Criminal Appeal No. 515-DB of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 515-DB of 1999 Date of decision: 28.5.2008 Farukh .....Appellant Versus State of Haryana ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. B.S. Saroha, Advocate for the appellant. Mr. S.S. Pattar, Senior Deputy Advocate General, Haryana. S. D. ANAND, J. Learned Trial Judge, vide judgment under challenge, upheld the prosecution presentation that the appellant Farukh( son of Ishaq, resident of Jhanda-Raniyala Khurd, Distt. Faridabad) murdered his brother Saddik on 3.8.1998, at about 5.30 A.M. Saddik son of Ishaq was married to PW-2 Sahira. Eight children (three sons and five daughters) were born out of their union. Saddik had four brothers, all of whom were separate in mess and residence from each other. Ishaq and his wife Mst. Marium were, however, joint in mess and residence with PW-2 Sahira and her deceased husband Saddik. Ishaq had given 4-1/2 killas of land to his sons; while he retained 6 killas of land with him which (land) was Criminal Appeal No. 515-DB of 1999 -2- cultivated by Saddik. Appellant Farukh, a married brother of Saddik, had a grievance viz-a-viz Saddik as the latter had been given the cultivation of six killas of land belonging to Ishaq. On the night intervening 2/3.8.1998, Saddik went to sleep on the roof; while PW-2 Sahira and her children were asleep on the ground floor. At about 5.30 A.M., the appellant went over to the roof while he was carrying a Kutka. He gave Kutka blows on the right temporal region of Saddik. PW-2 Sahira and her two daughters PW- 3 Jaivan Nisha and PW-5 Aman Nisha went over to the roof on hearing the cries of Saddik. They spotted the appellant causing injuries to the deceased. The appellant fled the spot by jumping from the roof. Saddik died on account of injuries sustained at the hands of the appellant. The ocular presentation of the impugned occurrence was made by PW-2 Sahira and her daughter PW-3 Jaivan Nisha; while the medical segment consists of PW-1 Dr. A.P.Sharma, Orthopedic Surgeon who, along with Dr. J.M. Mittal, conducted the post-mortem examination on the dead body of Saddik and found the following injuries on it:- “1. There was a lacerated wound behind right ear obliquely placed of size 2.5 cm x 0.75 cm. Bleeding profusely. 2. There was a lacerated tearing of right pinna with tearing of cartilage, bleeding profusely. 3. There was bleeding from right ear.” The Medical Board found that “there was fracture of right temporal bone with multiple bleeding in the brain with the subdural Criminal Appeal No. 515-DB of 1999 -3- haemotoma. There were bleeding in all the layers of scalp.” The Board further opined that “the cause of death was due to shock and hemorrhage and coma as a result of head injury and injury to vessel which were antimortem and was sufficient to cause death in ordinate course of nature.” PW-9 SI Bhup Singh is the Investigating Officer of this case. The appellant denied the prosecution allegations and alleged false implication in the case. DW-1 Dr. J.N. Mittal (the other member of the Medical Board, besides PW-1 Dr. A.P.Sharma which conducted the post- mortem examination examined) was in defence evidence. Learned counsel for the appellant assails the conviction of the appellant at the hands of the learned Trial Court on the following counts:- The prosecution presentation is not reliable in view of the fact that PW-3 Jaivan Nisha, in the course of examination-in-chief testified that she had witnessed the appellant giving blows to Saddik but she conceded, in the cross-examination, that she did not see the appellant inflicting injuries upon her father but that she did see him jumping from the roof. Further argument raised in the context is that the above statement of PW-3 Javan Nisha is not in tandem with the testimony on oath of PW-2 Sahira. Before undertaking the exercise of appreciation of the criticism afore-mentioned, we would like to notice that it is in the statement of PW-3 Jaivan Nisha that “there was a dispute between the accused and my father on account of the land”. In that very Criminal Appeal No. 515-DB of 1999 -4- context, PW-2 Sahira had averred that “Farukh accused was aggrieved as my husband used to cultivate of land of 6 killas of my father-in-law. ......... Our relations were strained with Farukh accused on account of land dispute.” The prosecution has, thus, been able to adduce substantive evidence on record to prove the motive which actuated the appellant to commit crime for which he stands convicted. The averment by PW-2 Sahira that her parents-in-law were joint in mess and residence with her family and that her father-in-law had given six killas of land (forming his share of land) to her husband for cultivation does not appear to have been seriously disputed in the course of cross-examination. In the course of cross examination, the only suggestion put to PW-2 Sahira was that the deceased was in the habit of walking in sleep and that it was in the course of one of the sleep walk that he fell down from the roof and sustained injuries. The suggestion was denied by PW-1 Sahira as incorrect. The appellant did not evince any interest in pursuing that suggestion any further. The appellant did question PW-1 Dr. A.P.Sharma about whether injuries found on the dead body of Saddik could have been sustained by fall from the roof. In fact , the other member of the Medical Board (which conducted the post-mortem examination on the dead body of Saddik ) i.e. Dr. J.M. Mittal was examined as DW-1. Even he was not called upon to indicate whether the injuries found on the dead body of Saddik could have been sustained by him by a fall from the roof. This proves the falsity of the plea of innocence put forth by the appellant. PW-2 Sahira testified, in a forthright manner, that she Criminal Appeal No. 515-DB of 1999 -5- had spotted the appellant inflicting injuries to her husband with Kutka. She also indicated that Kutka blow was given to her husband on the right side of temporal region. That the appellant fled the spot on spotting them arrive over there and that he carried along the weapon of offence was also averred by her. As wife of the deceased, she would have no reason to substitute the real culprit by the appellant who is real brother of her deceased husband. As already noticed, the only suggestion put to her was that the deceased died as he was in the habit of walking in sleep and he fell down from the roof in that process. It was not even suggested to her that she had any reason to falsely implicate the appellant. As a wife she would be too willing to ensure that the real culprit gets nailed. Insofar as PW-3 Jaivan Nisha is concerned, it is apparent from the record that she claimed in examination-in-chief that she had seen the appellant giving Kutka blows on the right temporal region of her father and further that appellant ran away after jumping from the roof when the prosecution witnesses reached over there. However, in the cross-examination, she conceded that she did not see the appellant inflicting injuries upon her father but that she did see him jumping from the roof. In fact, her statement would be indicative of a stance of truthfulness on her part. If she was inclined to tell a lie, she could have stayed on to reiterate what she had stated in the examination-in-chief. She is a young girl aged 17 years. She must have been almost numbed by the death of her father before her own eyes. She could not be expected to make a photographic presentation of the impugned occurrence. Assuming for the sake of arguments, that she had not seen the appellant inflicting the injury, it Criminal Appeal No. 515-DB of 1999 -6- cannot be lost sight of that she did see the appellant running away from the spot. The act of the appellant having been spotted in the process of running away from the spot, would constitute res-gestae. The appellant had otherwise no reason to be around at that point of time. Insofar as DW-1 Dr. J.M. Mittal is concerned, he too did not state any fact which could, in any manner, benefit the plea of innocence of the appellant. His testimony is, thus, not of any help to the appellant in his plea of exoneration. Apart from the fact that ocular presentation is full in accord with the medical presentation, it requires particular notice that the weapon of offence is proved on record to have been got recovered by the appellant in pursuance of a disclosure statement which he made to the police. As apparent from the FSL report Ex. PQ, human blood was found on the Kutka as also the cotton wool swab and the shirt taken off the body of deceased Saddik and was forwarded to the FSL for the purpose aforementioned. That would also go a long way to prove the prosecution presentation. We are convinced, on perusal of the record, that the judgment of conviction recorded by the learned Trial Judge deserves to be upheld and we so order accordingly. The appeal shall stand dismissed. ( S. D. ANAND ) JUDGE May 28, 2008 (ADARSH KUMAR GOEL) Pka JUDGE Criminal Appeal No. 515-DB of 1999 -7-