CRIMINAL APPEAL NO. 70-DB OF 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: February 13, 2009 Parties Name Siri Chand and another ...APPELLANTS. VERSUS The State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. Rahul Rathore, Advocate, for the appellants. Mr. S.S.Randhawa, Addl. A.G., Punjab, for the respondent – State and appellant in Cr. A. No. 533-DBA of 2000. S/Shri Rajesh Kumar and Pritam Saini, Advocates, for the complainant and petitioner in Cr. R. No. 679 of 2000. JASBIR SINGH, J. JUDGMENT This judgment will dispose of Criminal Appeal No. 70-DB of 2000, Criminal Revision No. 679 of 2000 and Criminal Appeal No. 533- DBA of 2000, arising out of judgment and order dated January 4, 2000, and January 6, 2000, respectively, vide which appellants Siri Chand and Raj Pal were convicted for commission of an offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life, whereas their co-accused Jai Singh and Sushil Kumar CRIMINAL APPEAL NO. 70-DB OF 2000 -2- were acquitted of the charge framed against them. State has filed Criminal Appeal No. 533-DBA of 2000 and complainant has also filed Criminal Revision No. 679 of 2000, impugning their acquittal. Death of Ram Dia son of Kundan, aged about 85 years, on April 6, 1998, was the reason to initiate criminal proceedings against the four accused named above. Initially DDR No. 34 (Ex. DA) was recorded on April 7, 1998, at the instance of PW2 Subhash in Police Station GRP Karnal, wherein it was stated that the deceased had gone out of his house, towards Railway line, to answer call of the nature, at 6.30 PM, one Raghbir Singh informed Prem Singh (PW11) that he had seen Ram Dia deceased lying in an injured condition near the Railway track. Subhash (PW2) along with others went to the place indicated by Raghbir Singh. When they were taking Ram Dia to the Hospital, he died on the way. After receipt of intimation, police came to the spot, prepared inquest report of the dead body and sent it for post-mortem examination. On a statement made by Prem Singh (PW11), on April 7, 1998, an FIR Ex. PL/1 was recorded against the accused named above for committing murder of Ram Dia. The above named witness has stated that litigation was pending between the parties. The accused had earlier threatened to teach lesson to the witness and on account of that it was suspected that the accused might have committed murder of Ram Dia, his father. It is also apparent on record that by recording statement of Rakam Singh (PW10) on April 9, 1998, the prosecution introduced story of last seen the deceased near the accused. This witness has stated that he had seen the accused, who were armed, following the deceased towards the Railway track on April 6, 1998. It is necessary to mention here that Subhash Chander (PW2) and Rakam Singh (PW10) are real brothers. They are also CRIMINAL APPEAL NO. 70-DB OF 2000 -3- closely related to the deceased being his grand sons. Investigating Officer got prepared site plan of the place of occurrence and removed blood stained earth. The accused were arrested and on disclosure statement made by them, iron rod and bamboo sticks were recovered. On completion of investigation, final report was put in Court for trial. The accused were charge-sheeted , to which they pleaded not guilty and claimed trial. The prosecution produced 17 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied and pleaded false implication. However, they led no evidence in defence. The trial Court on appraisal of evidence, convicted and sentenced Siri Chand and Raj Pal. However, Jai Singh and Sushil Kumar were acquitted of the charge framed against them. Shri Rahul Rathore, Advocate, counsel for the appellant has vehemently contended that it was a case of circumstantial evidence. Eye witness account is not available. In such like situation, prosecution was supposed to prove guilt of the appellants beyond a shadow of reasonable doubt, which it has failed to do. He further argued that old existing acrimony between Prem Singh -PW11 (son of the deceased) and the appellants' family is proved on record. Both the parties were litigating in the Courts. As such with a view to fix the appellants and other family members, false case was got registered against them. Ram Dia had died in an accident. In the DDR, which was recorded on the statement of Subhash, grand son of the deceased, nobody was named as an accused. Thereafter, on CRIMINAL APPEAL NO. 70-DB OF 2000 -4- consultation , Prem Singh (PW11) made a statement suspecting the appellants and other two accused as the murderers. He also assailed the testimony of Rakam Singh by dubbing him as an introduced witness. By taking us through the contents of his statement, counsel argued that his deposition does not inspire any confidence. Counsel has also argued that the witnesses have made various improvements in their statements in Court, which renders their statement unworthy of any value. He further argued that the weapons of offence were not produced in Court and that as per report of the Forensic Science Laboratory, blood was not detected on the alleged weapons of offence. He prayed that the appeal be allowed, judgment under challenge be set aside and that the Criminal Revision and Criminal Appeal filed by the complainant and the State respectively impugning acquittal of respondents therein be dismissed. Contentions of counsel for the appellants have vehemently been opposed by the State counsel. He, by making reference to the statements of the prosecution witnesses, argued that the prosecution was successful in proving guilt of all the four accused. The trial Court has wrongly acquitted two, out of them. He further stated that deposition of Rakam Singh (PW10) was rightly believed by the trial Court. He prayed that the appeal filed by the accused, having no substance, be dismissed, the appeal against acquittal of two accused be allowed and that they be also convicted and sentenced for commission of offence with which they were charged. After hearing counsel for the parties, we are satisfied that the Criminal Appeal No. 70-DB of 2000 deserves to be allowed. As per record, post-mortem on the dead body was conducted by Dr. Kapila Swamy (PW1) on April 7, 1998. Following injuries were found CRIMINAL APPEAL NO. 70-DB OF 2000 -5- on the person of the deceased: “i) Lacerated wound 2 x 2 cm on the base of left thumb dorsally. ii)Abrasion 4 x 2 cm on the left knee. iii)Lacerated wound x7 x 1 cm bone deep on the dorsum of right middle finger. iv)Lacerated wound 7 x 1 cm on the right parietal region, 5 cm above the right pinna. v) Lacerated wound 12 x 4 cm on the right parietal region, 5 cm above the pinna. Pieces of bone and brain matter coming out of the wound. On dissection there was fracture of the skull in the parietal region going from the right to the left side. The brain matter is coming out. vi)Lacerated wound 6 x 1 cm , 2 cm left of the injury No. 5. vii)Lacerated wound 4 x 1 cm, 3 cm to the right of the wound No. 5 in the occipital region; viii)Lacerated wound 6 x 1 cm on the right side of the occipital region.” Cause of death was shock and haemorrhage due to injuries, mentioned above, which were found ante mortem in nature. In his cross- examination , the doctor has specifically stated as under: “The possibility having received said injuries in accident cannot be ruled out. The possibility having received said injuries by a person who is walking by the side of train track and slipped down and strikes against a train cannot be ruled CRIMINAL APPEAL NO. 70-DB OF 2000 -6- out.” It is an admitted fact that the deceased was 85 years of age and he was found lying injured next to a Railway track. It appears to be a case of accident. This fact is established when we look into the contents of DDR No. 34 dated April 7, 1998, which was recorded at the instance of Subhash (PW2), grand son of the deceased. In the above mentioned DDR, none was named as an accused. Admittedly, civil litigation is going on between Prem Singh (PW11), complainant , and family of the accused. Death had occurred on April 6, 1998. FIR was recorded at the instance of Prem Singh (PW11) on April 7, 1998, at 2.20 PM. It appears that during the intervening period, after consultation an attempt was made to fix the family of the accused on account of existing enmity between the parties. Even in his statement Ex. PL, complainant Prem Singh (PW11) had raised only a suspicion against the accused as murderers. No other evidence was available till that time. Facts reveal that with a view to strengthen its case, the prosecution introduced Rakam Singh (PW10) as witness of 'last seen' the deceased near the accused. This witness has stated that on April 6, 1998, he saw the accused fully armed following Ram Dia towards the Railway track. This witness has specifically admitted that when he reached the village, he came to know that Ram Dia had received injuries and was lying in bushes near the Railway track. Despite being closely related to the deceased, this witness preferred to go out of the village and even did not attend cremation of the deceased. Statement of PW10 was recorded on April 9, 1998. Falsehood of this witness becomes apparent when we look into contents of his statement, CRIMINAL APPEAL NO. 70-DB OF 2000 -7- reproduced hereafter as under: “On the same evening I had taken my daughter to village Daha for treatment and returned back at 10 p.m. On the said night, I did not come to know about the injuries to Ram Dia. Subhash is my real brother. He is a PW in this case. Myself and Subhash live in the same house. I came to know in the evening of 7.4.98 about the death of Ram Dia, by that time he had already been cremated. I did not visit the house of the deceased for condolence. On that day, Subhash my brother had told me about the death of Ram Dia on 7.4.98. I do not know if the police was present in the village on the evening of 7.4.98. I went to Prem son of Ram Dia deceased on the morning of 8.4.98 for condolance. I had not told Subhash or to anybody in the village on 7.4.98 having seen Ram Dia deceased followed by the accused. I went to the house of Prem at about 7/8 a.m. On 8.4.98. I do not know if the police had visited the village on 8.4.98. I had told Prem on that day having seen the accused following Ram Dia. Police met me on 9.4.98 at Karnal. Prem had suggested me to go to Police Station to make statement. Police met me at about 12.00 noon.” DDR No. 34 was recorded at the instance of Subhash (PW2), who is brother of Rakam Singh (PW10). Admittedly, both are residing in the same house and are closely related to the deceased. In view of above said fact, conduct of PW10 Rakam Singh was most unnatural and as such his statement cannot be believed. CRIMINAL APPEAL NO. 70-DB OF 2000 -8- With a view to fix the accused, story of their having made extra judicial confession before Jai Singh (PW9) was also advanced. However, this witness failed to support case of the prosecution and was declared hostile during trial. PW2 Subhash Chander has specifically stated that after death of Ram Dia, he was asked by Prem (PW11) to intimate the police. It was also so said by Prem Singh (PW11) in his statement Ex. PL made to the police, on the basis of which formal FIR was recorded in this case. Prem Singh (PW11) has specifically stated that Rakam Singh (PW10) had intimated him on April 8, 1998, regarding participation of the accused in the crime. However, Rakam Singh has said to the contrary. It has also come on record that Rakam Singh and Subhash PWs lived at a distance of 3 to 4 Killas from the house of the deceased. Prem Singh PW has further stated that death of his father became known to the entire village. However, Subhash and Rakam Singh did not come to their house on that night, whereas he has said to the contrary in his statement Ex. PL. Subhash (PW2) has also stated that he remained present throughout and went to the Police at the asking of Prem Singh. As per case of the prosecution, first information regarding injuries to the deceased was given by one Raghbir Singh to the Pws. At the time of inquest proceedings, Raghbir Singh and Amrit Lal (grand sons of the deceased) identified the dead body. Their statements were also recorded. Therein also, nobody was named as an accused. As per case of the prosecution, iron rod and bamboo sticks were recovered, on disclosure statements made by the accused. Weapons of offence were sent to the Forensic Science Laboratory for examination. As per report, those were not found stained with blood. The prosecution has not even produced those CRIMINAL APPEAL NO. 70-DB OF 2000 -9- weapons in the Court. It has come on record that Sushil Kumar respondent , who was arrayed as an accused, was a student of 10 + 2. Even he was not spared and was named as an assailant. The prosecution witnesses have made material improvements when they deposed in Court, which cast doubt about the authenticity of their testimony. The trial Court to convict the appellants has primarily relied upon the statement made by Rakam Singh (PW10), which we feel was not justified. As has been discussed earlier, this witness was introduced lateron. There is misreading of evidence on the part of the trial Court. In view of facts, mentioned above, we allow Criminal Appeal No. 70-DB of 2000, set aside conviction and sentence of the appellants and acquit them of the charge framed against. As a consequence of above said order, we dismiss Criminal Appeal No. 533-DBA of 2000 and Criminal Revision No. 679 of 2000. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE February 13, 2009. DKC