IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.28-DB of 2005 Date of decision: 30.9.2008 Ram Bahadur ........Appellant Versus State of Haryana ........Respondent Coram: Hon'ble Mr. Justice S.S. Saron. Hon'ble Mr. Justice Rakesh Kumar Jain. *** Present: Mr. S.S. Siao, Advocate for the appellant. Mr. H.S. Sran, Addl. AG Haryana, for the State. *** S.S. SARON, J. This appeal has been filed by the appellant - Ram Bahadur against the judgment and order dated 21.12.2004 passed by the learned Additional Sessions Judge, Fast Track Court, Gurgaon, whereby the appellant has been convicted for the offences punishable under Sections 302 and 450 of the Indian Penal Code (IPC - for short) and has been sentenced to undergo imprisonment for life; besides, to pay a fine of Rs 2,000/- and in default of payment of fine, to undergo further rigorous imprisonment (“RI” – for short) for one year, for the offence under Section 302 IPC. He has also been sentenced to RI for 3 years; besides, to pay a fine of Rs 500/- and in default of payment of fine, to undergo further RI for 3 months, for the offence under Section 450 IPC. Both the sentences have been ordered to run concurrently. The FIR (Ex PK) has been registered on the statement (Ex PK/1) of Satbir Singh (PW11) son of Girraj Singh (deceased). It has been alleged by the complainant that he is running a Barber shop in village Mannpur. Criminal Appeal 28-DB of 2005 [2] They were two brothers and four sisters. His (Satbir Singh's) sister - Mewa Devi was elder to him; besides, one brother and three sisters were younger to him. He was a married person and had one son. Raj Kumar (PW14), a resident of UP used to work as Chowkidar at Farm House Gujjar Wasian in the revenue estate of Nunera. He (Raj Kumar PW14) was on visiting terms at their (complainant’s) house. On 18.11.2001, Raj Kumar (PW14) on account of work at his native village left for his village. While leaving, he deputed Girraj Singh (deceased) (father of the complainant) to work as Chowkidar at the said Farm House. The younger brother of the complainant namely Ravi (deceased) used to visit his father at the Farm House daily and give meals to him in the mornings and evenings from their house. At night, he (Ravi) used to sleep with the father of the complainant at the Farm House. A day earlier to the making of his statement i.e. on 21.11.2001, the evening meal of the father of the complainant was got at the Farm House by Ravi. However, Ravi did not return home. At about 9 a.m., Smt Kala Devi - mother of the complainant Satbir Singh, went to the Farm House and found that the father (Girraj Singh) of the complainant was lying dead in the water tank (Haudi) of the tubewell. Besides, the younger brother of the complainant namely Ravi was also lying dead at the inside door of the house. She (Kala Devi) rushed home and informed the complainant and other residents of the village that the father of the complainant and his brother had been murdered by some unknown assailants and they were lying dead at the Farm House. On the said information, the complainant - Satbir Singh (PW11) along with his grand uncle - Hari Chand (PW12) and uncle Jagram (PW13), residents of the village, reached the spot and found that Girraj - father of the complainant was lying dead in the water tank of the tubewell in a pool of blood and his brother - Ravi was lying dead in a pool of blood at the door in the room; besides, one iron Kulhari (axe) was lying there. The father of the complainant namely Girraj and his younger brother - Ravi had been murdered by some unknown assailants with a Kulhari during the Criminal Appeal 28-DB of 2005 [3] night by giving them blows on their heads. The grand uncle of the complainant namely Hari Chand (PW12) and his uncle - Jagram (PW13) had seen the spot along with the complainant after coming there. The complainant gave his statement to the Police Station on telephone. Then the Police came at the spot and recorded statement (Ex PK) of the complainant, which he had heard and admitted as correct. The same was attested by SI SHO of PS Sohna. The Police proceedings were recorded to the effect that on 22.11.2001 on receipt of a telephone message from Satbir Singh, complainant (PW11) at the Police Station that at the Farm House of Gujjar Wasian, his father - Girraj and his younger brother - Ravi had been murdered by some unknown assailants, the SI SHO Balwan Singh accompanied by ASI Chand Singh (PW15), Constable Jagdish Chand (PW7) and Constable Devi Dutt (PW5) in a govt jeep driven by Ved Singh reached the spot and after meeting Satbir Singh, recorded his statement (Ex PK), which was reduced into writing and was read over to him. Satbir Singh (PW11) after admitting the same as correct signed the same in Hindi, which he (Balwan Singh SI SHO) attested. From the statement (Ex PK), commission of an offence punishable under Section 302 IPC was prima facie made out. The writing Ex. PK was sent to the Police Station through Constable Devi Dutt (PW5) for registration of a case (FIR). After registration of the FIR, its number was asked to be intimated. Besides, higher officers were also asked to be informed through constables/messengers. Moreover, some competent officer was requested to visit the spot for further investigation. SI SHO (Balwan Singh) was busy in the investigation proceedings. On the receipt of the information, FIR (Ex PK/1) was registered. SI Chand Singh (PW15) was posted as ASI of PS Sohna on the date of the incident i.e. 22.11.2001. He had accompanied SI SHO Balwan Singh and had gone to the spot from where the Kulhari from inside the room, besides, blood stained earth was lifted. The blood stained earth of Girraj was also lifted. Three separate parcels with seal - 'SS' were prepared. The seal after use, was given to SI Chand Singh. Necessary Criminal Appeal 28-DB of 2005 [4] memo (Ex PF) in this regard was prepared. Chand Singh, then ASI (PW15) identified the signatures and the handwriting of Inspector Balwan Singh, because he remained with him. Ruqa (memo), which was in the handwriting of Inspector Balwan Singh, on the basis of which, formal FIR (Ex PK/1) was registered was identified. The endorsement (Ex PK/3), it is stated, by Chand Singh (PW15) was made by Inspector Balwan Singh. He moved an application (Ex PB) for post-mortem examination of both the dead bodies. He (Chand Singh PW 15) had seen the inquest proceedings (Ex PB/2) prepared by Inspector Balwan Singh on 22.11.2001. The other inquest proceedings were also prepared by Inspector Balwan Singh. SI SHO Balwan Singh in the presence of ASI Chand Singh (PW15) and Constable Jagdish (PW7) from the place of occurrence where the dead body of Ravi was lying, lifted the blood which was lying there with the piece of cloth and put in a plastic ‘dibi’ (small box) and the same was converted into a separate seal parcel; besides, a ‘kulhari’ (axe) which was lying nearby the dead body and had blood-stained was kept in a separate parcel. The blood lying near the dead body of Girraj was also lifted with a piece of cloth and it was put in a plastic bag which was sealed. All the parcels were sealed with the seal ‘SS’ and were taken in possession by the police. The recovery memos were signed by the witnesses. The recovery memo of parcel of axe and of parcel of blood is Ex.PF. Ram Bahadur - appellant was arrested and after his arrest, Inspector Balwan Singh interrogated him. The appellant suffered a disclosure statement (Ex PD/1) which was thumb marked by him and attested by others. Photographs (Ex P2 to P8) were taken by the photographer Umar Mohd. (PW3) in the presence of ASI Chand Singh (PW15). SI SHO Balwan Singh on 28.12.2001 recorded the statement of Raj Kumar (PW14) son of Sh. Nippal who was working as Chowkidar, Gujjar Wasian Farm House and on whose asking Girraj (deceased) was working as Chowkidar at the said Farm House. The appellant Ram Bahadur made an extra-judicial confession (Ex. PG) before aforesaid Raj Kumar (PW14). It is stated by Ram Bahadur (appellant) that Criminal Appeal 28-DB of 2005 [5] on 22.11.2001 he had gone to the Gujjar Wasian Farm House to recover Rs.1600/- as his labour charges from Ramesh (PW4), Mali (Gardner). However, Ram Bahadur (appellant) did not find Ramesh (PW4), Mali (Gardner) but he found Girraj (deceased) and his younger son Ravi (deceased) and he asked about Ramesh, Mali (Gardner) from them. On this Girraj threatened Ram Bahadur (appellant) and after abusing he pushed him aside and Ram Bahadur (appellant) came out of the room. When Girraj had gone out of the room to clean the tea cups, then Ram Bahadur (appellant) was leaving by taking with him a T.V. and a Stabilizer. At that time Ravi (deceased) was present in the room and he also abused Ram Bahadur (appellant) and wanted to obstruct him. Ram Bahadur (appellant) stated that when Ramesh (PW4) would pay his due he would return the T.V. and the Stabilizer, but Ravi did not agree. Then Ram Bahadur (appellant) lifted a ‘kulhari’ (axe) which was lying in the room and gave a blow from its reverse side on Ravi and he (Ravi) died then and there. Then Ram Bahadur (appellant) thought that Girraj (deceased) would depose against him before the police, then with the same ‘kulhari’ (axe) he from behind gave a ‘kulhari’ (axe) blow from its reverse side on the head of Girraj who was cleaning tea cups outside and he died at the spot. Ram Bahadur (appellant) then went back in the room with the ‘kulhari’ (axe) and after putting the axe in the room, he (appellant) took away a T.V. and a Stabilizer after wrapping them in a red printed cloth sheet (chadar). He thought that no one would suspect him, but now the police was after him. The police had also visited the spot. Therefore, he asked Raj Kumar (PW 14), Chowkidar, Gujjar Wasian Farm House to produce him before the police so that he could be saved from the police beating. On 18.1.2002, a Stabilizer, a TV and a Chadar (sheet) were identified by Raj Kumar (PW14) vide memo Ex PH, which was prepared by Inspector Balwan Singh. A rough site plan (Ex PL) of the place of the occurrence, was also prepared by Balwan Singh SI SHO; besides, the other rough site plan dated 18.1.2002 (Ex PH/1) regarding the recovery was also prepared by him. After Criminal Appeal 28-DB of 2005 [6] completion of necessary investigation, the charge report (Challan) was prepared by Balwan Singh SI SHO on 9.1.2002, which was filed in the Court of the learned Judicial Magistrate Ist Class, Gurgaon, who vide order dated 21.3.2002, on perusal of the report under Section 173 of the Code of Criminal Procedure (CrPC - for short) observed that a prima facie case for an offence punishable under Section 302 IPC was made out against the accused and since the offence under Section 302 IPC was exclusively triable by the Court of Session, the case was committed to the said Court. The appellant was asked to be produced before the Sessions Court. The learned Additional Sessions Judge, Gurgaon, to whom the case was assigned, vide order dated 18.4.2002 charged the appellant on the allegations that on 22.11.2001 at about 11.30 a.m. in the area of village Nai Nanglan within the jurisdiction of PS Sohna, he intentionally committed the murder of Girraj and his son - Ravi at the Gujjar Wasian Farm House with a ‘Kulhari’ and in this way, he committed an offence punishable under Section 302 IPC. Besides, on the same day, time and place, the appellant entered the Farm House of Girraj and committed house trespass in order to commit murder of Girraj and Ravi, an offence punishable with imprisonment for life, and thereby committed the offence punishable under Section 450 IPC. It was directed that the appellant be tried for the aforesaid charges. The appellant pleaded not guilty to the charges and claimed trial. The prosecution, in order to prove its case, examined as many as 15 PWs; besides, tendered documents in evidence. The learned Additional Sessions Judge, Fast Track Court, Gurgaon, after considering the evidence and material on record, convicted the appellant for the offences under Sections 302 and 450 IPC and sentenced him to undergo imprisonment for life. The appellant, aggrieved against the same, has filed this appeal. Learned counsel for the appellant contends that Ramesh (PW4) had taken six acres of land at the Farm House Gujjar Wasian from its owner - Suresh Aggarwal. It is submitted that Ram Bahadur - appellant Criminal Appeal 28-DB of 2005 [7] had a dispute regarding money with said Ramesh (PW4), but he had no dispute with Girraj and Ravi (deceased). Therefore, there was no motive for the appellant to commit the murders and he has been wrongly found guilty. It is submitted that Raj Kumar (PW14) had left the Farm House Gujjar Wasian on 18.11.2001 and he returned on 23.11.2001, whereas the incident had occurred on 21/22.11.2001. Therefore, it is submitted that the appellant would not make an extra-judicial confession (Ex PG) before Raj Kumar (PW14) and the extra-judicial confession (Ex. PG) said to have been made by the appellant - Ram Bahadur before Raj Kumar (PW14) in any case is of no consequence. It is submitted that no independent witness was there at the time of the recovery of the Kulhari which makes the recovery doubtful. It is also submitted that the statement of Raj Kumar (PW14) regarding the extra judicial confession (Ex PG) was recorded on 28.12.2001 i.e. a month after the incident which occurred on 21/22.1.2001. Therefore also, the same is unreliable. It is submitted that Ramesh (PW4) has been set up by the Police and in fact he had not taken the land on lease at the Farm House Gujjar Wasian nor was he doing any business of flowers as is the case of the prosecution. It is further submitted that SHO Balwan Singh, the IO, has not been examined and ASI Chand Singh (PW15) and Constable Krishan Lal (PW8) only have been examined. It is submitted that Kala Devi - mother of the complainant who had gone to the spot, has also not been examined. Therefore, the non- examination of the said witnesses falsifies the prosecution case. It is also submitted that the Investigating Officer did not join any person from the village in the occurrence. It is also submitted that there is delay in the post-mortem examination and in recording the statement of the complainant by the Police. In response, learned counsel for the State submits that the prosecution has proved its case in its entirety in the double murder case. It is submitted that lease deeds are not normally executed in respect of agricultural lands and the leases are created orally. It is submitted that Criminal Appeal 28-DB of 2005 [8] the extra-judicial confession (Ex PG), besides, the recoveries of a TV, a Stabilizer and a sheet which are identified by Raj Kumar (PW14) clearly go to prove the involvement of the appellant. The mere fact that independent witnesses were not joined or that Balwan Singh SI SHO and Kala Devi- mother of the complainant were not examined, it is submitted does not affect the prosecution case as independent witnesses are generally reluctant to join the Police case in such types of murders in the village for the fear of having permanent enmity and the prosecution case even otherwise established and proved on the basis of evidence that has been led. We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records. The complainant - Satbir (PW11) while appearing in the Court has reiterated his version as given by him in his statement (Ex PK) recorded by the police on the basis of which FIR (Ex.PK/1) was registered. It is submitted by Satbir (PW11) that on 18.11.2001, his father Girraj (deceased) was left by Raj Kumar (PW14) at the Farm House of Gujjar Wasian for working as a Chowkidar. Ravi (deceased) - brother of the complainant used to daily take meals for his father at the Farm House. On 18.11.2001, the father (Girraj) and brother (Ravi) of the complainant (Satbir PW-11) had gone to the Farm House in the evening. On 21.11.2001, the brother (Ravi) of the complainant (PW-11) had gone to give evening meals to his father at the Farm House. Since the brother of the complainant (PW11) did not return back home, therefore, his mother on the next day in the morning went to the Farm House. She found both of them (Girraj and Ravi) lying dead there. There was one ‘Kulhari’ lying near the dead body of Ravi - brother of the complainant. The complainant (PW11) after getting information about the incident from his mother informed his uncles - Hari Chand (PW12) and Jagra (PW13) and alongwith them came to the spot where the incident had occurred. He informed the Criminal Appeal 28-DB of 2005 [9] Police and the Police came at the spot. His statement (Ex PK) was recorded by the Police. In cross examination, it is stated by the complainant (PW11) that he knew Raj Kumar (PW14) for the last about one year prior to the occurrence. He (Satbir Singh PW11) states that he did not visit the house of Raj Kumar (PW14) at any time. Raj Kumar (PW14) must have visited their house 20-30 times. Raj Kumar (PW14) was having a wife, a son and a daughter. It is also stated that at the Farm House, crops of flowers used to be maintained. Crop of ‘Sarson’ (mustard) was also sown there. The distance between Gujjar Wasian Farm House and their house was about 5-7 ‘Killas’ (measurement of distance in acres). The complainant (PW11) except for the flowers and ‘Sarson’ (mustard) did not notice anything else. No other business was being carried out at the Farm House so far as he knew. It is also stated that Raj Kumar (PW14) used to take milk from their house. It was out of affection and friendship. It is accepted as correct that he (Satbir PW11) stated before the Police that some unknown persons had killed his father and brother. It is stated that he only saw the ‘Kulhari’ near the dead body of Ravi and got unconscious and he did not see anything else. He regained consciousness within 5-10 minutes. The Police recorded his statement. Hari Chand (PW12) who is the uncle of the complainant Satbir (PW11) has deposed that he was told by Satbir Singh (PW11) that Girraj and Ravi had been killed by someone. He went to the spot. He saw both of them were lying dead in a pool of blood. Jagram (PW13) also states that on 22.11.2001, Satbir (PW11) came to him and informed that Ravi had been killed by some unknown persons at Gujjar Wasian Farm House. He (PW13) and Hari Chand (PW12) had gone to the spot. Raj Kumar (PW14) has deposed that on 18.11.2001 he had gone to his native village. He left Girraj (deceased) at the Farm House to look after it. He returned on 23.11.2001. He came to know that in the intervening night of 21/22.11.2001, Girraj and his son Ravi had been killed. Ram Bahadur - appellant met him at Gujjar Wasian Farm House at about 11 a.m. on Criminal Appeal 28-DB of 2005 [10] 28.12.2001. At 12 Noon, Ram Bahadur - appellant made an extra-judicial confession stating that he had gone to the Farm House on the intervening night of 21/22.11.2001 to collect his dues from Ramesh Gardner (PW4). He further states that the dues which he demanded from Ramesh (PW4) were on account of the work done by him at the agricultural fields as a labourer. Ramesh (PW4) was not available. The appellant further disclosed that he had taken a TV with Stabilizer and one bed sheet in the presence of Girraj and his son Ravi. He further disclosed that as Ravi intervened and wanted to stop him, he found one ‘Kulhari’ in the room and at that time Girraj was washing utensils at the tubewell. The appellant further disclosed that he inflicted a ‘Kulhari’ blow on the person of Ravi. According to him, this blow was from its reverse side. Ram Bahadur- appellant further disclosed that he thought Girraj had seen the occurrence and might disclose the same, so he also inflicted a ‘Kulhari’ blow from its lower side on the person of Girraj. The appellant also informed that he had then thrown the ‘Kulhari’ in the room and came back with TV, Stabilizer and a bed sheet. He (appellant) further states that as the Police was after him, Raj Kumar (PW14) should help him. After saying this, Ram Bahadur-appellant went away with the promise to come again the next day. Raj Kumar (PW14) then went to the Police Station Sohna and narrated the facts before the Police. The Police recorded his statement (Ex PG), which was signed by him. The Police came to Raj Kumar (PW14) on 18.1.2002 and brought Ram Bahadur - appellant with them at that time. The appellant in the presence of Raj Kumar (PW14) took the Police party to Bhalla Farm House within the revenue estate of village Nunera. The appellant then took them to a ‘Kotha’ in the said Farm House and got recovered one 'Gathri' (a tied cloth with articles) which contained a black and white TV (Ex.P-16) make Videocon, a Stabilizer (Ex. P-17) make classic and a bed sheet. The said articles were taken in possession by the police. Raj Kumar (PW14) identified the said articles. The Police prepared memo Ex PH which bears the signatures of Raj Kumar (PW14) and he took the Criminal Appeal 28-DB of 2005 [11] said articles of Supardari. In cross-examination it is stated by Raj Kumar (PW14) that the Police recorded his statement thrice; the first statement was recorded on 22.11.2001 at 12 Noon at the Police Station; the second was recorded on 28.12.2001 at about 4 or 5 p.m. at Police Station Sohna and the third was recorded on 18.1.2002 at the place of recovery at about 4 or 5 p.m. It is further stated that Suresh Aggarwal son of Basheshar Lal Aggarwal was the owner of Gujjar Wasian Farm House. He was a resident of Shalimar, Delhi. Suresh Aggarwal was working with Ramesh (PW4), Gardner in that Farm House. He did not know the father’s name of Ramesh (PW4). He (Ramesh) was resident of Rai Bareli and his village was Shiv Rattan (Rai Bareli). Ram Bahadur (appellant) it is stated by Raj Kumar (PW14) was being paid Rs. 1600/- per month as salary. The house of Girraj it is stated was at a distance of 1/2 km from Gujjar Wasian Farm House. Raj Kumar (PW14) used to bring milk from the house of Girraj twice a day i.e. in the morning and evening. He was taking milk since 1999. Since Raj Kumar used to visit the house of Girraj , he also knew his son Ravi. He purchased the TV and Stabilizer from Sohna. He did not remember the name of the shopkeeper. The TV was an old one. Raj Kumar (PW14) was cross examined at a considerable length; however, nothing could be brought out which would favour the appellant. Dr Gurwinder Singh, MO, General Hospital, Sohna (PW2) conducted the post mortem examination on the dead body of Girraj. He observed the following injuries and also gave opinion regarding the cause of death:- “1. A