IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : March 16, 2011. Crl. Appeal No. 1079-DB of 2007 Manmohan Kumar @ Manu son of Ramesh Kumar Gupta, aged 35 years, Shopkeeper resident of Jawahar Nagar, Gali No. 11, Amritsar. (Now confined in Central Jail, Amritsar) ......... Appellant Versus. State of Punjab ....... Respondent Crl. Appeal No. 494-DB of 2008 State of Punjab ......... Appellant Versus. 1. Manish Kumar @ Phirki son of Madan Lal son of Brij Lal Sharma, aged 25 years, resident of B-Block, Railway Colony, Islamabad, Amritsar. 2. Sandip Kumar @ Ghora son of Satish Chander, aged 26 years, resident of Sheranwala Gate, c/o Kewal Kargo, Amritsar. 3. Bhim Sen @ Prema son of Madan Lal son of Brij Lal, aged 32 years, resident of B-Block, Railway Colony, Amritsar. ....... Respondents Crl. Revision No. 1109 of 2008 Rajesh Mahajan son of Shri Shiv Parkash Mahajan resident of Guru Dev Market, Rani Ka Bag, Amritsar, District Amritsar. ......... Appellant Versus. 1. The State of Punjab 2. Manish Kumar @ Phirki son of Madan Lal son of Brij Lal Sharma, aged 25 years, B-Block, Railway Colony, Islamabad, Amritsar, District Amritsar. 3. Sandeep Kumar @ Ghora son of Satish Chander, aged 26 years, resident of Sheranwala Gate, c/o Kewal Kargo, Amritsar, District Amritsar. 4. Bhim Sen @ Prema son of Madan Lal son of Brij Lal, aged 32 years, resident of B-Block, Railway Colony, Amritsar, District Amritsar. ....... Respondents CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL. Crl. Appeal No. 1079-DB of 2007 and connected cases -2- Present:- Mr. Vikram Chaudhri, Advocate, for the appellant. (In Crl. Appeal No. 1079-DB of 2007) Ms. Manjari Nehru Kaul, Addl. A.G. Punjab, for the respondent-State (in Crl. A.No. 1079-DB of 2007 and Crl. Revision No. 1109 of 2008) and for the appellant-State (in Crl. A. No. 494-DB of 2008). Ms. Anju Arora, Advocate, for the petitioner (in Crl. Revision No. 1109 of 2008) None for the respondents (in Crl. A. No. 494-DB of 2008) and for respondents No. 2 to 4 (in Crl. Revision No. 1109 of 2008). M. JEYAPAUL, J. The sole accused Manmohan Kumar @ Manu, who was convicted for an offence under Section 302 of the Indian Penal Code (in short 'IPC') and was sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-, and in default, to undergo further period of two months rigorous imprisonment, has preferred Crl. Appeal No. 1079-DB of 2007. In the very same case, three other accused, namely, Manish Kumar @ Phirki, Sandip Kumar @ Ghora, and Bhim Sen @ Prema were acquitted by the trial Court. Therefore, the State of Punjab, aggrieved by the order of acquittal passed by the trial Court, has preferred Crl. Appeal No. 494-DB of 2008. The complainant Rajesh Mahajan has also preferred Crl. Revision No. 1109 of 2008, aggrieved by the order of acquittal passed by the trial Court as against the aforesaid three accused. 2. PW6 Rajesh Mahajan, who was none other than the brother of the deceased Raj Kumar, lodged a complaint Ex.PE with PW8 SI Natha Singh. The brief text of the complaint is as follows :- The deceased Raj Kumar Mahajan was his elder brother and Raj Rani was his sister. Raj Kumar Mahajan was running a ready made cloth shop in Landa Bazar, Amritsar, opposite Railway Station. He had already divorced his first wife Babli. He got a son and a daughter through her. Both the children of Raj Kumar Mahajan resided with his sister Raj Rani, resident of Crl. Appeal No. 1079-DB of 2007 and connected cases -3- Gali Masitwali, Islamabad, Amritsar. Raj Kumar Mahajan used to visit the house of Raj Rani. Raj Kumar got married with one Aarti about one year prior to the occurrence. She also left for her parental home having picked up a quarrel with Raj Kumar. At about 1:00 AM on 9.10.2003, Neeru, the daughter of Raj Rani (PW1) came to his house and informed him that some unknown persons killed Raj Kumar by stabbing him in his chest in the street in front of her house. He proceeded to the place of occurrence and found the dead body of his brother Raj Kumar lying in the street in a pool of blood. His sister Raj Rani, nephew Rahul and Ex-Councillor Kailash were present near the dead body. He inquired as to how the occurrence took place. He was informed that nobody knew about the occurrence. But there was a quarrel between his brother Raj Kumar and Manu, Prema, Firki, and Ghora, who also worked at Landa Bazar. The above boys have killed his brother Raj Kumar by stabbing him due to old enmity. He was confident that the occurrence was only committed by them or by the family member of his brother's wife. b) Based on the aforesaid complaint given by PW6 Rajesh Mahajan PW8 SI Natha Singh attached to Islamabad police station, Amritsar, sent ruqua for registration of the case. ASI Savinder Singh registered formal First Information Report Ex.PC. PW8 proceeded to the scene of occurrence and got the dead body identified by Rajesh Mahajan (PW6), Raj Rani (PW1), and Rahul son of the said Raj Rani. PW8 collected the blood stained earth from the spot and converted the same into a parcel and sealed the same. He prepared inquest report Ex.PQ. He also drew rough sketch Ex.PR. He recorded the statement of witnesses and sent the dead body for post mortem Crl. Appeal No. 1079-DB of 2007 and connected cases -4- examination. PW2 Dr. Shilekh Mittal conducted post mortem examination on the dead body of Raj Kumar on 9.10.2003. at about 12:40 PM. He found the following injuries on the dead body of Raj Kumar :- “1) An elptical shaped incised stab wound 1.5 x 08 cms vertically placed just above the suprasternal notch. Clotted blood was present and muscle deep. 2) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of the chest, obliquely placed, 6 cms above and medial to nipple at 1 O' clock position. Clotted blood was present. 3) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of the chest, obliquely placed, 6 cms above and medial to right nipple at 2 O' clock position. Clotted blood was present. 4) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of chest, obliquely placed 5.5 cms medial to nipple at 3 O' clock position. Clotted blood was present. 5) An elptical shaped incised stab wound 2.5 x 2 cms was present on the right anterior axillary line 8.5 cms below tip of axilla transversely placed. Clotted blood was present. 6) An elptical shaped incised stab wound 3 x 1 cms was present on the right lateral side of chest, 3 cms below injury No. 5. Clotted blood was present, obliquely placed. 7) An elptical shaped incised stab wound 3 x 2 cms was present on the right lateral side of chest, 6 cms below injury No. 6 obliquely placed. Clotted blood was present. 8) An elptical shaped incised stab wound 3 x 1 cms was present on the lateral aspect of chest, 1 cm below injury No. 7, obliquely placed. Clotted blood was present. Crl. Appeal No. 1079-DB of 2007 and connected cases -5- 9) An elptical shaped incised stab wound 3 x 01 cms was present on the right lateral aspect of chest, 0.5 cms below injury No. 8, obliquely placed. Clotted blood was present. 10) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of chest 0.4 cm below injury No. 9, obliquely placed. Clotted blood was present. 11) An elptical shaped incised stab wound 3 x 1 cms was present on the right side of lower chest, 1.2 cm below injury No. 10 transversely placed. Clotted blood was present. 12) An elptical shaped incised stab wound 3 x 1.5 cms was present on the right side of abdomen in hypochondrium region 1.5 cm below and lateral to injury No. 11 transversely placed. Clotted blood was present. 13) An elptical shaped incised stab wound 3 x 1 cm was present on the right side of abdomen in hypochondrium region 0.3 cm below injury No.12, transversely placed. Clotted blood was present. 14) An elptical shaped incised stab wound 3 x 1.2 cm was present on the right side of abdomen in hypochondrium region 1.5 cm below injury No. 13. Obliquely placed. Clotted blood was present. 15) An elptical shaped incised stab wound 3 x 1 cm was present on the right side of abdomen in hypochondrium region 1.5 cm below injury No. 14. Obliquely placed. Clotted blood was present. 16) An elptical shaped incised stab wound 3 x 1.5 cm was present on the right side of abdomen in hypochondrium region 3 cms below and medial to injury No. 11. Obliquely placed. Clotted blood was present. Crl. Appeal No. 1079-DB of 2007 and connected cases -6- 17) An elptical shaped incised stab wound 3 x 1cm was present on the right side of abdomen in hypochondrium region 2 cm below injury No. 16. Obliquely placed. Clotted blood was present. 18) An elptical shaped incised stab wound 3 x 1cm was present on the right side of abdomen 1.5 cm medial to injury No. 15. Obliquely placed. Clotted blood was present. 19) An elptical shaped incised stab wound 3 x 1cm was present on the front of right side of abdomen 11 cm above and lateral of umblicus at 11 O' clock position. Obliquely placed. Clotted blood was present. 20) An elptical shaped incised stab wound 3 x 1cm was present on the front of right side of abdomen, 1 cm lateral to injury No. 19. Obliquely placed. Clotted blood was present. 21) An elptical shaped incised stab wound 3 x 1cm was present on the right side of abdomen 1 cm below injury No. 20. Obliquely placed. Clotted blood was present. 22) An elptical shaped incised stab wound 3 x 1cm was present on the right side of abdomen 8 cm above and lateral to umblicus at 10 O' clock position. Obliquely placed. Clotted blood was present. 23) An elptical shaped incised stab wound 3 x 1cm was present on the abdomen 0.8 cm below injury No. 22. Obliquely placed. Clotted blood was present. 24) An elptical shaped incised stab wound 4 x 1cm was present on right side of abdomen 4 cm above umblicus at 12 O' clock position. Obliquely placed. Clotted blood was present. 25) An elptical shaped incised stab wound 1 x 0.4 cm was present on the front of right side of abdomen in right iliac region 6 cm above and medial to anterior Crl. Appeal No. 1079-DB of 2007 and connected cases -7- superior iliac spine at 2 O' clock position. Obliquely placed. Clotted blood was present. 26) An incised wound 4 x 1cm was present on the back of left side of forearm. 1 cm above wrist. Obliquely placed. Clotted blood was present. 27) An incised wound 2 x 0.5 cm was present on the back of left forearm. 0.2 cm above injury No. 6. Obliquely placed. Clotted blood was present. 28) An incised wound 1 x 0.2 cm was present on the left side of neck 1.5 cm below left angle of mandible. Obliquely placed. Clotted blood was present. 29) An incised wound 1.2 x 0.2 cm was present on the left side of neck 0.5 cm below injury No. 20. Obliquely placed. Clotted blood was present. 30) An incised wound 1 x 0.4 cm was present on the left side of neck 0.2 cm lateral to injury No. 29. Obliquely placed. Clotted blood was present. 31) An incised wound 1 x 0.3 cm was present on the left side of neck 0.2 cm below injury No. 30. Obliquely placed. Clotted blood was present. 32) An incised wound 1 x 0.3 cm was present on the left side of neck 1.7 cm below injury No. 29. Obliquely placed. Clotted blood was present. 33) An incised wound 0.5 x 0.2 cm was present on the left side of neck 0.5 cm lateral to injury No. 32. Obliquely placed. Clotted blood was present. 34) An incised wound 1 x 0.5 cm was present on the left lateral side of the neck 3 cm below and posterior to left angle of mandible. Obliquely placed. Clotted blood was present. 35) An incised wound 1 x 0.2 cm was present on the back of left forearm. 8 cm below elbow prominenes. Obliquely placed. Clotted blood was present. 36) An incised wound 4 x 2 cm was present on the front of right forearm 10 cm proximal to wrist. Obliquely placed. Clotted blood was present. Crl. Appeal No. 1079-DB of 2007 and connected cases -8- 37) An incised wound 1.8 x 4 cm was present on the back of the neck. 2 cm below posterior hairline. Obliquely placed. Clotted blood was present. 38) An incised wound 3 x 1cm was present on the back of neck 2 cm below posterior hair line. Obliquely placed. Clotted blood was present. 39) An incised wound 0.8 x 0.3 cm was present on the back of neck 5.5 cm below posterior hair line. Obliquely placed. Clotted blood was present. 40) An incised wound 2.1 cm was present on the back of neck and head on the posterior hair line. Obliquely placed. Clotted blood was present. 41) 3 x 1.5 cm incised wound was present on the back of neck and head on the posterior hair line, obliquely placed 2 cm towards right from injury No. 40. Clotted blood was present. 42) An incised wound 3 x 0.5 cm was present on the back of neck and head on posterior hair line 0.2 cm towards right from injury No. 41 obliquely placed, clotted blood was present. 43) A reddish brown abrasion 1.5 x 0.5 cm was present on the left side of forehead 1 cm above left eye brow. 44) A reddish brown abrasion 1 x 0.3 cm was present on the left side of forehead 1.5 cm above injury No. 43. 45) A reddish brown abrasion 1 x 0.5 cm was present on the left side of forehead 1 cm medial to injury No. 44. 46) A reddish brown abrasion 1 x 0.3 cm was present on the left side of forehead 2 cm above and medial to injury No. 45.” All the injuries were found to be ante mortem in nature. He opined that the deceased had died due to hemorrhage and shock on account of the impact of the injuries No. 2, 3, 7, 8, 9, 10, 4, 12, 13, 14, 15, and 18, which was sufficient to cause death in the ordinary course of nature. The death would have occurred within 12 hours prior to the post mortem examination. Crl. Appeal No. 1079-DB of 2007 and connected cases -9- c) On 9.10.2003 itself, PW8 arrested both the accused, i.e., Manmohan Kumar @ Manu and Manish Kumar @ Phirki. The houses of both the accused were raided and their wearing apparels, namely, shirts and vests were recovered under memo Ex.PX. On the same day, the wearing apparels found on the dead body were produced by Head Constable Balwant Singh (PW7). d) On 10.10.2003, PW8 recorded the statement of witnesses. He produced those accused in the Court and obtained their police custody. On 11.10.2003, he separately interrogated accused Manmohan Kumar @ Manu and accused Manish Kumar @ Phirki and recorded their discovery statements Ex.PJ and Ex.PK. The daggers from the bushes identified by those two accused, based on their discovery statements, were recovered under relevant memo Ex.PM. During investigation, he made inquiries from the shopkeeper Kamal Sood (PW3). His shop was identified by those accused. The statement of Kamal Sood (PW3) was recorded by PW8. PW11 Ms. Ranjit Kaur, JMIC, Mansa, based on the application moved by the police recorded the statement of PW1 Raj Rani (Ex.PZ/2) under Section 164 Cr.P.C. PW8 having completed investigation laid the challan as against the accused. 3. The accused responding to the incriminating portion spoken to by the witnesses examined on the side of the prosecution stated that they were innocent. But, unfortunately they were falsely implicated in this case. b) On the side of defence, DW1 Kewal Krishan was examined. He has deposed that the accused Sandip Kumar @ Ghora infact attended the dinner hosted by him on 8/9.10.2003. The function lasted upto 0030 AM on Crl. Appeal No. 1079-DB of 2007 and connected cases -10- 9.10.2003. Infact Sandip Kumar @ Ghora spent his night in the house of DW1 Kewal Krishan. c) DW2 Mohinder Pal Gupta was the Press Reporter of Hind Samachar Group of Newspapers published in Jalandhar. Having visited the spot, he published the news item Ex.DW2/A on 10.10.2003. d) DW3 ASI Swaran Singh has deposed that he having recorded the statement of Kewal Krishan, Vijay Gora and Rajinder Singh came to a conclusion that Sandip Kumar @ Ghora and Bhim Sen @ Prema were innocent. e) DW4 DSP Amarjit Singh has deposed before the trial Court that the report submitted by DW3 was verified by him, but he had not submitted a separate report. 4. The trial Court totally disbelieved the ocular testimony of PW1 (Raj Rani). The trial Court having relied upon the previous enmity spoken to by the witnesses, recovery of blood stained clothes and daggers at the instance of accused recorded conviction as against the appellant. 5. Learned counsel appearing for the accused/appellant would submit that the trial Court has totally disbelieved the evidence of PW1 Raj Rani, an eye witness projected by the prosecution. There is no evidence to connect the blood stains alleged to be found in the clothes of the accused/appellant to the deceased Raj Kumar. The evidence of PW3 Kamal Sood cannot also be relied upon as his evidence does not inspire confidence. The FSL report also does not disclose the group of blood found in the apparel of the accused/appellant. Therefore, it is his submission that the accused/appellant has so far suffered seven years of rigorous imprisonment in spite of the fact that there was no legal evidence available on record. Crl. Appeal No. 1079-DB of 2007 and connected cases -11- 6. Per contra, learned Addl. Advocate General appearing for the State would submit that the trial Court has rightly relied upon the evidence of PW3 Kamal Sood, PW7 Head Constable Balwant Singh, and PW8 SI Natha Singh, the investigating official in this matter in the background of medical evidence and FSL report to convict the accused/appellant for the murder of Raj Kumar. But the trial Court failed to return a verdict of conviction as against the other three accused who faced the trial. She would also submit that the statement given by PW1 Raj Rani would go to show that she was really an eye witness to the occurrence. Therefore, her evidence should have also been relied upon by the trial Court as against all the accused. 7. Learned Amicus Curiae Ms. Anju Arora, who was appointed as amicus-curiae in this case in the absence of counsel for the complainant, who filed Crl. Revision No. 1109 of 2008, would submit that she fully endorsed the arguments advanced by the learned Addl. Advocate General for the State. It is her further submission that the ocular testimony of PW1 Raj Rani was completely ignored by the trial Court without considering the fact that within a few days of the occurrence, she had given statement under Section 164 Cr.P.C. Therefore, it is her submission that the prosecution has established beyond reasonable doubt that all the accused committed murder of Raj Kumar. 8. It is an unfortunate case where there was no legal evidence to clamp the accused/appellant with the charge of murder of Raj Kumar, who has suffered so far seven years of rigorous imprisonment. The ocular testimony of PW1 Raj Rani is found to be absolutely unnatural and unbelievable as rightly pointed out by the learned counsel appearing for the accused/appellant. The recovery of blood stained clothes from the accused/appellant did not establish beyond reasonable doubt the involvement of the accused/appellant in the Crl. Appeal No. 1079-DB of 2007 and connected cases -12- offence of murder of Raj Kumar. The recovery of daggers alleged to have been sold by PW3 Kamal Sood does not appear to be true. There might have been previous enmity for the accused/appellant with the deceased, but the complaint given by PW6 Rajesh Mahajan would go to indicate that he had a strong suspicion as against the family members of the wife of the deceased Raj Kumar also. There was no solid foundation of previous enmity the accused/appellant had with the deceased. 9. The evidence of PW2 Dr. Shilekh Mittal, who conducted post mortem examination, would establish beyond reasonable doubt that the deceased Raj Kumar who received as many as 12 lethal injuries out of 46 injuries was virtually butchered to death. Therefore, there is no doubt that Raj Kumar died due to homicidal violence. 10. Let us now critically analyse the first version of the prosecution found in the complaint Ex.PE lodged by Rajesh Mahajan (PW6) who was none other than the blood brother of the deceased Raj Kumar. He has categorically stated in the complaint Ex.PE that Neeru, the daughter of his sister PW1 Raj Rani came and informed him at about 1:00 AM on 9.10.2003 that Raj Kumar was stabbed to death by unknown persons in front of her house. It is his further version in the complaint that his sister Raj Rani was very much present near the dead body at the spot when he proceeded over there on information by Neeru. As he was not very much sure of the enmity the deceased had with all the four accused, the enmity the deceased had with the family members of the wife of Raj Kumar was also projected in the complaint. 11. Of course, it is contended by the learned Amicus Curiae appearing for the complainant that PW6 Rajesh Kumar Mahajan was not the author of complaint Ex.PE. The information furnished by him that Raj Rani who Crl. Appeal No. 1079-DB of 2007 and connected cases -13- became unconscious on witnessing the occurrence informed him of the attack launched by the accused was not properly recorded by PW8. We do not have any hesitation to reject such a submission made by the learned Amicus Curiae appointed by this Court for the complainant. Firstly, we find that certain personal affairs of the deceased, namely, the divorce of first wife of the deceased and the second marriage solemnised by him with one Aarti and her departure from the matrimonial home to her parental home have been succinctly described in the First Information Report. Those particulars cannot be concocted by the police out of their imagination. These particulars relating to the personal affairs would have definitely emanated from PW6 Rajesh Kumar Mahajan. Therefore, it is totally unbelievable that PW6 was not the author of the complaint Ex.PE. Secondly, on perusal of the inquest report and the statement of PW1 Raj Rani recorded by PW8 during the course of inquest proceeding, we find that PW1 Raj Rani had participated during the course of inquest conducted by PW8. The inquest proceeding conducted by PW8 in the presence of PW1 Raj Rani and PW6 Rajesh Kumar Mahajan would reflect that Raj Kumar, the brother of Rajesh Kumar Mahajan, was done to death by unknown assailants. It is to be noted that their stand in the statement u/s 161 Cr.P.C. was exposed during the course of cross examination of those witnesses by way of eliciting the contradictions with reference to their previous statements recorded under Section 161 Cr.P.C. 12. The First Information Report was registered at 2:15 AM on 9.10.2003 based on the