Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1- Crl. Appeal No.D-268-DB of 2006 Date of Decision :02.08.2011 Mangal Singh s/o Pyare Singh ... Appellant Versus State of Haryana .... Respondent 2- Crl. Appeal No.D-368-DB of 2006 Date of Decision :02.08.2011 Parveen Kaur ... Appellant Versus State of Haryana .... Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK ....... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Pardeep Goyal, Advocate for the appellants. Mr. P.S. Punia, Addl. A.G.,Haryana, for the respondent-State. -- Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --2-- Vijender Singh Malik, J. Mangal Singh and Parveen Kaur, appellants have brought the above mentioned two appeals against the judgment of their conviction dated 16.03.2006 passed by learned Sessions Judge, Fatehabad, vide which they have been held guilty and convicted for an offence punishable under sections 302, 307 read with section 34 of the Indian Penal Code and the order of sentence dated 20.03.2006, vide which they have been sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- each for the offence punishable under section 302 of the Indian Penal Code and simple imprisonment for a period of three months in default of payment of fine and rigorous imprisonment for a period of seven years and to pay a fine of Rs.5000/- each for the offence punishable under section 307 IPC and simple imprisonment for a period of three months in default of payment of fine. Both the sentences were ordered to run con-currently. The case set up against the appellants and two others namely Harpal Singh and Smt. Hardip Kaur @ Bholi by Police Station, City Tohana is as under:- Jagraj Singh and Sukhpal Singh had been taking tuition from Harpal Singh. On 09.06.2001, they went to Tohana for tuition. Sometimes Harpal Singh used to teach at the house of his sister at Tohana. When Harpal Singh was teaching Jagraj Singh and Sukhpal Singh, Smt. Hardip Kaur @ Bholi, sister of Harpal Singh, came to the Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --3-- room and told Harpal Singh not to allow the two boys to enter the house as they did not possess good character. She also incited bad feelings on the part of Harpal Singh against Sukhpal Singh. After the tuition work was over, Jagraj Singh and Sukhpal Singh stayed at the house of Harpal Singh. They went to sleep on a cot in a room, in which Harpal Singh was sleeping on a cot. The remaining members of the family i.e. father of Harpal Singh, Smt. Hardip Kaur @ Bholi and Parveen Kaur, wife of Harpal Singh were sleeping in another room. At about 3.00 AM Jagraj Singh woke up on hearing the cries of his brother Sukhpal Singh. He found his brother in the pool of blood and noticed Harpal Singh holding a knife in his hand, which was blood stained. Harpal Singh gave two more blows with the said knife to Sukhpal. Jagraj Singh and Sukhpal Singh then cried for help. Harpal Singh gave knife blows to Jagraj Singh also. Jagraj Singh then tried to run away from the room and his effort to go out of the room was thwarted by Smt. Parveen Kaur, who pushed him back towards the room. Mangal Singh, the father of Harpal Singh gagged Jagraj Singh with a piece of cloth, which he had tied round his face. He pushed Jagraj Singh in the room and gave him beatings. Thereafter they bolted the room from outside. Jagraj Singh, however, found a plier and with the help of the same, succeeded in opening the door of the room. By that time, the assailants had escaped. He came near the cot of Sukhpal Singh and found him dead on account of the injuries Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --4-- suffered in the above narrated incident. Jagraj Singh knocked the doors of the houses in the neighbourhood. None opened the door of his house. Thereafter, he went to the hospital and got himself admitted there. A ruqa was sent from the hospital to Police Station, City Tohana regarding admission of Jagraj Singh. On receipt of the same, Khayali Ram, HC was sent to General Hospital Tohana, for recording the statement of Jagraj Singh. Khayali Ram, HC applied for opinion of the doctor regarding fitness of the injured to make statement, but he was declared unfit to make statement by the doctor. After sometime, Dalbir Singh, Inspector/SHO, Police Station, City Tohana alongwith other police officials went to General Hospital, Tohana. At this time, Jagraj Singh was declared fit to make statement. His statement in the aforesaid terms was recorded, which was signed by him. Endorsement on the same was made by Dalbir Singh,Inspector/SHO and it was sent to the police station for registration of the case, on which Balwant Singh, ASI registered a case for an offence punishable under sections 302, 307 read with section 34 IPC. Dalbir Singh,Inspector then accompanied Jagraj Singh, permitted by the doctor, to the place of occurrence. Amar Singh, photographer was also taken by Dalbir Singh,Inspector with him. At the spot, the scene of crime was got photographed. The same was then inspected and inquest proceedings were conducted. Dalbir Singh,Inspector collected blood stained Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --5-- strings of the cot, blood stained earth, a pillow, a parna(loin cloth), khes used to cover the body, a pair of slippers, one handle of the door, nut bolts, plier and a small key. They were given shape of six parcels and sealed with the seal bearing impression 'DS'. They were taken into possession by way of a recovery memo. Statements of some witnesses were recorded. Dead body was sent with Balwant Singh,HC, to General Hospital, Tohana for post-mortem examination. Dr.Satish Garg conducted post-mortem examination on the dead body of Sukhpal Singh. Pant and shirt of Sukhpal Singh were given the shape of a parcel and sealed by the doctor. The same alongwith the dead body, police papers and carbon copy of the post-mortem report was handed over to Balwant Singh,HC alongwith the sample seals. The same were handed over by Balwant Singh,HC to Dalbir Singh, Inspector and were taken into possession by the latter by way of a recovery memo. Rough site plan of the place of occurrence was prepared. On reaching the police station, case property was handed over with the MHC. On 15.6.2001 Mangal Singh and Smt. Hardeep Kaur @ Bholi had been arrested from village Diwana by Dalbir Singh,Inspector. On 25.6.2001 Harpal Singh, accused was arrested by Chandgi Ram, Inspector, who was officiating SHO during the period of leave of Dalbir Singh,Inspector, the regular SHO. He obtained police remand of Harpal Singh, accused and interrogated him Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --6-- on 27.6.2001. He disclosed about the concealment of 'Katar' in an iron box lying in one of the rooms of the house of his sister in Master Colony, Tohana. The disclosure statement was recorded, which was signed by the accused and attested by the witnesses. Harpal Singh, accused then led the police party to the place of its concealment and brought out a 'Katar' from an iron box. The sketch of 'Katar' was prepared and it was given the shape of parcel and was taken into possession alongwith some note books, books, a trouser and a shirt got recovered by the accused. The books and note books had the names of Sukhpal and Jagpal. The disclosure statement of Harpal Singh was also recorded on an audio cassette. On 06.07.2001 Dalbir Singh,Inspector took out 'Kirpan' and produced the same before the doctor seeking his opinion about the possibility of the injuries by Jagraj Singh, to have been caused by that weapon or not. The doctor opined that the injuries of Jagraj Singh were possible by that weapon. The weapon on return by the doctor was again given the shape of a parcel and was sealed by the seal of the doctor, which was deposited in the police station on return thereto. On 07.07.2001 Parveen Kaur, accused was arrested in this case by Dalbir Singh, Inspector. Statements of the witnesses were recorded. On completion of investigation, challan against the accused was prepared by Dalbir Singh,Inspector on 29.08.2001. Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --7-- A prima-facie case was found against Harpal Singh, Mangal Singh and Parveen Kaur for an offence punishable under sections 302, 307 read with section 34 IPC and against Smt. Hardeep Kaur @ Bholi, accused for an offence punishable under sections 109, 302 and 307 IPC, vide order dated 16.01.2002 . Charge had been accordingly framed against the accused, to which they pleaded not guilty and claimed trial. The prosecution has examined fourteen witnesses in all at the trial. The report of Forensic Science Laboratory was tendered in evidence and the prosecution evidence came to a close. Harpal Singh, the main accused died on 13.02.2004 and learned trial court dropped the proceedings against him vide order dated 26.4.2004. The remaining accused were examined thereafter in terms of section 313 Cr.P.C. Mangal Singh, accused has denied the incriminating material appearing in the prosecution evidence, when the same had been put to him in the shape of questions. He has claimed himself to be innocent. According to him, he was sleeping outside the room in the courtyard and at about 11.00 PM Sukhpal and Jagraj came running in injured condition from outside and they were chased by some persons. According to him, both of them entered their house for shelter, on account of which the accused woke up. He has asserted that he intervened to rescue them from the assailants on Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --8-- account of which, the assailants went back. Jagraj Singh then informed the police but due to injuries Sukhpal died there. The police is said to have taken Jagraj Singh to the police station on that night, but lateron he and his family members were falsely implicated in this case at the instance of one Ruldu Ram of village Chuharpur because he had enmity with him.The other two accused have also denied the truth of the prosecution evidence put to them in the shape of questions. They have claimed themselves to be innocent and to have been falsely implicated in this case. They did not lead any evidence in their defence. After hearing learned public prosecutor for the State, learned defence counsel and going through the evidence on record, learned trial court held Mangal Singh and Parveen Kaur guilty for an offence punishable under sections 302, 307 read with section 34 IPC vide judgment dated 16.3.2006. He had found the prosecution to have failed to bring home the charge of Smt. Hardip Kaur @ Bholi for an offence under sections 302, 307 read with section 109 IPC. Consequently, she was acquitted of the charge. Hearing on quantum of sentence was given on 20.03.2006 and the sentence detailed as above had been awarded to the appellants. Feeling aggrieved by the judgment of conviction and the order of sentence passed by the trial court, Mangal Singh and Parveen Kaur have brought their independent appeals. Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --9-- We have heard Mr. Pardeep Goyal, learned counsel for the appellants and Mr. P.S. Punia, learned Addl. A.G.,Haryana, for the respondent-State and have gone through the record of the case with their assistance. Learned counsel for the appellants has submitted that Hardip Kaur @ Bholi had been proceeded against for exhorting Harpal Singh to commit this offence. According to him, said Bholi is sister of Harpal Singh and learned trial court could not find the prosecution to have been able to lead any evidence to prove the guilt of said Bholi. According to him, learned trial court has acquitted said Bholi. He has submitted that Harpal Singh was the main culprit as per the prosecution case, but he could not stand trial till its conclusion and he died during the pendency of the same on 13.02.2004 and proceedings against him were dropped by learned trial Court vide order dated 26.04.2004. He has further submitted that the role of Mangal Singh is that he gagged Jagraj with a parna and caused injuries to him and his brother. He has further submitted that the role assigned to Parveen Kaur is that when Jagraj Singh tried to run out of the room, she caught hold of him by his hands and dragged him towards the room. Learned counsel for the appellants has wondered as to how the provisions of section 34 IPC could be attracted to this case to hold them guilty for an offence punishable under sections 302 and 307 IPC. According to him, the only evidence in this case is the statement of Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --10-- Jagraj Singh, PW-10. He has submitted that the statement of Jagraj Singh cannot be believed regarding the role of Mangal Singh and Parveen Kaur and they could not be held guilty and convicted for an offence punishable under sections 302, 307 read with section 34 IPC. Learned Additional Advocate General, Haryana for the respondent-State has submitted that the appellants were present at the time of occurrence and they had been helping the main accused. According to him, from their acts it could be inferred that they were sharing the common intention with Harpal Singh. He has submitted that learned trial court has appreciated the prosecution evidence and has rightly come to the conclusion about the guilt of the appellants for an offence punishable under sections 302, 307 read with section 34 IPC. Statement of Jagraj Singh,PW10 is of prime importance in this case. The fate of the prosecution case depends entirely on his statement. There is no occasion now for deciding the culpability of Harpal Singh, who has died during the pendency of the trial. Against the order of acquittal of Hardip Kaur @ Bholi, no appeal has been preferred by the State. Therefore, the statement of Jagraj Singh with regard to the role of Mangal Singh and Parveen Kaur is alone to be considered. As the statement of Jagraj Singh,PW-10 shows, on the instigation of Hardip Kaur @ Bholi, Harpal Singh got up at about 3.30 Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --11-- AM and with a knife, he gave several blows to Sukhpal Singh. The cries of Sukhpal Singh awakened Jagraj Singh. When he and his brother raised alarm, Harpal Singh gave three knife blows to Jagraj Singh. It is at this stage that Jagraj Singh tried to run away from the room and Parveen Kaur came in his way, caught hold of him by his hands and pushed him towards the room. The role of Mangal Singh, accused comes now. He is stated to have closed the mouth of Jagraj Singh with the help of a 'Parna'. He is said to have inflicted some blows to him with fists and pushed him towards the room and closed the same from outside. In the FIR Ex.P-3 Mangal Singh is stated to have inflicted blows to the complainant Jagraj Singh and his brother Sukhpal after tying the mouth of Jagraj Singh with 'Parna'. In the FIR, it has not come as to what was the instrument with which he gave blows to the complainant and his brother. Brother of Jagraj Singh was lying on the cot after receipt of three blows with a knife. He breathed his last on the said cot without being able to get up therefrom. It cannot be believed that a person would like to give fist blows to such a person lying smeared with blood on a cot, not being in a position to get up. Jagraj Singh was medicolegally examined by Dr. S.S.Garg, PW-7 on 10.06.2001 . He found three incised wounds on the person of Jagraj Singh. He could not find any other injury on his person. If Jagraj Singh would have been hit by Mangal Singh by any Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --12-- weapon or even by fists, some more injuries were required to be found on the person of Jagraj Singh. Jagraj Singh, who was non-specific in his examination-in-chief about Mangal Singh causing injuries to his brother Sukhpal, has become specific in his cross-examination, where he has said that no blood oozed out of the injuries caused by fist blows to him and his brother. The very statement of Jagraj against Mangal Singh for giving fist blows to Sukhpal Singh cannot be believed. Even Jagraj Singh was in receipt of three incised wounds and it cannot be believed that Mangal Singh, who was not there with Harpal Singh when the occurrence started, would join him and would give fist blows to Jagraj Singh. Parveen Kaur is stated to have just pushed Jagraj Singh towards the room. There is no allegation that she wanted to prevent the prey of Harpal Singh from escaping. Harpal Singh is not said to have given any blow after Jagraj Singh claims to have tried to escape from the room. What can the motive of Parveen Kaur to have pushed Jagraj Singh towards the room is not evident on the record. Statement of Jagraj Singh suffers another blow when it is examined in connection with the fist blows alleged to have been given by Harpal Singh. Harpal Singh, who was wielding a knife and caused three injuries to Sukhpal Singh and three to Jagraj Singh is not stated in the FIR to have given fist blows. Jagraj Singh appearing as PW-10 has not only stated that Harpal Singh gave fist blows to him and his Crl. Appeal No.D-268-DB of 2006 & Crl.Appeal No.D-368-DB of 2006 --13-- brother, but has specified the number of fist blows as seven or eight. This is the point on which he tries to make a statement different from what he has stated before the police. This statement on his part cannot be even stated to be an improvement because by making this statement, he does not improve the case of the prosecution but rather demolishes it. It is hard to believe that a person, who had given six blows with a knife to two boys, would give fist blows to them. It has moreover not come in the statement of Jagraj Singh as to whether the fist blows were given earlier to the knife blows or thereafter. The circumstances noticed as above make the participation of Mangal Singh and Parveen Kaur in the occurrence doubtful. The finding of guilt recorded by the trial court against these two appellants is not sustainable. Therefore, the appeals are allowed and setting aside the judgment of conviction and order of sentence passed by learned trial court against the appellants, the appellants are acquitted of the charge framed against them. If, they are on bail, their bail bonds shall stand discharged. If, they are in custody they shall be set at liberty at once if not required in any other case. ( HEMANT GUPTA) (VIJENDER SINGH MALIK) JUDGE JUDGE 02.08.2011 dinesh