Punjab-Haryana High Court
Shish Pal vs State Of Haryana on 11 March, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-491-DB of 2009
Date of decision : 11.03.2013
Shish Pal
.... Appellant
VERSUS
State of Haryana
.... Respondent
CORAM : HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Mr.K.D.S.Hooda, Advocate,
for the appellant.
Mr.G.S.Chahal, Addl. Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J The instant appeal is directed against the judgment of conviction dated 27.03.2009 and order of sentence dated 01.04.2009, passed by the Sessions Judge, Fatehabad, vide which appellant Shish Pal has been held guilty for the commission of offences punishable under Sections 302 and 323 IPC and accordingly convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three years under Section 302 IPC and rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and in default of payment of fine to further Criminal Appeal No.D-491-DB of 2009 [2] undergo rigorous imprisonment for a period of three months under Section 323 IPC. Both the sentences were ordered to run concurrently. However, Sultan Singh has been acquitted.
Brief facts of the prosecution case are that FIR in the present case has been registered on the statement of Suman Devi, daughter of Shish Pal accused which was recorded by Head Constable Rattan Singh of Police Station Bhattu Kalan on 08.01.2007. She mainly stated in her statement that on 05.01.2007, her mother and brother were sleeping and she was doing stitching. At about 11:00 p.m., her father came from outside and asked complainant to sleep. On hearing his noise, complainant's mother woke up and asked accused to sleep on which he slapped her mother and asked to shut her mouth. When the complainant and her mother reached the outer gate of their house, Sultan Singh, grand- father of complainant, was standing there who caught hold complainant's mother. In the meantime, accused Shish Pal brought an axe and gave its blow on the head and mouth of complainant's mother. When complainant tried to intervene, accused Shish Pal, father of complainant, gave axe blow on her head with intention to kill her as well. On receiving the blow, she became unconscious. Therefore, the complainant does not know how much injuries were caused on the body of her mother by her father and grand-father. Thereafter, on the same night, her mother was admitted in Bhattu Hospital. Sister of complainant namely Kamlesh and her husband Criminal Appeal No.D-491-DB of 2009 [3] Subhash reached there and got medically examined complainant and her mother from Jain Ortho Hospital, Sirsa. As the complainant's mother received serious injuries, therefore, she was referred to Metro Hospital, Hisar and was got admitted there on 07.01.2007. On the same day, complainant was also admitted in Metro Hospital, Hisar. The motive behind the occurrence was that her mother was having 5¼ acres of land at village Harikot which she had sold about 3-4 years ago for an amount of Rs.14,00,000/- and purchased five acres of land at Village Bhattu Kalan. Her grand-father Sultan Singh wanted to get it registered in the name of her father Shish Pal and on that point some dispute had arisen and they inflicted injuries on the person of her mother. After recording the statement of complainant Suman Devi, ruqa was sent to the police station on the basis of which FIR was registered. Bimla Devi, mother of complainant, died on 08.01.2007. The investigation was taken up by Inspector Hanuman Singh. The offence under Section 302 IPC was added in the FIR. Investigating Officer conducted the inquest proceedings Ex.P12 on the dead body of Bimla. Thereafter, dead body was sent for postmortem examination. On 09.01.2007, Investigating Officer inspected the place of occurrence and prepared rough site plan. On 10.01.2007, accused Shish Pal was arrested. On interrogation, he suffered disclosure statement Ex.P4 regarding concealing of 'kulhari' (axe) in his baithak under the heap of fodder and he can get it recovered and in pursuance thereof, he got recovered the same. Criminal Appeal No.D-491-DB of 2009 [4] The said 'kulhari' was converted into a sealed parcel and was taken into police possession vide recovery memo Ex.P5. Statements of witnesses were recorded. After necessary investigation, challan against accused Shish Pal was presented before the Court.
On presentation of challan, copies of challan and other documents were supplied to accused under Section 207 Cr.P.C. Firstly, finding a prima facie case against accused Shish Pal, he was charge-sheeted for the offences punishable under Sections 307 and 302 IPC to which he pleaded not guilty and claimed trial. Thereafter, on an application under Section 319 Cr.P.C., filed by Public Prosecutor, Sultan Singh was summoned as accused in this case. Copies of challan and other documents were also supplied to him under Section 207 Cr.P.C.
Finding a prima facie case against both the accused Shish Pal and Sultan Singh, they were charge-sheeted for the offences punishable under Sections 307 and 302 read with Section 34 IPC to which they pleaded not guilty and claimed trial.
The prosecution, in support of its case, examined PW1 Suman, daughter of accused Shish Pal, who is complainant and eye witness to the occurrence, mainly deposed as per prosecution version. PW2 Dr.A.L.Bajaj conducted the postmortem examination on the dead body of Bimla on 09.01.2007 and found the following injuries on her person:-
1. A stitched wound on the right side of occipital region Criminal Appeal No.D-491-DB of 2009 [5] bearing two stitches.
2. A stitched wound on the right side of face and cheek bearing nine stitches.
3. Another stitched wound on the right side of cheek bearing two stitches.
4. A stitched wound on the left side of cheek bearing three stitches.
5. Stitched wound on the left forearm lower part bearing one stitch.
6. Stitched wound on the right side of base of neck bearing one stitch.
7. Stitched wound semi-circular in shape bearing 22 stitches on the right parieto temporal area.
8. Stitched wound on the right arm on lateral aspect bearing one stitch.
In the opinion of the doctor, the cause of death in this case was due to haemorrhage and shock as a result of injuries described including injury to vital organ (brain). All the injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The probable time that elapsed between injury and death was variable and between death and postmortem examination was within 24 hours. PW3 Chiman Lal deposed that he is the President of Labour Union at Bhattu Kalan. His house is situated at some distance from the house of Sultan. He (PW3) mainly deposed Criminal Appeal No.D-491-DB of 2009 [6] that on 05.01.2007 at about 11:00/11:15 p.m., he saw Bimla and Suman lying in pool of blood. He admitted them in CHC, Bhattu Kalan in his own car. PW4 Head Constable Kuldeep Singh mainly deposed regarding joining of police party headed by Sub Inspector Hanuman Singh. He further deposed regarding suffering of disclosure statement by accused Shish Pal and recovery of axe in pursuance of said disclosure statement. PW5 Sub Inspector Shri Krishan also deposed regarding joining of police party of Sub Inspector Hanuman Singh. He further deposed regarding conducting inquest proceedings on the dead body of Bimla Devi in Metro Hospital, Hisar. He also deposed regarding preparing of rough site plan by the Investigating Officer in his presence. PW6 Head Constable Rattan Singh mainly deposed regarding recording of statement of Suman in Metro Hospital, Hisar. PW7 Head Constable Mohinder Singh and PW8 EHC Veerbhan are the formal witnesses, who tendered into evidence their affidavits Ex.P9 and Ex.P10 respectively. PW9 ASI Mahavir Singh mainly deposed regarding recording of formal FIR Ex.P11 on receiving ruqa Ex.P8. PW10 Constable Sube Singh mainly deposed regarding delivery of special report to Illaqa Magistrate etc. PW11 Inspector Hanuman Singh is the Investigating Officer. He mainly deposed regarding the investigation conducted by him in this case. PW12 Balwant Singh, Draftsman, mainly deposed regarding preparing of scaled site plan Ex.P14 of the place of occurrence. PW13 Dr.Sanjay Verma, Criminal Appeal No.D-491-DB of 2009 [7] Consultant, Metro Hospital, Hisar , mainly deposed that on 06.01.2007, he examined patient Smt. Bimla and found the following injuries on her person:-
"CLW present right side occipital area. 7 x 1 cm incised wound right side of cheek and another wound 1 x 1 cm over right side of cheek and 2 x 1 cm. CLW over right side of neck."
He also examined injured Suman on 07.01.2007 and found stitched wound 'L' shaped on occipital area about 4 cm in size. He also deposed that on 08.01.2007, on police application Ex.P24, he gave his opinion about the fitness of injured Suman vide his report Ex.P25. The Public Prosecutor, after tendering into evidence Forensic Science Laboratory reports Ex.P26 and Ex.P27, closed the prosecution evidence.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of the evidence and pleaded themselves as innocent. Accused Shish Pal also pleaded that his daughters Suman and Kamlesh want to grab his property and property of his father Sultan Singh. He and his father have been falsely implicated in this case by Suman at the asking of Kamlesh and her husband. Accused Sultan Singh took the same plea as taken by accused Shish Pal. Accused Sultan Singh also pleaded that he was not residing in Bhattu Kalan and is residing Criminal Appeal No.D-491-DB of 2009 [8] in village Jakhod Khera. He is suffering from paralysis and is taking treatment.
In defence, the accused examined DW1 Bhagirath, who mainly deposed that Sultan Singh was having paralysis and was not in a position to move and walk. He has started moving for the last 5- 6 months. He has purchased a house in Village Jakhod Khera.
The trial Court, after appreciation of evidence, convicted and sentenced appellant-accused Shish Pal and acquitted Sultan Singh, as mentioned above.
At the time of arguments, learned counsel for the appellant contended that firstly there is delay in recording the FIR. The occurrence is of 05.01.2007 at about 11:00 p.m. and the FIR was registered on 08.01.2007 at 7:20 a.m. and there is no explanation regarding the delay in recording the FIR. He further contended that motive has not been proved by leading cogent evidence. He further contended that the injuries were given by unknown persons and appellant-accused has been falsely implicated in this case to grab his property and the property of his father. Learned counsel for the appellant next contended that accused was not present at the time of occurrence. The injured were found in the street which fact also shows that injuries were caused by some unknown persons. Therefore, the appeal should be accepted and the appellant should be acquitted accordingly.
On the other hand, learned Addl. Advocate General, Criminal Appeal No.D-491-DB of 2009 [9] Haryana, contended that the case of the prosecution has been duly proved by the eye-witness. Statement of PW1 Suman, complainant, cannot be disbelieved. She is the daughter of accused Shish Pal and there is no reason or ground why she will depose falsely against her own father. Learned Addl. Advocate General, Haryana, further contended that oral statements of the PWs are duly supported by medical evidence and investigation of this case. He further contended that the appeal, having no merit, should be dismissed.
We have heard learned counsel for the appellant and learned Addl. Advocate General, Haryana and with their assistance we have gone through the evidence on record minutely and carefully.
From the evidence on record, we find no merit in the contentions of learned counsel for the appellant. It is a case of direct evidence and PW1 Suman is complainant and injured eye witness in the present case. The occurrence took place at 11:00 p.m. in the house of appellant Shish Pal. Deceased Bimla Devi was the wife of accused. PW1 Suman was minor daughter of accused Shish Pal and deceased Bimla Devi. Her presence in the house was natural one. She has also received injury on the vital part i.e. head. There is no reason or ground for PW1 Suman to depose falsely against her own father. The contention that Suman alongwith her sister Kamlesh wanted to grab the property of her father Shish Pal accused, looks improbable. Otherwise also, there is no evidence of any type on the record to prove this motive of false implication. There is nothing on Criminal Appeal No.D-491-DB of 2009 [10] the record to support the contention of the learned counsel for the appellant that accused has been falsely implicated in this case. There is also nothing on the record to show that accused was not present in the house at the time of occurrence. Even the accused in his statement recorded under Section 313 Cr.P.C., has nowhere stated that he was not present at that time in the house. If accused was present in the house at the time of occurrence then under Section 106 of the Evidence Act, he is to explain how Bimla Devi (deceased) and Suman (PW1) received injuries. Even if it is taken that Bimla and Suman received injuries in the street then the natural course for accused Shish Pal was to get them admitted in the hospital. But the record of the hospitals nowhere shows that accused got them admitted or reached any of the hospital for their treatment. This conduct of the accused shows that he ran away from the spot after the occurrence. It is settled law that delay itself is not fatal to the prosecution case. In the case of delay, the Court is to appreciate the evidence more cautiously and carefully. In the present case, the occurrence took place at night time. Suman (PW1), who also received injuries at the hands of accused Shish Pal, has also stated in her statement given before the Court that after receiving the injuries, she fell unconscious and did not know how many further injuries were given to her mother. She also did not know who got them admitted in the hospital. From the evidence on record, we also find that Bimla (deceased) had also received serious injuries on the Criminal Appeal No.D-491-DB of 2009 [11] vital part of her body. Even the doctor had declared her unfit on 07.01.2007 to make statement and she died on 08.01.2007. PW1 Suman was also got admitted in Metro Hospital, Hisar alongwith Bimla on 07.01.2007. The FIR was got registered against Shish Pal and his father Sultan Singh. The other person in the house is only minor brother of Suman (PW1). There was no other eye-witness, who had seen the occurrence, therefore, in the facts and circumstances of the case, there is no unnecessary delay in recording the FIR and the delay has been duly explained by the prosecution. PW1 Suman has also given the motive for causing the occurrence. It is also in the statement of PW1 Suman that when she alongwith her mother reached the outer gate of the house, Sultan Singh was standing there. It is also possible that when the accused gave injuries to Bimla (deceased), she may ran out from the house in the street. Therefore, this fact that injured were found in the street does not create any doubt in the prosecution version. We have perused the statement of PW1 Suman. There is nothing in her cross-examination which may make her statement unreliable. Statement of Suman has been duly supported and corroborated by medical evidence i.e. postmortem examination on the dead body of Bimla and the medico legal reports of Bimla and Suman. Further, blood stained 'kulhari' (axe) was got recovered by the accused in pursuance of his disclosure statement. As per Forensic Science Laboratory report, 'kulhari' was stained with human blood which Criminal Appeal No.D-491-DB of 2009 [12] further supports and corroborates the prosecution version. The motive has also been duly proved. Otherwise also, in the case of direct evidence, motive looses significance.
Therefore, we find that the prosecution has duly proved its case by leading cogent evidence beyond any reasonable doubt. As such, the judgment of conviction and order of sentence passed against appellant are upheld.
Resultantly, we do not find any merit in the appeal and the same is dismissed.
(JASBIR SINGH) (INDERJIT SINGH)
JUDGE JUDGE
11.03.2013
mamta