Punjab-Haryana High Court
Mam Chand And Others vs State Of Haryana on 15 December, 2008
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.43-DB of 2008 1
Criminal Appeal No.12-DB of 2008
Criminal Revision No.606 of 2008
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:December 15, 2011
Criminal Appeal No.43-DB of 2008
Mam Chand and others ......Appellants
Versus
State of Haryana .......Respondent
Criminal Appeal No.12-DB of 2008
Subhash and others ......Appellants
Versus
State of Haryana .......Respondent
Criminal Revision No.606 of 2008
Surender ......petitioner
Versus
Mam Chand and others .......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.R.S.Cheema, Sr. Advocate with
Ms.Tanu Bedi, Advocate,
Mr.Sumanjit Kaur, Advocate and
Mr.Bijender Dhankar, Advocate
for the appellants in CRA No. 12-DB of 2008 and
CRA No.43-DB of 2008.
Mr.R.S.Rai, Sr. Advocate with
Mr.D.S.Brar, Advocate for
appellants No.2, 4, 5 and 11 in CRA No.43-DB of 2008.
Mr.Baldev Singh, Sr. Advocate with
Mr.Deepender Singh, Advocate in CRR No.606 of 2008.
Mr.Pardeep Singh Poonia, Addl.A.G.Haryana.
****
Criminal Appeal No.43-DB of 2008 2
Criminal Appeal No.12-DB of 2008
Criminal Revision No.606 of 2008
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned two criminal appeals as well as criminal revision would be disposed of as these have arisen out of the same incident/ judgment.
Prosecution story, in brief, is that complainant Surender Sharma, son of Sohan Lal was running a grocery shop. Sohan Lal, father of the complainant, was sarpanch of the village. During the current elections, Mam Chand had lost the election for the post of sarpanch, whereas, Sohan Lal had won the election. Mam Chand had been sarpanch of the village for the last 15-20 years and had developed an ill will against the complainant party after losing the election. On the day of election, Mam Chand had indulged in a verbal combat with the complainant party. Mam Chand had declared many a times that he would teach a lesson to the complainant party for winning the election for the post of sarpanch. On 17.6.2005, a function had been organised in front of the old haveli of the complainant party on account of marriage of the cousin sister of the complainant. Snacks were being served to the members of the marriage party. At about 9.30 pm, Mam Chand, Jaibir Singh, Raj Kumar, Ajay, Surender Singh, Ravinder, Vijay Pal, Jahar Singh, Bir Singh, Pawan, Prithi, Vikas, Subhash, Nepal and Om Pal came to the spot in a jeep armed with weapons. After alighting from the jeep, Mam Chand and others declared that a lesson be taught to Sohan Lal for winning the election for the post of sarpanch. Jaibir and Criminal Appeal No.43-DB of 2008 3 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 Ravinder, who were armed with guns, declared that in case anybody tried to move, they would fire at the said person. Bir Singh gave a danda blow on the left shoulder of the complainant and Jaibir gave a blow with the butt of his gun on the elbow of the complainant. Bhagirath, brother of the complainant, was caught hold of by Raj Kumar, Vikas, Vijay Pal, Prithi and Jahar Singh and Mam Chand, Surender and Ajay, who were armed with knives, gave knife blows on his chest, head, right shoulder, neck and abdomen. Parmod, cousin brother of the complainant, was caught hold of by Subhash, Pawan, Nepal and Om Pal and was inflicted a knife blow by Ajay in his abdomen. On hearing the noise, Sohan Lal and Sham Sunder came to the spot and rescued them from the assailants. Complainant had also caused injuries to the accused party in his self defence. Thereafter, the assailants went away from the spot. Parmod succumbed to his injuries on the way to the hospital. Bhagirath was got admitted in the Pushpanjali hospital, Gurgaon for treatment, where he succumbed to his injuries. The statement of the complainant was recorded on 18.6.2005 at 5.30 a.m. by Sub Inspector Jitender Kumar. On the basis of the same, formal FIR No. 174 dated 18.6.2005 was registered at Police Station Bilaspur at 6.10 a.m. under Sections 148, 149, 302, 34 of the Indian Penal Code, 1860 and Section 25/ 27 of the Arms Act, 1959. The special report reached the magistrate at 9.45 a.m. on 18.6.2005 through constable Satya Narain.
After completion of investigation and necessary Criminal Appeal No.43-DB of 2008 4 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 formalities, challan was presented against all the accused except Ravinder and Ajay. During the pendency of the trial, challan was also presented against accused Ravinder. Accused Ajay could not be arrested and challan was not presented against the said accused.
Prosecution, in order to prove its case, examined 20 witnesses.
After the close of prosecution evidence, accused Mam Chand, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), prayed as under:-
"I am innocent. Malik Raj, the father of Sweta sent invitation to me, my sons and my family members for her marriage and we have given kanyadan in the marriage. I also helped Malik Raj to get a loan of ` 50,000/- for the marriage of her daughter for which I stood guarantor. Deceased Parmod was residing at Rewari and Sweta used to visit him at Rewari and was having illicit relations with him. On the date of the alleged occurrence, Sweta had eloped with Parmod and later on she was brought back to the village along with Parmod and he (Parmod) was murdered by the complainant party on this account. We have been falsely implicated due to party faction in the village. We had nothing to do with the murder of Parmod and Bhagirath."
Accused Ravinder, when examined under Section 313 Cr.P.C., prayed as under:-
Criminal Appeal No.43-DB of 2008 5
Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 " I am innocent. I was employed as a police-man in Haryana Police at that time of the alleged occurrence and posted as Head Constable in SVB (H), Gurgaon. At the time of the alleged occurrence, I was not present in the village and was on duty in my office at Gurgaon. I have nothing to do with the murder of Parmod and Bhagirath." The remaining accused, when examined under Section 313 Cr.P.C., pleaded that they were innocent and had been falsely involved in the case due to party faction.
Accused examined 12 witnesses in their defence. Learned senior counsels for the appellants have argued that the prosecution had miserably failed to prove its case. There was an un-explained delay in lodging of the FIR. The investigating officer had visited the spot before recording the FIR. Accused Mam Chand had also been invited for the marriage ceremony and there was no occasion for the accused party to have indulged in a fight and spoil the marriage ceremony. As per the prosecution version, appellants Mam Chand and Surender were armed with knives, appellants Jaibir and Ravinder were armed with fire arms, whereas, the remaining appellants were armed with sticks. In case the appellants, who were alleged to be armed with fire arms, were present at the spot, they would have fired from their weapons. The appellants, who were armed with sticks, had allegedly only caught hold of the deceased and had not indulged in using their sticks at the time of occurrence. It was unbelievable that five persons would have Criminal Appeal No.43-DB of 2008 6 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 caught hold of deceased Bhagirath and thereafter, three persons could inflict knife injuries on different parts of his body. Since as per the prosecution story, deceased Parmod was coming to rescue injured Surender Sharma, there was no occasion for any of the appellants to have caught hold of Parmod before an injury with a knife was inflicted on his person. Thus, the entire story put forth by the prosecution was improbable. The eye witnesses had failed to explain as to in what particular manner the deceased had been caught by some of the appellants. In the inquest proceedings, the names of all the accused were not mentioned and this made the prosecution case doubtful. In support of their argument, learned senior counsel have placed reliance on Yudhvir and others vs. State of Haryana JT 1996 (10) S.C.241, wherein, in para 8, it was held as under:-
" On a closer scrutiny of the evidence we are persuaded to attach much weight to the aforesaid contention. Non- mention of the FIR number in the inquest report is conspicuous therefrom for which PW 9 (Sub-Inspector who held the inquest) could not give any explanation whatsoever. On the other hand, he admitted in cross- examination that he prepared inquest report first and the FIR was recorded next which, of course, at a later stage he tried to make amends. But what he said first on that score seems to be disclosure of the actual sequence of what really happened. At no place in the inquest report, Criminal Appeal No.43-DB of 2008 7 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 the name of anyone of the assailants (other than the first appellant) was indicated and at all places where the remaining assailants were to be referred to the author of the report employed the abbreviation "etc."This lacuna was later replenished in the FIR by using names of three more assailants which names the appellants have disowned now."
Learned senior counsel have also placed reliance on State of UP vs. Shri Krishan JT 2005 (1) S.C.89, wherein, in para 5, it was held as under:-
"The High court has also pointed out a serious doubt as to whether the first information report was lodged by the informant at the time alleged i.e. after half an hour of the occurrence. The High Court examined the record and found that the entire inquest report was in one ink while the name of the informant in the inquest report was by a different ink, which created a suspicion that when the inquest report was prepared, the FIR had not come into existence, and it had not been decided as to who would be made the first informant. It was later that the name of the informant was inserted in the inquest report. This gives rise to a great deal of doubt as to whether the FIR was lodged by the person named therein, and at that time, because in that event the name of the informant would have been written at the time when the remaining Criminal Appeal No.43-DB of 2008 8 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 contents of the inquest report were written."
As per the prosecution version, injured Surender Sharma had been inflicted injuries by appellants Jaibir and Bir Singh and thus, it was not believable that he could have also inflicted injuries on the accused party thereafter without being armed with any weapon. Appellants Jaibir, Bir Singh and Ravinder were not present at the spot. In this regard, the witnesses, examined by the said appellants in their defence, were liable to be believed. In support of his argument, learned senior counsel for appellants Jaibir, Bir Singh and Ravinder, has placed reliance on Jayantibhai Bhenkarbhai vs. State of Gujarat (2002) 8 SCC 165, wherein, in para 19, it was held as under:-
"The plea of alibi flows from Section 11 and is demonstrated by illustration (a). Sarkar on Evidence (Fifteenth Edition, p. 258) states the word 'alibi' is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (a special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused Criminal Appeal No.43-DB of 2008 9 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 so as to fasten the liability of guilty on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plead of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligations is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the Court would evaluate the prosecution evidence to the see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The Criminal Appeal No.43-DB of 2008 10 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court."
Learned State counsel, who is assisted by the learned counsel for the complainant, on the other hand, has submitted that the present case rests on an eye witness account. The accused party had a strong motive to commit the crime. The accused had targeted the sons of Sohan Lal, who had won the election. Deceased Parmod had suffered injuries, while trying to save Surender Sharma, son of Sohan Lal.
The present case rests on an eye witness account. The presence of complainant Surender Sharma cannot be doubted at the spot as he had also suffered injuries in the occurrence. The complainant, while appearing in the witness box as PW-1, deposed that on 17.6.2005 , marriage of Sweta, daughter of his cousin sister was to take place in front of their old haveli. The accused armed with weapons came at the spot in a jeep. Mam Chand raised a lalkara that family of Sohan Lal be taught a lesson for being elected as Criminal Appeal No.43-DB of 2008 11 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 Sarpanch of the village. Ravinder and Jaibir, who were armed with guns, threatened that in case, anybody tried to move from his place, he would be shot dead. Thereafter, Bir Singh gave a danda blow on the left shoulder of the complainant and Jaibir gave a blow with the butt of his gun on the right elbow of the complainant. Bhagirath and Parmod came forward to save the complainant. Bhagirath was caught hold of by Prithi, Jahar and Vijay Pal. Bhagirath was a strong man and he disengaged himself from them. However, the said three persons with the help of Raj Kumar and Vikas again caught hold of Bhagirath. Thereafter, Mam Chand gave three knife blows on the neck and chest of Bhagirath. Accused Surender gave two knife blows i.e. on the forehead and abdomen of Bhagirath. Ajay gave a knife blow on the right shoulder of Bhagirath. Nepal, Pawan, Subhash and Om Pal caught hold of Parmod and Ajay gave a knife blow in his abdomen. Sohan Lal and Sham Sunder were attracted to the spot and the accused then sped away in their jeep from the spot. The statement of the complainant qua the manner of occurrence is corroborated by PW-17, Shyam Sunder, who is the cousin of deceased Bhagirath.
PW-3, Dr.R.L.Babbar deposed that on 18.6.2005, he had conducted postmortem examination on the dead body of Parmod and had observed as under:-
"Blood clots were present in middle of the abdomen just above umbilicus. Part of small intestine partially torn and omentum was coming out of the wound. After cleaning Criminal Appeal No.43-DB of 2008 12 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 there was incised wound of 3 cm x 1.8 cm abdominal cavity deep 4 cm above the umbilicus. Both the ends of the wound were sharp. On opening abdominal cavity peritoneal cavity was full of blood. There was tear in the loops of intestine. Pancreas was punctured by 2 cm x 1 cm at the medial end and medial lobe of lever was also punctured posteriorly. There was sharp cut in the lever of size 3 cm x 1 cm x 4 cm deep."
In his opinion, the cause of death was due to haemorrhage and shock as a result of injuries to vital organs with sharp edged weapon. The injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature.
He further deposed that on the same day, he conducted postmortem examination on the dead body of Bhagirath and observed following injuries on his person:
"1. Incised wound 2 cm x 1 cm obliquely placed just below left nipple. Subcutaneous haemorrhage was presnt. Wound was directed posteriorly and medially on opening the pericardium was punctured by an incised wound of 1 cm x 1 cm in left ventricle of heart.
2. Incised wound 2.5 cm x 1.2 cm both ends sharp present 8 cm below of left nipple in lower part of chest and wound was directed medially and posteriorly on opening it was found to be having spleen and loop of intestine punctured.Criminal Appeal No.43-DB of 2008 13
Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008
3. Incised wound 4 cm x 2 cm was present on lower part of the chest on right side just lateral to xiphisternum and it was obliquely placed. Wound was direct posteriorly. On opening medial lobe of the lever was found to be cut.
4. Incised wound 4 cm x 5 cm vertically placed in front of the neck just above suprasternal notch. Subcutaneous haemorrhage was present. Trachea was also punctured.
5. Incised wound 10 cm x 1 cm over left side of head. Fronto temporalregion and it was bone deep."
In his opinion, the cause of death was due to haemorrhage and shock as a result of various injuries described above. The injuries were ante mortem in nature and had been caused with sharp edged weapon. The injuries were sufficient to cause death in the ordinary course of nature.
PW-8 Dr.Devender Kumar deposed that on 17.6.2005 at about 11.50 a.m. he had medico legally examined injured Surender and had found following injuries on his person:
"1. Abrasion with swelling over left shoulder.
2. Abrasion with swelling on right hand elbow. Advised X- ray left shoulder."
Thus, the ocular version qua infliction of injuries on the person of the deceased with knives by appellants Mam Chand and Surender is duly corroborated by medical evidence. As per PW-3, Criminal Appeal No.43-DB of 2008 14 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 five injuries were found on the person of deceased Bhagirath. The said injuries have been opined by the doctor to have been caused by a sharp edged weapon. As per the ocular as well as medical evidence, deceased Parmod had suffered one injury with a knife in his abdomen.
As per PW-16 Sub Inspector Jitender Kumar, he had reached Pushpanjali hospital, Gurgaon at 5.30 a.m. on receipt of information from the police station. The dead body of Bhagirath was lying in the said hospital. He recorded the statement of complainant Surender and conducted inquest proceedings qua dead body of Bhagirath. Thereafter, the dead body was sent for postmortem examination. Then he went to Raman Munjal hospital, Sidhrawali and conducted inquest proceedings qua the dead body of Parmod. The dead body was sent for postmortem examination. Thereafter, he inspected the spot and prepared rough site plan. He lifted blood stained earth from the spot. In his cross-examination, he deposed that he had reached Raman Munjal hospital at 11.45 pm and remained there up to 12/ 12.30 am and reached Pushpanjali hospital at 5.30 am. on 18.6.2005 and remained there up to 7/ 7.15 a.m. He again reached Raman Munjal hospital at 8 a.m. and remained there up to 9.30/ 10.00 a.m. Thus, from the statement of this witness, it is evident that initially he reached Raman Munjal hospital where the dead body of Parmod was lying and then he reached Pushpanjali hospital where the dead body of Bhagirath was lying. The statement of the complainant was recorded at Pushpanjali hospital. From the Criminal Appeal No.43-DB of 2008 15 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 statements of the eye witnesses PW-1 and PW-17, it is evident that Parmod was taken to Raman Munjal, hospital by Mahender and Dinesh. Bhagirath was taken in a car to the hospital by PW-1, PW- 17 and Sohan Lal. Complainant was also examined by PW-2 Dr.Devender Kumar in Pushpanjali hospital at about 11.50 am. This lends credence to the ocular version that Bhagirath was taken to Pushpanjali hospital by the complainant and others. PW-16 had recorded the statement of the complainant when he reached Pushpanjali hospital at 5.30 am. As per PW-13 Dr.Tarun, on 17.6.2005 at about 10.30 pm, dead body of Parmod had been brought to Raman Munjal hospital and he had sent ruqa to the police station. In this view of the matter, PW-16 was justified in going to Raman Munjal hospital at the first instance after receipt of ruqa. As per PW-8, Dr.Devender Kumar, who had examined injured Bhagirath at the first instance, the patient had died at 1.30 am. Thus, it can be said that initially the effort of the family members was to get injured Bhagirath treated as he had suffered serious injuries as the said injured was brought to the hospital bleeding profusely from abdomen, chest, head and neck. Moreover, the ruqa had been sent to the police station by Raman Munjal hospital. Hence, there is no unexplained delay in lodging of the FIR.
A perusal of the inquest reports Ex.PC/1 (qua deceased Parmod) and PD/1 (qua deceased Bhagirath) show that the names of the accused has not been given while describing the history of the case although the number of the FIR is duly mentioned in the inquest Criminal Appeal No.43-DB of 2008 16 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 proceedings. The said lapse on the part of the investigating officer cannot be said to be fatal to the prosecution case as the statements of the eye witnesses qua the occurrence inspire confidence. Moreover, it is a settled proposition of law that any lapse committed by the investigating officer in itself cannot be said to be fatal to the prosecution case as it would amount to falling in the hands of an erring police officer. In the present case, it appears that while preparing the inquest report, the investigating officer was negligent and had failed to give the names of all the accused while recording the brief history of the case. The said investigating officer had prepared the inquest reports after recording the statement of the complainant. In the facts and circumstances of the present case, the negligence on the part of the investigating officer cannot be said to be fatal to the prosecution case. The judgments relied upon by the learned senior counsel for the appellants in this regard fail to advance the case of the appellants as these are based on their own facts.
Accused Mam Chand and his accomplices had a strong motive to commit the crime. It has come in evidence that Mam Chand had earlier remained sarpanch of the village for a long time. Mam Chand could not reconcile with his defeat in elections for the post of sarpanch wherein Sohan Lal was declared elected. In these circumstances, Mam Chand with his accomplices attacked the sons of Sohan Lal elected sarpanch. Deceased Parmod, however, suffered injury while trying to save PW-1 Surender. Criminal Appeal No.43-DB of 2008 17 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 Now, let us examine the prosecution case to ascertain the involvement of the appellants in the crime. So far as appellants Mam Chand and Surender are concerned, the prosecution has been successful in proving its case qua the said appellants. Both the eye witnesses have deposed that the said appellants had given knife blows on the person of Bhagirath. Appellant Mam Chand was arrested on 18.6.2005 and during interrogation, he suffered a disclosure statement and got recovered the knife and jeep from the disclosed place, which were taken in possession. Appellant Surender surrendered before the magistrate on 13.7.2005 and he was formally arrested. During interrogation, the said appellant suffered a disclosure statement and got recovered the knife from the disclosed place, which was taken in possession. So far as the said appellants are concerned, the ocular version is duly corroborated by medical evidence and the weapons used by them were recovered during investigation. Hence, the prosecution has been successful in proving its case qua the said appellants.
So far as appellants Nepal, Om Pal, Subhash and Pawan are concerned, the prosecution case qua them appears to be doubtful. The said appellants had allegedly caught hold of Parmod when he was inflicted a knife blow by accused Ajay (non appellant). As per the eye witness account, deceased Parmod had come forward to rescue complainant Surender. It appears that when Parmod intervened to save PW-1 Surender, he was given a knife blow by accused Ajay (non appellant). There is only one injury on Criminal Appeal No.43-DB of 2008 18 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 the person of deceased Parmod. It is possible that when Parmod rushed towards Surender then at that point of time, he suffered the knife injury with such a force that it caused him serious damage. The possibility that appellants Nepal, Om Pal, Subhash and Pawan might have been falsely involved in this case cannot be ruled out as it appears that there was no occasion for the said appellants to have caught hold of Parmod qua whom they had no enmity. Accused Ajay has not faced the trial and hence, it would not be appropriate to give any opinion qua the injury alleged to have been inflicted by him.
PW-1 and PW-17, while appearing in the witness box, have deposed that Bhagirath was caught hold of by Prithi, Jahar and Vijay. Bhagirath is none other than the son of Sohan Lal. Mam Chand and his accomplices had grievance qua deceased Bhagirath and it is probable that he was caught hold of by accused Vijay, Prithi and Jahar. However, the statements of PW-1 and PW-17 to the effect that Bhagirath managed to disengage himself from the said three appellants fails to inspire confidence. It is possible that with a view to involve appellants Raj Kumar and Vikas in this case, the eye witnesses have given the said exaggerated version. It could not have been possible for Bhagirath to have freed himself from Prithi, Jahar and Vijay especially when he was being attacked with knives by appellants Mam Chand, Surender and Ajay (non appellant). It is not believable that Bhagirath could have been caught hold of by five persons and then given injuries with knives by another set of three persons. After carefully considering the statements of PW-1 and Criminal Appeal No.43-DB of 2008 19 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 PW-17, we are of the opinion that it is probable that appellant Bhagirath was caught hold of by Prithi, Jahar and Vijay and thereafter, he was inflicted knife blows by appellants Mam Chand and Surender. However, we are not giving any opinion qua the injury alleged to have been inflicted by Ajay (non appellant) as he has not faced the trial. The possibility that appellants Raj Kumar and Vikas have been falsely involved in this case cannot be rule out and they are liable to be given benefit of doubt. So far as appellants Prithi, Jahar and Vijay are concerned, we are of the opinion that the prosecution has been successful in proving its case qua the said appellants.
So far as appellant Ravinder is concerned, we are of the opinion that the possibility that he has been falsely involved in this case cannot be ruled out. The appellant was allegedly armed with a licenced rifle at the time of occurrence. However, the said appellant had not used the said weapon at the time of occurrence. Further the said appellant has taken up the plea of alibi. In order to establish his said plea, appellant Ravinder has examined DW-4 Sarwan Kumar, DW-5 Assistant Sub Inspector Jai Bhagwan, DW-8 EHC Som Nath and DW-10 Deputy Superintendent of Police Jagdish Parshad. As per the said witnesses, appellant Ravinder was on duty as a head constable in the police station. The statements of the said witnesses are supported by documentary evidence. There is no reason to disbelieve the statements of the said defence witnesses. Hence, the said appellant is liable to be acquitted.
Criminal Appeal No.43-DB of 2008 20Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 So far as appellants Jaibir and Bir Singh are concerned, they had allegedly inflicted injuries on the person of complainant Surender (PW-1). The complainant has categorically deposed that Jaibir had given an injury with the butt of his gun on his right elbow and Bir Singh had given a stick blow on his left shoulder. The said ocular version is duly corroborated by medical evidence.
As per PW-8, Dr.Devender Kumar, abrasions with swellings were observed on the left shoulder and the right elbow of complainant-PW/1. Although appellant Jaibir has not taken up the plea of alibi, when examined under Section 313 Cr.P.C. but while leading defence evidence, he examined DW-6 Kirtan Singh, who deposed that as per record brought by him, appellant Jaibir was posted as mail clerk on 16.6.2005 and he remained on duty from 7.00 am to 7.00 pm. On 17.6.2005, appellant Jaibir was on rest and on 18.6.2005, he was on duty from 7.00 am to 7.00 pm. The appellant could not have left the station without prior permission of the concerned authority. In his cross-examination, he deposed that as per record, appellant Jaibir was residing outside the unit with his family at Sadh Nagar, Palam, New Delhi. The distance between their unit and the residence of Jaibir was about 5-6 km. The aforesaid accommodation of appellant Jaibir was a private one. Thus, from the statement of DW-6 Kirtan Singh, the plea of alibi set up by appellant Jaibir is not established. Appellant Jaibir was on rest on 17.6.2005 and he could have easily gone to village Rathiwas at the time of occurrence which had taken place at 9.30 pm and returned back to Criminal Appeal No.43-DB of 2008 21 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 his place of posting in the morning as he had again reported for duty at 7.00 am on 18.6.2005. Appellant Jaibir was not residing in the unit and was residing in a private accommodation, which was at a distance of 5-6 km from his unit. In these circumstances, it is possible that he had gone to the place of occurrence without seeking any permission to leave the station. Thus, the prosecution had been successful in proving its case qua appellant Jaibir.
Similarly appellant Bir Singh had not taken the plea of alibi, when examined under Section 313 Cr.P.C. but while leading evidence in his defence, the said witness examined DW-12 Rampat to establish that he was not present at the spot at the time of occurrence. DW-12 Rampat deposed that he was owner of Indica car bearing No.HR-36D-9339. Appellant Bir Singh was working as a driver on the said car. On 9.6.2005, Dr.Kaushal had conducted an operation on his wife Geeta. On 15.6.2005, his daughter-in-law Sonia had given birth to a girl child in Government hospital, Dharuhera. The infant had become sick after discharge from the hospital and remained under treatment from 16.6.2005 to 23.6.2005. Bir Singh had remained with him from 9.6.2005 to 20.6.2005. The statement of the said witness fails to inspire confidence as there is no record available on the file qua employment of appellant Bir Singh with the said witness as a driver. It appears that the said witness had been examined by appellant Bir Singh to save himself from conviction. Moreover, DW-12 had not approached any higher official qua false involvement of appellant Bir Singh in this case. Thus, the Criminal Appeal No.43-DB of 2008 22 Criminal Appeal No.12-DB of 2008 Criminal Revision No.606 of 2008 prosecution has been successful in proving its case qua Bir Singh also.
Accordingly, Criminal Appeal No.12-DB of 2008 is allowed. Appellants Subhash and Vikas are acquitted of the charge framed against them.
Criminal Appeal No. 43-DB of 2008 is partly allowed. Appellants Nepal, Om Pal, Raj Kumar, Pawan and Ravinder are acquitted of the charge framed against them.
However, conviction and sentence of appellants Mam Chand, Prithi, Vijay Pal, Surender Singh, Jahar Singh, Jaibir Singh and Bir Singh, as ordered by the trial Court vide impugned judgment/ order dated 30.11.2007/ 7.12.2007 are upheld and the appeal qua them is dismissed.
Consequently, criminal revision No.606 of 2005 is dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
December 15, 2011
anita