Crl. Appeal No. 803-DB of 2005 -1- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 803-DB of 2005 Date of decision, February 28, 2008 1. Ghanshyam s/o Prem, r/o Khoripat colony, Jam Nagar, Distt. Jam Nagar (Gujrat) 2. Kalu @ Bhola s/o Pehlad Singh, r/o Godara Distt. Panch Mahal, Gujrat. 3. Jugnu s/o Surjan, r/o Palampur, Distt. Palampur (Gujrat). 4. Ram Balak @ Kala s/o Kanhiya, r/o Ranjitpur, Distt. Bharatpur. 5. Sher Singh s/o Vijay Singh, r/o Naya Dhola, P. . Bakhtawarpur Distt. Patna 6. Kanti s/o Birju, r/p Pathar Tarawari, Mohalla Godra, Distt. Panch Mahal. 7. Inder @ Indel s/o Kalu, r/o Bishanpura, P.S.Devria, Distt. Gorakhpur. ....... Petitioner Versus State of Haryana. ........ Respondent CORAM: HON'BLE MR. JUSTICE J.S. KHEHAR AND HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. H.S. Jaswal, Advocate for the appellants. Mr. J. S. Toor, Addl.Advocate General, Haryana. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 21.9.2005 rendered by the Court of Additional Sessions Judge, Bhiwani vide which it convicted the accused/appellants and sentenced them as under:- Name of the convict Convicted for the offence Sentence awarded 1Ghanshyam U/s 396 IPC RI for life each and 2.Kalu a fine of Rs.5000/- 3.Jugnu each and in default Crl. Appeal No. 803-DB of 2005 -2- 4.Ram Balak of payment of fine 5.Sher Singh to further undergo 6.Kanti RI for a period of 7.Inder two years each. 1. Ghanshyam U/s 412 IPC RI for a period of 2.Kalu ten years each and 3. Jugnu to pay a fine of 4. Ram Balak Rs.3000/- 5. Sher Singh each and in 6. Kanti default of 7. Inder payment of fine to further undergo RI for a period of 15 months each. Both the substantive sentences were ordered to run concurrently. 2. Sher Singh, elder brother of the husband of Hemlata, injured, set the law into motion, by making statement Ex. PD before Randhir Singh, ASI, PW-7, Police Station Sadar, Bhiwani, who reached General Hospital, Bhiwani, on receipt of a telephonic message, regarding the admission of Hemlata therein. According to Sher Singh, on the night intervening 22/23.9.2001, his mother Suresh Devi (since deceased) as usual, was sleeping in the Baithak. His elder daughter Preeti, about six years of age, was sleeping by her side. Hemlata, wife of his younger brother, as usual, was sleeping in the same Baithak, on a separate cot, with her minor daughter Isha aged about 2/3 months. In the morning, at about 5.00 A.M., Crl. Appeal No. 803-DB of 2005 -3- he woke up on hearing the weeping noise of Isha. He asked his wife Manju to see, as to why,the child was weeping, whereupon, she went there and found that light of the room was on, her mother-in-law Suresh Devi was lying dead on the cot and Hemlata was also lying unconscious, with injuries on her neck and face. Seeing this Manju cried, whereupon, Sher Singh immediately reached there and also saw that the household articles, were lying scattered. He then brought injured Hemlata to the Hospital, with the help of Jitender son of his uncle Udevir. It was further stated by Sher Singh, in his statement Ex.PD, that some un-known persons, on the previous night, after lurking house trespass, had committed theft and killed his mother Suresh Devi and seriously injured Hemlata. 3. Randhir Singh, ASI sent Ex.PD the statement aforesaid of Sher Singh by making endorsement Ex. PD/1 thereon, through Satish Kumar, constable to the Police Station, on the basis whereof formal FIR Ex.PD/2 was registered by Sube Singh, SI. ASI Randhir Singh then, with complainant Sher Singh and Head Constable Subhash reached the place of occurrence. He got the scene of crime photographed, from the photographer, Anil Kumar. He inspected the spot, lifted the blood stained earth therefrom and took the same in police possession, vide recovery memo Ex.PX, attested by Subhash, Head Constable. He then preapred the Inquest report Ex.PY of the dead-body of Suresh Devi, and sent the same for post- mortem examination. 4. Ramesh Kumar, SI/SHO, reached the place of occurrence and took further investigation, into his own hands. He prepared the rough site plan Ex. PAA and lifted cemented PAYA Ex. P-1, having blood stains on it. He also recorded the supplementary statement of Sher Singh and the Crl. Appeal No. 803-DB of 2005 -4- statements of his wife Manju and others under Section 161 Cr.P.C. The details of jewellery and cash etc. taken away by the culprits, were given by Sher Singh and his wife, in their statements. On reaching the Police Station, the case property was deposited with Om Parkash, M.H.C. 5. On 16.10.2001, all the accused were arrested by Maha Singh, PW-5 in a case bearing FIR No. 408 of Police Station Sadar, Bhiwani under Sections 399/402 IPC and 25 of the Arms Act. In that case, during interrogation, all the accused vide their respective disclosure statements made to ASI Maha Singh, PW-5, attested by Beer Singh and Naresh disclosed regarding the commission of crime, in this case, along with Chanderbhan (since declared as proclaimed offender). On the basis of the said disclosure statements , the accused were arrested, in this case, by Inspector Ramesh Kumar. 6. On the same day, all the accused, were produced before the Area Magistrate with muffled faces with an application for their test identification parade, but they made separate statements, before the Area Magistrate, refusing to join the test identification parade. Thereafter, the Area Magistrate passed the order, on the application, and remanded the accused to police custody. 7. On 17.10.2001, all the accused pointed out the place of occurrence vide memo Ex. PC, attested by Ex. Sarpanch Mittarpal, PW-3 and Tejpal Singh. 8. On 19.10.2001, Ghanshayam accused made a disclosure statement Ex. PCC that some of the stolen articles were sold by them to Chanderpal son of Jagat Singh (since declared as proclaimed offender) a goldsmith of Delhi. He took the police party there and demarcated his shop Crl. Appeal No. 803-DB of 2005 -5- vide memo Ex. PDD attested by Sher Singh. 9. On 23.10.2001, Ram Balak, accused in pursuance of his disclosure statement Ex.PE got recovered one gold Rakhi, weighing one tola from a place near by his hut, near Mal Godam, Sampla. Similarly, accused Sher Singh, Kanti, Inder, Jugnu, Kalu and Ghanshayam in pursuance of their respective disclosure statements Ex. PF, PG, PH, PJ, PK an PL got recovered three gold lady rings weighing two tolas, one gold chain weighing one tola, one pair of silver panjeb weighing 20 grams, three gents gold rings weighing 20 grams, two gold tikkas weighing two tolas and two pairs of gold ear rings weighing two tolas respectively from the places near their huts at mal Godam Sampla. Recovery memos were attested by the complainant and Hemlata. Sher Singh and Hemlata identified the same, as belonging to them, which were stolen by the accused after the crime. 10. The sealed parcles of the case property were duly sent to the FSL, Madhuban on 19.10.2001, through constable Beer Singh. Vide FSL report Ex. PFF, human blood was found on the clothes of the deceased. After the completion of investigation the accused were challaned. 11. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by the commitment, charge under Sections 396 and 412 Indian Penal Code was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 12. The prosecution, in support of its case, examined Dr. M.K. Garg, PW-1, who medico-legally examined Hemlata and found the following injuries on her person:- 1. L.W. of 1 x 1 cm present on left side of face and Crl. Appeal No. 803-DB of 2005 -6- swelling all around left face present. Patient was unable to open mouth. Advised X-ray and dentel surgeon opinion. 2. L.W. of 2 x ½ cm on left side of mastoid area of scalp behind left ear. Advise X-ray. Probable duration of injuries was within 24 hours. Dr. N.K. Garg, PW-2, conducted post-mortem on the dead body of Suresh Devi and found the following injuries, on the same:- 1. Lacterated and penetrated wound was present on the skull right perital region. 3 x 3 scalp fractured depressed inside the brain. 2. 2 x 2 cm lacterated wound on the midline of scalp. 3. Depressed fracture on the skull inside the brain haematoma with swelling on the left perital region. 4. On further dissection of scalp huge haemotoma and clotted blood was present on the vault. Under line skull fractured on the left side perital region. Depressed fracture on right perital region and mid line. Brain ruptured on the right perital and middle brain tissue comes out and destorted on the right perital region. Cranual cavity was full of blood. Lungs, heart and abdomen were healthy. Probable time between injuries and death was within few minutes and between death and post mortem within 24 hours.” Mitter Pal, Ex-Sarpanch, PW-3, Sher Singh, complainant, PW-4, Maha Crl. Appeal No. 803-DB of 2005 -7- Singh, ASI, PW-5, Om Parkash, Head Constable, PW-6, Randhir Singh, ASI, PW-7, Ramesh Kumar, Inspector, PW-8, Dharam Pal, SI, PW-9, Sube Singh, SI, PW-10, Anil Kumar, Photographer, PW-11, Smt. Vivek Bharti ACJM, PW-12, Dr. Suman Yadav, PW-13 and Hemlata, injured, PW14 were also examined. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 13. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them that they along with other persons totalling 12 in number were lifted by the police from Sampla. They were kept in illegal detention and on 16.10.2001, they were falsely involved in case FIR No. 408 of 2001 under Sections 399 and 402 IPC and 25 of the Arms Act of Police Station Sadar Bhiwani. Three of them were falsely involved in some other case whereas two were let off. In that case under Sections 399 and 402 IPC and 25 of Arms Act, they had already been acquitted. 14. Acussed Ghanshayam, additionally pleaded that the police had shown the recovery of jewellery articles, from him from Sampla but he is a resident of Jind. Accused Inder also pleaded that on 9.10.2001, his wife Geeta had delivered a child in Shamji Nursing Hospital, under the supervision of Dr. Sharda and on 12.10.2001, he was looking after his wife and the child, when he along with other 11 persons, was taken away by the police. 15. Accused Ghanshayam examined his father Prem Kumar DW-1, who stated that he is President of Tapriwas Jati Kaliankari Samittee. Crl. Appeal No. 803-DB of 2005 -8- Ex.D-1 is copy of its registration certificate and Ex.D-2 is the original memorandum of the Samittee. Ex. D-3 is a copy of his ration card showing them as residents of Jind. He also produced, on record, Ex.D-4 to D-7 photo copies of identity cards issued by the Election Commission of India regarding him, his wife and Shanti wife of accused Ghanshyam Ex. D-7 copy of the judgment of acquittal of these accused persons dated 27.11.2004 in case FIR No. 408/2001 and Ex. DB certificate, issued by the residents of Tapriwas Colony, Jind regarding the innocence of accused Ghanshayam. 16. Kala Devi, DW-2, mother-in-law of Ghanshayam, was also examined by him. 17. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 18. Feeling aggrieved, against the judgment of conviction and the order of sentence, the aforesaid appeal, was filed. 19. We have heard the learned Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 20. The Counsel for the appellants, at the very outset, contended that the prosecution miserably failed to prove the identity of the accused, beyond a reasonable doubt, as the perpetrators of crime. It was further contended that there was eight hours delay in lodging the FIR which remained un-explained and, as such, the case of the prosecution was doubtful. It was further contended that it was also improbable that the complainant, who was sleeping in the room adjoining the room of the Crl. Appeal No. 803-DB of 2005 -9- deceased did not come to know about the occurrence for four hours. It was further contended that Hemlata deposed that her signatures were obtained on 2 papers, whereas, in fact, her signatures existed on 8-9 papers. It was also contended that though Hemlata regained consciousness on 25.9.2001, yet her statement was recorded on 6.10.2001, after much delay. It was further contended that Manju who went to the room, where the occurrence took place, was a material witness, but was not examined. In the alternative, last of all, it was contended that the sentence awarded to the accused, be reduced. 21. On the other hand, Counsel for the respondent, contended that, no doubt, the occurrence took place, on the night intervening 22/23.9.2001, and the accused were not earlier known to Hemlata and others who were sleeping in the room, yet they were produced in muffled faces and request was made to the Area Magistrate, that they be directed to participate, in the test identification parade, but they refused to do so. It was further contended that, as such, an adverse inference could, be drawn against them. It was further contended that in the Court, they were duly identified by Hemlata, as the perpetrators of crime. It was further contended that the case of the prosecution was probable and the trial Court was right in relying upon the evidence of the prosecution witnesses to bring home the guilt to them. 22. The evidence of Hemlata, PW-14, who can be said to be stamped witness, as she sustained injuries, in the same occurrence, at the hands of the accused is very significant with regard to the establishment of identity of the accused who committed the crime. According to her, on the night intervening 22/23.9.2001, she along with her mother-in-law was Crl. Appeal No. 803-DB of 2005 -10- sleeping in a room. Her elder brother-in-law(Jeth) and elder sister-in-law were sleeping in a separate room. Her daughter Isha aged about 2 ½ months was also sleeping with her. She further stated that at about 1/1.30 A.M. on the night intervening 22/23.9.2001, 5 to 7 persons entered the aforesaid room, and switched on the light. One of them who was standing by the side of her mother-in-law, was short statured, whitish in complexion, and the other accused were comparatively of dark complexion. When her mother- in-law asked them, as to why, they were there and why they had switched on the light, one of them picked up a cemented pillar, and gave a blow with the same, on her head. Before Hemlata could say anything a blow with the same pillar, was given on the left side of the back of her head and the second blow was given on the left side of her face. She was still in senses and crying. Her two chains of gold from her neck, pair of gold ear rings, from her ears, gold pin from her nose, both the silver panjaibs from her feet and a gold ring, from her ring finger of right hand, were removed by the assailants. She identified all the seven accused, present in the Court, as the persons, who committed the crime, on the night intervening 22/23.9.2001. Thereafter, she became unconscious. When she regained consciousness about 3 to 4 days after the occurrence, in the hospital, she came to know that silver and gold ornaments of her mother-in-law, sister-in-law (Jethani) and sister-in-law (Nanad) were also taken away by the accused, along with cash which was kept in the box, and almirahs. Hemlata could not forget the identity of the accused as perpetrators of crime, as the injuries, were caused on her person by some of them. Their identity must have left an indelible imprint on her mind especially when the light had already been switched on, by the accused, as is proved from her evidence, before committing the Crl. Appeal No. 803-DB of 2005 -11- crime. Had it been for the first time, in the Court, that Hemlata identified the accused as perpetrators of crime, it would have been said that her evidence required some corroboration. However, in the instant case, as far back as on 16.10.2001, Ghanshayam, Kalu, Jugnu, Ram Balak, Sher Singh, Kanti and Inder, accused, in muffled faces were produced before the Area Magistrate with a request that they be asked to participate in the test identification parade. Ghanshyam, accused, made a statement Ex. PEE, Kalu accused made a s tatement Ex.PEE/1, Jugnu, accused made a statement Ex.PEE/2, Ram Balak, accused made a statement Ex.PEE/3, Sher Singh, accused made a statement Ex.PEE/4, Kanti accused, made a statement Ex. PEE/5 and Inder, accused made a statement, Ex. PEE/6, to the effect, that they did not want to participate, in the test identification parade. They after admitting their statements to be correct, also thumb marked the same. The Investigating Officer, thus took steps, in accordance with the provisions of law, to hold identification parade of the accused, during the course of investigation, and that was why he produced them in muffled faces before the Area Magistrate. Since, vide the aforesaid statements, the accused refused to participate, in the test identification parade, an adverse inference could be drawn, against them, that had they joined the same, they would have been identified by Hemlata, a prosecution witness. In this view of the matter, it could not be said that the identification of the accused as perpetrators of crime, was not established, by the prosecution beyond a reasonable doubt. The finding of the trial Court, that the identity of the accused, as perpetrators of crime, was fully established, being based on the cogent and convincing evidence, does not call for any interference. The submission of the Counsel for the appellants, being without merit, must fail Crl. Appeal No. 803-DB of 2005 -12- and the same stands rejected. 23. Coming to the delay in lodging the FIR, it may be stated here that since one lady of the house namely Suresh Devi had died on account of the injuries sustained by her in the occurrence, whereas, Hemlata was lying un-concious, on account of the injuries sustained by her, at the hands of the accused, all the members of the family must have got puzzled and perplexed. In these circumstances, it must have taken sufficient time for other members of the family to regain tranquility and equilibrium. The first concern of the members of the family was to save the life of Hemlata who sustained injuries, on her person, at the hands of the accused, by taking her to the Hospital, with a view to provide her the best medical aid. It must have taken sufficient time for other members of the family, to arrange a vehicle. The time of arrival of Hemlata, in the Hospital was 5.40 A.M. on 23.9.2001, as is proved from Ex. PA, her medico-legal report. It means that within the shortest possible time i.e within about four hours, the other members of the family, after arranging a vehicle, and regaining equilibrium, brought Hemlata to the Hospital. On receipt of Ruqa, from the Hospital. Randhir Singh, ASI of Police Station, Mundal, went there and recorded the statement of Sher Singh at 9.00 A.M. on the basis whereof, FIR PD/2 was registered. The delay, if any, stood duly explained from the aforesaid facts, and circumstances. Even otherwise, mere delay in lodging the FIR, in itself, is not sufficient to throw away the prosecution case over-board. Even otherwise, in the event of unexplained delay, in lodging the FIR, the Court is put on guard to scrutinize the evidence of the prosecution witnesses, carefully and cautiously. After careful and cautious scrutiny of the evidence of the prosecution witnesses, if the Court comes to Crl. Appeal No. 803-DB of 2005 -13- the conclusion, that the same is cogent, convincing and trust worthy, then the delay, if any, in lodging the report loses its significance. In the instant case, the evidence produced by the prosecution is cogent convincing and trustworthy . The submission of the Counsel for the appellants, being devoid of merit, is rejected. 24. Hemlata was got admitted in the Hospital on 23.9.2001 at about 5.40 A.M. According to Dr. M.K. Garg, PW-1, she was found semi- conscious. The doctor found two injuries, on her person, as stated hereinbefore. The Doctor, during the course of his cross examination, stated that he obtained signatures of Hemlata, patient when she was semi conscious. Doctor M.K. Garg, further stated that the patient was unable to open her mouth. Dr. Suman Yadav, PW-13 stated that in the year 2001, she gave medical treatment to Hemlata, regarding deduction, fixation and immobilization of fracture mandible anterior region, and left posterior region and issued certificate Ex.PEE in that regard. From the evidence of both these doctors, it was proved that the condition of Hemlata was very precarious. On account of the injuries, on her person, she was not even able to open her mouth, and was given treatment of fixation and immobilization of fracture, referred to above. It was, on account of this reason, that her statement was recorded on 6.10.2001. Her discharge from the Hospital earlier to that hardly mattered. She could make statement only, if she was able to open her mouth properly, and speak. It was not that her statement was not intentionally and deliberately recorded earlier to 6.10.2001. In this view of the matter, the submission of the Counsel for the appellants, that delay in recording the statement of Hemlata, caused doubt on the prosecution story, being devoid of merit, must fail, and the same Crl. Appeal No. 803-DB of 2005 -14- stands rejected. 25. No doubt, Manju wife of Sher Singh was not examined by the prosecution. She was given up as unnecessary. Sher Singh, PW-4, the first informant, in his statement stated that at about 5.00 A.M., he heard the noise of the daughter of Dharmender, husband of Hemlata, PW-14 as she was weeping and then he asked his wife to see as to why she was weeping. His wife then saw that the house hold articles were lying scattered in the room of his mother. Then his wife raised alarm. He went inside the room, and saw that his mother was lying dead. Hemlata was lying unconscious. Manju w/o Sher Singh did not witness the occurrence. She came to know about the occurrence, much after. In these circumstances, she could not be said to be a material witness. It is for the Public Prosecutor, to decide, as to how many witnesses, he wanted to examine, to prove his case. It is not necessary for the Public Prosecutor to multiply the number of witnesses, on a particular point. There is cogent and convincing evidence of Hemlata, with regard to the mode and manner, in which the occurrence took place, as also with regard to the identification of the accused, and of Sher Singh, PW-4, who went to the room in which his mother and Hemlata (his sister-in-law) were sleeping, on hearing the weeping noise of the daughter of Hemlata and saw the articles lying scattered. In these circumstances, non-examination of Manju, wife of Sher Singh, did not at all cast doubt on the prosecution story. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected. 26. Sher Singh, PW-4, stated that he went to the room, in which his mother and sister-in-law were sleeping at about 5.00 A.M. when he heard