Crl.Appeal No. 844-DB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.844-DB of 2004 Date of decision: 2.12.2010 Subhash ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Ms.Anju Arora, Advocate, for the appellant. Mr.S.S.Randhawa, Addl.AG, Haryana. ... JORA SINGH, J. Subhash has preferred this appeal to challenge the judgment of conviction dated 28.7.2004 and order of sentence dated 29.7.2004 rendered by Additional Sessions Judge, Kaithal, in Sessions Case No.146 of 2002, arising out of FIR No. 41 dated 16.2.2002 under Section 302 IPC, PS Sadar, Kaithal. By the said judgment, he was convicted under Section 302 IPC and sentenced to undergo RI for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for six months. Prosecution story, in brief, is that Dharam Singh, deceased, was the brother of Mahabir, complainant. Dharam Singh was serving with Pritam Singh and used to sleep at his dera. Few days earlier to the occurrence, he was staying at the dera of Pritam Singh. On 16.2.2002 at about 4.30 AM, complainant along with his brother Satpal was present in his house and heard cries of his brother Dharam Singh in the street. After hearing cries of Dharam Singh, he along with his brother Satpal came out of their house in the street and in front of the house of Rai Singh had seen Crl.Appeal No. 844-DB of 2004 2 Subhash armed with serva (wooden log) of the cot while causing injuries to Dharam Singh while lying on the ground. When they had gone at the spot, then Subhash, accused, had fled away from the spot with serva. Dharam Singh had succumbed to his injuries at the spot. Motive to cause injuries was that one day earlier to the occurrence, Dharam Singh had a dispute with Subhash regarding dirty water and due to this grudge, Subhash caused injuries to Dharam Singh. Satpal along with other respectables of the village was deputed to guard the dead body of Dharam Singh. Mahabir had gone to lodge report and met the police party headed by Inspector Ram Chander, SHO of Police Station, near mini bank T-point, Khurana. Statement of Mahabir (Ex.PE) was recorded at 10.00 AM, who signed the same in token of its correctness. After making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded at 11.00 AM. Special report was handed over to Ilaqa Magistrate at 12.40 PM. Inspector Ram Chander along with party and complainant had gone to the spot where dead body of Dharam Singh was lying. Photographer was arranged. Photographs of dead body and place of occurrence were got clicked. After inspecting the spot, rough site plan with correct marginal notes was prepared. Inquest report was prepared. Dead body was handed over to HC Prem Singh for postmortem examination. Blood stained earth was lifted from the spot and made into a sealed parcel with seal bearing impression `RC'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. One parna and one khes stained with blood were also lifted from the spot and made into a sealed parcel sealed with seal bearing impression `RC'. Sealed parcel was Crl.Appeal No. 844-DB of 2004 3 taken into police possession vide separate memo attested by the witnesses. From the spot, IO had gone to General Hospital, Kaithal, and near the gate of the hospital, HC Prem Singh handed over one parcel of clothes sealed with seal bearing impression `RD'. Parcel was taken into police possession vide separate memo attested by the witnesses. On return to the police station, case property was deposited with the Incharge of Malkhana. On 18.2.2002, IO along with party was present near Pehowa Chowk, Kaithal, then received secret information that Subhash was in the village and was to come towards the city. Police party had gone to Village Khurana. Balwan Singh, Ex.Sarpanch, produced the accused before the IO and was arrested in this case. Accused was wearing blood stained shirt and pyjama like a pants, which were made into a sealed parcel sealed with seal bearing impression `HK'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. On 19.2.2002, accused was interrogated and suffered disclosure statement. In pursuance of disclosure statement, got recovered weapon of offence from the specified place. Sketch of weapon was prepared and was made into a sealed parcel sealed with seal bearing impression `BS'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in Court. Accused was charged under Section 302 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 13 Crl.Appeal No. 844-DB of 2004 4 witnesses. PW1 HC Sant Lal, PW2 Constable Surinder Pal and PW3 Constable Sushil Kumar tendered their affidavits (Ex.PA, Ex.PB and Ex.PC), respectively. PW4 Constable Ramesh Chand, Photographer, had taken photographs of the dead body. Ex.P1 to Ex.P6 are the positives and Ex.P7 to Ex.P12 are the negatives. PW5 Constable Lachhman Singh prepared scaled site plan (Ex.PD). PW6 ASI Hardev Kumar on receipt of ruqa (Ex.PE), recorded formal FIR (Ex.PE/1). Special report was sent to the Ilaqa Magistrate. On 19.2.2002, he was in the police station. In his presence, SHO Ram Chander had interrogated the accused. Accused suffered disclosure statement and in pursuance thereof, got recovered serva (wooden plank) from the specified place. PW7 SI Dayal Singh was with the IO and in his presence, blood stained earth was lifted from the spot and the same was made into parcel sealed with seal bearing impression `RC’. Parcel was taken into police possession vide separate memo attested by the witnesses. One khes and one parna were also lifted from the spot and made into parcel sealed with the seal bearing impression `RC’. Parcel was taken into police possession vide separate memo attested by the witnesses. PW8 Dr.R.D.Chawla on 16.2.2002 had conducted the postmortem examination on the dead body of Dharam Singh and observed as under:- “Skull was badly crushed and broken into pieces. Clotted blood Crl.Appeal No. 844-DB of 2004 5 was present. Brain matter was absent from the skull. Left half of the skull was absent. Right half was crushed. Eyes were shrunken in the sockets. No forehead was present on the left side. There was lacerated wound on the right ear. Pinna of ear was separated from the skull. On the lower 1/3rd reddish clotted blood was present. Both the eye orbits were broken on the superior surface. Lower surface was broken but intact and crushed. Rigor mortis was present all over the body.” Cause of death was due to shock and haemorrhage due to head injury, which was sufficient to cause death in the ordinary course of nature. Injuries were found to be ante mortem in nature. Time between injuries and death was within few minutes and between death and postmortem was 6 to 12 hours. PW9 ASI Prem Singh got conducted postmortem examination on the dead body of Dharam Singh. PW10 HC Balbir Singh on 18.2.2002 was with the IO. Balwan Singh, Ex.Sarpanch, had produced the accused before the police. At that time, accused was wearing clothes stained with blood. After arranging other clothes for the accused, clothes worn by him were taken into police possession after making the same into a sealed parcel. PW11 Mahabir is the complainant eye witness. He has supported the prosecution story by saying that in his presence, accused had caused injuries to his brother Dharam Singh. PW12 Satpal is the second eye witness. He is the brother of the deceased and has supported the version of Mahabir. PW13 Inspector Ram Chander is the Investigating Officer. Crl.Appeal No. 844-DB of 2004 6 After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that he was falsely implicated due to previous enmity with the complainant party. Opportunity was given to lead defence evidence, but no defence was led. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellant and from the perusal of the evidence on the file, appellant was convicted and sentenced as stated aforesaid. We have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned counsel for the appellant argued that there is a delay in filing the FIR. Occurrence was at about 4.30 AM, whereas report was lodged at 10.10 AM. FIR was recorded at 11.00 AM. If the complainant and his brother had witnessed the occurrence at 4.30 AM, then immediately one of them could easily report the matter to the police. No explanation regarding delay. Occurrence was witnessed by Mahabir and Satpal. They are the real brothers of the deceased, but their presence at the time of occurrence was not natural. Conduct of alleged witnesses is improbable because appellant was not armed with deadly weapon. Appellant was known to them and if caused injuries to Dharam Singh, then Mahabir and Satpal, should have caught hold the appellant. Place of occurrence is within the residential area but except real brothers of the deceased, no one from the adjoining houses came out at the spot. Rai Singh, Manga and Prithi also came at the spot after hearing cries, but they were not examined for the Crl.Appeal No. 844-DB of 2004 7 reasons best known to the prosecution. Recovery of wooden plank in pursuance of disclosure statement is also doubtful. Appellant was arrested on 18.2.2002, whereas recovery was on 19.2.2002. One of the recovery witnesses is Mahabir. Number of persons were present at the time of recovery but no independent witness was requested to join the party. Ocular evidence is contrary to the medical evidence. According to the doctor, left half of the skull was found absent. Pinna of ear was found separated from the skull. Both the eye orbits were found broken. No explanation, where were the missing parts of the body. In fact, deceased was under the influence of liquor and fell on the ground and was hit by some unknown vehicle. Due to previous enmity with the complainant party, appellant was named. Learned State counsel argued that place of occurrence is near the residential house of the eye witnesses. On hearing cries of the deceased, both the eye witnesses came out of their house and witnessed the appellant while causing injuries. Number of injuries were caused in their presence. Death was at the spot. Appellant was armed with wooden log. Eye witnesses could have made an effort to apprehend the appellant but all depends upon the circumstances of the case as to how eye witnesses present at the spot react. At the time of postmortem examination, blood stained clothes of the deceased were taken into police possession One khes and one parna stained with blood were also lifted from the spot. Appellant was arrested on 18.2.2002. At that time, his clothes were found to be stained with blood. After arranging other clothes, blood stained clothes worn by the appellant were taken into police possession. Blood group of the blood noticed on the khes, parna and pyjama of the appellant was found to be Crl.Appeal No. 844-DB of 2004 8 matching. When the place of occurrence was near the residential house of the eye witnesses, then presence of the eye witnesses was natural. After hearing cries of the deceased, Rai Singh, Manga and Prithi also came at the spot but they were not examined. Quality of evidence is to be seen and not quantity of evidence. If appellant had not caused injuries with wooden log, then Rai Singh, Manga or Prithi could easily be produced in defence. Appellant was produced by Balwan Singh, Ex. Sarpanch, and if prosecution story was not correct one, then Balwan Singh could easily be produced in defence. Defence version of the appellant is that deceased was under the influence of liquor and had a fall on the metalled road. While lying on the ground, he was crushed by some unknown vehicle but place of occurrence was not a main road. Occurrence was in the street in front of the house of Rai Singh. Only one house was intervening in between the houses of the complainant and the appellant. One day earlier to the occurrence, there was dispute amongst the deceased and the appellant regarding dirty water and due to this grudge, appellant had caused injuries to the deceased. Defence version of the appellant is that he was inimical towards the complainant party. But appellant is from the brotherhood of the complainant party. When complainant party was not to get anything by naming the appellant, then there was no idea to leave the real culprit and name the appellant. In case deceased had received injuries in the accident, then by filing claim petition, complainant party was expected to get compensation. First submission of learned counsel for the appellant was that there is a delay in lodging the FIR but after going through the evidence on the file, we are of the opinion that delay is not fatal. At about 4.30 AM, Mahabir and his brother Satpal heard cries of their third brother Dharam Crl.Appeal No. 844-DB of 2004 9 Singh. On hearing cries, Mahabir and his brother Satpal came out in the street. Then in front of the house of Rai Singh had seen the appellant while causing injuries to Dharam Singh with wooden log. On hearing cries, Rai Singh, Manga and Prithi also came at the spot and tried to apprehend the appellant but the appellant had fled away. At about 10.00 AM, complainant by deputing his brother Satpal along with other respectables of the village had gone to lodge report, but near Mini Bank T-point, Khurana, police party headed by Inspector Ram Chander had met the complainant. Statement of the complainant was recorded and at 10.10 AM after making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded at 11.00 AM. Special report was handed over to Ilaqa Magistrate at 12.40 PM. Occurrence was in the month of February and in the month of February, sun arises at about 7/7.30 AM. After the death of Dharam Singh at the spot, other family members of complainant also came at the spot. Respectable persons from the village including Balwan Singh, Ex.Sarpanch, also came at the spot. Balwan Singh directed the complainant to report the matter. Complainant party is not well educated. Only one accused was named. Earlier to the occurrence, there was no serious enmity amongst the parties. According to defence version, deceased under the influence of liquor fell on the road and was crushed by some unknown vehicle but place of occurrence was not a main road. Place of occurrence was in the street in front of the house of Rai Singh. No suggestion to the witnesses that accident was outside the village on the main road and from the place of accident, dead body was shifted to the present place of occurrence. Appellant when examined under Section 313 Cr.P.C., then did Crl.Appeal No. 844-DB of 2004 10 not state a word that Dharam Singh under the influence of liquor fell on the metalled road and was crushed by some unknown vehicle and after shifting the dead body to the present place of occurrence, he was falsely implicated due to previous enmity. Something could be said if number of accused would have been named by the complainant. When complainant party was not to get anything by naming the appellant, then there was no idea to leave the real culprit and name the appellant. Delay stands explained but if we presume that there is some delay, then delay itself is not sufficient to ignore the prosecution story. Next submission of learned defence counsel for the appellant was that presence of eye witnesses was not natural and their conduct was improbable because if they had witnessed the occurrence, then they should have tried to catch hold the appellant to save Dharam Singh but as per evidence on the file, we are not in a position to agree with the submission of learned counsel for the appellant. No doubt, deceased was the real brother of Mahabir and Satpal, eye witnesses. All the three brothers were residing jointly. House of the complainant party is at a distance of about 20 feet from the place of occurrence. Only one house intervenes between the houses of the complainant and appellant. At about 4.30 AM, eye witnesses had heard cries of the deceased, then they came out of their house in the street and had noticed the appellant while armed with wooden log causing injuries to Dharam Singh. Three injuries were caused by the appellant in the presence of eye witnesses. When appellant had caused number of injuries to Dharam Singh, then eye witnesses became frightened. On hearing cries, Rai Singh, Manga and Prithi also came at the spot and tried to apprehend the appellant, but appellant had fled away from the spot. If Crl.Appeal No. 844-DB of 2004 11 prosecution story was not natural one, then any one of them could easily be produced in defence. When injuries were caused to the deceased in the presence of close relations, then it depends upon the circumstances of the case as to how witnesses react. Some times, when injury is caused by dang, then no effort is made by the close relation to apprehend the assailant. Some times, due to weak physique of the eye witness, no effort is made to intervene or apprehend the assailant. When the background of the assailant is criminal and criminal is healthy, then in that case, no effort to save the close relative. If real brothers failed to apprehend the appellant, then on this short ground, their presence is not to be doubted. Presence of both the eye witnesses was natural at the time of occurrence because their house was near to the place of occurrence. Eye witnesses stated that when injuries were caused to their brother, then they became frightened. Rai Singh, Manga and Prithi also came at the spot and they had tried to apprehend the appellant but he had fled away from the spot. In case appellant had not caused injuries as per prosecution story, then Rai Singh, Manga or Prithi could easily be produced in defence. Quality of evidence is to be seen and not quantity of evidence. No suggestion to the witnesses that Rai Singh, Manga and Prithi were also inimical towards the appellant. So due to this reason, they were not produced in defence. Only one accused, i.e., appellant was named. When there was no serious previous enmity amongst the parties, then there was no reason to leave the real culprit and name the appellant. Presence of eye witnesses was natural. No reason to doubt their presence simply on the allegation that they are the real brothers of the deceased. Next submission of learned defence counsel for the appellant Crl.Appeal No. 844-DB of 2004 12 was that recovery of wooden log in pursuance of disclosure statement is doubtful because no independent witness was joined but submission of learned counsel is without any force. Occurrence was on 16.2.2002 at 4.30 AM. On 18.2.2002, appellant was produced before the police by Balwan Singh, Ex. Sarpanch. On 19.2.2002, appellant was interrogated and in pursuance of disclosure statement, got recovered serva (wooden log) from the specified place. Recovery was in presence of Mahabir and ASI Hardev Singh. Recovery witnesses of weapon are some what discrepant regarding time. According to ASI Hardev Kumar, disclosure statement was suffered at about 3.30 AM, whereas Mahabir, complainant, stated that he had gone to the police station at about 8.00/9.00 AM. Mahabir appeared in Court on 2.7.2003. With the passage of time, minor discrepancies regarding time were bound to occur. If no discrepancy, then witnesses are criticized as tutored one and if there are some discrepancies, then again witnesses are criticized. Appearance of minor discrepancies regarding time etc. rather show that prosecution story is natural one. If appellant was not produced before the police by Balwan Singh, Ex. Sarpanch, then he could easily be produced in defence to state that he did not produce the appellant before the police on 18.2.2002. At the time of interrogation, some persons came to the police station but if IO failed to join any one of them, then on this short ground, recovery of wooden log in pursuance of disclosure statement is not to be discarded. Next submission of learned defence counsel for the appellant was that ocular evidence is contrary to the medical evidence. Admittedly, Dr. R.D. Chawla stated that half of skull was found absent. No forehead was present on the left side. Pinna of ear was found separated from the Crl.Appeal No. 844-DB of 2004 13 skull and both eye orbits were found broken but the doctor did not state a word that injuries were not possible with a wooden log. Doctor rather stated that he has seen the wooden log and possibility of injuries with this wooden log cannot be ruled out. No suggestion was given to the doctor that injuries were received in road side accident and were not possible with wooden plank. In cross-examination, doctor stated that possibility of injuries in the accident cannot be ruled out but statement of Expert if some what contrary to the ocular evidence, then ocular, i.e., statements of eye witnesses, cannot be ignored. Statements of eye witnesses are to be given preference to the statement of Expert witness. Last submission of learned defence counsel for the appellant was that deceased was inimical towards the appellant. Deceased was under the influence of liquor and had a fall on the road and was crushed by some unknown vehicle but defence version is an after thought. No suggestion was given to the eye witnesses as to where deceased met with an accident. No defence version that dead body was shifted from the place of accident to the place of occurrence shown in the site plan. According to postmortem report, liquor was not noticed. If death was in road side accident, then complainant party was to get compensation by filing claim petition. By naming the appellant, when there was no serious enmity amongst the parties, complainant party was not going to get anything. Blood stained clothes of the deceased were taken into police possession. One khes and one parna were lifted from the spot and same were stained with blood. At the time of arrest of appellant, clothes worn by him were found to be stained with blood. Blood stained clothes were taken into police possession. All recovered articles, i.e., blood stained clothes of deceased and appellant, Crl.Appeal No. 844-DB of 2004 14 parna and khes, were sent to the laboratory. Report of the laboratory (Ex.PQ) is on the file. Human blood was noticed on the khes, parna, shirt and pyjama of the deceased and appellant. Blood group of blood noticed on the shirt and pyjama of the deceased was found tallying with the blood group of blood noticed on the pyjama of the appellant. If appellant had not committed the crime, then question is how the clothes worn by him were found to be stained with blood and blood group was found matching with the blood group of the deceased. Appellant was arrested on 18.2.2002 and if prosecution story was not correct one, then relations of the appellant could easily file complaints to different authorities. Respectable persons from village could easily be produced in defence to state that, in fact, deceased had received injuries in the accident and not at the hands of the appellant. Defence story regarding receipt of injuries in the accident