in lodging the FIR is in the Cr. Appeal No.677-DB of 2005 [8] normal course of events and is not such which would cast any doubt on the prosecution case. Besides, there was no reason for Prem Singh (PW-11) and Rajender Singh (PW-12) who had last seen Hawa Singh (deceased) to depose against the appellants unless they were indeed involved. Therefore, the mere fact that the statement is recorded by the witnesses on 28.5.2003 is not such a circumstance so as to acquit the appellants. It is also stated that the last seen witnesses Prem Singh (PW-11) and Rajinder Singh (PW-12) had stayed at night at the house of Ajaib Singh at Baljit Nagar, Panipat as they had to make some payments to him. The motive to commit the murder of Hawa Singh, it is submitted, is clearly brought out from the deposition of Rajbir Singh-complainant (PW-9) and there is no reason to doubt his sworn testimony and he would not want to implicate any false person for the murder of his younger brother and his efforts would be to implicate the actual culprits. Therefore, it is submitted that the findings and conclusions reached at by the learned trial Court are liable to be maintained and upheld. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records of the case. Rajbir Singh-complainant (PW-9) in his deposition in Court has reiterated the version as made by him in his statement (Ex.PA) on the basis of which FIR (Ex.PB) was registered. It is stated by Rajbir Singh (PW-9) that his brother Hawa Singh (deceased) was residing at Baljit Nagar, Panipat where he had built his own house. The appellants were tenants in his house on the first floor. Two days prior to the occurrence Hawa Singh-brother of the complainant had visited their village. He had informed Rajbir Singh- complainant (PW-9) that the accused (appellants) had been indulging in Cr. Appeal No.677-DB of 2005 [9] nefarious activities and he had a quarrel with them and he wanted to get the premises vacated from them. On the next day i.e. 3.4.2003, he (Rajbir Singh, PW-9) came to the house of Hawa Singh (deceased) at Baljit Nagar and in his presence there was a quarrel between the accused persons (appellants) and his brother (Hawa Singh, deceased) in the evening. At about 10.00 p.m., after the quarrel they threw the belongings of the accused (appellants) outside the room. The accused (appellants) threatened Hawa Singh that they would teach him a lesson for insulting them and throwing their belongings. Thereafter, he went back to his village. It is further stated that on 3.4.2003 at about 8.00 a.m. i.e. on the next day of the said occurrence one Jitender, who was previously a tenant in the house of Hawa Singh informed him (Rajbir Singh, PW-9) that his brother Hawa Singh was lying dead in the shop situated outside the house. Rajbir Singh (PW-9) then came to the spot at the house of his brother along with one Tek Chand and his cousin Randhir and he found his brother Hawa Singh lying on a wooden cot with injury marks over his face, neck, arms and legs. When he saw his brother, he had died. He leaving Tek Chand and Randhir near the dead body went to the Police Station where on the way he met the police officials on the turning near Babail road near the Police post. He got his statement (Ex.PA) recorded, which he signed in token of its correctness. Rajbir Singh (PW-9) was cross-examined by the defence. It is stated that his brother had constructed his house in the year 1997-98. The area of the plot was 230 square yards. His brother had constructed about 22 rooms in the house and the upper storey of the house was on rent. There could be about ten rooms on the upper floor and there could be two or three tenants in one room. In Cr. Appeal No.677-DB of 2005 [10] further cross-examination, Rajbir Singh (PW-9) was confronted with his statement (Ex.PA) on various aspects. It was stated that he had got recorded the fact of fight between his brother (since deceased) and the accused persons. He was confronted with his statement (Ex.PA) wherein it was not specifically mentioned that a fight had taken place in his presence. No complaint was lodged with the Police regarding the fight that had occurred in connection with vacating the house. It was also stated that he had got recorded the time of throwing the belongings of the appellants outside the house in his statement (Ex.PA) before the Police. He was confronted with his statement wherein it was not recorded. It was only recorded in the statement (Ex.PA) that he had gone to Baljit Nagar and got the room vacated. It is further stated by Rajbir Singh (PW-9) that he had got recorded in his statement before the Police about the threats given by the accused persons (appellants) about the insults and throwing of their belongings in the street. He was confronted with his statement (Ex.PA) wherein it was not so mentioned. It is only mentioned that Satish at that time had threatened his brother that he would see him. He had also got recorded in his statement (Ex.PA) regarding receipt of abrasions on his hand and legs. He was confronted with his statement (Ex.PA) wherein it was not so recorded. He also could not tell by which vehicle the person had come to inform him about the death of his brother in his village. The said person had come at about 8.00 a.m. in the morning. Rajbir Singh (PW-9) started from his village within 15/20 minutes after getting the information. He came in a three wheeler to the house of his brother. He reached the house of his brother at about 8.30/8.45 a.m. He went to inform the Police at 9.30 a.m. Cr. Appeal No.677-DB of 2005 [11] on the spot. Apart from Jatinder, he did not meet anybody there at the spot. The house of Hawa Singh (deceased), it is stated, is situated at a distance of 4 kms. from Village Nimbari. He went on foot to inform the Police. The Police met him near Babail road-crossing. The house of Hawa Singh, it is stated, is situated at a distance of half km. from Babail road-crossing. He reached Babail road-crossing at 9.45/10.00 a.m. The Police person had written what he stated. He remained with the Police till about 1.30 p.m. Rajbir Singh (PW-9) could not specifically state as to in which direction the gate of the house opens. He also could not tell the names and addresses of other tenants of his brother Hawa Singh. The accused (appellants) were tenants in the second room when they go from the stairs. It was that room which opens on the left side. He could not tell about the names of the neighbours of Hawa Singh. House of Hawa Singh was in the main street. It is stated that they had no dispute with Satish as it had already been resolved prior to the occurrence. It is, however, admitted as correct that he had named Satish in the murder case. The Police had recorded his statement before Satish was let-off. A perusal of the statement of Rajbir Singh (PW-9) shows that there are indeed discrepancies from the statement (Ex.PA) of Rajbir Singh- complainant (PW-9) and his deposition in Court. In the said background it is to be seen as regards the delay in lodging the FIR and whether it gave time to the prosecution to deliberate and implicate the appellants. It is no doubt that prompt lodging of FIR is not an unmistakable guarantee of the truthfulness of the prosecution version and neither is delay always fatal. However, each case is to be examined in its own facts and circumstances. In the facts and circumstances of the present case the Cr. Appeal No.677-DB of 2005 [12] occurrence had occurred at 12.00 a.m. of 3.4.2003 i.e. in the intervening night of 2/3.4.2003. Bachan Singh, ASI, Police Station, Chandni Bagh (PW-13) recorded the statement (Ex.PA) at 1.30 p.m. On 3.4.2003 and FIR (Ex.PB) was recorded at 1.40 p.m. by Harinder Kumar, SI (PW-1). Therefore, there indeed is a delay of about 13½ hours from 12.00 a.m. to 1.30 p.m. on 3.4.2003 in recording the statement (Ex.PA) of Rajbir Singh, complainant (PW-9) by Bachan Singh, ASI (PW-13). The special report was received by the Area Magistrate at 2.30 p.m. It may be noticed that Constable Satyavan (PW-5) in his affidavit (Ex.PF) tendered in evidence stated that on 3.4.2003 Sub Inspector Harinder Kumar (PW-1), Police Station Chandni Bagh had handed over the envelope of the special report of the present case for sending it to higher authorities. He (Satyavan, Constable PW-5) had given the envelope of the aforesaid special report to the Illaqa Magistrate, Superintendent of Police and Deputy Superintendent of Police in the right time. In cross-examination by the defence it is stated that the special report of the case was handed over to him by Sub Inspector Harinder Singh (PW-1) at about 2.30 p.m. and then he handed over the said report to the Illaqa Magistrate after 15 minutes. Therefore, this delay of about 13½ hours would in the facts and circumstances of the case given time to the prosecution to deliberate as to who may have committed the crime and then make out a case against the appellants as they were suspected to have committed the murder of Hawa Singh. Therefore, the delay in the facts and circumstances of the case has a material bearing. It is at 8.00 a.m. on 3.4.2003 that one Jitender who was a tenant in the house of Hawa Singh (deceased) informed Rajbir Singh (PW-9) about the fact that Cr. Appeal No.677-DB of 2005 [13] Hawa Singh was lying dead. The said Jitender has not been examined. Thereafter, there is further delay from the time he receives the information at 8.00 a.m. till the statement (EX.PA) is recorded at 1.30 p.m. In fact, Bachan Singh, ASI (PW-13) states that he met Rajbir Singh (PW-9) along with his uncle Tek Chand at about 12.35/12.40 p.m. The place where Rajbir Singh (PW-9) is residing is at Village Nimbari and he in his cross- examination stated that the distance of his house and the house of Hawa Singh is 4 kms. from Village Nimbari. Besides, it is stated that he had gone on feet to inform the Police. He met the Police near Babail road crossing. The house of Hawa Singh, it is stated, is at a distance of about ½ km. from the Babail road crossing. He had reached the Babail road crossing at about 9.45/10.00 a.m. He had narrated the circumstances to the Police personnel and he had written whatever he stated. He had remained with the Police till about 1.00 p.m. and during this period his statement was recorded. While his statement was being recorded, the Police officials, it is stated, were also inquiring into another case. He, however, did not know about the particulars of that case. It is also stated that he had not gone from Nimbari to Babail directly and it might be 18 to 20 kms. from Nimbari. In the circumstances, there has indeed been delay in reporting the matter to the Police and an attempt has been made to cover-up the delay by stating that another case was also being inquired into. Besides, it is stated by Rajbir Singh (PW-9) that he met the Police at the Babail road crossing where he had reached at about 9.45/10.00 a.m. and his statement was recorded till 1.00 p.m. In the normal course, it would not take so long to record the statement. Then the special report is given to Satyawan Constable (PW-5) Cr. Appeal No.677-DB of 2005 [14]