Punjab-Haryana High Court
Azad Alias Khardu And Others vs State Of Haryana on 5 September, 2012
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CRA-D-241-DB of 2007 [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-241-DB of 2007
Date of decision:05.09.2012
Azad alias Khardu and others ...Appellants
Vs.
State of Haryana ...Respondent
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Ram Avtar Sheoran, Mr. Saurabh Garg and
Mr. Gursimran Singh, Advocates, for the appellants.
Mr. Sandeep Varmani, Addl. A.G., Haryana.
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RAKESH KUMAR JAIN, J.
This appeal is against the order of conviction and sentence dated 01.03.2007, convicting all the appellants under Sections 120-B, 148 and 302 read with Section 149 of the Indian Penal Code, 1860 [for short "IPC"] and sentencing them to undergo rigorous imprisonment for life with fine of `5,000/- each and in default of payment of fine, to undergo rigorous imprisonment for 2 years, under Section 302 read with Section 149 IPC, to undergo rigorous imprisonment for one year under Section 120-B IPC and rigorous imprisonment for one year under Section 148 IPC. However, all the sentences were ordered to run CRA-D-241-DB of 2007 [2] ***** concurrently and the period of detention during investigation and trial was ordered to be set off against their substantive sentence.
According to the case of the prosecution, Krishan (PW1), father of the deceased Asim, got recorded his statement (Ex.PA) to ASI Jagphool Singh (PW6) on 25.02.2006 at 1.30 a.m. (night) on the basis of which formal FIR (Ex.PC) was recorded at 1.50 a.m. on 25.02.2006 in which it was stated by PW1 that he is a labourer by profession and is the resident of Dhanak Basti, Dadri. He had two sons and three daughters, out of whom, Asim (deceased) was the eldest, married and having two children. On 24.02.2006, at about 9/9.30 p.m., his son Asim went towards the Grain Market, after telling him, to answer the nature call and at that time, Om Parkash S/o Tulsi Ram armed with an iron rod, Jitender S/o Om Parkash armed with an axe (Kulhari), Leader @ Shiv Shankar armed with an iron Saria, Azad @ Khardu S/o Om Parkash armed with an iron rod and Mohinder S/o Amar Nath, armed with an iron (Punch), caste Dhanak, residents of Dhanak Basti, Dadri came to his house. At that time, he was urinating in the street. All of them asked for his son. He told them that he had gone outside. All of them went towards the Grain Market. He narrated the entire sequence to his wife Khazani Devi and both followed them from some distance due to suspicion. When his son Asim was coming towards the Basti and reached near Gaushala, Om Parkash raised a CRA-D-241-DB of 2007 [3] ***** lalkara asking others to catch hold of his son so that he should not escape. On this, all of them started giving injuries to Asim with their respective weapons and when he and his wife ran towards Asim by raising hue and cry, all the assailants fled away from the place of occurrence with their respective weapons. He and his wife saw that Asim was bleeding profusely and after arranging the vehicle, they shifted him to Dadri Hospital for treatment where the doctor declared his son Asim dead. He further stated that all the aforesaid persons had inflicted injuries to his son Asim with common intention keeping in view the grudge that Om Parkash S/o Tulsi Ram contested election for Municipal Councillor in which they did not cast their votes in his favour.
Dr. S.C.Gupta (PW7) conducted post-mortem and found the following injuries on the person of Asim (deceased):-
"1. There was an incised wound of size 7x2 cm x bone deep on the lower side of the chin left side. Vines and nerves were cut and seen in the wound blood was also present in the wound.
2. There was a puricture wound size 1cm x 1.5 cm on the right laterial side of the neck below the chin.
CRA-D-241-DB of 2007 [4]
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3. Reddish purple contusion with abrasion having clotted blood on the right lateral side of the lower mandible region.
4. Reddish contusion on the left side of the fore arm of size 6 x 2 cm.
5. On dissection there was fracture of the right side of the frontal bone, dural and sub dural hemotome was present.
6. Right Juglarven was punctured."
He opined that the death had occurred because of haemorrhage and shock due to multiple injuries over the vital organs like brain and excessive loss of blood from the juglarvan. In cross- examination, it was stated that all the injuries given in the PMR were possible by axe (Ex.P1), incised wound and the blunt injuries by the handle (binda) of the axe.
The prosecution examined complainant Krishan (PW1), father of the deceased, who is alleged to have seen the occurrence with his wife Khazani Devi. In his examination-in-chief, he narrated what he had stated in the FIR, but in cross-examination, he stated that the distance between his house and the Grain Market is about 3 acres and between the place of occurrence and the hospital about 2-½ Kms. He could not specify injury caused by particular accused on any particular CRA-D-241-DB of 2007 [5] ***** part of the body of the deceased. It is also stated that he reached the hospital by taking his son at about 11.30 p.m. A suggestion was put to him that the deceased was having drinks with Azad (appellant) who had caused injuries to him and other accused have been falsely implicated.
Khazani Devi, the other alleged eye-witness, was given up by the prosecution being an unnecessary witness.
SI Chhotu Ram (PW8) admitted in his cross-examination that Jitender, Leader alias Shiv Shanker and Mohinder were found innocent during investigation conducted by him, but they were summoned on an application filed by the prosecution under Section 319 of the Code of Criminal Procedure, 1973 [for short "Cr.P.C."]. He also stated that as per the statements of Vijender, Deenu and Niranjan, only Azad was seen going and coming back from the place of occurrence, but despite recording the statement of Vijender, Deenu and Niranjan under Section 161 Cr.P.C., their statement on oath was not recorded in the Court. He also stated that after the arrest of Azad on 01.03.2006, his disclosure statement (Ex.PO) was recorded and axe (Ex.P1) and wooden plank (Ex.P2) were recovered from the cremation ground and taken into possession vide memo Ex.PQ.
After evidence of the prosecution, statements of all the accused under Section 313 Cr.P.C. were recorded separately. All other CRA-D-241-DB of 2007 [6] ***** accused except Azad alias Khardu pleaded innocence and alleged false implication, but insofar as Azad alias Khardu is concerned, he made the following statement:-
"I am innocent. I have been falsely implicated in this case by the police in connivance with the complainant party. In fact, deceased Asim had very much supported my father Om Parkash co-accused in Municipal Committee Election, Ch. Dadri and the entire family of the deceased had casted vote in favour of my father Om Parkash. There was no previous enmity of any kind between us and the deceased family. No enmity or ill will between us and the deceased family. On the day of alleged occurrence I and deceased while consuming liquor and altercation had taken place between me and deceased and out of the said altercation deceased tried to axe me but I escape and he again tried to attack on me with the axe he was having with him at that time. In my self defence, I snatched axe from deceased and gave an axe blow to the deceased but I never intended to cause his murder. It was a sudden incident and the blow given by me was not CRA-D-241-DB of 2007 [7] ***** intentional but to save myself except none of my co- accused was at the spot. The occurrence was not witnessed by any person neither Krishan father of the deceased Asim nor Khazani his mother were present at that time. After the occurrence, I myself had informed the parents of the deceased regarding the above occurrence. I was arrested by the police on that day itself and I was kept illegally by the police but my arrest was shown later on March 1, 2006. I did not suffer any disclosure statement nor I got recovered any axe Ex.P1 and wooden plank Ex.P2 the recovery of Ex.P1 and Ex.P2 has been falsely planted on me. PWs are deposing falsely."
Learned counsel for the appellants has submitted that all the appellants have been falsely implicated in this case and the presence of PW1 at the place of occurrence has been manipulated. He submitted that it is improbable that all the five accused armed with deadly weapons would ask PW1 (father of the deceased) about whereabouts of the deceased and then immediately he would only take his wife along to follow the assailants and did not make any effort to save his son when the assailants/appellants opened attack upon him. It is further submitted that the injuries discovered in the post mortem report do not CRA-D-241-DB of 2007 [8] ***** correlate with the weapon used and no explanation has been given by the prosecution for not examining Khazani Devi, mother of the deceased, who was also allegedly an eye-witness. He further submitted that though the occurrence took place at about 9.30 p.m., but PW1 along with the deceased reached the hospital at about 11.30 p.m., despite the fact that the distance between the place of occurrence and the hospital was only about 2-½ Kms. He further submitted that except for Azad (appellant), all other accused/appellants were innocent and even were found innocent during investigation by PW8 and were summoned under Section 319 Cr.P.C., but no recovery of any weapon has been effected from them except for axe (Ex.P1) and wooden plank (Ex.P2) from appellant Azad alias Khardu on his disclosure statement.
On the other hand, it is argued by counsel for the State that although appellant Azad alias Khardu had admitted to have caused injuries to the deceased with the axe, but has denied presence of other co-accused, which has been proved in the statement of PW1. He further submitted that it has come in the evidence of PW7 that death has caused due to shock and hemorrhage and the injuries on the person of the deceased could have been possible by axe and its handle. He further submitted that in the disclosure statement (Ex.PO), the said axe (Ex.P1) and wooden plank (Ex.P2) had been got recovered by Azad alias Khardu.
CRA-D-241-DB of 2007 [9]
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We have heard counsel for the parties and perused the record from which we have found that the statement of PW1 cannot be believed for many reasons as the meeting of PW1 with the accused was a chance meeting as he was urinating in front of his house at that time. Secondly, if he had suspicion about movement of the appellants, he would not have taken his wife along, rather had taken some more members of the family or the neighbourers. If he was present at the scene of occurrence, why did he not make any effort to save his son which is a most human natural conduct much-less of the parents in case of their son being in distress. PW1 could not specifically mention about the injuries caused by the assailants and had taken two hours to reach the hospital although it was just 2-½ Kms away from the place of occurrence. Further more, there is no explanation of giving up Khazani Devi, other eye-witness, as unnecessary by the prosecution and it has come in the evidence of PW8 that other accused were found innocent during investigation conducted by him and were summoned on the application filed by the prosecution under Section 313 Cr.P.C. The guilt has been admitted by Azad alias Khardu in his statement recorded under Section 313 Cr.P.C. PW7 has also opined that the injuries might have been caused by axe and its handle which have been recovered on the disclosure statement (Ex.PO) made by Azad alias Khardu, whereas no other weapon has been recovered from any of the other accused-
CRA-D-241-DB of 2007 [ 10 ]
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appellants.
From the aforesaid facts, we are satisfied that all the other appellants, except for Azad alias Khardu, have been falsely implicated in this case and as Azad alias Khardu had admitted to have caused injuries to the deceased with axe resulting into his death, he has been rightly convicted and sentenced by the Trial Court.
In view of the aforesaid discussion, the present appeal is partly allowed qua appellant Nos.2 to 5, namely, Om Parkash, Jitender, Leeder alias Shiv Shankar and Mohinder respectively, whereas the appeal qua appellant No.1 Azad alias Khardu is hereby dismissed. Resultantly, appellant Nos.2 to 5 are acquitted of the charge and directed to be released forthwith, if not involved in any other case.
[ Jasbir Singh ] [ Rakesh Kumar Jain ]
Acting Chief Justice Judge
05.09.2012
vinod*