Punjab-Haryana High Court
Jaipal S/O Shankar Dass vs State Of Haryana on 11 January, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA No.D-188-DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.D-188-DB of 2007
Decided on:- January 11, 2013.
1. Jaipal s/o Shankar Dass, r/o Village Habri,
2. Mehar Singh s/o Singh Ram, r/o Village Deora and
3. Mandeep Singh s/o Malook Singh, r/o
Sainik Colony, Hisar Road, Rohtak.
........Appellants
Versus
State of Haryana .........Respondent
AND CRA No. D-191-DB of 2007 Decided on:- January 11, 2013 Mehar Singh s/o Singh Ram, r/o Village Deora, P.O Keorak, Tehsil and District Kaithal.
........Appellant
Versus
State of Haryana .........Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present Mr.Ashwani Bhardwaj, Advocate
for appellants (through Legal Aid Services).
CRA No.D-188-DB of 2007 2
Mr. B.S.Saroha, Advocate,
for appellant no.2 Mehar Singh in CRA No.D-188-DB of 2007 and CRA No.D-191-DB of 2007.
Mr.G.S.Sandhu, AAG, Haryana for respondent.
S.P.BANGARH, J Both the appeals i.e CRA No.D-188-DB of 2007, titled Jaipal and others v. State of Haryana and CRA No.D-191-DB of 2007, titled Mehar Singh v. State of Haryana, arise from the common impugned judgment and order. These are, therefore, being decided by this common judgment.
The appellants in their respective appeals have assailed the judgment of conviction dated 30.01.2007 and order of sentence dated 31.01.2007, passed by the learned Additional Sessions Judge Kaithal, in Session Case No. 42 of 2005, emanating from FIR No.03 dated 04.01.2004, under Sections 302 and 201 read with section 34 of the Indian Penal Code ('IPC' for short) of Police Station, Sadar, Kaithal, whereby, they were convicted for commission of offences punishable under Sections 302 and 201 IPC. They have been sentenced to undergo imprisonment for life each and to pay a fine of `5,000/- each and in default, thereof, to further undergo simple imprisonment for a period of six months each for commission of the offence punishable under Section 302 IPC. They have also been sentenced to undergo rigorous imprisonment for three years each and to pay a fine of `1,000/- each and in default of payment of fine to further undergo simple imprisonment for two months each for commission of the offence punishable under Section 201 IPC. Both the substantive sentences imposed upon the appellants were ordered to run concurrently.
Case of the prosecution is that on On 04.01.2004, Rattan CRA No.D-188-DB of 2007 3 Singh son of Chhailu Ram reported to the police vide statement Ex.PD that at about 09:30 a.m, he and his servant Sanjay son of Munshi Ram came to the fields in the area near Peoda road, there they saw a naked body of a man whose head had been crushed by some unknown vehicle. On the basis of this information, formal FIR Ex.PA was registered under Sections 279 and 304-A IPC. Inquest report Ex.PT of the unidentified corpse was prepared and its photographs were also taken. Pamphlets were also published regarding the identification of the said corpse.
On 22.01.2004, Rattan Singh son of Mangal Singh, Chhabeg Singh son of Kapoor Singh, Chhinder Singh son of Sada Singh, residents of village Rohar reached Police Station Kaithal. After seeing the photographs of the corpse, Rattan Singh identified the corpse to be of his nephew Chain Singh, who had gone with Jaipal appellant on truck No. HR-06A-3655 on 03.01.2004 at 04:00 p.m. At that time, there were two cleaners on this truck namely Mehar Singh and Mandeep Singh (appellants herein), who had come to their village. All the three appellants had taken liquor with Chain Singh (deceased). On that day, at about 08:00 p.m, they left village Rohar towards Kaithal. Jai Pal appellant was driving the truck supra, while Chain Singh (deceased), Mandeep Singh and Mehar Singh appellants were sitting in its cabin. Whereabouts of Chain Singh (deceased) were not known to Rattan Singh etc. supra. On 20.01.2004, they came to know through a pamphlet Ex.PE in the area of Kaithal, that Chain Singh died in an accident. After seeing his photograph in the pamphlet, they identified the corpse of Chain Singh, as he was wearing a tabiz in his right shoulder. They suspected that after hatching a conspiracy, all the appellants might have CRA No.D-188-DB of 2007 4 murdered said Chain Singh and in order to destroy the evidence, they had put the corpse of Chain Singh on the road, which was run over by the tyre of the truck supra.
On the basis of statement Ex.PD of Rattan Singh, offences under Sections 302 and 201 readwith Section 34 IPC were added. Thereafter, Randhir Singh, SI, searched for the truck named by Rattan Singh in his statement Ex.PD. In the truck Union, Murari Lal met Randhir Singh, SI, who told him that truck no. HR-06A-3655 was owned by him and Jaipal and Mehar Singh appellants were driver and cleaner respectively, thereon. Jaipal appellant produced truck, its registration certificate and his driving licence which were seized vide memo Ex.PC by Randhir Singh, SI, which was attested by Murari Lal.
On 23.01.2004, Randhir Singh, SI, alongwith other police officials were present on bus stand Hawdi, where Ajaib Singh and Joga Singh met him. Ajaib Singh informed Randhir Singh, SI that on the previous date, Jai Pal and Mehar Singh (appellants herein) had come to him and had confessed that on 03.01.2004, they had gone to village Rohar, took liquor with Chain Singh and, thereafter, they (appellants) and Chain Singh boarded the truck and proceeded for Kaithal. On the way, hot words were exchanged between Chain Singh and Mandeep Singh and in the process, latter gave blow of tyre lever on the head of the former, as a result, Chain Singh died after some time. After crossing the T point, they (appellants) put off the clothes of Chain Singh and placed his corpse on the road and crushed his head with the tyre of the truck. Clothes and shoes of Chain Singh were burnt ahead of culvert towards Kaithal. Ajaib Singh further informed that they (appellants) had requested him to produce them before the police. Thereafter, Ajaib CRA No.D-188-DB of 2007 5 Singh produced the appellants before Randhir Singh, SI.
Later, all the appellants were joined in investigation. They were interrogated turn by turn by Randhir Singh, SI. During interrogation, Jaipal suffered disclosure statement Ex.PH to the effect that on 03.01.2004, he along with other appellants had gone in truck No. HR- 06A-3655 to village Rohar at about 04:00 p.m, where, Chain Singh brought one and half bottles of liquor, which was consumed and then at about 08:00 p.m, they (appellants) and Chain Singh (deceased) proceeded for Kaithal. On the way, there was dispute between Chain Singh and Mandeep Singh appellants. Latter lifted tyre lever and gave its blow on the head of the former. Resultantly, Chain Singh received injuries, became unconscious and later succumbed, thereto. Jaipal appellant further disclosed that Mandeep Singh and Mehar Singh put off the clothes from the corpse of Chain Singh, which was taken from the truck on the road and he crushed the mouth and head of corpse of Chain Singh by plying truck tyre in order to conceal the identity of the corpse. Jaipal appellant further disclosed that clothes and shoes of Chain Singh after pouring the diesel on those, were burnt after crossing the culvert. This occurrence had taken place at 10:00 p.m. He further disclosed that tyre lever was kept concealed by Mandeep Singh appellant and he alone could tell about the same.
During interrogation, Mehar Singh appellant also suffered disclosure statement Ex.PJ in the likewise manner as given by Jai Pal appellant. During interrogation, Mandeep Singh appellant also suffered disclosure statement Ex.PK on the lines of Jai Pal and Mehar Singh appellants. Mandeep Singh also suffered disclosure statement Ex.PH to the effect that he had caused head injury to Chain Singh with tyre lever, CRA No.D-188-DB of 2007 6 which was kept concealed by him in the same truck and he could get that recovered from the back of the seat of the truck.
On 24.01.2004, when Randhir Singh, SI was bringing appellants for their production in the Court, on the way, Kulwant Singh and Suba Singh met Randhir Singh and they were joined in the investigation. Thereafter, appellants led the police party including Kulwant Singh and Suba Singh supra to Chandana culvert. Jaipal appellant led them to place where the corpse of Chain Singh deceased was taken out of the truck and put on the road and then his head and mouth were crushed under the truck tyre. On his demarcation, memo Ex.PL was prepared. Thereafter, Mandeep Singh and Mehar Singh appellants led them to said place and demarcation memo Ex.PM was prepared, which was attested by Kulwant Singh and Suba Singh. In the police station, Mandeep Singh appellant, pursuant to his disclosure statement Ex.PK, got recovered tyre lever from the truck, which was already parked in the precincts of the police station. Sketch Ex.PO of the tyre lever Ex.P7 was prepared, which was seized vide memo Ex.PQ.
On 25.01.2004, Randhir Singh, SI recorded the statements of Ramesh Kumar and Attar Singh, Constable. On 04.02.2004, he seized bill Ex.PG vide memo Ex.PO on 05.02.2004. Randhir Singh, SI recorded the statement of Santosh Lal Patwari and also got prepared scaled site plan from him.
After completion of investigation, Station House Officer of Police Station Sadar, Kaithal instituted police report under Section 173 of the Code of Criminal Procedure ('Cr.P.C' for short) before the learned Illaqa Magistrate to the effect that it appeared that the appellants had committed offences punishable under Sections 302 and 201 IPC read CRA No.D-188-DB of 2007 7 with Section 34 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the appellants and the case was committed to the Court of Session for trial, which was entrusted to learned Additional Sessions Judge Kaithal, who, on receipt of the Sessions case, framed charge under Sections 302 and 201 read with Section 34 IPC against all the appellants, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined Ramesh Kumar, Constable as PW1, Attar Singh as PW2, Puran Chand as PW3, Santosh Lal, Patwari as PW4, Ram Kumar, Inspector as PW5, Murari Lal as PW6, Hambeer Mazoomdar as PW7, Suresh Kumar as PW8, Ratna as PW9, Rattan Singh as PW10, Ajaib Singh as PW11, Suba as PW12, Dharampal, Constable as PW13, Chhinder as PW14 and Randhir Singh, SI as PW15 and closed evidence later.
After closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C, wherein, they denied the allegations of the prosecution, pleaded innocence and false implication in this case.
The appellants were called upon to enter defence, but they closed the same without examining any witness.
After hearing both the sides, the learned trial Court vide impugned judgment of conviction and order of sentence, convicted and sentenced the appellants as described in the second paragraph of this judgment. Aggrieved, thereagainst, the appellants, who were accused before the learned trial Court, have filed these appeals with a prayer for CRA No.D-188-DB of 2007 8 acceptance, thereof, and for their acquittal of the charge framed against them.
Learned counsel for the appellants and learned Additional Advocate General Haryana for the respondent have been heard and record of the learned trial Court perused with their assistance.
First of all, it is to be seen as to what the prosecution witnesses have deposed against the appellants:-
PW1 Ramesh Kumar, Constable took the photographs Ex.P1 to Ex.P6 of the corpse of an unknown person and he proved negatives, thereof, Ex.P7 to Ex.P12.
PW2 Attar Singh, Constable also deposed that on 22.01.2004, he handed over special report of this case to the Illaqa Magistrate to Superintendent of Police, Kaithal and to Deputy Superintendent of Police, Kaithal.
PW3 Puran Chand, SI deposed that on 04.01.2004, he was posted in Police Station Sadar, Kaithal; on that date, after receipt of ruqa from Randhir Singh, SI, he recorded FIR, copy, Ex.PA.
PW4 Santosh Lal, Patwari deposed that on 05.02.2004, he prepared scaled site plan Ex.PB after visiting the spot.
PW5 Ram Kumar, Inspector also deposed that on 08.02.2004, he prepared police report under Section 173 Cr.P.C while he was posted as Station House Officer in Police Station Sadar, Kaithal.
PW6 Murari Lal also deposed that truck No. HR-06A-3655 was owned by him, whereon, Jaipal and Mehar Singh appellants were driver and cleaner respectively and he was paying `2,000/- per month to driver Jai Pal appellant and `700/- per month to Mehar Singh Conductor/appellant. He further deposed that the said truck was sent on CRA No.D-188-DB of 2007 9 01.01.2004 through Jaipal and Mehar Singh appellants to Ganaur and both returned on 04.01.2004 with the truck. He further deposed that Jaipal went to his house on 08.01.2004 and Mehar Singh also left on that day for his house, on 22.01.2004, the police came to him at his shop and took into possession the truck along with registration certificate and driving licence vide memo Ex.PC, which bears his signatures. He brought the truck No. HR-06A-3655 in the Court at the time of his deposition, as also, he identified Mehar Singh and Jaipal appellants.
PW7 Dr.Hambir Mazoomdar conducted autopsy on the unknown corpse on 04.01.2004 at 02:30 p.m. He deposed that the deceased was brought by HC Dharampal; according to the information of the police, corpse was found on the roadside on the night of 03/04.01.2004, which was of a male, completely naked, medium built, whose head was completely crushed, sternum was completely depressed. He further deposed that there was one bruise visible right upper arm and abrasion right arm and left arm. The rigor mortis was present over all parts of the body. Post mortem lividity present over the back and buttocks. He further deposed that patient suffered crush injury skull, exact height was not measurable. Length of the body was 64 inches. The anterior 6 ribs and the sternum laceration on b/1 plura. Internal collection of blood was seen, both the lungs were contused and lacerated, heart was torn and thoracic cavity was full of blood. PW7 further deposed that stomach was sent to analyst, portion of small intestine, large intestine, portion of lever and spleen were sent to analyst, for common poisons; there was fracture of left humorous; deceased appeared to be run over by a heavy object which was crushed, his skull and upper central chest.
CRA No.D-188-DB of 2007 10
After receipt of the Chemical analysis report, final comments were reserved till the receipt of report of the Chemical analysis of the viscera's and possible time between death and examination was between 6 to 26 hours. PW7 also deposed that after going through the Chemical Examiner report Ex.PD, the cause of death, in this case, was the crush injuries, which damaged the vital organs namely brain, heart and lungs. Ex.PE is the carbon copy of the post mortem report. He further deposed that on police application Ex.PF, he gave his opinion Ex.PF/1 that the injuries observed were ante mortem in nature. He further deposed that the injuries sustained over the skull was crush injury which is likely to be crushed with heavy object for example being run over by a vehicle. The possibility of the deceased being struck by iron rod before being crushed cannot be ruled out. This tyre lever was shown to this witness during his deposition, which was sealed into a parcel and this parcel was opened during the deposition of this witness.
PW8 Suresh Kumar deposed that on 31.12.2003, Jaipal appellant present in the Court was driver on truck No. HR-06A-3655. He further deposed that in the said truck, there were 315 gunny bags of paddy loaded for Pickrick Sheller Gannaur; 77 gunny bags were received back in the same truck on 04.01.2004 at 10:00 a.m. At that time, Jaipal appellant was with the truck. This witness also brought original voucher No. 3976 dated 02.01.2004, (copy Ex.PF). He also brought original bill No. 60 of 31.12.2003 (copy Ex.PG). whereby, 315 bags were sent to Pickrick Sheller, Gannaur in truck No. HR-06A-3655.
PW9 Ratna also deposed that on 04.01.2004, at about 09:30 a.m, he had gone to his fields along with his servant Sanjay and near their fields, they saw a corpse lying in a naked condition and tyre of CRA No.D-188-DB of 2007 11 some vehicle seemed to have run over the head. He left Sanjay near the corpse and started for informing the police about the incident. At the culvert, police met him and he got recorded his statement Ex.PD, which was thumb marked by him after admitting its correctness.
PW10 Rattan Singh deposed that Chain Singh (deceased) was his nephew in relation and on 03.04.2001, he along with Chhabeg Singh, Chhinder Singh and Chain Singh (deceased) was sitting in front of his house in the street. At that time, Jaipal appellant and other appellants came in truck No. HR-06A-3655 driven by Jaipal appellant, who was earlier known to him. He further deposed that Jaipal appellant called his nephew Chain Singh (deceased), who had some conversation and thereafter, Chain Singh brought one and half bottles of liquor and Mandeep Singh, Chain Singh and Jaipal sat in the truck, while Mehar Singh sat down with him and all the above three started taking liquor in the truck. He further deposed that about 08:00 p.m, all the three appellants and Chain Singh (deceased) started towards Kaithal in the truck supra and they waited for Chain Singh for a week and then they started his search and on 20.01.2004, they learnt through pamphlet Ex.PE that he had died in an accident. He further deposed that he identified the dead body of Chain Singh from the pamphlet, who was wearing a tabiz in his right shoulder and thereafter, they came to the house and told about this to the whole of the family. On 22.01.2004, he,Chhinder Singh, Chhabeg Singh and Karnail Singh etc. came to Police Station Sadar, Kaithal and identified the corpse of Chain Singh through pamphlet Ex.PE and then he got recorded his statement that he suspected his nephew Chain Singh having been murdered by the appellants present in the Court by some weapon and later they passed CRA No.D-188-DB of 2007 12 truck over the head of Chain Singh (deceased), so that the dead body could not be identified. He further deposed that the appellants also removed his clothes.
PW11 Ajaib Singh also deposed that on 22.01.2004, he was present in his farmhouse and at about 08:00 p.m, appellants came to him in his farmhouse. He further deposed that Jaipal appellant made extra judicial confession before him that on 03.01.2004, he along with other appellants went to village Rohar in truck, where they met Chain Singh and on their asking, he brought one and half bottles of liquor and they consumed the same in the truck and, thereafter, they proceeded from village at about 8/9/10 p.m in the company of Chain Singh for Kaithal. PW11 further deposed that Jaipal appellant further disclosed that on the way, after taking liquor, a quarrel arose between them and Mandeep Singh appellant gave tyre lever blow on the head of Chain Singh, who consequently became unconscious and died and, thereafter, his clothes were removed and his corpse was thrown near Peoda gate and his clothes and shoes were burnt by diesel and further stated that he passed over the truck over the head of Chain Singh.
PW12 further deposed that Mandeep Singh and Mehar Singh appellants also suffered separate extra judicial confessions on the same lines and they requested him to produce them before the police on 23.01.2004. He produced all the three appellants before the police, before whom also they confessed their guilt. He also deposed that Jaipal appellant suffered disclosure statement Ex.PH, Mehar Singh appellant suffered disclosure statement Ex.PJ and Mandeep Singh suffered disclosure statement Ex.PK separately before the police.
PW12 Suba Singh also deposed that on 24.01.2004, he CRA No.D-188-DB of 2007 13 along with Kulwant Singh came to Kaithal to know about this case and when he reached in front of the gate of Mini Secretariat, there Randhir Singh, SI of Police Station Sadar, Kaithal met them along with the appellants and they were joined in the investigation. He further deposed that Jaipal appellant got demarcated that place, where corpse of Chain Singh was thrown and his head was run over by tyre of the truck. Demarcation report Ex.PL was prepared by the police, which was signed by him and Kulwant Singh. He also deposed that, thereafter, Mandeep Singh and Mehar Singh appellants got demarcated the place from where the corpse of Chain Singh was recovered and memo of demarcation Ex.PM was prepared. He also deposed that, thereafter, Mandeep Singh appellant led the police party and got recovered one iron rod i.e tyre lever from underneath the back seat of the truck and its sketch Ex.PO was prepared and this tyre lever was converted into a parcel that was sealed with seal bearing impression RS and that parcel was seized vide memo Ex.PQ. Iron rod / tyre lever Ex.P14 was shown to this witness during his deposition.
PW13 Dharampal also deposed that on 04.01.2004, he was posted in Police Station Kaithal and on that day, he along with Randhir Singh, SI was present at culvert of canal minor at Kaithal-titram road, where Rattan Singh met them, who got recorded his statement, as also, disclosed regarding a corpse lying near his fields, which was brought to hospital for getting conducting autopsy, thereon. He further deposed that doctor handed over him one parcel and one envelop, which were handed over by him to the Investigating Officer, who seized those vide memo.
PW14 Chhinder also deposed that they are three brothers CRA No.D-188-DB of 2007 14 and Chain Singh has been killed. He further deposed that on 03.01.2004 at about 04:00 p.m, he, Chhabeg Singh, Rattan Singh and his brother Chain Singh were sitting in front of house of his uncle Rattan Singh, where Jaipal appellant came in a truck, who was known to him because he had been coming to his village in his relations and other appellants Mehar Singh and Mandeep Singh were also with Jaipal appellant. He further deposed that Jaipal appellant brought one and half bottles of liquor and, thereafter, Jaipal, Mandeep Singh appellants and Chain Singh (deceased) consumed liquor while sitting in the truck and Mehar Singh appellant remained seated with them; at about 08:00 p.m, all these three appellants and Chain Singh left, village for Kaithal in truck but his brother Chain Singh did not return home.
PW14 further deposed that on 20.01.2004, they came to know from news pamphlet that his brother Chain Singh had died and they identified his photo from the tabiz tied around his right arm. Police of Police Station Sadar showed him photographs Ex.P1 to Ex.P6 of the corpse of his brother Chain Singh, wherein, the corpse of Chain Singh was visible and tabiz on his shoulder was also visible. He further deposed that photographs are clearly and apparently are of his brother Chain Singh, who was murdered by the appellants and after killing him, they stripped his clothes as also ran over the tyre of the truck over his face to destroy his identification.
PW15 Randhir Singh, SI, CIA staff conducted investigation and deposed on the lines of investigation as reproduced in the earlier parts of this judgment.
The learned Additional Advocate General for the respondent-State contended that all the witnesses of the prosecution CRA No.D-188-DB of 2007 15 materially bolstered the case of the prosecution, in its entirety. He also contended that all the witnesses were cross examined by the learned counsel for the appellants before the learned trial Court, but their testimony during cross examination could not be shattered. He also contended that learned trial Court rightly convicted and sentenced appellants for commission of murder of Chain Singh. He also contended that Chain Singh (deceased) departed from village Rohar on 03.01.2004 with the appellants and PW10 and PW14 saw the appellants together, who came to village Rohar in truck No. HR-06A-3655. After consuming liquor, all the three took Chain Singh (deceased) with them and later the latter did not return home and his whereabouts could not be known and finally his photographs were identified by these prosecution witnesses which were earlier published in pamphlet Ex.PE and then they saw photographs Ex.P1 to Ex.P6, wherein, they identified the deceased, who was cremated as an unknown person after getting conducted autopsy by Dr.Hambir Mazoomdar (PW7).
On the other hand, learned counsel for the appellants contended that the latter have been implicated falsely in this case. They had no motive to kill the deceased. They further contended that FIR was lodged under Sections 279 and 304-A IPC against an unknown vehicle. So, they contended that the deceased died due to an accident with some unknown vehicle. Even, they contended that the dead body was beyond recognition and the learned trial Court wrongly held that to be of Chain Singh deceased. They also contended that PW10 and PW14 are relatives of Chain Singh (deceased) and, therefore, no reliance could be placed upon their evidence. They also contended that the deceased went missing from his village on 03.01.2004, but strange enough, no CRA No.D-188-DB of 2007 16 missing report was lodged with the police by his family members.
Learned counsel for the appellants also contended that the corpse of Chain Singh, as shown in pamphlet Ex.PE was identified by PW10 and PW14 only from the tabiz which he was wearing in his right arm, but PW7 deposed that he had not observed anything on the corpse of Chain Singh and moreover, the identification from the tabiz is no identification in the eyes of law.
Learned counsel for the appellants also contended that there was no occasion for the latter to suffer extra judicial confession before Ajaib Singh PW11, as he was neither member panchayat nor sarpanch or any other office holder of the village. So, they contended that no one saw the deceased being killed by the appellants, as also, no one saw him being crushed by the speeding vehicle. Even, they contended that the truck was not owned by PW6, which, on the contrary, was owned by Kashmir Singh, who has not been brought to the box to prove about the employment of the appellants with him. They also contended that Mandeep Singh was neither driver nor cleaner on the truck in question and therefore, has been wrongly convicted and sentenced. So, in the end, learned counsel for the appellants prayed for setting aside of the impugned judgment of conviction and order of sentence and for acquitting the appellants by according them benefit of doubt.
We have given thoughtful consideration to the contentions raised by the learned counsel for the parties, but find no merit in the contentions raised by learned counsel for the appellants, while, the contentions raised by the learned Additional Advocate General for respondent have sufficient merit.
CRA No.D-188-DB of 2007 17
One thing is very much certain from the testimony of PW6 that truck No. HR-06A-3655 was owned by him and, thereon, he had employed Jaipal appellant as a driver and Mehar Singh appellant as a cleaner. It is no doubt true that during cross examination, this witness deposed that Kashmir Singh was owner of the truck supra, but it appears from the facts and circumstances of the case that he had purchased it from Kashmir Singh and his name might not have been entered in its registration certificate. So, from his testimony, it is established that PW6 was in possession of truck No. HR-06A-3655, manifestly as owner, thereof.
Appellants could bring Kashmir Singh to depose in defence to show that Murari Lal is not in possession of the truck No. HR-06A- 3655 as a prospective buyer. If Kashmir Singh had deposed in defence that he is owner of truck supra and the same is not in possession of Murari Lal, in that event, it could follow that Jaipal and Mehar Singh appellants were not employed by PW6 as a driver and cleaner respectively on truck supra. Even, this evidence was put to these appellants under Section 313 Cr.P.C, but they simply denied the same. Simple denial was evasive. These appellants could wriggle out of this testimony against them by categorically stating in their examination under Section 313 Cr.P.C as to with whom they were working as a driver and cleaner respectively or in the alternate, if they were not driver and cleaner respectively, what was the nature of their work for earning their living.
No motive can be ascribed to PW6 to testify falsely in this case. His evidence, thus, must be accepted and on the basis, thereof, it must be held that Jaipal appellant was employed as a driver by PW6 on CRA No.D-188-DB of 2007 18 truck No.HR-06A-3655 at a monthly salary of `2,000/- while Mehar Singh appellant was employed as cleaner, thereon, at a monthly salary of ` 700/-.
Even, it is established from the testimony of PW6 that this truck was sent on 01.01.2004 through Jaipal and Mehar Singh appellants and both returned on 04.01.2004, while the occurrence took place in the night of 03/04.01.2004. So, during the night of occurrence, both the appellants Jaipal and Mehar Singh were on the truck No. HR- 06A-3655, as driver and cleaner respectively.
It is also candid from the testimony of PW10 that on 03.04.2001, all the appellants came to village Rohar in truck No. HR- 06A-3655, wherein, Chain Singh (since deceased) brought one and half bottles of liquor, which was consumed by Mandeep Singh appellant, Chain Singh (deceased) and Jaipal appellant, while sitting in truck supra. From the testimony of PW10, it is made out that Mehar Singh did not consume the liquor who sat with PW10.
Evidence of PW10 has been corroborated by PW14, who also saw the appellants in village Rohar on 03.01.2004. PW10 and PW14 were subjected to lengthy cross examination by the learned counsel for the respondent before the learned trial Court, but that failed to elicit anything worth the name, which could possibly cause any dent in their testimony. The learned counsel for the appellants failed to point out any contradiction or variation in the cross examination of these witnesses. Their evidence throughout in the cross examination remained consistent and that must be believed and was rightly believed by the learned trial Court. From this evidence of PW10 and PW14, it is made out that all the three appellants came to village Rohar on CRA No.D-188-DB of 2007 19 03.01.2004. They took Chain Singh with them. So, Chain Singh (deceased) joined the company of the appellants on the evening of 03.01.2004 in truck No. HR-06A-3655. They all four departed from village Rohar. Their departure was seen by PW10 and PW14.
So, the deceased and the appellants were lastly seen together. No circumstance has been brought out on the file as to when Chain Singh (deceased) departed from their company and whose company he joined after departing from their company. The stand taken by the appellants is very vague. They simple stated it as correct when a question was put to them under Section 313 Cr.P.C that they had come to village Rohar in truck No. HR-06A-3655 and then they proceeded towards Kaithal with Chain Singh. This stand taken by the appellants is vague which has not been bolestered by any defence evidence. So, this plea is perfunctory in nature, which having not been supported by any defence evidence, requires to be repelled and on the basis of evidence of PW10 and PW14, it must be held that deceased and appellants were lastly seen together by them and they all four left village Rohar in the evening and in truck No. HR-06A-3655 and 77 bags were received from the said truck on 04.01.2004 at about 10:00 a.m, as can be seen from the testimony of PW8 Suresh Kumar. So, it has been amply established that appellants and deceased were lastly seen together by PW10 and PW14.
This Court in Sunita v. State of Haryana 2008(4) ATCLR 294 maintained the order of conviction and order of sentence passed by the learned trial Court by placing reliance on the evidence of deceased being lastly seen together with the accused / appellant Sunita. The judgment supra of this Court is fully applicable to the facts and CRA No.D-188-DB of 2007 20 circumstances of the case for holding the appellant guilty for commission of murder of Chain Singh.
Evidence of PW10 and PW14 to the effect that they saw deceased and appellants together is not the only evidence against the appellants. This evidence is further corroborated by the testimony of PW11 before whom appellants made extra judicial confession. Evidence of this witness has been reproduced in the earlier parts of this judgment which clearly goes to show that all the three appellants came to PW11 and confessed before him that on 03.10.2004 they went to village Rohar, where Chain Singh (deceased), on their asking, brought one and half bottles of liquor, that was consumed and then they proceeded from the village at about 8/9/10 p.m with Chain Singh (deceased) for Kaithal. On the way, a quarrel took place and Mandeep Singh appellant gave a blow of tyre lever / iron rod on the head of Chain Singh (deceased), who received head injury, became unconscious and succumbed, thereto, later his corpse was thrown near Peoda gate and was crushed under the tyre of the truck No. HR-06A-3655.
No motive can be ascribed to PW11 to testify falsely in this case. Evidence of this witness, during cross examination, could not be shattered. So, the same must be relied upon as the appellants themselves confessed before PW11 about their visit to village Rohar and consumption of liquor, which was brought by Chain Singh (deceased). It is candid from the extra judicial confessions of the appellants, which were suffered by them before PW11 that they took Chain Singh in truck and latter died unnatural death when he was in the company of the appellants. It was for them to explain as to how Chain Singh turned into a corpse. In Sunita's case (supra), this Court upheld the conviction and CRA No.D-188-DB of 2007 21 sentence by placing reliance upon extra judicial confession made by accused before two persons, one of them not related to either party. It was held that such conviction cannot be over looked, though being weak type of evidence. So, in this view of the judgment supra, extra judicial confession suffered by appellants before PW11 must be upheld for basing conviction and sentence upon them.
The tyre lever / iron rod Ex.P14 was produced in the Court during the deposition of PW7 who in candid words deposed that possibility of causing injury by Ex.P14 on the body of deceased before crushing cannot be ruled out. This evidence of PW7 during cross examination could not be shattered. There is no reason to repel this opinion of PW7, that gives corroboration to the testimony of PW10 and PW14. This weapon was got recovered by the appellant Mandeep Singh from the precincts of the Police Station from the truck No. HR- 06A-3655.
So, it can be safely held that an altercation took place in the truck No. HR-06A-3655, which was being driven by Jaipal appellant between Mandeep Singh and Chain Singh (deceased). Mandeep Singh gave tyre lever blow on the head of deceased. It appears that he had not died before being crushed under the truck No. HR-06A-3655 by the appellant Jaipal, who was driver, thereon. From the evidence of PW7, it is established that deceased was alive before being run over by the truck. Act of Jaipal and Mehar Singh appellants could be held to be bonafide, if they had brought deceased to hospital for treatment and if they had handed over Mandeep Singh appellant to the police. In that situation, Jaipal and Mehar Singh appellants could absolve themselves from the liability of murder of deceased. Even it would have been open CRA No.D-188-DB of 2007 22 to Mandeep Singh appellant to take a cogent defence that deceased had caused him sudden provocation and as a result, he caused him injury with the tyre lever.
The act of Jaipal and Mehar Singh appellants becomes reprehensible for not putting machinery of law into motion by lodging the case against Mandeep Singh for causing injury to Chain Singh. By not rising to the occasion, both Jaipal and Mehar Singh appellants became accomplices of Mandeep Singh appellant and thereby all formed common intention and did not allow Chain Singh (deceased) to survive after causing of head injury to him by Mandeep Singh appellant. Through medical aid even deceased could be got cured from the injury. When deceased was in an unconscious or semi conscious state, all the three appellants formed common intention and in furtherance of such common intention, they stripped deceased naked, burnt his clothes and shoes to destroy evidence and put his corpse on the road and crushed his head by running tyre of the truck No. HR-06A-3655 over his head to make the same beyond recognition.
They left no stone upturned in destroying the recognition of the corpse of Chain Singh by crushing it from the head and mouth, but luckily his face could not be destroyed beyond recognition and the same was recognized by PW10 from pamphlet Ex.PE, as also, from photographs. Even PW14 recognized the face of deceased from photographs Ex.P1 to P6. In candid words PW14 deposed that he identified the photographs Ex.P1 to Ex.P6 of his brother Chain Singh (deceased) and, therein, the corpse of his brother Chain Singh was visible and tabiz of his right arm was also visible. He deposed that photographs were clearly and apparently were of his brother Chain CRA No.D-188-DB of 2007 23 Singh. The evidence of PW14 could not be shattered in the cross examination. No motive can be ascribed to him to testily falsely in this case.
Tabiz was not on the corpse at the time of autopsy but no benefit can be derived by the appellant from this lapse. Fact remains that face of deceased was not totally crushed. It was recognizable. We have seen the photographs. The face of the deceased is visible and his family members like PW14, his brother could definitely recognize these photographs being of his brother from the face appearing in these photographs.
Earlier the case was registered as a case of road accident which was registered on the basis of testimony of PW9 Ratna. There is no delay in the FIR. At that time, police was not knowing that it was the corpse of Chain Singh. So, it was cremated as unidentified corpse. Pamphlet Ex.PE of the corpse was published and PW10 and PW14 came across this pamphlet Ex.PE and from that pamphlet, they identified the corpse with Chain Singh. They might not have informed the police, as they may be expecting that the deceased will come back. Normally, the people working on the trucks come back to their houses sometimes after a short duration or sometimes after long duration. They may be making query at their own. They may not be very definite about the death of Chain Singh and, therefore, they did not report the matter to the police. Indeed, they may not be treating the deceased as a missing person. They may be expecting his return to the house.
Learned counsel for the appellants contended that there was no liquor found in the stomach of Chain Singh (deceased) at the time of autopsy. Regarding this contention, suffice it to say that this CRA No.D-188-DB of 2007 24 opinion was not sought and obtained by PW7 from the Chemical Examiner. Opinion about presence of poison in the stomach was taken and that came in negative. At that time, the police and PW7 were not aware of consumption of liquor by the deceased. Due to this reason, no such opinion about the presence of liquor in the stomach of the deceased was sought by PW7 for ascertaining the cause of death. However, he (PW7) in candid words deposed that the cause of death was due to crush injuries, which damaged the vital organs namely brain, heart and lungs. He also opined that before crushing injuries, possibility to cause injury on the corpse of the deceased cannot be ruled out.
Meaning, thereby, that deceased was alive when he was crushed under the tyre of truck No. HR-06A-3655, which was being driven by Jaipal appellant. Other appellants were also present and they helped Jaipal appellant in running over the truck over head and face of the deceased. The deceased, thus, died in the company of the appellants and all the three appellants were responsible for his death. They left the corpse on the road to destroy evidence. They also tried to destroy the face of the deceased to become non recognizable. So, the learned trial Court rightly convicted the appellants for commission of offences under Sections 302 and 201 IPC read with Section 34 IPC and rightly sentenced them vide impugned order of sentence.
There is thus, no flaw in the impugned judgment of conviction and order of sentence which ought to be and are, hereby, upheld and affirmed.
Resultantly, appeal No. D-188-DB of 2007 fails and is, hereby, dismissed.
Since appellant Mehar Singh was also one of the appellants CRA No.D-188-DB of 2007 25 in CRA No. D-188-DB of 2007, which has been dismissed, his CRA No. D-191-DB of 2007 is also dismissed being redundant.
Appellants Jaipal and Mandeep Singh are on bail. They be taken into custody forthwith and sent to jail for undergoing the remaining portion of their sentence.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
January 11, 2013
mamta