IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. As. No. 20-DB and 181-DB of 2000 DATE OF DECISION : 16.03.2009 Raju alias Ram Tirath .... APPELLANT Versus State of Haryana ..... RESPONDENT Crl. A. No. 1112-SB of 1999 DATE OF DECISION : 16.03.2009 Harish and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Gorakh Nath, Advocate, for appellant Raju alias Ram Tirath (in Crl. As. No. 20-DB and 181-DB of 2000) Mr. Vikas Kumar, Advocate, for the appellants (in Crl. A. No. 1112-SB of 1999) Mr. Partap Singh, Senior DAG, Haryana. * * * SATISH KUMAR MITTAL , J. This judgment shall dispose of Criminal Appeals No. 20-DB Crl. A. No. 20-DB of 2000 -2- and 181-DB of 2000, both filed by accused Raju alias Ram Tirath (one through jail and the other through counsel), and Criminal Appeal No. 1112- SB of 1999, filed by accused Harish and Chhotu alias Om Parkash. 2. In this case, four accused, namely Harish, Raju, Chhotu and Panna Lal were tried by Additional Sessions Judge (I), Fardiabad, on charges under Sections 452, 302 read with Section 34 IPC, on the broad allegations that on 21.12.1997 at about 4.00 P.M., in furtherance of the common intention they first committed house trespass by entering into the dwelling house of Madan Lal after having made preparation for causing hurt and then murdered his wife Shanti Devi. 3. In this case, the formal FIR Ex.PC/2 was registered at Police Station NIT Faridabad on the basis of statement Ex.PC made by Madan Lal (PW.3), the husband of deceased Shanti Devi, to SI Manmohan Singh (PW.7) at the Escorts Hospital, Faridabad. SI Manmohan Singh, on receiving a VT message Ex.PF at 9.00 P.M. regarding admission of Shanti Devi in the said Hospital, reached the Hospital. In his statement Ex.PC, Madan Lal stated that he and his brother Harish (accused) had a joint plot and both of them had constructed their separate portions thereon. Since their sale deed was joint, he requested his brother several times to get a separate sale deed of his portion, but he did not pay any heed. On account of that, there was verbal duel between them several times. He further stated that on 21.12.1997 at about noon time, again there was exchange of hot words Crl. A. No. 20-DB of 2000 -3- between his wife Shanti Devi and accused Harish, whereupon he (Harish) had turned furious and stated that he would teach a lesson very shortly. He further stated that at about 4.00 P.M., while he was present on the roof of his house along with his wife Shanti Devi, daughters Pinki (PW.5) and Tinu and basking the sun-light, accused Harish came there along with three more accused, namely Raju, Chhotu and Panna. Raju, who was armed with a pharsa, attempted a blow upon him. In the meanwhile, his wife Shanti Devi came between them to save him. At this the pharsa blow fell on her head. Madan Lal further stated that then he ran away from the spot after raising voice, but within his sight, accused Harish, Chhotu and Panna also gave Lathi blows upon Shanti Devi. Harish was also having a Gupti at that time. He further stated that on hearing his voice, Harpal (PW.4) and Dharambir also came there and on their arrival, accused ran away from the scene of occurrence with their respective weapons. He immediately took Shanti Devi to Escorts Medical Center, Faridabad, but there she succumbed to the injuries. 4. Dr. Suresh Aggarwal (PW.8) conducted the medico legal examination of Shanti Devi on 21.12.1997 at about 4.45 P.M. and noticed the following injuries on her person : 1. A sharp lacerated wound running anterio posteriorly on occipito parietal frontal region measuring 5” x 1”. 2. A sharp lacerated wound running horizentally to right side from the middle of wound no.1 measuring 2” x ½”. 3. A stab wound abdomen on the left hypo-condrium Crl. A. No. 20-DB of 2000 -4- measuring 1” x ½”. 4. A stab wound on the lower part of the right breast measuring 1” x ½”. 5. A stab wound on the anterior aspect of the left knee measuring ½” x ½”. All the aforesaid injuries were found to have been caused with sharp edged weapons within probable duration of six hours. He proved the MLR Ex.PL, which was prepared by him. 5. On 22.11.1997 at 1.00 P.M., Dr. Y.P. Singh (PW.1) conducted the post mortem-examination on the dead body of Shanti Devi and found the following injuries on the dead body of the deceased : 1. A stitched wound T shape 5 inches long and 2 inches in horizentol direction. On opening edges were clean cut. It was situated on left occipital parietal area. 2. 1” x ½” wound on the left hypocondrium 4” deep going to left and upwards and backwards. 3. 1” x ½” wound which was 2” in deep on the right breast. 4. ½” x ½” wound in size on the left knee. He proved the Post Mortem Report Ex.PA and opined that the cause of death was due to shock and haemorrhage as a result of these injuries. 6. The investigation of the case was conducted by PW.7 Manmohan Singh and according to him, on 21.12.1997, after receiving the VT message, he reached Escorts Hospital, Faridabad and recorded the statement of Madan Lal. Thereafter, he forwarded the said statement through Constable Mukesh Kumar, on the basis of which formal FIR was Crl. A. No. 20-DB of 2000 -5- registered. He further stated that spot inspection could not be made on the day of occurrence, as it was dark, and on the next day, he went to the place of incident, prepared the rough site plan, took the blood stained earth and blood stained shawl in the presence of the witnesses, prepared the inquest report and got the post mortem of the deceased conducted. All the four accused were arrested on 25.12.1997. On 27.12.1997, accused Raju and Chhotu suffered disclosure statements Ex.PI and Ex.PJ and in pursuance of the same, they got recovered pharsa and sua, which were taken into possession vide recovery memos Ex.PI/1 and Ex.PJ/1, respectivel. 7. After completion of investigation, challan was presented against all the four accused and they were charge-sheeted under Sections 452 and 302 read with Section 34 IPC, to which they did not plead guilty and claimed trial. 8. In support of its case, the prosecution examined nine witnesses. PW.1 Dr. Y.P. Singh conducted the post mortem on the dead body of Shanti Devi. PW.2 SI Kehar Singh is the formal witness, who recorded FIR Ex.PC/2. PW.3 Madan Lal is the complainant. PW.4 Harpal and PW.5 Pinki are the eye witnesses. PW.6 Hari Chand, Head Constable and PW.9 Constable Ashok Kumar, are the formal witness. PW.7 SI Manmohan Singh is the Investigating Officer and PW.8 Dr. Suresh Aggarwal medico legally examined Shanti Devi. 9. During trial, after examination of PW.3 Madan Lal, PW.4 Harpal and PW.5 Pinki, Madan Lal and Harpal furnished their affidavits Crl. A. No. 20-DB of 2000 -6- stating that they had deposed against the accused under the pressure of the police, whereas Pinki addressed a letter to accused Raju in jail to the effect that her father had wrongly implicated him and the remaining accused in this case. In view of this development, all these three prosecution witnesses were re-called and their further examination were recorded. PW.3 Madan Lal and PW.5 Pinki resiled from their previous statement made in the court. 10. In their statements under Sections 313 Cr.P.C., the accused denied all the allegations and the evidence appearing against them and pleaded false implication. 11. In defence, the accused produced copies of judgment and decree dated 12.2.1994 as Ex.DF and Ex.DG and photo copy of sale deed dated 18.1.1977 as Mark A. 12. The trial court, after hearing counsel for the parties and perusing the record, relied upon the earlier statements of PW.3, PW.4 and PW.5 and discarded their subsequent affidavits and letter as well as the statements given by them in the court, while observing that their subsequent resiling is not genuine, rather the same is the outcome of a compromise between the accused and Madan Lal. It was, thus, held that the prosecution has proved that all the accused entered into the dwelling house of Madan Lal after having made preparation to cause him hurt. Therefore, all the accused were convicted under Section 452 IPC. It was further held that from the evidence led by the prosecution, it cannot be said that there was a pre- arranged plan to cause murder of Madan Lal or of Shanti Devi. The common Crl. A. No. 20-DB of 2000 -7- intention being shared by all the accused was only to cause injuries to Madan Lal or Shanti Devi. It was further held that the fatal pharsa blow, which fell on the head of Shanti Devi, was aimed at Madan Lal. When Shanti Devi intervened to save her husband, then that blow fell on her head, due to which she died. Therefore, it was held that accused Raju is liable for the offence under Section 302 via Section 301 IPC. Thus, he alone was convicted under Section 302 IPC for causing the murder of Shanti Devi. The remaining three accused, namely Harish, Chhotu and Panna Lal were convicted under Section 324 read with Section 34 IPC for causing injuries on the person of Shanti Devi by means of sharp edged weapons. Accordingly, all the four accused, namely Harish, Raju, Chhotu and Panna Lal were sentenced to undergo RI for a period of three years and to pay fine of Rs. 1,000/- each under Section 452 IPC. Accused Raju was also sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/- under Section 302 IPC. Accused Harish, Chhotu and Panna Lal were also sentenced to undergo rigorous imprisonment for a period of two years under Section 324 IPC. In default of payment of fine for the offence under Section 452 IPC, the defaulter accused was ordered to further undergo rigorous imprisonment for a period of three months and in the default of payment of fine for the offence under Section 302 IPC, the defaulter accused was to further undergo rigorous imprisonment for a period of six months. However, all the substantive sentences were ordered to run concurrently. Hence, these appeals by three accused, namely Raju, Harish and Chhotu. Accused Panna Crl. A. No. 20-DB of 2000 -8- Lal has not filed any appeal. 13. Learned counsel for the appellants argued that in the instant case, the prosecution has failed to prove the guilt of the accused beyond shadow of a reasonable doubt. They submitted that the evidence brought on record by the prosecution does not inspire any confidence inasmuch as PW.3 Madan Lal and PW.5 Pinki, the alleged eye witnesses, had subsequently resiled from their statements made during the trial. The alleged eye witnesses, namely Madan Lal, Harpal and Pinki had subsequently exonerated all the accused by furnishing their affidavits and writing a letter, but the trial court, while discarding those affidavits and letter as well as the subsequent statements of Madan Lal and Pinki in the court, convicted the accused for the alleged offences. Learned counsel further argued that there are material contradictions in the statements of these witnesses. They submitted that according to the first version contained in the FIR, at the time of the alleged occurrence, accused Raju was armed with a pharsa and rest of three accused were armed with lathies, whereas in the witness box, it was stated by complainant Madan Lal that accused Harish was armed with a sua and he caused injuries with that sua to Shanti Devi. Learned counsel for appellant Raju further argued that as far as this accused is concerned, his conviction under Section 302 IPC is not justified. Rather, keeping in view the fact that he was having no intention to kill Shanti Devi, at the most, he can be convicted under Section 304 Part I of the IPC. Therefore, learned counsel submitted that conviction of accused Raju under Section 302 IPC be Crl. A. No. 20-DB of 2000 -9- altered to Section 304 Part I IPC. Learned counsel for appellants Harish and Chhotu, who have been convicted and sentenced under Sections 452 and 324 IPC, submitted that both these accused have already undergone about eight months of sentence and while taking a lenient view, their sentenced be reduced to the period already undergone. 14. On the other hand, learned counsel for the respondent-State contended that the prosecution has fully proved its case beyond shadow of a reasonable doubt and the trial court has rightly discarded the affidavits and letter, as well as the subsequent statements made by Madan Lal, Harpal and Pinki, because the same are the result of a compromise between the accused and Madan Lal. Learned counsel further submitted that accused Raju has rightly been convicted under Section 302 via Section 301 IPC and as far as accused Harish and Chhotu are concerned, the trial court has already taken a lenient view, while awarding them sentence. 15. After hearing learned counsel for the parties and going through the evidence led by the prosecution and the defence taken by the accused, we do not find any merit in the instant appeals. The learned trial court, after taking into consideration the initial statements of PW.3 Madan Lal, PW.4 Harpal and PW.5 Pinki, made by them on 11.8.1998, and discarding their subsequent affidavits and letter as well as the statements of PW.3 and PW.5, has rightly convicted the appellants for the different offences, as indicated above. In their initial statements before the court, all the three eye witnesses fully supported the prosecution version in the examination-in-chief and their Crl. A. No. 20-DB of 2000 -10- cross-examination. Except a very minor contradiction regarding the weapon of offence used by one accused, as has been pointed out by learned counsel for the appellants, statements of all these eye witnesses regarding the alleged occurrence and causing of injuries to Shanti Devi are consistent. In our opinion, statements of these witnesses made on 11.8.1998 during trial inspire confidence, wherein all the three witnesses have categorically stated that the accused had caused injuries on the person of Shanti Devi by means of pharsa, sua and lathi. We do not find any reason to disbelieve their statements or consider them as untruthful or unreliable. Suddenly after recording of their statements, the complainant and his family members took U turn and resiled from their earlier statements. In our view, the subsequent resiling of PW.3 Madan Lal and PW.5 Pinki from their earlier statements is of no avail. The affidavit and the letter are not sufficient to discard their earlier statements made on oath before the court, particularly when in their cross-examination, they also supported the prosecution version. Moreover, they could not explain as to how the police had pressurised them to make statements before the court on 11.8.1999. They even did not report the matter to the court regarding the alleged police pressure. As far as statement of PW.4 Harpal is concerned, though he had furnished affidavit stating that he had deposed against the accused under the pressure of the police, but while appearing in the court, in his re-examination, he stated that he had furnished the affidavit on the asking of accused Harish and complainant Madan, as they told him that a compromise had been effected, for which his Crl. A. No. 20-DB of 2000 -11- affidavit is required. He specifically stated that the deposition made by him on 11.8.1998 is correct. This fact indicates that an attempt was made to win over this witness, but he did not succumb to the pressure of the accused and the complainant and made a correct statement in the court to the effect that his earlier statement was correct. Therefore, in our opinion, the trial court, while relying upon the statement of PW.4 Harpal and the previous statements of PW.3 Madan Lal and PW.5 Pinki, has rightly convicted and sentenced all the accused for the offence under Section 452 IPC, accused Raju for the offence under Section 302 via Section 301 IPC and the remaining accused for the offence under Section 324 IPC. 16. We also do not find any force in the contention of learned counsel for appellant Raju that the conviction of accused Raju under Section 302 IPC is not justified. It is an admitted fact that accused Raju wanted to give a pharsa blow to PW Madan Lal, but when his wife Shanti Devi came forward to save him, the pharsa blow hit her on head, due to which she died. As per the medical evidence, Shanti Devi died due to the said injury, which was sufficient to cause death in the ordinary course of nature. In such a situation, Section 301 IPC is attracted, which provides that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends or knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended Crl. A. No. 20-DB of 2000 -12- or knew himself to be likely to cause. In the present case, it has been proved that accused Raju wanted to give pharsa blow on the person of Madan Lal with intention to cause his death, but because of the intervention of his wife Shanti Devi to save him, the said blow hit her head. Thus, accused Raju is liable to be convicted under Section 302 read with Section 301 IPC. Hence, the trial court has rightly convicted him under Section 302 IPC and the contention of learned counsel that accused Raju is liable to be convicted under Section 304 Part I IPC, merely on the ground that he had no intention to kill Shanti Devi, cannot be accepted. This case squarely falls under Section 300 Thirdly of the Indian Penal Code. 17. As far as the contention of learned counsel for appellants Harish and Chhotu that a lenient view be taken with regard to their sentence is concerned, we are of the opinion that in the facts and circumstances of the case, the trial court has already taken a lenient view and in the matter of sentence, no further leniency is required. 18. In view of the above, all the appeals are dismissed and the impugned judgment of conviction and order of sentence passed by the trial court is upheld. The appellants, who are on bail, are directed to surrender to custody to serve the remainder of sentence. ( SATISH KUMAR MITTAL ) JUDGE March 16, 2009 ( DAYA CHAUDHARY) ndj JUDGE