Criminal Appeal No. 149-DB of 2002 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 149-DB of 2002. Date of Decision : 21.09.2010 Om Parkash and others ...... Appellants Versus State of Haryana ......Respondent CORAM : HON'BLR MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Vinod Ghai, Advocate for the appellants. Mr. H.S.Sra, Addl. AG Haryana, for the respondent-State. NAWAB SINGH J. Challenge is to the judgment of conviction and order of sentence dated January 28th, 2002 and January 29th, 2002 respectively passed by the Additional Sessions Judge, Bhiwani, whereby, the accused-appellants were convicted and sentenced as under :- Rakesh Kumar, accused-appellant. Offence U/S Sentence Fine In default 302/34 IPC Imprisonment for Rs. 1000/- RI for two Life months 325/34 IPC RI for 2years Rs. 1000/- RI for two months. 324/34 IPC RI for 1 year. 25 Arms Act RI for 1 year Rs. 100/- Imprisonment for two months. The sentences were ordered to run concurrently. Om Parkash and Murti Devi, Accused-appellants 302/34 IPC Imprisonment for Rs. 1000/- RI for two Life months. 325/34 IPC RI for 2years Rs. 1000/- RI for two months. Criminal Appeal No. 149-DB of 2002 2 .. 324/34 IPC RI for 1 year. 2. During the pendency of this appeal, Om Parkash and Murti, accused-appellants died. Accordingly, appeal filed on their behalf stands abated. 3. The facts leading to this appeal are that on January 18th, 1998, at about 1.30 PM, Mukesh Kumar, complainant – injured – eye witness (PW-10), along with his father, Rajender Singh (deceased), mother – Savitri, brother – Dinesh Kumar (PW-11) and sister – Shakuntla, were sitting in front of their house situated in village Dadma, District Bhiwani. Rakesh Kumar, accused-appellant along with his father Om Parkash, mother – Murti and brother Vinesh, armed with sword, knife, lathi and sword respectively came there. All of them exhorted that they would teach them a lesson for not giving the water of their tubewell to irrigate their field. Rakesh Kumar, accused-appellant caused several injuries to Mukesh Kumar (PW-10) with his sword. He also caused sword blow in the abdomen of Rajender Singh (deceased). Murti, accused-appellant caused a lathi blow on the back of Savitri. Vinesh also gave a sword blow on the left knee of Dinesh. An alarm was raised. Krishan Kumar, uncle of Mukesh Kumar and his wife Nirmala reached the spot. The accused fled away from the scene of occurrence. Mukesh Kumar (PW-10), Dinesh Kumar (PW-11) and their father Rajender Singh were immediately taken to Civil Hospital, Bhiwani. Rajinder Singh died on the way. 4. Motive behind the occurrence was that on the day of occurrence at about 12.00 noon, all the accused-appellants came to the tubewell of Mukesh Kumar (PW-10) and asked him to give water from his tubewell for irrigating their field, but he refused. Mukesh Kumar (PW-10) came to his house after taking out the switch (plug) of the tubewell. The accused felt annoyed and that was the cause of occurrence. 5. Om Parkash, accused-appellant was brother of Rajender Singh (deceased). Per prosecution, the tubewell was Criminal Appeal No. 149-DB of 2002 3 .. installed in the field of Rajender Singh (deceased) and Om Parkash had no share in the tubewell. 6. Partap Singh, Sub Inspector, Station House Officer, Police Station, Badhra (PW-12) received Verbal Transmission Message from General Hospital, Bhiwani with regard to the admission of Mukesh Kumar, Dinesh Kumar and Rajender Singh (brought dead). He reached the hospital and recorded the statement (Exhibit PC) of Mukesh Kumar (PW-10). He appended his endorsement (Exhibit PC/1). First Information Report (Exhibit PC/2) was recorded. 7. On February 1st, 1998, Rakesh Kumar, accused- appellant was produced by Chellu Ram before Partap Singh, Sub Inspector (PW-12) and he was arrested. He made disclosure statement (Exhibit PU) in the presence of Om Parkash, Assistant Sub-Inspector (PW-13) and Rohtash that he had kept concealed the sword in his field. Pursuant to the disclosure statement (Exhibit PU), Rakesh Kumar, accused-appellant led the police party to the disclosed place and got recovered the blood stained sword, which was taken into possession vide recovery memorandum Exhibit PV. Sketch (Exhibit PV/1) of the sword was prepared. 8. After completion of the investigation and other formalities, the accused-appellants were sent up for trial. 9. Charge, in respect of commission of offence punishable under Sections 302, 324 and 325 read with Section 34 IPC was framed against the appellants. They pleaded not guilty and claimed trial. 10. In support of its case, prosecution examined fifteen witnesses, viz. Rajpal, Head Constable (PW-1), Rakesh Kumar, Constable (PW-2), Veer Shakti Singh, Constable (PW-3), Nihal Singh, Assistant Sub Inspector (PW-4), Dr. K.L. Bawa (PW-5), Dr. Parveen Goyal (PW-6), Jai Kishan (PW-7), Dr. M.D. Sharma (PW-8), Hari Chand (PW-9), Mukesh Kumar (PW-10), Dinesh Kumar (PW- 11), Partap Singh, Sub Inspector (PW-12), Om Parkash, Assistant Criminal Appeal No. 149-DB of 2002 4 .. Sub Inspector (PW-13), Pardeep Kumar (PW-14) and Dharambir Singh, Inspector (PW-15). 11. The accused-appellants examined under Section 313 of Code of Criminal Procedure, to explain the incriminating circumstances appearing in the prosecution evidence. They denied their complicity and pleaded innocence. 12. Learned counsel heard and record over the file perused. 13. At the outset, it may be stated that while disposing of this appeal, this Court is mainly concerned about the role of Rakesh Kumar, accused-appellant, because Om Parkash and Murti Devi, accused-appellants have died during the pendency of this appeal. The fourth accused – Vinesh, brother of Rakesh Kumar, accused-appellant, was tried by the Juvenile Justice Board. 14. In the occurrence, four persons received injuries viz. Rajender Singh (deceased), Mukesh Kumar (PW-10), Dinesh Kumar (PW-11) and Savitri. All the injured reached the hospital along with the deceased at 3.15 PM as finds mention in Medico Legal Report (Exhibit PG). 15. Dr. M.D.Sharma (PW-8) conducted post-mortem examination on the dead body of Rajender Singh (deceased) and found following two injuries on his person :- “1. An incised wound of 3” x 2” in size was present on left side of abdominal wall 2” lateral to umbilicus multiple loops of small intestine were protruding through the wound. 2. Another incised wound 1 ½” x 1/2” was present on the left side of abdominal wall 1/2” above and lateral to injury No.1. On probing the wound bad pierced the stomach wherein about 300 ML blood was present. In the peritoneal cavity about one liter of blood was present freely in abdomen.” He proved the post-mortem examination report Criminal Appeal No. 149-DB of 2002 5 .. (Exhibit PO). It was opined by him that death occurred due to shock and haemorrhage on account of multiple injuries which were sufficient to cause death in the ordinary course of nature. 16. Dr. K.L.Bawa (PW-5) medico legally examined Mukesh Kumar (PW-10) and Dinesh Kumar (PW-11). He found the following injuries on their person :- Mukesh Kumar (PW-10) “1. Incised wound on left eye-brow lateral part, spindle shaped 3 cm x ¾ cm x muscle deep with fresh bleeding was present. The margins of the wound were clean cut and everted. X-ray of the part and Surgeon's opinion was opined. 2. Incised wound on the left fore-arm posteriorly on the upper part 3 cm x 3/4 cm x muscle deep, spindle shaped with tail towards the lateral side. Clotted blood was present. X-ray of the part and ortho Surgeon's opinion was advised. 3. Abrasion on the left shoulder lateral side 7.5 cm x 1/3 cm with clotted blood and with a tail towards the back was present. X-ray of the part and Surgeon's opinion was advised.” Dinesh Kumar (PW-11) “1. Incised wound on left knee laterally 1 cm x 1/2 cm. Skin deep with tail (liener abrasion on either side of the wound). The margins of the wound were clear cut and spindle shaped. X-ray of the part and Ortho Surgeon's opinion were advised. 2. Abrasion on the left hand dorsal side lenier in length 3 cm in size with clotted blood was present. 3. A lenier abrasion on the left hand dorsal aspect just close to the abrasion No.2 and 4 cm in length with clotted blood was present. Criminal Appeal No. 149-DB of 2002 6 .. 4. Incised wound on scalp right parietal area posteriorly 4 cm x 1 cm muscle deep. Clotted blood was present. X-ray of the part and Surgeon's opinion were advised.” 17. Dr. Parveen Goyal (PW-6) medically examined Savitri and found the following injuries on her person :- “1. Lacerated wound on the left hand just at the elbow joint about 1.5 cmx 0.3 cm x 0.4 cm in size was present. Clotted blood was present and X-ray was advised. 2. Contusion on the back on the left side about 10 cm x 2 cm in size. Tenderness was present. X-ray was advised. 3. The patient complained of pain in the left thigh just above the knee joint. No visible injury or discolouration was found. X-ray was advised. 4. Complaint of pain in the left shoulder joint. No visible injury of discolouration was found. X-ray was advised.” 18. The eye witness account has been rendered by Mukesh Kumar (PW-10) and Dinesh Kumar (PW-11). They also received injuries in the occurrence. Mukesh Kumar (PW-10) received injuries at the hands of accused-appellant. Both of them have given a vivid narration of the occurrence. They have spoken with one voice that on the ill-starred day, they along with their deceased father – Rajender Singh and mother Savitri, were sitting outside their house when the accused-appellant along with the co- accused armed with sword came and caused injuries to them and their father with the sword on account of not giving the water of their tubewell to the accused-appellant. Their presence at the site was natural. The medical evidence fully corroborates the statements of Mukesh Kumar (PW-10) and Dinesh Kumar (PW-11). Both of them along with their father – Rajender Singh (deceased) reached Civil Criminal Appeal No. 149-DB of 2002 7 .. Hospital, Bhiwani, immediately after the occurrence. Both of them were cross-examined at length but nothing favourable to the accused could come on record to disbelieve their presence and witnessing the occurrence. In addition to this, it must be noticed that on the statement of Rakesh Kumar, accused-appellant, the sword (Exhibit P4) was recovered from his field in the presence of Om Parkash, Assistant Sub Inspector (PW-13) and Rohtash. The sword was sent for chemical and serological examination to Forensic Science Laboratory, Madhuban, Karnal (FSL). The report (Exhibit PD) of the FSL shows that the sword contained blood. With this overwhelming evidence, the involvement of Rakesh Kumar, accused-appellant, recovery of sword and the fact that human blood was traced on the recovered weapon, unerringly points out that Rakesh Kumar, accused-appellant committed the murder of Rajinder Singh (deceased) and caused injuries to Mukesh Kumar (PW-10). Thus, the guilt was brought home to the accused-appellant beyond any shadow of doubt and conviction and the sentence as imposed by learned trial Judge do not suffer from any infirmity to warrant interference. 19. The appeal is dismissed. 20. Rakesh Kumar, accused-appellant was released on bail by this Court during the pendency of the appeal. His bail/surety bonds are cancelled. He be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court. (ASHUTOSH MOHUNTA) (NAWAB SINGH) JUDGE JUDGE Sept. 21st, 2010 som Referred to the Reporter :