IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 75-DB and 106-DB of 2000 DATE OF DECISION : 09.03.2009 Hari Dass .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Bahadur Singh, Advocate, for the appellant. Mr. Partap Singh, Senior DAG, Haryana, for the respondent. * * * SATISH KUMAR MITTAL , J. This judgment shall dispose of Criminal Appeals No. 75-DB and 106-DB, both filed by Hari Dass, one through jail and one through Shri Bahadur Singh, Advocate. 2. Appellant Hari Dass was tried by Sessions Judge, Hisar, on charge under Section 302 IPC, for committing the murder of Balraj son of Tek Ram. Vide judgment dated 20.1.2000 and order of sentence dated 22.1.2000, which are under appeal, the appellant was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months, under Section 302 IPC. Crl. A. No. 75-DB of 2000 -2- 3. As per the prosecution version, which is based upon the statement of Balwan Singh made to SI Hisam Singh (PW.7) SHO, Police Station Barwala, on 25.9.1996 at 7.30 A.M., to the effect that his father and father of the deceased Balraj were four brothers, who had purchased 80 acres of land in village Gaibipur, District Hisar, in the year 1977. They originally belonged to village Danoda, but they also constructed houses in a Dhani in village Gaibipur. According to him, the four brothers orally partitioned the said land in equal shares. Two brothers, namely Tek Ram and Ram Kumar were cultivating the land jointly. It is further the case of the prosecution that out of his share in the land, Tek Ram had given seven acres of land to accused Hari Dass on Batai. The entire land was being irrigated by the canal water. It is the further case of the prosecution that on 24.9.1996, Balraj (deceased) son of Tek Ram came to the village and asked accused Hari Dass to clean the water-course, as the canal water was to be used by him for irrigating his land. After having talk with the accused, Balraj came to his house in Dhani located in the field. He had his dinner with complainant Balwan Singh. It is further case of the prosecution that on 25.9.1996 at 3.00 A.M., Balwan Singh heard altercation between accused Hari Dass and Balraj (deceased). On hearing the altercation, he along with Sultan Singh (PW.5), whose Dhani was adjacent to the field of Tek Ram, reached there and found that Balraj was asking Hari Dass as to why the water-course was not made clean in spite of his repeated requests made to him, due to which the water was being wasted. On this, Balwan Singh and Crl. A. No. 75-DB of 2000 -3- Sultan Singh consoled both of them that on such trivial issue, there should not be any altercation. Thereafter, both of them left the scene to go to their respective Dhanis and Balraj laid on the cot, whereas Hari Dass went towards the engine to put diesel by which the canal water was being pumped out. It is further the case of the prosecution that in the meanwhile, Hari Dass brought a Kassi and raised Lalkara that he would teach a lesson to Balraj on account of insulting him on petty matter. On hearing the Lalkara, Balwan Singh and Sultan Singh turned back and in their eye-view, Hari Dass gave four blows with his Kassi to Balraj, out of which two blows hit on his neck, one on right jaw and one on right collar bone. Due to those injuries, Balraj died at the spot. Thereafter, Hari Dass fled away from the spot along with Kassi. 4. Balwant Singh made the aforesaid statement to the police at 7.30 A.M., on the basis of which a formal FIR (Ex.PK) was registered at Police Station Barwala. It is the case of the prosecution that before reporting the matter to the police, Balwan Singh, after leaving Sultan Singh at the place of occurrence, went on tractor to village Danoda, which is at a distance of 15-16 Kms. from the place of occurrence, to inform Tek Ram about the death of his son Balraj. After informing Tek Ram and taking him, they went to Police Station Barwala, which was about 32 Kms. from village Danoda and reported the matter to the police. 5. The police came on the spot, prepared the inquest report (Ex.PC) and got the post mortem of the deceased conducted. PW.1 Dr. Ajay Crl. A. No. 75-DB of 2000 -4- Kumar Gupta conducted the post mortem of the deceased on 25.9.1996 at 3.50 P.M. and he found eight injuries on the body of the deceased. The post mortem report Ex.PA has been proved by him. According to the Doctor, the death had occurred due to shock and haemorrhage, as a result of injuries found on the person of the deceased, which were sufficient to cause death in ordinary course of nature. It was also opined by him that the time between injuries and death was within few minutes and between death and post mortem 12 to 24 hours. According to his opinion, the injuries could have been caused with Kassi Ex.P1, which was recovered from the accused during the course of investigation. 6. In this case, during the course of investigation, accused was arrested on 30.9.1996. In pursuance of his disclosure statement Ex.PL, he got recovered Kassi Ex.P1, Kurta Ex.P13 and Payjama Ex.P14, all stained with blood, and the same were taken into possession vide recovery memo Ex.PL/2, in the presence of Chander Bhan (PW.6) and Mohinder Singh. 7. After completion of investigation, challan was presented against the accused and he was charged under Section 302 IPC, to which he did not plead guilty and claimed trial. 8. In support of its case, the prosecution examined seven witnesses. PW.1 Dr. Ajay Kumar Gupta conducted the post mortem of the body of the deceased. PW.2 Attar Singh Patwari proved scaled site plan Ex.PD of the place of occurrence. PW.3 Satish Kumar Photographer proved the photographs Ex.P5 to Ex.P9. PW.4 Balwan Singh (complainant) and Crl. A. No. 75-DB of 2000 -5- PW.5 Sultan Singh (eye witness) supported the case of the prosecution. PW.6 Chander Bhan is the witness, in whose presence accused made disclosure statement and got recovered Kassi, Kurta and Payjama. PW.7 SI Hisam Singh is the Investigating Officer. 9. In his statement under Section 313 Cr.P.C., the accused denied the entire evidence, led against him by the prosecution and pleaded his false implication. He stated that he has been falsely implicated due to suspicion and party-fiction. However, he did not lead any evidence in his defence. 10. The trial court, while relying upon the testimonies of PW.4 Balwan Singh and PW.5 Sultan Singh as well as the statement of PW.6 Chander Bhan, the recovery witness, held the accused guilty under Section 302 IPC for causing the murder of Balraj. Accordingly, he was convicted and sentenced, as stated in the earlier part of the judgment. 11. Learned counsel for the appellant argued that in this case, there was considerable delay in lodging the FIR, which has not been satisfactorily explained by the prosecution and in the meanwhile, the entire prosecution version was concocted. He further argued that PW.4 Balwan Singh and PW.5 Sultan Singh, who had not seen the occurrence at all, have been introduced as prosecution witnesses. He submitted that it is highly impossible that the alleged occurrence was seen by these two witnesses in the moon light. Both the witnesses are interested witnesses. Learned counsel further submitted that the statements of these two alleged eye witnesses are wholly untrustworthy. Their presence at the time of the alleged occurrence Crl. A. No. 75-DB of 2000 -6- was highly doubtful and their conduct was improbable. Learned counsel further argued that recovery of Kassi, Kurta and Payjama was planted one as nothing was recovered from the accused, who has been falsely implicated in the blind murder of Balraj. He further submitted that there are material contradictions in the statements of the prosecution witnesses. In view of these arguments, learned counsel for the appellant submitted that the prosecution has failed to prove the guilt against the accused beyond shadow of reasonable doubt, therefore, his conviction and sentence by the trial court are wholly illegal and unjust. 12. On the other hand, learned counsel for the respondent-State submitted that the alleged delay in lodging the FIR has been satisfactorily explained by the complainant. He further submitted that the statements of PW.4 Balwan Singh and PW.5 Sultan Singh are trust-worthy and consistent. He further submitted the ocular version is in consonance with the medical evidence and the recovery of Kassi, Kurta and Payjama from the accused has also been duly proved. Thus, the prosecution has fully proved its case beyond shadow of a reasonable doubt and the trial court has rightly convicted and sentenced the accused. 13. After considering the various submissions made by learned counsel for the parties and going through the evidence led by the prosecution, we do not find any merit in the appeal filed by the appellant. In our view, the prosecution has led sufficient evidence, which clearly establish the alleged offence committed by accused Hari Dass. Both the eye Crl. A. No. 75-DB of 2000 -7- witnesses, namely PW.4 Balwan Singh and PW.5 Sultan Singh have categorically stated that in their presence, accused Hari Dass gave four blows with his Kassi Ex.P1 to Balraj and caused injuries on his neck, right jaw and right collar bone. They further stated that due to those injuries, Balraj had died. The statements of these two witnesses are fully corroborated by the medical evidence. Dr. Ajay Kumar Gupta (PW.1), who conducted the post mortem examination on the dead body of the deceased, has specifically stated that the injuries which were found on the body of the deceased could have been caused with Kassi Ex.P1. He further stated that the time between injuries and death was within few minutes and the injuries were sufficient to cause death in the ordinary course of nature. Thus, the version given by these two witnesses that immediately after causing the injuries by the accused, the deceased died on the spot, has been corroborated by the medical evidence. We have examined the statements of the two eye witnesses with care and caution, being interested witnesses. We do not find any inconsistency in their statements. Their presence at the place of occurrence does not appear to be doubtful. Their statements in the court supporting the prosecution version inspire full confidence and the same cannot be stated to be un-trustworthy. The contention of learned counsel for the appellant that the presence of these two witnesses at the place of the alleged occurrence is highly doubtful and they had not witnessed the alleged occurrence and subsequently made as witnesses by taking the benefit of time, on the ground of the alleged delay in lodging the FIR, cannot be Crl. A. No. 75-DB of 2000 -8- accepted. In our opinion, in the instant case, the delay in lodging the FIR has been satisfactorily explained by the prosecution. It is true that the alleged occurrence had taken place at 3.00 A.M. and the FIR was registered at 7.30 A.M. on the same day, but the complainant Balwan Singh (PW.4) has categorically stated that after the alleged occurrence, first he went to village Danoda, which is at a distance of 15-16 Kms. from the place of occurrence, to inform about the incident to the father of the deceased and from there, he along with father of the deceased went on tractor to inform the police at Police Station Barwala, where his statement was recorded at 7.30 A.M. It has come in evidence that the distance between village Gaibipur and village Danoda is about 15-16 Kms. and from Danoda to Police Station Barwala, the distance is about 32 Kms. Therefore, taking of this time in lodging the FIR has been fully explained. The argument raised by learned counsel for the appellant regarding the late delivery of the special report to the Magistrate at 11.40 A.M. has also been considered. After registration of the FIR, according to the statement of PW.7 SI Hisam Singh, he deputed a Constable to deliver the special report to the higher officers at 8.30 A.M., and the special report was delivered to the Ilaqa Magistrate at 11.40 A.M. It has come in the evidence that the distance between Police Station Barwala and the seat of the Ilaqa Magistrate was about 30 Kms. Therefore, in our opinion, there was no delay in delivering the special report and these facts, in our opinion, do not indicate that there was deliberate and conscious delay in lodging the FIR and by taking the Crl. A. No. 75-DB of 2000 -9- benefit of the said delay, the aforesaid two witnesses were planted by concocting prosecution version. 14. Further, the evidence to the effect that Kassi Ex.P1, shirt Ex.P13 and Payjama Ex.P14 and the clothes which were being worn by the accused at the time of the occurrence, were got recovered by the accused himself from his court-yard, also proves his involvement in the alleged crime. Thus, in our opinion, the prosecution has proved the guilt against the accused beyond a reasonable doubt. 15. In view of the above, we do not find any ground to interfere in the impugned judgment and order and the same are upheld. Consequently, both the appeals filed by the appellant, one through jail and one through counsel, are dismissed. The appellant, who is on bail, is directed to surrender to custody to serve the remainder of sentence. ( SATISH KUMAR MITTAL ) JUDGE March 09, 2009 ( DAYA CHAUDHARY) ndj JUDGE