Crl.Appeal No.399-DB of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.399-DB of 2007 Date of decision: 6.5.2010 Ram Naresh Rai ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Ms.Anju Arora, Advocate, for the appellant. Mr.Satbir Singh Goripuria, DAG, Haryana. ... JORA SINGH, J. Ram Naresh Rai son of Ram Asra Rai was sent up for trial by the SHO of Police Station Ding, on the allegation that on 11.2.2005 in the area of Village Moriwala, he had committed the murder of his elder brother Ram Parvesh Rai @ Ramu. Vide judgment of conviction dated 8.1.2007 and order of sentence dated 11.1.2007 arising out of FIR No.15 dated 12.2.2005 under Section 302 IPC, PS Ding, he was convicted under Section 302 IPC and sentenced to undergo RI for life and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for two and half years. Prosecution story, in brief, is that Jai Chand, resident of Village Moriwala, reported to the police party headed by ASI Pritam Kumar, Incharge Police Post Ding Moar, while present at Ding Moar in connection with patrol duty, that he and his brother Jassa Ram along with their families were residing in their farm house constructed in the fields. Cattle shed was constructed on the southern side of his farm house. Ram Parvesh Rai @ Crl.Appeal No.399-DB of 2007 2 Ramu was employed about three years back for feeding the cattle and for doing agriculture work. Ram Naresh Rai @ Raju, brother of Ram Parvesh Rai @ Ramu, was employed by Harjeet Singh, resident of Village Suchan. Ram Naresh Rai used to visit his farm house to see his elder brother Ram Parvesh Rai. There was dispute amongst both the brothers regarding partition of their family land. On 11.2.2005 at about 8.00/9.00 PM, Ram Naresh Rai came to his farm house to see his brother Ram Parvesh Rai. Both the brothers were talking with each other while sitting on a cot in the verandah, where fodder cutting machine was installed. He had slept in his room. Electric light was on out side the room and the cattle shed. At about 12.00 O' Clock during night time, he heard cries and woke up. He came out and had seen Ram Naresh Rai @ Raju while causing injuries on the head of Ram Parvesh Rai @ Ramu with a spade, when lying on the ground near the cot. He gave a call to Raju. Then Ram Naresh Rai @ Raju had fled away from the spot towards the fields by leaving the spade on the spot. On hearing his voice, his brothers Lassa Ram, Om Parkash and Hans Raj also woke up and came to the spot. Ram Parvesh Rai @ Ramu was seen while lying in a pool of blood. He had succumbed to his injuries on the spot. Om Parkash and Hans Raj had gone to Village Moriwala to summon the Sarpanch and other respectables. Satbir Singh, Sarpanch and Hira Lal, Panch, along with other respectables came to the spot. After leaving Om Parkash and Hans Raj to guard the dead body, Jai Chand, complainant, along with Jassa Ram, Satbir Singh, Sarpanch, and Hira Lal, Panch, after arranging a vehicle had gone to lodge a report, but near Ding Moar, statement of Jai Chand (Ex.PA) was recorded. After making endorsement at 6.30 AM, statement was sent to the Police Station, on the basis of which, Crl.Appeal No.399-DB of 2007 3 formal FIR (Ex.PA/2) was recorded at 8.30 AM. Special report was delivered to the Ilaqa Magistrate at 11.30 AM. ASI Pritam Kumar along with police party had gone to the spot. SHO, PS Ding, was requested to send crime team to the spot. After arranging a Photographer, photographs of scene of crime were got clicked. ASI Karan Singh came to the spot, then investigation of the case was handed over to him. After inspecting the place of occurrence, rough site plan (Ex.PM) with correct marginal notes was prepared. Inquest report was prepared. Dead body was sent to hospital for postmortem examination. Ishwar Singh, Incharge, Crime Branch, Madhuban, came to the spot. Then after some time, ASI Raj Kumar, Finger Print Expert, came and inspected the place of occurrence. He had lifted finger prints from the torch lying at the place of occurrence. Blood stained cap, woolen “loi” and “parna” lying on the spot were taken into police possession, after the same were made into a sealed parcel. Pair of shoes was also recovered from the spot and taken into police possession after the same were made into a sealed parcel. One torch and spade were also taken into police possession from the spot after the same were made into different sealed parcels. Blood stained earth was also lifted from the spot and was made into a sealed parcel. Parcel was taken into police possession. Blood noticed on the spot was also lifted with a piece of cloth and was made into a sealed parcel. Parcel was taken into police possession vide memo attested by the witnesses. Another torch was recovered from the spot and the same was also made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. While returning to the police Station, near Petrol Pump of Village Moriwala, Ram Naresh Rai was found present. He was arrested in Crl.Appeal No.399-DB of 2007 4 this case. On interrogation, he suffered disclosure statement (Ex.PH) and in pursuance of disclosure statement, got recovered pants, shawl and parna. Recovered articles were sealed with seal bearing impression `KS' and sealed parcel was taken into police possession vide memo (Ex.PJ) attested by the witnesses. Recovered articles were deposited with the Incharge of malkhana. After completion of investigation, challan was presented in Court. After hearing learned Public Prosecutor for the State, defence counsel for the accused and from the perusal of evidence on the file, trial Court opined that a prima facie case is made out against the accused under Section 302 IPC . Accordingly, charge was framed under Section 302 IPC, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined PW1 ASI Pritam Kumar, who had recorded the statement of Jai Chand, complainant (Ex.PA) and after making endorsement (Ex.PA/1), had sent the same to the Police Station, on the basis of which, formal FIR (Ex.PA/2) was recorded by ASI Karan Singh. PW2 Mohan Lal, Draftsman, had prepared scaled site plan (Ex.PB). PW3 ASI Raj Kumar, while serving in Finger Print Unit, Hisar, on receipt of telephonic call from SHO, PS Ding, had gone to the spot. Torch (Ex.P1) was found lying on the spot. Finger prints were lifted from the torch. After comparison, he submitted his report (Ex.PC). PW4 Constable Hari Singh, PW5 HC Des Raj and PW6 EHC Bhale Ram tendered their affidavits (Ex.PD, Ex.PE and Ex.PF), respectively. Crl.Appeal No.399-DB of 2007 5 PW7 Subhash Chander, Photographer, had gone to the place of occurrence and had taken photographers of dead body as well as scene of occurrence. Photographs are Ex.P5 to Ex.P16. Ex.P17 is the CD. PW8 Jai Chand is the complainant/eye witness, and stated that he had seen the accused while causing injuries to Ram Parvesh Rai. PW9 Jassa Ram stated that Ramu was employed by his brother Jai Chand. Raju accused used to visit the house of his brother to see Ramu. Both the brothers had some dispute qua partition of land. At about 8.00- 8.15 PM, Ram Naresh Rai @ Raju and Ram Parvesh Rai @ Ramu were seen while quarrelling over a piece of land while sitting on a cot in the verandah. He had enquired from Ramu as to what was the matter, then Ramu replied that he had dispute qua land and dispute is to be resolved. He along with his other family members had gone to sleep. At about 12.00-12.15 during night time, he heard noise of his brother Jai Chand. He came out of his house, then had seen Raju while fleeing from the verandah of cattle shed. Hans Raj and Om Parkash were sent to summon Sarpanch and other respectables of the village. Sarpanch and other respectables came to the spot, then by leaving Hans Raj and Om Parkash to guard the dead body, he along with Jai Chand, Satbir Singh, Sarpanch, and Hira Lal, Panch, had gone to lodge a report. PW10 Harjit Singh stated that Ram Naresh Rai was employed as a domestic servant about four months earlier to the occurrence. On 13.2.2005, accused got recovered pants, shawl, shirt and parna stained with blood. Torch (Ex.P1) was provided to the accused. PW11 Jai Narain, Finger Print Expert, after comparison of finger prints submitted his report. Crl.Appeal No.399-DB of 2007 6 PW12 HC Sajjan Singh tendered his affidavit (Ex.PL). PW13 ASI Karan Singh had investigated the case in hand after ASI Pritam Kumar. PW14 Dr. (Mrs.) Subhashani Gupta on 12.2.2005 at 1.30 PM had conducted postmortem examination on the dead body of Ram Parvesh Rai @ Ramu and observed as under:- “1. Incised wound 8 cms x 1.5 cm on the left side of face. Masseter muscles with neuro vascular bundle were cut with fracture of underlying zygomatic bone. 2. Incised wound 8 cms x 2 cms extending from lateral side of left frontal hair line to 3 cms in front of left ear meatus. Frontalis muscle with underlying neuro vascular bundle and underlying bone were cut. 3. Incised wound 9 cms x 7 cms in front of the neck with pretracheal muscles, crecoid curtilage, trachea, oesophagus were cut through and through. Underlying vertebra cervical C-4 cut on the body of vertebra with underlying contusion on the spinal cord. 4. Incised wound 10 cms x 4 cms cut with underlying muscles and mandible fracture, extending from angle of left mandible to the right side of trachea. Larynx were cut, neuro vascular bundle was cut. 5. Lacerated wound 3 cms x 2 cms in between injury No.3 and 4 with underlying muscles cut. 6. Incised wound 10 cms x 3 cms over the right mastoid process and occipital bone, obliquely placed with Crl.Appeal No.399-DB of 2007 7 underlying muscles and bone cut. Underlying brain was cut with haematoma present. 7. Incised wound 10 cms x 5 cms extending 2 cms below the right side of lateral end of right eye downwards. Underlying muscles and zygomatic bone was cut. 8. Multiple fractional abrasions 6 in nos., 1 cm x 0.5 cm present all over the right clavicle.” Cause of death was due to asphyxia due to trachea cut. Injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that he is innocent. In fact, deceased was murdered by some unknown persons. He was having cordial relation with his deceased brother. After hearing learned Public Prosecutor for the State, defence counsel for the accused-appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. We have heard learned counsel for the appellant, State counsel and gone through the evidence on the file. Learned counsel for the appellant argued that there is a delay in lodging the FIR. Three rough site plans were prepared and the site plans are not tallying with each other. Appellant was arrested after 18 hours. If the appellant had committed the crime, then there was no idea to remain present near the place of occurrence. Appellant could easily run away. Conduct of Crl.Appeal No.399-DB of 2007 8 the complainant is not upto the mark. If complainant had witnessed the occurrence, then he should have made an effort to catch hold the appellant. Weapon of offence alleged to have been recovered was not found to be stained with blood. Occurrence was at about 12.00 during night time, but at the time of inspection of scene of crime, clotted blood was not noticed. Appellant had no motive to commit the crime. In fact, there was a blind murder and to solve the case, appellant was falsely implicated because he is a poor man. Learned State counsel argued that evidence on the file was properly scrutinized by the trial Court. Complainant had no enmity with the appellant. Occurrence was at about 12.00 during night time and at 6.30 AM matter was reported to the police. There was no idea to concoct the story to implicate the appellant, who is real brother of the deceased. If the appellant was not on the spot and had not committed the murder of his brother, then in the morning of 12.2.2005, appellant should have reported the matter to the police. Single accused was named. So, no question of false implication. Arrest of the appellant was after 18 hours but it was for the appellant to see whether to leave village Dhani Moriwala or not. Admittedly, deceased Ram Parvesh Rai @ Ramu, aged about 34 years, was the elder brother of appellant Ram Naresh Rai @ Raju, aged about 25 years. Ram Parvesh Rai was employed as a domestic servant by Jai Chand, complainant, three years earlier to the present occurrence. No question was put to Jai Chand or any other witness that deceased was not his servant. Appellant when examined under Section 313 Cr.P.C., then did not state a word that his deceased brother was not employed as a domestic servant by Jai Chand, complainant. Crl.Appeal No.399-DB of 2007 9 Appellant Ram Naresh Rai @ Raju, younger brother of the deceased, was also employed as a domestic servant by Harjit Singh (PW10). Harjit Singh when appeared in Court, then stated that Ram Naresh Rai was employed as a domestic servant by him four months earlier to the occurrence. On 13.2.2005, Ram Naresh Rai got recovered his pants, shawl, shirt and parna and all these articles were taken into police possession vide memo (Ex.PJ). He had also supplied one torch (Ex.P1) to have a watch of the crops after reaching to his fields, which was found at the spot. No suggestion was put to Harjit Singh that appellant was not employed by him and torch (Ex.P1) was also not supplied by him. Prosecution story is to the effect that the appellant on 11.2.2005 at about 8.00-8.15 PM had gone to the house of Jai Chand, complainant, to see his brother Ram Parvesh Rai. Both were sitting on the cot in the cattle shed. During night time at about 12.00, Jai Chand woke up on hearing the cries. After coming out of his residential house, he had seen the appellant while giving spade blows to his brother Ram Parvesh Rai. After committing the crime, appellant had fled away from the spot while leaving the spade on the spot. On hearing raula, Jassa Ram, Om Parkash and Hans Raj woke up and came to the spot. Om Parkash and Hans Raj were sent to summon the Sarpanch and other respectables. Satbir Singh, Sarpanch, Hira Lal, Panch along with other respectables came to the spot. After deputing Om Parkash and Hans Raj to guard the dead body, Jai Chand, along with Jassa Ram, Satbir Singh, Sarpanch, and Hira Lal, Panch, had gone to lodge a report. At 6.30 AM, statement of Jai Chand was recorded by ASI Pritam Kumar, when he was present near Ding Moar. That means, there is only one eye witness, namely, Jai Chand. Accused can be Crl.Appeal No.399-DB of 2007 10 convicted on the sole testimony of the eye witness provided the testimony of eye witness inspires confidence and stands corroborated with some independent evidence. Jai Chand appeared as PW8 and stated that deceased was employed as a servant by him. On 11.2.2005 at about 9.00 PM, appellant came to his farm house. Appellant and deceased were seen while sitting on a cot in cattle shed. Then he had gone to sleep. During night time at about 12.00 on hearing cries, he woke up and came out of his residential house. He had seen the appellant while giving spade blows to the deceased. Jai Chand had no enmity with the appellant. Immediately after the occurrence, when his brothers came to the spot on hearing raula, then they were sent to summon Sarpanch, Panch and other respectables. After arrival of Sarpanch and Panch, Jai Chand had gone to lodge a report. At 6.30 AM, near Ding Moar he had met the police party, when his statement (Ex.PA) was recorded. After recording the FIR at 8.30 AM, special report was delivered to the Ilaqa Magistrate at 11.30 AM. Suggestion was given to the witness that he had not witnessed the occurrence. In fact, some unknown person had murdered Ram Parvesh Rai. Second suggestion to the witness was that the deceased had no dispute with his brother regarding partition of land, but the question is why appellant was named at about 6.30 AM on 12.2.2005, when occurrence was at about 12.00 on the intervening night of 11/12.2.2005. Complainant was expected to name the appellant, if he had dispute with the appellant or the deceased. Complainant had no dispute with the deceased or the appellant. Complainant had disclosed about the motive as per information supplied to him by the deceased before the occurrence. When deceased had dispute regarding partition of land, then it does not mean that Crl.Appeal No.399-DB of 2007 11 appellant was not to visit farm house of Jai Chand to see his elder brother, because dispute regarding partition of land was to be solved by both the brothers, if they are to meet. Without discussion or consultation, there was no way to solve the dispute. Immediately after the occurrence on hearing raula, Jassa Ram, Om Parkash and Hans Raj, brothers of the complainant, came to the spot. Jassa Ram while appearing as PW9 stated that when on hearing raula he had gone to the farm house of his brother, then noticed the appellant while fleeing from the spot. He further stated that appellant and deceased had a dispute regarding partition of agricultural land. On 11.2.2005, appellant and deceased were seen while sitting on a cot in the verandah of cattle shed. Enquiry was made from the deceased as to what was the matter, then deceased replied that they have land dispute and he would resolve the dispute with his younger brother Raju. After intimation to the police at 6.30 AM near Ding Moar, police party came to the spot. Shawl, parna, torch and spade were taken into police possession from the spot after they were made into different sealed parcels. Appellant was arrested on 12.2.2005. In pursuance of disclosure statement, appellant got recovered his pants, shawl and parna from the specified place. Recovery was on 13.2.2005. Recovered articles were made into a sealed parcel. Different articles recovered from the spot on 12.2.2005 and the articles got recovered in pursuance of disclosure statement on 13.2.2005 were sent to the laboratory. As per report of the laboratory (Ex.PT), human blood was noticed and blood group of the blood noticed on all the articles, which were recovered from the spot on 12.2.2005 and the articles which were got recovered on 13.2.2005 in pursuance of disclosure Crl.Appeal No.399-DB of 2007 12 statement, is the same. If appellant had not committed the crime, then how his clothes got recovered in pursuance of his disclosure statement were found to be stained with blood, and blood group was matching with the blood found on the clothes recovered from the spot in the morning on 12.2.2005. Appellant was employed by Harjit Singh and Harjit Singh had given torch (Ex.P1) to the appellant. Torch (Ex.P1) was recovered from the spot. Recovery of torch (Ex.P1) supports the prosecution story to opine that the appellant had gone to the farm house of Jai Chand on 11.2.2005 to see his brother Ram Parvesh Rai. Appellant and deceased were found together at about 8.00-9.00 PM by Jai Chand and his brother Jassa Ram. At about 12.00 during night time, on hearing cries, Jai Chand came out and had seen the appellant while giving spade blows to Ram Parvesh Rai. Spade was also lifted from the spot on 12.2.2005. Human blood was noticed but report regarding blood group is inconclusive. If as per defence version, some unknown person had murdered Ram Parvesh Rai, then immediately after the occurrence in the morning on 12.2.2005 Jai Chand had no reason to name the appellant because Jai Chand had no enmity with the appellant or deceased. Only appellant was named. Something could be said if number of accused would have been named by the complainant. All this shows that statement of the complainant inspires confidence. No reason to disbelieve the complainant, when his statement stands corroborated in view of the statements of Jassa Ram and Harjit Singh and report of laboratory. As discussed earlier, occurrence was at about 12.00 during night time. After the occurrence, respectables of village were summoned by Crl.Appeal No.399-DB of 2007 13 Jai Chand through his brothers. At 6.30 AM on 12.2.2005, report was lodged. FIR was recorded at 8.30 AM. Special report was delivered to the Ilaqa Magistrate at 11.30 AM. Delay in lodging the FIR is not fatal. At the time of inquest, site plan was roughly prepared by ASI Pritam Kumar. After that, investigation of the case was handed over to ASI Karan Singh. He had also prepared site plan (Ex.PM). Third site plan (Ex.PB) was got prepared from Mohan Lal, Draftsman. Site plan prepared while preparing inquest report (Ex.PN) and site plan (Ex.PM) prepared by ASI Karan Singh were roughly prepared as per information supplied by the complainant and witnesses, whereas third one is scaled site plan, but there is no difference. In all the site plans, place is the same where dead body was found lying and the place from where Jai Chand had witnessed the occurrence. No case of the prosecution that as per one site plan, dead body was found lying at a place different than shown in second and third site plan. In the site plan, light pillar was also shown because case of the prosecution is that there was electric light out side the residential house and cattle shed. After committing the crime, appellant had fled away from the spot and was arrested on 12.2.2005,i.e., after 18 hours, while present near petrol pump of Village Moriwala. Appellant after committing the crime had the opportunity to run away from Village Moriwala, but it was for him to see whether to conceal himself after the crime or not. If appellant is arrested on the same day, i.e., after 18 hours, then prosecution story is not to be doubted. Jai Chand had witnessed the occurrence from a distance of 110 feet. Appellant was armed with a spade. 8 injuries were noticed at the time Crl.Appeal No.399-DB of 2007 14 of postmortem examination on the dead body of Ram Parvesh Rai. All the injuries were on vital parts of the body. From a distance of 110 feet during night time, complainant had no occasion to intervene or catch hold the appellant because after causing injuries by leaving the spade on the spot, appellant had fled away from the spot, and while fleeing from the spot, he was noticed by Jassa Ram. Next submission of learned counsel for the appellant is that weapon of recovery from the spot was not connected with the crime because weapon was not found to be stained with blood and secondly, finger prints of the appellant were not noticed. But submission of learned counsel carries little weight because as per report, blade of spade was found to be stained with human blood. No report regarding blood group because blood was found to be