CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. D-357-DB of 2006 Decided on : 30th October, 2012 Pawan s/o Mool Chand r/o Roshi Colony, Jhajjar .....Appellant. Versus State of Haryana ..... Respondent Criminal Appeal No. D-191-DB of 2006 Rajat s/o Takhat Singh r/o Chuliyan Pana, Beri Distt. Jhajjar .....Appellant. Versus State of Haryana ..... Respondent CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE S.P. BANGARH ***** Present: Mr. Akashdeep Singh, Advocate (amicus curiae), for the appellant-Pawan in CRA No. D-357-DB of 2006 Mr. J.S. Bedi, Advocate for the appellant-Rajat (in CRA No. D-191-DB of 2006) Mr. H.S. Sran, Addl. AG, Haryana for the respondent. ***** S.P. BANGARH, J The appellants have assailed the judgment of conviction dated 20.02.2006 and order of sentence dated 27.02.2006, passed by the learned Additional Sessions Judge, Jhajjar, in Session Trial No. 58 of 2005, Session Case No. 17 of 2002, emanating from FIR No. 236 dated 22.05.2002, under Section 302 read with Section 34 IPC, Police Station CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 2- Jhajjar, whereby, they were convicted for commission of offence punishable under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life each and to pay a fine of `5,000/- each and in default of payment of fine, to further undergo imprisonment for 03 months each. Criminal Appeal No. D-357-DB of 2006, filed by Pawan appellant and Criminal Appeal No. D-191-DB of 2006, filed by Rajat appellant pertain to common impugned judgment and order of sentence, there are taken up together and the judgment shall be passed in Criminal Appeal No. D-357- DB of 2006. The case of the prosecution is that on 22.05.2002, Parveen Kumar (complainant) had come to Jhajjar for his personal work. When at about 11.45 a.m., he reached near the old bus stand, Jhajjar, Pankaj son of Durga Dutt (since deceased) met him on his motorcycle. Parveen- complainant was also on his own motorcycle and they went towards the Silani Gate. When they reached near the shop of Fanne Khan, mechanic, Rajat-appellant came driving on one Yamha motorcycle and Pawan- appellant was pillion rider, thereon. Rajat-appellant stopped his motorcycle, and called Pankaj-deceased, thereupon, latter also stopped his motorcycle then Pawan-appellant came near Pankaj-deceased after alighting from the motorcycle saying that he will teach him a lesson of protesting him on phone and he took a knife from the left side of his trouser and inflicted two blows, thereof, on Pankaj-deceased, one on the centre side of the chest and the other on the left side of the chest of Pankaj- deceased below the nipple. As a result, Pankaj-deceased fell down and one Partap, who was known to Pankaj-deceased came there. Complainant and Partap helped Pankaj-deceased and in the meantime, both the appellants (Pawan and Rajat) fled away on the same motorcycles towards CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 3- the old bus stand. In the meantime, one Sandeep also came there and he took Pankaj-deceased to Civil Hospital, Jhajjar, who succumbed to his injuries on the way to hospital. Partap informed the family members of Pankaj- deceased. Motive of the occurrence was that Pawan and Rajat (appellants) used to use obscene language on the phone of Pankaj- deceased and for that latter protested. Statement (supra) Ex.PJ of Parveen was recorded by Bimla Devi, SI (PW-17) who read over the same to Parveen and the latter after admitting correctness, thereof, signed the same. Then Bimla Devi SI (PW-17) sent the statement Ex.PJ with her endorsement Ex.PJ/1 to Police Station, Jhajjar, where, formal FIR Ex.PJ/2 was recorded by Mahipal ASI. Bimla Devi SI (PW-17) had reached the Civil Hospital, Jhajjar on the basis of information received from Civil Hospital, Jhajjar, regarding the death of Pankaj in the Civil Hospital, Jhajjar vide ruqa Ex.PB. She prepared inquest report Ex.PE on the corpse of Pankaj and handed over his corpse to Chander Gupt ASI for getting conducted autopsy, thereon. Later, Bimla Devi SI (PW-17) went to the place of occurrence. She arranged a photographer, obtained photographs of the spot Ex.P1 to P4 whose negatives are Ex.P5 to P8. She also prepared rough site plan Ex.PO of the place of occurrence with the help of Parveen (complainant). She also lifted blood stained earth from the spot and sealed that into a parcel with her seal bearing impression 'BD'. She also lifted one shoe of right foot of Pankaj-deceased which too was sealed into a parcel with her seal bearing impression 'BD' and that parcel was seized vide memo Ex.PL, which was attested by Partap and Jagdish and seal after use was handed over to Jagdish HC. Motorcycle of the deceased-Pankaj was also sent to Police CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 4- Station by Partap relative of the deceased. Even, Mohinder Singh SI/SHO, also reached at the spot. Narinder DSP also reached at the spot. Bimla Devi S.I. PW-17 then went towards bus stand, where Chander Gupt ASI handed over to her one sealed parcel containing clothes of the deceased- Pankaj and along with sealed envelope containing seal impression and inquest papers. Parveen (complainant) also reached at bus stand, who was having blood stained shirt and trouser; he had taken the deceased to the doctor; he handed over those (trouser and shirt) to Bimla Devi SI (PW- 17) who sealed those into a parcel with seal bearing impression 'CG' and seized that parcel vide memo Ex.PN. She handed over the seal after use to Chander Gupt ASI. Bimla Devi SI (PW-17) on 24.05.2002 at about 8.00 p.m. arrested Pawan-appellant from bus stand, Jhajjar and she sent information about his arrest to his brother. She also got Pawan-appellant medico legally examined and interrogated him on 25.05.2002. During interrogation, Pawan-appellant suffered disclosure statement Ex.PF and pursuant, thereto, he got recovered knife whose sketch Ex.PG was prepared and the same was seized vide memo Ex.PH. She also prepared rough site plan of the place of recovery of knife Ex.PQ. Mohinder Singh, Inspector, P.S. City, Bahadurgarh arrested Rajat-appellant on 24.05.2002, who in the presence of Partap and Suraj Bhan was interrogated on 26.05.2002. During interrogation, Rajat- appellant suffered disclosure statement Ex.PI and pursuant, thereto, he got recovered motorcycle bearing No. DBT 2696 Suzuki from a room near Kachhi Beri road and that was seized vide memo Ex.PI/A. Rough site plan Ex.PM of the place of recovery of motorcycle was also prepared by Mohinder Singh, Inspector (PW-14). Blood stained earth, blood stained clothes and blood stained CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 5- knife were sent to the Forensic Sciency Laboratory, Madhuban, who gave report containing two leaves Ex.PR and PR/1. In the report Ex.PR, it was mentioned that blood was detected in the blood stained earth, blood could not be detected on the knife and the T-Shirt, trousers, underwear, shoes; shirt and trousers were stained with blood. After completion of investigation, Station House Officer of Police Station Jhajjar instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C-for short) before the learned Illaqa Magistrate to the effect that it appeared that the appellants had committed offence punishable under Sections 302/34 IPC. On presentation of police report, copies of documents as required under Section 207 Cr.P.C. were furnished to the appellants and the case was later committed to the Court of Session, where charge under Section 302 IPC read with Section 34 IPC was framed against both the appellants, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned. At the trial, the prosecution examined following 17 witnesses whose depositions are as under: PW-1 Surinder Kumar Photographer testified that on 22.05.2002, he visited the spot and took the photographs Ex.P1 to P4 whose negatives are Ex.P5 to P8. PW-2 Vijay Singh, MHC testified taht on 22.05.2002, Bimla Devi SI deposited with him a sealed parcel of blood stained earth, a sealed parcel of clothes of the deceased, a sealed parcel of a knife and a sealed parcel of clothes of the prosecution witnesses and on 08.07.2002, he handed over those to Jagbir Singh Constable for deposit, thereof, with the Forensic Science Laboratory at Madhuban and the latter, after depositing the same in the Laboratory (supra) handed over receipt to him. He further CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 6- testified that, so long as, the case property remained in his possession, no one tampered, therewith. PW-3 Virender Kumar Constable testified that on 22.05.2002, Mahipal Singh ASI handed over to him three envelopes containing special report and he handed over one envelope to Ilaqa Magistrate at his residence and two other envelopes to SP/DSP concerned without any delay. PW-4 Dr. S.C. Nawal testified that on 22.05.2002, he sent intimation Ex.PG regarding the corpse of Pankaj to the Police Station City, Jhajjar at 12.15 noon. PW-5 Jai Chand Constable testified that on 10.07.2002, he inspected the spot and prepared scaled site plan Ex.PH. PW-6 Ombir testified that on 20.06.2002, he recorded the statement of Surender Singh Constable, Vijay Pal HC, Jaiveer Constable and Jai Chand Constable under Section 161 Cr.P.C as also, he collected the photographs from Surinder Photographer and he also got drawn site plan from Jai Chand Constable. PW-7 Dr. Aruna Sangwan testified that on 22.05.2002, she conducted the autopsy on the corpse of Pankaj and found the following injury: 1. “Incised wound of 7x2.5 cm, with regular smooth and bevelled margins lying obliquely from the xiphisternum just about costal margins downwards and laterally 9 cm below left nipple cut and soft 8th and 9th ribs were seen in the wound. Underlying muscles were cut and haematoma was present. On further dissection there was cut on pericardium of size 2.5 cm x 2.2 cm. Corresponding to the wound. On further dissection there was a wound of size 3 x 2.2 cm on anterior medial aspect of right ventricle perforating interventricular spectum and going to left ventrical. Paricardial cavity was full of blood. CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 7- She further testified that the cause of death in their opinion was due to injuries to the vital organ i.e. heart, leading to haemorrhage and shock, which was ante mortem in nature and sufficient to cause death in due course. She also testified that the autopsy was conducted by panel of doctors consisting of herself and Dr. Raj karan. She also testified that time between death and autopsy was 3 to 24 hours. She also testified that she handed over to the police a well stitched corpse with its belongings, a parcel bearing 5 seals containing shirt, trouser and underwear, police papers 8 leaves in number duly signed by her, copy of PMR No. AS/1/02 on 22.05.2002 and sample of seal. She also proved copy of the autopsy report Ex.PD. She also proved police request Ex.PD/1. She also testified that she and Dr. Raj Karan gave opinion Ex.PD/2 that possibility of injury caused by the knife which had been shown to her cannot be ruled out and thereafter, they re-sealed the parcel of knife with three seals and handed over that parcel along with sample seal to Moti Ram ASI. Knife Ex.P9 was shown to this witness during her deposition. Underwear Ex.P10, T-shirt Ex.P11, trouser Ex.P12 were also produced during the deposition of this witness, who identified to be those which were handed over to the police by her and which were worn by the deceased-Pankaj at the time of autopsy. PW-8 Amit Yadav testified that Pankaj Yadav (deceased) was his younger brother and that on 22.05.2002 after receipt of information, he went to Civil Hospital, Jhajjar, where he identified the corpse of his brother. PW-9 Ram Mehar testified that on 25.05.2002, he had gone to the Police Station Jhajjar and in his presence, Bimla Devi SI interrogated Pawan-appellant, who suffered disclosure statement Ex.PF to the effect that the knife used by him in the occurrence had been kept concealed by him in a plot in his house underneath the bricks and could get the same recovered. He further testified that Pawan-appellant led the police party CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 8- and the witnesses to that place and got recovered knife Ex.P9 whose rough sketch Ex.PG was prepared and later parcel, thereof, was also prepared which was sealed with the seal bearing impression 'MR' and that parcel was seized vide memo Ex.PH, which attested by him and Satish Kumar Constable. PW-10 Partap Yadav also testified that on 26.05.2002, he had gone to the Police Station Jhajjar, where Mohinder Singh ASI interrogated Rajat-appellant and during interrogation, the latter made disclosure statement Ex.PI to the effect that he has kept concealed a motorcycle bearing No. DBT 5696 near bundh in an abandoned place on kachha Beri road and could get the same recovered and pursuant, thereto, he got recovered the motorcycle from the place disclosed in his disclosure statement and that was seized vide memo Ex.PI/A, which was attested by him and Suraj Bhan HC. PW-11 Parveen Kumar testified that on 22.05.2002, he was present at old bus stand, Jhajjar at about 11.45 a.m. on his motorcycle. At that time, Pankaj-deceased met him who came on motorcycle from Electricity Office, Jhajjar and then they started towards Silani gate on their respective motorcycles and when they reached near Fanne Khan mistri, Pawan-appellant came there on motorcycle and called Pankaj-deceased and then he took out a knife and gave a blow on the chest of Pankaj- deceased and then he gave another blow on the left side of chest of Pankaj-deceased and after receiving injury Pankaj-deceased was calling to save him and in the meantime Sandeep also came there, who was also known to him and they took him to hospital and Pankaj-deceased died on the way to hospital. He further testified that he informed the family members of Pankaj on phone and on receipt of information, mother, sister of the deceased-Pankaj and Partap came there and in the evening at CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 9- 4.30 p.m., father of Pankaj-deceased also came there and police recorded his statement Ex.PJ and he had not told anything to the police. He further testified that police told him to give his clothes which were blood stained. On the next day, he sent his clothes to the police in a polythene bag. He came to his house at 5.00 p.m. on 22.05.2002 and his signatures were obtained at 4.45 p.m. on 22.05.2002. This witness was declared hostile to the respondent and cross-examined by the learned Public Prosecutor for the respondent before the learned trial Court. PW-12 Jaibir Constable tendered in evidence his affidave Ex.PK. PW-13 Partap Singh also testified that on 22.05.2002, he had come to Jhajjar for his personal work and at about 11.45 a.m., he was present in front of the shop of Fanne Khan mistri and at that time, two motorcycles came from behind from the side of old bus stand, Jhajjar and one motorcycle came from the side of Silani Gate, on which two boys were sitting and the person who was driving the motorcycle asked the motorcycle driver coming from the old bus stand to stop and both the motorcycles stopped at that place and the pillion rider of the motorcycle, coming from the side of Silani gate alighted from the motorcycle and took out a knife from the left side of his waist and gave two blows, thereof, on the person of the deceased-Pankaj. He further testified that the motorcycle which had come from the side of Silani gate was kept in starting position by its driver and the assailants by saying that the work is done fled away on the motorcycle towards the old bus stand. In the meantime, another boy Sandeep alleging himself to be friend of Pankaj-deceased also came there and both of the them lifted Pankaj-deceased to whom, he was earlier known and then they took him to the hospital and later he (sandeep) went to the house of D.D. Yadav, father of the deceased to inform about the incident and then he (D.D. yadav) learnt that Pankaj had expired. He CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 10- further testified that police official Jagdish took him in a jeep to the place of occurrence from where blood stained earth and shoe of the deceased- Pankaj were lifted and seized vide memo Ex.PL, which was signed by him. He also testified that the person who was driving the motorcycle was Rajat- appellant and the person who inflicted knife blow was Pawan-appellant and both are present in the Court. Shoe Ex.P15 was shown to him during his deposition. PW-14 Mohinder Singh Inspector testified that on 24.05.2002, he arrested Rajat-appellant from the Court at Jhajjar and obtained his police remand uptil 27.05.2002 and in the presence of Partap and Suraj Bhan on 26.05.2002, he interrogated Rajat-appellant and the latter suffered disclosure statement Ex.PI and pursuant, thereto, he got recovered motorcycle DBT 5696 Suzuki, which was seized vide memo Ex.PI/A. He also testified that the rough site plan Ex.PM of the place of recovery of motorcycle was also prepared by him. PW-15 Moti Ram ASI also testified that on 25.06.2002, he moved an application Ex.PD/1 regarding opinion of the doctor regarding knife, as to whether the injury on the person of the deceased-Pankaj could be caused, therewith. He also testified that the knife was obtained by him from MHC, P.S. Sadar, Jhajjar, which was sealed into a parcel and after taking out the knife from the parcel, Dr. Aruna Sangwan and Dr. Raj Karan examined the knife and gave their opinion Ex.PD/2 that the possibility of injury found on the person of the deceased-Pankaj having been caused with that knife could not be ruled out. He also testified that doctor resealed the knife after examination and handed over the same to him with their report and he deposited that parcel again with MHC in the police station. PW-16 Chander Gupt ASI also testified that on 22.05.2002, he took the corpse of Pankaj for autopsy as per direction of Bimla Devi SI and CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 11- after autopsy, the doctor handed over to him a sealed parcel of clothes of the deceased with the autopsy report and inquest papers duly signed by the doctor and a sealed envelope containing the seal impression and on return to the police station, he met Bimla Devi SI at bus stand, Jhajjar and handed over those to her who seized those vide memo Ex.PN. He also testified that in the meantime, Parveen also met them at bus stand, Jhajjar, who was having blood stains on his clothes, as he had taken the deceased to the hospital and he put off his clothes and handed over those to Bimla Devi SI and she sealed those clothes into a parcel with her seal bearing impression 'CG' and sealed that parcel vide memo EX.PN and seal after use was handed over by Bimla Devi Si to him. Trouser Ex.P13 and Shirt Ex.P14 were produced during the deposition of this witness. PW-17 Bimla Devi SI investigated this case and she deposed on the lines of investigation, which has been reproduced in the earlier parts of this judgment. After tendering in evidence the report of the Forensic Science Laboratory containing two leaves Ex.PR and Ex.PR/1, learned Public Prosecutor for the respondent before the learned trial Court closed the prosecution evidence. After the close of prosecution evidence, both the appellants (Pawan and Rajat) were examined under Section 313 Cr.P.C, wherein, they denied the allegations of the prosecution, pleaded innocence and false implication in this case. Pawan-appellant gave his own version that he is innocent and has been falsely implicated in this case. He also stated that indeed some unknown persons caused injuries to Pankaj-deceased in the wee hours and in connivance with the police and after consultation of relative advocate of the deceased-Pankaj and others, false eye witnesses have CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 12- been introduced and false recovery has been manipulated and indeed, no recovery of any kind was made from him. Rajat-appellant also gave his own version that he is innocent and has been falsely implicated in this case and he has no concern with the alleged occurrence. Appellants were called upon to enter in defence, but they closed the same without examining any witness in defence. After hearing both the sides, the learned trial Court vide impugned judgment of conviction and order of sentence, convicted and sentenced the appellants, as described in the fist paragraph of this judgment. Aggrieved, thereagainst, the appellants, who were accused before the learned trial Court have come up in this appeal with prayer for acceptance, thereof, and for their acquittal of the charge framed against them for the commission of offence punishable under Section 302 read with Section 34 IPC. We have heard learned counsel for the appellants and learned Additional Advocate General for the respondent and perused the record of the learned trial Court with their assistance. Learned Additional Advocate General for the respondent contended that all the prosecution witnesses supported the case of the prosecution and no motive can be ascribed to them to testify falsely in this case. He also contended that there is no inordinate delay in lodging the FIR and that the motive of the crime is that the appellants used to use obscene language in their phone calls being made to the deceased and the latter, resisted the same and that incensed the appellants to commit his murder. He also contended that the presence of both the appellants at the place of occurrence is CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 13- established from the testimony of the eye witnesses and the investigating officer duly verified the statements of the eye witnesses and came to the conclusion that the occurrence had taken place in the manner alleged by the eye witnesses. He also contended that Rajat-appellant was driving his motorcycle make Suzuki while Pawan-appellant was a pillion rider, thereon, and he was having knife with him and both had come prepared to kill Pankaj-deceased and the injury caused by Pawan-appellant on the chest of Pankaj- deceased proved fatal and he succumbed, thereto. He also contended that medical evidence provided through the testimony of PW-7 Dr. Aruna Sangawan corroborates the ocular evidence and it is also established from her testimony that the knife recovered from Pawan-appellant was a possible weapon for causing injury to the deceased. He also contended that there was only one injury on the person of the deceased, which proved fatal, which cut the muscles inside the body and that led to haemorrhage and shock. On the other hand, learned counsel for the appellants contended that Sandeep was present at the spot, but he was not examined and due to his non-examination adverse inference was required to be drawn against the respondents. They also contended that there was delay in lodging in the FIR. They also contended that there was no blood stain on the knife allegedly recovered from Pawan-appellant, therefore, that could not be a weapon for causing injury and, if that is so, it becomes a case of no recovery of weapon of offence. They also contended that if the Forensic Science Laboratory report had indicated human blood on the knife allegedly CRA No. D-357-DB of 2006 and CRA No. D-191-DB of 2006 - 14- recovered from Pawan-appellant, only then that could be said to have been used in the alleged occurrence. They also contended that the recovery of motorcycle is also doubtful as no