IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 565-DB of 2007 DATE OF DECISION : 18.05.2011 Vikram Singh and others .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Om Parkash Kashyap, Advocate, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. All the three appellants, namely Vikram Singh, Vicky and Jeeta, were tried by the court of Sessions Judge, Kaithal, for committing the murder of Ramesh and also for committing robbery of ` 99,396/-. The trial court, vide its judgment dated 9.5.2007, convicted the appellants under Sections 302 and 392, both read with Section 34 IPC. Vide order dated 11.5.2007, they have been sentenced to undergo imprisonment for life and to pay a fine of ` 5,000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months each under Section 302/34 IPC; and to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 5,000/- each, in default of payment of fine to further undergo Crl. A. No. 565-DB of 2007 -2- rigorous imprisonment for six months each under Section 392/34 IPC. Case of the prosecution 2. The case of the prosecution is based upon the eye version account given by Jaibir (PW.8), real brother of deceased Ramesh, who at the time of the occurrence was travelling with his brother Ramesh in the truck. According to him, he and his brother Ramesh were working in Kulheri Wala Oil Mills, Hisar. On 22.2.2005, 300 bags of `Binola cakes' were loaded in truck bearing registration No. HR-67-1177 for delivery to Grover Agro Industries, Kurukshetra. The truck was being driven by appellant No.1 Vikram Singh, whereas appellants Vicky and Jeeta were his helpers on the said truck. The complainant and his brother went with the said truck to deliver the consignment at its destination and to collect the money. On 23.2.2005, the consignment was unloaded at Grover Agro Industries, Kurukshetra and the sale price of ` 99,396/- was given to his brother Ramesh. Thereafter, they along with the appellants started back for Hisar on the same truck. At about 8/9 PM, when the truck reached near village Pinjupura, slightly ahead of Kalayat, then Vicky and Jeeta (appellants No.2 and 3) caught hold his brother Ramesh. Appellant No.2 Vicky put his hands on the mouth of Ramesh and appellant No.3 Jeeta caught hold his hands. Then on the instigation of appellant No.1 Vikram Singh, appellant No.2 Vicky took the Parna (a piece of cloth) from him, put the same around the neck of Ramesh, and appellants Vicky and Jeeta strangulated his brother Ramesh, due to which he died. He tried to rescue his brother, but due to the Crl. A. No. 565-DB of 2007 -3- scuffle between them, appellant No.1 Vikram Singh lost the control of the truck and it got stucked in the ditch on the right side of the road. He was pushed outside from the truck and all the three accused ran away towards the fields, after taking cash, which was being carried by Ramesh in his bag. Due to the incident, the complainant became perplexed. After some time, he took lift in a truck and went to Hisar to inform his employer Fateh Chand (PW.10) and narrated him the entire occurrence. Then, in the morning, he along with owner Fateh Chand and other persons reached Police Station Kalayat to inform about the incident, where his statement (Ex.PH) was recorded by SI/SHO Ashok Kumar (PW.12) on 24.2.2005 at 9.00 AM, on the basis of which the formal FIR (Ex.PH/2) was registered. 3. Immediately after the registration of the FIR, SI/SHO Ashok Kumar along with complainant Jaibir and other police officials went to the spot. The dead body of Ramesh was found lying in the truck, which got stucked in the ditch in a damaged condition on its right side, as it hit the tree. The inquest report (Ex.PO) was prepared and the dead body along with the Parna was sent for post mortem examination. The truck was taken into possession vide recovery memo Ex.PD. 4. At 2.00 PM on the same day, Dr. S.K. Jain (PW.6) along with Dr. R.D. Chawla conducted post mortem examination on the dead body of Ramesh. During the post mortem examination, the following six injuries were found on the body of the deceased : Crl. A. No. 565-DB of 2007 -4- 1. There was incised wound 2 cm x .2 cm present on the right side of epigastrium region going to left side of the abdomen, crossing the subcutaneous tissue and the sheath. Clotted blood was present in the path course. 2. 2.5 cm x .5 cm irregular shape abrasion dark brownish in colour on the left side of the noise and one abrasion 1.5 cm x .4 cm near mid line between the external nares. There was also one small abrasion 1/2 cm x .4 cm over the left side of the nose. 3. One brownish abrasion 3.5 cm x 3 cm over the chin area. 4. 2.5 cm x .4 cm two abrasions brownish coloured over the submandidular region, above the ligature mark. 5. There was ill-defined ligature mark 4 cm breadth over front of the neck over thyroid cartilage prominence around the neck at same level and in the back also at the same level. Underlying area was also having small abrasions brownish in ligature mark area and also above and below the mark. Hyoid bone was also fractured. Thyroid cartilage was teared off. There was cyanosis in the extremities, clinching of both hands was present. 6. There was 3.5 cm x 1.5 cm brownish coloured abrasion in right renal area. Underlying subcutaneous tissue was having echhymosis. Wall, ribs and cartilage were normal. 5. All the injuries were found to be ante-mortem in nature. The time between injuries and death was stated to be within few minutes and between death and post mortem was 12 to 24 hours. In the opinion of the Doctors, the cause of death of deceased Ramesh was due to shock due to asphyxia, which was due to strangulation and was sufficient to cause death in the normal course of life. Dr. S.K. Jain further opined that the ligature marks found on the body of the deceased could have been caused by the Crl. A. No. 565-DB of 2007 -5- Parna (Ex.P10), which was lying in the neck of the deceased at the time of the recovery of the dead body from the truck. 6. On the same day, at about 5.00 PM, all the three appellants were arrested from Railway Station Gurthali. On the next day, i.e. on 25.2.2005, during interrogation, appellants Vikram Singh, Vicky and Jeeta suffered disclosure statements Ex.PJ, Ex.PJ/1 and Ex.PJ/2, respectively. In pursuance of his disclosure statement, appellant No.1 Vikram Singh got recovered cash amount of ` 59,396/- from his house, which was taken into possession vide recovery memo Ex.PK, in the presence of HC Balwan Singh (PW.11) and Constable Ram Niwas. Similarly, appellants Vicky and Jeeta got recovered cash amount of ` 20,000/- each from their respective houses, which were taken into possession vide recovery memo Ex.PK/1 and Ex.PK/2, in the presence of the same witnesses. 7. After completion of investigation, the police filed challan and charges under Sections 302 and 392, both read with Section 34 IPC, were framed against the appellants, to which they did not plead guilty and claimed trial. Prosecution evidence 8. In support of its case, though the prosecution has examined twelve witnesses, but mainly the prosecution is relying upon the testimonies of PW.5 Prem Kumar, PW.7 Nishan Singh, PW.8 Jaibir and PW.10 Fateh Chand. 9. PW.5 Prem Kumar was proprietor of Grover Agro Industries, Crl. A. No. 565-DB of 2007 -6- Kurukshetra, to whom the consignment of 300 bags of `Binola cakes' was sent. He stated that on 23.2.2005, he had received the said consignment from Kulheri Wala Oil Mills, Hisar, in the truck in question, which was being driven by appellant No.1 Vikram Singh. Ramesh (deceased) who was Munim of the consigner firm and Jaibir were accompanying the truck. He further stated that he had paid ` 99,396/- in cash to Ramesh on the same day and thereafter, they left his shop for Hisar at about 5.00 PM. 10. PW.7 Nishan Singh is a transporter, through whom Kulheri Wala Oil Mills, Hisar, hired the truck in question, which was being driven by appellant No.1 Vikram Singh. 11. PW.8 Jaibir is the complainant as well as the eye witness of the occurrence. 12. PW.10 Fateh Chand is the owner of Kulheri Wala Oil Mills, Hisar. He has supported the prosecution version that on 22.2.2005, the truck bearing registration No. HR-67-1177 was hired by his firm for sending consignment of `Binola cakes' to Grover Agro Industries, Kurukshetra. The signatures of the driver of the truck were obtained on the bill (Ex.P3). He further stated that there were two helpers on the said truck, to whom he identified in the court, whose names later on came to be known as Vicky and Jeeta (appellants No.2 and 3). He further stated that his employees Ramesh and Jaibir had accompanied the consignment and in the intervening night of 23/24.2.2005, Jaibir had come to him at Hisar and told that Ramesh had been murdered by the appellants near Kalayat. Then he along with other Crl. A. No. 565-DB of 2007 -7- persons accompanied Jaibir to the spot. On the statement of Jaibir, the case was registered at Police Station Kalayat. 13. PW.12 Ashok Kumar SI, the Investigating Officer of the case, has proved all the documents prepared by him as well as the arrest of the appellants and recovery of cash amount from them during investigation conducted by him. 14. All the aforesaid material witnesses have fully supported the case of the prosecution. Statements of the appellants under Section 313 Cr.P.C. 15. In their statements under Section 313 Cr.P.C., the appellants denied the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. Appellant No.1 Vikram Singh stated that Ramesh had died in a motor vehicle accident on 22/23.2.2005, regarding which he gave information to Police Station Kalayat as well as to the owner of the truck on the same day. Jaibir, Vicky and Jeeta had not accompanied him at that time. On the next day, he was involved by the police in the false case. The other two appellants, namely Vicky and Jeeta, stated that they did not accompany Ramesh, Jaibir, Jeeta and Vikram Singh on 22/23.2.2005 on the truck in question and they have been falsely implicated in the case. 16. In defence, the appellants did not examine any witness. Findings of the trial court 17. After hearing learned counsel for the parties, while relying Crl. A. No. 565-DB of 2007 -8- upon the prosecution evidence and rejecting the defence of appellant No.1 Vikram Singh that Ramesh had died due to a motor vehicle accident of the truck, came to the conclusion that all the three appellants have committed the murder of Ramesh and robbed the amount, and convicted and sentenced the appellants. Arguments of learned counsel for the appellants 18. Learned counsel for the appellants argued that the trial court has committed grave illegality while convicting and sentencing the appellants for the alleged offences, as in the instant case, the prosecution has failed to prove its case against them beyond a shadow of reasonable doubt. According to the learned counsel, the case of the prosecution is solely based upon the testimony of PW.8 Jaibir, the alleged eye witness, but his presence at the time of the occurrence is highly doubtful. Actually, he did not accompany Ramesh in the said truck from Hisar and after the occurrence, on the next day, he was introduced as an eye witness, and on his statement, the case was registered against the appellants on a false version. Learned counsel argued that admittedly this witness did not receive any injury. If he would have been present in the truck along with his brother Ramesh at the time of the occurrence, then he being an eye witness would not have been spared by the appellants. Learned counsel further argued that the conduct of this witness at the time of the occurrence and subsequent to the occurrence was wholly un-natural, which further creates doubt about his presence at the time of the occurrence. According to the learned counsel, it Crl. A. No. 565-DB of 2007 -9- is highly improbable that when the appellants were allegedly killing his brother by strangulating him, he did not make any attempt to save his brother. Secondly, when he was thrown out of the truck, he did not sustain any injury. Further, after knowing that his brother was killed, instead of informing the police, he went to Hisar on the pretext that he had to inform his employer. According to his admission in the cross-examination, he even did not disclose the said fact to the driver of the truck, in which he took the lift. He also admitted that earlier, he had not accompanied any other consignment of the oil cakes from the Mill. According to the learned counsel, all these facts clearly indicate that the said witness was not present at the time of the occurrence and his testimony as an eye witness of the occurrence is highly unreliable and untrustworthy. Learned counsel further argued that in the present case, there is contradiction between the ocular version and the medical evidence. As per the medical evidence, six injuries were found on the body of the deceased, but the version given by PW.8 Jaibir does not tally with the injuries found on the body. In order to fill up this lacuna, this witness while appearing in the witness box made improvement and stated that appellant Vicky was carrying a screw driver and he gave its two blows, one in the abdomen and the other on the neck of Ramesh. Learned counsel argued that this major contradiction in the ocular version and the medical evidence further creates doubt about the presence of the alleged eye witness at the time of the alleged occurrence. Learned counsel further argued that the recoveries of the cash amount effected from Crl. A. No. 565-DB of 2007 -10- the appellants is doubtful, as no independent witness was associated at the time of the alleged recoveries, particularly when the recoveries were effected from the houses of the appellants, situated in village Siwan, where many independent witnesses were available. In the last, learned counsel argued that the present case is a case of road accident, where the deceased has died, when the truck had struck against the Safeda tree. While referring to a suggestion given by Dr. S.K. Jain (PW.6), where he stated that the `possibility of hyoid bone being fractured in a motor vehicular accident could not be ruled out' and `it is correct that cyanosis will be present in suicidal, homicidal and accidental deaths', learned counsel argued that the deceased had died an accidental death and all the appellants have been falsely implicated, and the said accidental death has been given colour of homicidal death on the false version given by the eye witness. Arguments of learned State counsel 19. On the other hand, learned Additional Advocate General, Haryana, argued that the prosecution has proved its case against the appellants beyond shadow of reasonable doubt and the entire evidence, led and proved by the prosecution, is reliable and trustworthy, on the basis of which the trial court has rightly convicted and sentenced the appellants. Discussion 20. The first issue arising for consideration is as to whether death of Ramesh is accidental or homicidal in nature. 21. PW.6 Dr. S.K. Jain, the then Medical Officer, Civil Hospital, Crl. A. No. 565-DB of 2007 -11- Kaithal, along with Dr. R.D. Chawla, conducted the post mortem examination on the dead body of Ramesh, on 24.2.2005 at 2.00 PM. They found six injuries on the body of the deceased. Injury No.1 was an incised wound of 2 cm x .2 cm on the right side in epigastrium region going to left side of abdomen. The second injury was an irregular shape abrasion on the left side of the nose and two small abrasions. The third injury was also an abrasion over the chin area. The fourth injury was two brownish colour abrasions over the submandidular region. The fifth injury was ligature injury on the front of the neck over thyroid cartilage. The hyoid bone was found to be fractured. Thyroid cartilage were teared off; and the sixth injury was again a brownish colour abrasion in the right renal area. In the opinion of PW.6 Dr. S.K. Jain, the deceased had died because of injury No.5 being strangulated with the help of Parna. He confirmed that injury No.5 could have been caused by Parna (Ex.P10). He stated that the chances of injuries No.1 to 3 being suffered in a motor vehicular accident are very less as in cases of motor vehicle accident the depth of injuries should be more and the injuries would not be normally confined around the hyoid bone. The hyoid bone is also protected by the chin, so in case of accident, the person is likely to receive injury on its face and chin before receiving injury on the hyoid bone. Thus, from the medical evidence led by the prosecution, it has been clearly established that the death of Ramesh was homicidal and not accidental in nature. Merely because on a suggestion, the doctor has stated that possibility of hyoid bone being fractured in a motor vehicular accident Crl. A. No. 565-DB of 2007 -12- could not be ruled out, it cannot be inferred that the death in the instant case was accidental. Therefore, in our opinion, the trial court has rightly held that the death of Ramesh in the present case was homicidal and it was not result of any motor vehicular accident. 22. Now the question arises : Who had caused homicidal death of Ramesh deceased ? 23. The entire case of the prosecution is based upon the testimony of PW.8 Jaibir, brother of deceased Ramesh, who alleged to have seen the occurrence. As per the prosecution case, from the very beginning, Jaibir accompanied his brother Ramesh from Hisar to Kurukshetra in the truck and from Kurukshetra to the place of occurrence. Now it is to seen whether PW.8 Jaibir was accompanying his brother Ramesh and was present in the truck at the time of the alleged occurrence. According to learned counsel for the appellants, the presence of this witness at the time of the alleged occurrence is doubtful and his testimony wholly is unreliable and untrustworthy. According to the learned counsel, the conduct of PW.8 Jaibir at the time of the occurrence and after the occurrence was not of a normal man. It is highly improbable and unreliable that the appellants did not cause any injury to this witness, who lateron was going to be an eye witness against them. Learned counsel further argued that after coming to know that his brother had been killed by the appellants, immediately after the occurrence, PW.8 Jaibir did not inform the police about the occurrence and instead of that, he left for Hisar to inform his employer about the incident. It Crl. A. No. 565-DB of 2007 -13- is further argued that Jaibir, while noticing variance in his initial version before the police and the medical evidence, made significant improvement, while appearing in the court as PW.8, regarding the injuries received by his deceased brother. He stated that appellant No.2 Vicky had given two blows with a screw driver, one on the abdomen and the other on the neck of deceased Ramesh. In his initial version before the police, he did not mention this fact. 24. On a careful examination of the statement of this witness and the other evidence led by the prosecution, particularly the statements of PW.5 Prem Kumar, PW.7 Nishan Singh and PW.10 Fateh Chand, we are of the opinion that the presence of this witness (PW.8 Jaibir) at the time of the occurrence has been clearly established and his testimony is wholly reliable and trustworthy. From the statement of PW.10 Fateh Chand, who is owner of Kulheri Wala Oil Mills, Hisar, it has been established that deceased Ramesh and PW.8 Jaibir were his employees. Deceased Ramesh was working as Munshi whereas PW.8 Jaibir was employed as labourer in the Mill on daily wages. It has also been proved that on 22.2.2005, both of them went in the truck to deliver the consignment of 300 bags of `Binola cakes' at Grover Agro Industries, Kurukshetra, and to bring the payment of the consignment from the consignee. He has stated that earlier also, Jaibir had been accompanying Ramesh to deliver the consignments. It has also been proved that the truck bearing registration No. HR-67-1177, being driven by appellant No.1 Vikram Singh, was engaged through PW.7 Nishan Singh to Crl. A. No. 565-DB of 2007 -14- transport the said consignment to Grover Agro Industries, Kurukshetra. He has further proved that there were two helpers on the said truck, who were identified in the court as Vicky and Jeeta. This witness has further stated that PW.8 Jaibir had reached Hisar at 1.20 AM on 24.2.2005 and informed him that Ramesh was murdered by the appellants. PW.5 Prem Kumar has further corroborated the version given by PW.8 Jaibir. He stated that on 23.2.2005, he had received 300 bags of `Binola cakes' from Kulheri Wala Oil Mills, Hisar, in the truck, which was being driven by appellant No.1 Vikram Singh, who was accompanied by deceased Ramesh and Jaibir. He has categorically stated that Ramesh used to accompany the consignment on every occasion and PW.8 Jaibir had accompanied Ramesh earlier also. He further proved that he had paid ` 99,396/- to Ramesh in cash and thereafter at 5.00 PM, Ramesh, his brother Jaibir and driver Vikram Singh along with the truck left Kurukshetra for Hisar. This witness further proved that when the appellants along with Ramesh left Kurukshetra for going to Hisar, Jaibir was also present and had gone with them. The statements of both these witnesses are reliable and trustworthy. Except some minor contradictions in the statement of PW.8 Jaibir and PW.5 Prem Kumar with regard to the arrival time at Kurukshetra and departure time from Kurukshetra, there is no inconsistency or contradiction in their statements. PW.5 Prem Kumar stated that the truck arrived at their shop at Kurukshetra at 11 AM and had left for Hisar at about 5 PM, whereas as per the statement of PW.8 Jaibir, they reached Kurukshetra at 3.00/4.00 PM and left for Hisar at about 6.00 PM. Crl. A. No. 565-DB of 2007 -15- In our opinion, on such minor contradictions, the case of the prosecution cannot be discarded and held to be doubtful. Further, by examining PW.7 Nishan Singh, the transporter, through whom the truck was hired by Kulheri Wala Oil Mills, Hisar, the prosecution has further established the case against the appellants. This witness has categorically stated that on 22.2.2005, the truck bearing registration No.HR-67-1177 was hired by Kulheri Wala Oil Mills, Hisar and appellant No.1 Vikram Singh was driver on the said truck. 25. Though there is slight variation in the medical evidence and the ocular evidence led by the prosecution, but such contradiction assumes importance where it is difficult to believe the eye witness unreservedly. However, when the evidence of eye witness is quite cogent and convincing, then small variation in the medical evidence and the eye witness account cannot be given much importance. Mere variance of the prosecution story with the medical evidence, in all cases, cannot lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth; this is