Punjab-Haryana High Court
Hem Raj And Others vs State Of Haryana on 12 May, 2011
Author: A.N.Jindal
Bench: Hemant Gupta, A.N. Jindal
Crl. Appeal No.661-DB of 2002 & 1
Crl. Revision No.23 of 2003
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.661-DB of 2002
Date of decision:- 12.05.2011
Hem Raj and others
....Appellants
Vs.
State of Haryana
....Respondent
Crl. Revision No. 23 of 2003
Date of decision:-12.05.2011
Chanda Singh
.....Petitioner
Vs.
State of Haryana and another
....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr.D.S.Brar, Amicus Curiae,
with Mr. B.S. Sodhi, Advocate,
for the appellants.
Mr. Pardeep Singh Poonia, Addl. A.G., Haryana.
Mr. Rahul Rathore, Advocate,
for petitioner (in Crl. Revision No.23 of 2003)
A.N.JINDAL, J.
This order shall dispose of Criminal Appeal No. 661-DB of 2002 and Criminal Revision No.23 of 2003, as common questions of law and fact are involved in both the cases. For reference, facts are taken from Criminal Appeal No. 661-DB of 2002.
On the wee hours of 01.05.1999, accused Hem Raj, Randhir Singh (both deceased), Jangli, Ram Singh, Joginder and Dharampal are alleged to have waylaid Maman (deceased) and Rajma and caused vital injuries to them, as a result of which, Maman died. Therefore, all the accused were tried. However, vide judgment dated Crl. Appeal No.661-DB of 2002 & 2 Crl. Revision No.23 of 2003 07/10.08.2002, all of them, except Ram Singh, were convicted and sentenced as under:-
Under Section 302/149 IPC : Rigorous imprisonment for life and to pay a fine of Rs.1,000/- each.
Under Section 326/149 IPC : Rigorous imprisonment for five years and to pay a fine of Rs.1,000/- each.
Under Section 324/149 IPC : Rigorous imprisonment for two years and to pay a fine of Rs.500/- each.
Under Section 323/149 IPC : Rigorous imprisonment for one year and to pay a fine of Rs.500/- each.
Under Section 148 IPC : Rigorous imprisonment for two years and to pay a fine of Rs.500/- each.
Hem Raj and Randhir Singh-accused are reported to have died. Therefore, the appeal qua them stands abated.
The factual matrix of the case is that on 01.05.1999 at about 9.00 A.M., all the accused persons had dismantled the watercourse (Khal) of the complainant and his brothers, which resulted into exchange of abuses amongst them. However, the accused had threatened them for teaching a lesson some day. Lateron, on the same day, the complainant as well as his two brothers Maman and Rajma had collected in their field, situated at village Hathlana and they slept there at the tubewell of Rajma. On the next morning, i.e. on 02.05.1999 at 4.00 A.M., Maman and Rajma, after milching their cattle, started for going to their village Hathlana. At about 5.30 A.M., when they reached in the passage near the field of Ramesh, the accused Hem Raj armed with gandasi and his sons Randhir and Jangli armed with sword and gandasi respectively, came running from behind the tubewell room of Sher Singh and exhorted. On this, Rajma and Maman started running towards the fields of Ramesh, but they were waylaid by Ram Crl. Appeal No.661-DB of 2002 & 3 Crl. Revision No.23 of 2003 Singh and his sons Dharam Pal and Joginder, who came from behind the heap of the fodder, armed with lathi, gandasi and sword respectively. In the mean time, on hearing the cries, the complainant also arrived at the spot. However, in his presence, accused-Hem Raj gave a gandasi blow, which hit on the right tample of Maman.
Accused Randhir gave a sword blow, which hit on the backside of his (Maman's) head. Accused Jangli gave a gandasi blow, which hit on his forehead. Accused Dharampal gave a gandasi blow, which hit on the left arm of Maman. Accused Joginder gave a sword blow, which hit on the left arm of Maman. Accused Ram Singh gave a lathi (stick) blow to Rajma. On receipt of the injuries, Maman fell down on the ground. Then, all the accused caused more injuries to Rajma with their respective weapons. Maman succumbed to the injuries at the spot. Krishan also reached the spot. On raising hue and cry by him and Krishan, the accused fled away. Krishan took Rajma to the hospital, whereas the complainant, after leaving Sunehra son of Chandu Ram near the dead body, went to the police station. However, Inspector Kalu Ram met him on the way and recorded his statement Ex.PF, on the basis of which, FIR Ex.PC was recorded at Police Station Nissing. The Investigating Officer visited the spot and prepared the rough site plan of the place of occurrence. He also prepared the inquest, got the place of occurrence photographed, lifted the blood stained earth from beneath the dead body of Maman. Blood stained earth as well as lathi lying there were taken into possession vide recovery memo Ex.PM. He also lifted the blood stained earth from the place, where Rajma had fallen due to the injuries. He also recovered milk containers and one pair of chappel belonging to Maman from the spot, which were taken Crl. Appeal No.661-DB of 2002 & 4 Crl. Revision No.23 of 2003 into possession vide memo Ex.PL. Thereafter, he dispatched the dead body to the General Hospital, Karnal, for postmortem examination. After taking opinion of the doctor regarding the fitness of Rajmah to make the statement, the Investigating Officer recorded his statement on 04.05.1999; recovered the weapons of offence and on completion of investigation, charge report was submitted.
On commitment of the case, the accused were charged for the offences under Sections 148, 302, 326, 324, 323 read with Section 149 IPC.
In order to substantiate the charges, the prosecution examined HC Bal Kishan (PW-1), Constable Dalvinder Singh (PW-2), Constable Ajit Singh (PW-3), Dr. Kuldeep Singh (PW-4), Chanda Singh (PW-5), Rajma (PW-6), Dr. Rakesh Girdhar (PW-7), Dr. Sham Wadhwa (PW-8), Ramesh Chand Patwari (PW-9), Dr. Rakesh Mittal (PW-10), Krishan Lal (PW-11), Kalu Ram (PW-12), Pardhan, constable (PW-13) and Devinder Singh, DSP (PW-14).
On closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., wherein they denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. They further stated that Dharambir and Joginder are living separate from the other accused Hem Raj etc. Ram Singh etc. are cultivating their land separately and also live in separate houses. Ram Singh and his two sons Dharambir and Joginder had no dispute with the complainant party. However, the accused did not lead any evidence in defence.
The trial resulted into conviction.
Arguments heard. Record perused.
Crl. Appeal No.661-DB of 2002 & 5Crl. Revision No.23 of 2003 The primary contention raised by Mr. D.S. Brar, Amicus Curiae, appointed by the Court, is that the condition of the rigor mortis as well as semi solid food existing in the stomach, indicates that the occurrence did not take place in the morning at 5.30 A.M., on 02.05.1999, but had taken place much earlier to the given time and Chanda Singh (PW-5) and Krishan (PW-12) were not present at the time of the occurrence.
Having considered the aforesaid contention, we do not find force in the same. The occurrence in this case took place on 02.05.1999 at 5.30 A.M. Dr. Kuldeep Singh (PW-4) conducted the postmortem examination at 4.00 P.M. on that day. The witness has recorded that stomach contained minimal semi solid food. Small intestine contained chyme and gases, while large intestine contained feackle matter and gases. The doctor further opined that the probable time that lapsed between the injuries and death was variable, whereas death and postmortem was within 24 hours. Though the doctor has not recorded anything about the presence of rigor mortis, yet the inquest report (Ex.PA/1) reveals that rigor mortis was present. Thus, while examining the aforesaid facts, the situation of the body, presence of the rigor mortis and minimal semi solid food in the stomach, indicate that the occurrence took place at the same time as stated by the witnesses. Though the doctor has stated that time lapsed between the death and the postmortem was within 24 hours, but he could be further confronted to pin-point, if the death had taken place more than 12 hours after the occurrence. But, no such question was asked to the said witness. It is also a matter of common experience that in this part of the country, in the summer days, people get up early in the morning at Crl. Appeal No.661-DB of 2002 & 6 Crl. Revision No.23 of 2003 about 4.00 A.M. (as in this case), take tea and some food and start their days job. It also cannot be disputed that early in the morning, a light food is taken, which does not take much time to digest. Therefore, it was not abnormal that if within 1½ hours of taking of the food, the Doctor detected minimal semi solid food in his stomach. The food after it is taken, remains undigested for some time and thereafter, it becomes semi solid and ready for digesting. The doctor has found semi solid food material. Thus, if the deceased had taken his meal just before the occurrence, then the doctor certainly would have found either undigested or semi digested material in the stomach. The presence of semi solid food material in the stomach indicates that the deceased had taken food between 4.00 or 4.30 A.M. No doubt, the Investigating Officer has recorded that rigor mortis was present on the body. The counsel for the appellants has tried to take benefit of this situation of the body by stating that rigor mortis starts developing after sometime and not within two hours. As a matter of fact, the Investigating Officers are not known to the different medical terms, which are indicated by them on the body after the death. These factors include cooling of the body, cadaveric flattening, state of post mortem lividity or hypostasis, chemical and electrolyte changes in the vitreous humour (where possible), features of putrefaction, state of stomach contents, presence of maggots by forensic entomology.
No doubt, the time of death of the deceased is determined while examining the aforesaid factors prevailing over the body, yet touching the other aspects of the case, which are unessential for determining the time, we need to state that cadaveric spasm, often incorrectly called as 'Instantaneous rigor', starts developing forthwith in Crl. Appeal No.661-DB of 2002 & 7 Crl. Revision No.23 of 2003 case of violent deaths and not in all cases and rigor mortis is followed.
Rigor mortis is followed by the cadaveric spasm within one or two hours of the death. The combined study of Medical Jurisprudence Forensic Medicine And Toxicology by Parikh. C.K., Medical Jurisprudence And Toxicology by Modi Jaising P (rev. 21 By Franklin, Ca) and Medical jurisprudence For India Ed. By Tf Owens by Lyon (11th Ed. Revised By Dogra, Td & Rudra Abhijit, for facilitating the Courts in order to examine the essential aspects of the postmortem changes and to determine the time of death and so also for the Doctors with an expectation that they should give specific period, within which, the death had taken place, we need to reproduce the postmortem changes, which are detailed as under:-
"Types of death:
Somatic & molecular.
I. Somatic death: Systemic or clinical death Complete and irreversible stoppage of the circulation, respiration and brain functions. (TRIPOD OF LIFE), II. Molecular death:
Following somatic death, due to lack of oxygen supply, individual cells of different tissues or organ die. Somatic death tissues and cells respond to chemical, thermal or electrical stimuli.
E.g. Brain cells begin to die within about 5 minutes of somatic death.
Viability of transplantable organs: Liver - 15 mints, kidney - 45 mints, Heart - 1 hour, Cornea - 6 hrs, skin - 24 hours, Bone - 48 hrs, blood vessels - 72 hrs. Brain death:
IRREVERSIBLE COMA consists of:
1.Deep unconsciousness with no response to external stimuli or internal need. No movement, no spontaneous breathing.
Cessation of spontaneous cardiac rhythm without assistance.
No reflexes (except occasional spinal reflexes). Bilateral dilatation and fixation of pupils, Flat isoelectric EEG;
Provided that Crl. Appeal No.661-DB of 2002 & 8 Crl. Revision No.23 of 2003
(a) all of the previously mentioned are present for 24 hours;
(b) patient's body temperature should not be below 320C; and
(c) metabolic and endocrine disturbances which can be responsible for coma have been excluded.
(d) No profound abnormality of the serum electolytes, acid-base balance or blood glucose.
Types of brain death: 3 types
(a) Cortical or cerebral death with an intact brain stem- Vegetative state-capable of spontaneous breathing.
(b) Brain stem death - incapable of spontaneous breathing.
(c) Whole brain death (combination of (a) & (b). Suspended animation - Apparent death Person appears dead due to low, minimal vital functions. • As voluntary act - death trance • Drowning.
• New born infants.
• Electrocution.
• Hypothermia.
Signs of death Immediate (somatic death):
1. Insensibility and loss of movement.
2. Cessation of respiration:
Feather test Mirror test Winslow's test.
3. Cessation of circulation:
Magnus test - ligature applied on a finger. I-card's test - injection of fluorescin solution. Diaphanous or transillumination test. Early changes:
Cellular death • Eye changes.
• Primary flaccidity of muscles. • Cooling of the body.
• Post mortem staining.
• Rigor mortis.
Late Changes:
• Decomposition & decay • Putrefaction.
• Adipocere formation.
• Mummification.
Changes in eye:
Taches Noire Scleroitiques:
2 yellow triangles of dessicated discoloration on the sclera at each side of the iris, which become brown and then black.
Kevorkian sign - Fragmentation or segmentation (trucking) of the blood columns in the retinal vessels. Algor Mortis-
Cooling of body/ Crl. Appeal No.661-DB of 2002 & 9 Crl. Revision No.23 of 2003 Lab thermometer 25 cm long with a range of 0 to 50°C is used.
Rectum - ideal place to record temperature.
Formula used:
Normal body temperature (37.2°C) - rectal temperature/Rate of temp. fall per hour, In India - average heat loss is about 0.5°C and body attains environmental temperature in about 16-20 hours after death.
Ratio of the rates of fall of the body temperature in the 3 media is, water: air: grave = 4:2:1.
Post-mortem Caloricity Temperature of the body remains raised for first 2 hours or so after death:
May occur due to:
Septicemia, cholera and other fevers. Tetanus and strychnine poisoning. Disturbance in heat regulation as in sunstroke and some nervous disorders.
Post-mortem staining (PM hypostasis, PM lividity or Livor mortis):
bluish-purple or purplish discoloration of dependant parts of the body after death due to capillo venous distension. Begins shortly after death but usually not visible for about ½ to 1 hour after death.
Usually well developed within 4 hours and reaches a maximum between in 6 & 8 hours.
Sites for pm staining:
• Depends on the position of the body. • If lying on its back, whole of back except in pressure areas.
• Prone position - face, neck and front part. • Hanging - PM staining will be more prominent in legs, external genitalia, lower parts of the fore arm and hands. Fixation of the post-mortem staining - coagulation in the capillaries and small veins stains become permanent takes about 6-8 hours.
If position of body is changed
- before lividity is fixed - fresh areas of lividity develop in new dependent areas,
- After lividity in fixed - lividity in earlier position as well as at new dependent parts.
PM staining colour & poisoning:
Cherry-red - Carbon monoxide • • Bright red - hydrocyanic acid/cyanide • Dark brown in phosphorous • Chocolate or coffee-brown in poisoning by nitrites, potassium chlorate, potassium bicarbonate, nitrobenzene, • Deep blue - aniline dye • Hydrogen sulphide - bluish green • Opium - black Medico-legal importance • Reliable sign of death.Crl. Appeal No.661-DB of 2002 & 10 Crl. Revision No.23 of 2003
• Estimate time since death (from degree of development).
• Idea about position of death at the time of death. • May suggest cause of death (colour). • Distribution may suggest manner of death e.g. hanging or drowning.
Muscular changes:
Primary flaccidity: last for 1 or 2 hours. Rigor mortis (cadaveric rigidity). Secondary relaxation - due to autolysis of myosin & actin filament in putrefaction.
Rigor-mortis State of stiffening of the muscles after death. Mechanism - due to depletion of ATP overlapping portions of the actin and myosin filaments combine as rigid link of actomyosin resulting into hardness and rigidity of rigor mortis.
Initiated when ATP concentration falls to 85% of the normal.
Maximum when the level of ATP is reduced to 15%. Onset and order of appearance of rigor mortis: All muscles, both voluntary and involuntary muscles are involved.
Nysten's rule - does not start in all muscles simultaneously First appears - in involuntary muscles of heart (1 hr) Voluntary - muscles eyelids.
Spreads gradually in next 3 hours Chronologically in the muscles of face, neck, jaw, thorax, upper limbs (from shoulder to hands), abdomen and lower limbs (from hip to the foot).
Last - small muscles of fingers and toes. Passes off in the order of its appearances. In general • rigor mortis sets in 1 or 2 hours after death • well developed from head to foot in 12 hours, • maintained for about 12 hours • passes off in another 12 hours.
Factors modifying onset & duration Age -
Not occur in a foetus of less than 7 months. Foetus - rapid onset & passes off quickly Healthy adults it develops slowly, well marked and last longer.
Children & old people it is feeble and rapid. Nature of death -
Appear early & passed off quickly - diseases causing great exhaustion and wasting e.g. cholera, typhoid, TB, cancers, tetanus, convulsions etc. and in violent deaths as in cut throat, firearms and electrocution. Appear early & last longer - drowning. Strychnine poisoning - rapid onset & short duration General rule - the longer it takes to appear, longer it lasts and vice versa.Crl. Appeal No.661-DB of 2002 & 11 Crl. Revision No.23 of 2003
Atmospheric conditions-
Cold weather - onset is slow & duration longer. Hot condition - onset is rapid and duration short. May last for 3 to 4 days in refrigerated condition.
Conditions simulating rigor mortis:
1. Cadaveric spasm Instantaneous rigor or Cataleptic rigidity:
Muscles stiff and rigid immediately after death without passing into an initial stage of relaxation. Well-recognized but quite rare.
• Usually associated with violent deaths occurring under circumstances of intense emotions. • Usually involve voluntary muscles. • Limited to a single group of muscles • frequently involves the hands.
• Very great force is required to overcome the stiffness.
• Persists until true rigor develops. Medico-legal importance of cadaveric spasm condition is of great medico-legal significance - as the finding of a weapon etc. firmly grasped by the fingers represent the last act of life, detection of a case being suicidal or homicidal.
2. Heat stiffening - above 650C heat stiffening develops due to coagulation of protein. More intense than rigor.
3. Cold stiffening - temperature below 3.50C - result in significant solidification of subcutaneous fat & muscles.
4. Gas stiffening - in putrefaction.
Putrefaction:
Final stage following death consists of softening & liquefaction of tissues produced by 2 factors:
1. Bacterial enzymes: from colon.
• chief destructive bacterial agent is Cl. Welchii, which produces lecithinase, • Causing post-mortem haemolysis, hydrolysis & hydrogenation of body fat.
2. Autolysis - Auto-digestion and disintegration of tissues also occur following release of cytoplasm enzymes.Autolysis can occur even in sterile conditions as seen in a macerated dead foetus.
2 Characteristic features:
Colour changes & development of foul smelling gases. Colour changes -
First visible external evidence of putrefaction - greenish discoloration of the skin over right iliac fossa. Appears in 12 to 18 hours in summer and 1 or 2 days in winter.
Marbling Staining of the wall of the superficial veins following haemolysis of red cells.
Prominent in 36 to 48 hours.
Development of foul-smelling gases - Between 12 to 24 hours gas accumulates inside abdominal cavity. Abdomen Crl. Appeal No.661-DB of 2002 & 12 Crl. Revision No.23 of 2003 is tense.
Blood-tinged froth comes out through the nose and mouth Colliquative liquefaction Liquefaction of tissues -
5 to 10 days or more after death.
Abdomen bursts and stomach and intestines protrude. Soft tissues change into thick, semi-solid masses - separated from bones & fall off.
Organs show putrefactive changes in the following order -
1. Larynx and trachea.
2. Stomach and intestines.
3. Spleen.
4. Liver.
Decomposition in liver starts in between 12 to 24 hours. At the beginning liver is soft and flabby.
On 2nd or 3rd day, accumulation of decomposition gases gives honeycomb appearance on cut sections of the liver, which is also popularly known as 'foamy liver'.
5. Brain (brains of infants putrefies early).
6. Heart & lungs.
7. Kidneys and bladder.
8. Blood vessels.
9. Uterus - is the last organ to putrefy in females (A gravid uterus decomposes earlier than a non-gravid uterus).
10. Prostate - last to decompose in males.
Rate of decomposition in different media Casper's dictum:
A body decomposes in air twice as rapidly as in water and eight times as rapidly as in earth.
Factors influencing rate of decomposition:
Decompose fast & rapidly -
• septicemia, • peritonitis, • inflammatory and septic conditions, • general anasarca, • asphyxia etc. Putrefaction delayed: death due to Wasting diseases, anaemia Poisoning by • carbolic acid, • zinc chloride, • strychnine & • chronic heavy metal poisoning e.g. arsenic. Temperature:
• Decomposition begins above 10°C • Optimum between 21°C and 38°C. • Arrested below 0°C and above 48°C. Adipocere Modification of putrefaction in which the body fats are converted into adipocere.
Consists of fatty acids; Mainly palmitic acid others oleic, stearic and hydroxystearic acids Commonly seen in bodies immersed in water or in damp, Crl. Appeal No.661-DB of 2002 & 13 Crl. Revision No.23 of 2003 warm environment.
Features:
• Fresh adipocere - soft, moist, whitish, translucent and greasy resembling pale, rancid butter.
• After some years it becomes dry, hard, cracked, yellowish and brittle.
• Distinct offensive smell • Inflammable and burn with a faint-yellow flame. • Floats in water and dissolves in alcohol and ether.
• Change is well marked over those area where there is more fat collection e.g. cheek, female breast and buttock.
Time required for adipocere formation • In temperate countries, the shortest time for its formation is 3 weeks in summer.
• In India it has been observed within 3 days. • Adipocere may persist for years or decades. Mummification: Modification of the putrefaction. Dehydration or drying and shriveling occurs from evaporation of water Natural appearances and features of the body are preserved.
Two environmental factors are necessary.
• absence of moisture in air and • continuous action of dry or warmed air. . Dry, leathery and brown in colour. . Begins in the exposed parts of the body like face, hands and feet and extends to the entire body including internal organs.
. A mummified body is odourless.
. Time required - 3 months to a year. . Chronic arsenic or antimony poisoning is said to favour mummification."
A careful reading of the aforesaid extracts carried from the Textbooks, referred in the preceeding paras, it is made clear that rigor mortis may set in between one to two hours and would spread over within 12 hours. However, one cannot be definite as to the time when rigor mortis sets in and particularly in summer, the deterioration of the body would be much faster and hence one cannot rule out the possibility of rigor mortis setting in less than 12 hours. Thus, the Crl. Appeal No.661-DB of 2002 & 14 Crl. Revision No.23 of 2003 argument that rigor mortis sets in late and the body was giving rigor mortis appearance, is of no consequence.
The next contention raised by learned counsel for the appellants is that the dispute was between the complainant party on one side and Hem Raj and his sons on the other side and therefore, Ram Singh and his sons had neither any motive to cause the injuries nor any weapon of offence was recovered from them, as such their contribution in the commission of the crime is doubtful.
In this regard, while elucidating, we observe that Devi Chand had four sons namely Chanda Singh (complainant), Rajmah (injured), Maman (deceased) and Krishan (eye witness). On the other side, Hem Raj and Ram Singh are the brothers of Chatru. Randhir Singh and Jangli are the sons of Hem Raj, Joginder Singh and Dharampal are the sons of Ram Singh. Therefore, all the accused-
appellants as well as Ram Singh (since acquitted) hail from same family. The dispute is stated to be over the watercourse. PW-5 Chanda Singh during his cross-examination, while proving the motive, has stated that the watercourse of Rajma (injured) passes through the field of Ram Singh and one corner of the field of Hem Raj and thereafter, passes through the field of Hem Raj. It has also come in evidence that field of Ram Singh is also situated at the same place near the field of Ramesh and that of one Sher Singh, where the occurrence had taken place. All the accused are residents of village Hathlana. In these circumstances, it cannot be said that the accused had no connection with each other.
As regards the recovery of weapons of offence, it is well settled by now that mere non-recovery of the weapons is hardly Crl. Appeal No.661-DB of 2002 & 15 Crl. Revision No.23 of 2003 sufficient to throw away the prosecution version.
The other arguments with regard to the missing of motive against the family of Ram Singh, in particular and against all the accused as a whole, it may be observed that there is voluminous evidence led by the prosecution, including the testimonies of PW-5 Chanda Singh and PW-6 Rajma (injured) that there was a dispute over the watercourse. Chanda Singh (PW-5) has further explained during cross-examination that one killa of Maman (since deceased) is adjacent to the land of Hem Raj and their boundaries are common, which clearly prove that the watercourse of Rajma, which passes through the field of Hem Raj to the extent of only 2-3 feet length was the subject matter of controversy. Undisputedly, though the dispute was only between Rajma and Hem Raj, yet it is quite clear that the family of Ram Singh being closely related to the family of Hem Raj, in all human probabilities, would have come to challenge them on account of the dispute over the watercourse. It has also come in the evidence that the dispute had also taken place earlier to 01.05.1999, but the matter was taken to the Panchayat and a compromise was effected in that regard.
An argument has been raised that no compromise was produced on the record. In this regard, it would be suffice to say that every compromise is not reduced into writing when the same is taken before the Panchayat. The resolutions are normally passed qua the Panchayat matters. If the parties are persuaded to live amicably, such matters are not always reduced into writing. Anyway, the dispute which arose on 01.05.1999 also has been consistently stated by both the witnesses, who were present at the scene of occurrence. Rajma (PW-6) has also stated that there was exchange of abuses between the parties at the time Crl. Appeal No.661-DB of 2002 & 16 Crl. Revision No.23 of 2003 of dispute over the watercourse on the morning of 01.05.1999. His this part of the statement has been corroborated by Chanda Singh (PW-5).
Rajma has stated that the accused had also threatened them of the consequences. This also goes a long way to prove the motive for committing the crime.
Again the participation of the family of Hem Raj and Hem Raj himself has been challenged on the ground that since as per testimonies of the aforesaid two witnesses, the accused came from the tubewell room of Sher Singh, but no such tubewell room or 'kotha' has been shown in the site plan prepared by Kalu Ram, Investigating Officer (PW-12). Even the site plan (Ex.P7) prepared by Ramesh Chand, Patwari (PW-9) also does not indicate about the aforesaid tubewell room.
Having considered the aforesaid contentions, the same are not approved in the light of the evidence because Chanda Singh (PW-
5), Rajma (PW-6) and Kalu Ram (PW12) have stated that there is a tubewell room of Sher Singh near by the place of occurrence. Moreover, this part of the statements of the witnesses has not been rebutted by any definite evidence that no tubewell room of Sher Singh was existing at the spot, fromwhere the accused Ram Singh and his sons came to cause the injuries. Sher Singh or Ramesh Chand have not been examined by the accused in their defence. Even a suggestion given to PW-5 Chanda Singh indicates that there is a tubewell room of Sher Singh at the spot. The fact that the Investigating Officer did not show the tubewell room of Sher Singh in the site plan is a fault on the part of the Investigating Officer, particularly in view of the deposition that the Investigating Officer was shown the tubewell room of Sher Crl. Appeal No.661-DB of 2002 & 17 Crl. Revision No.23 of 2003 Singh and the heap of 'toori' (chaff) of Ramesh. Thus, the prosecution version cannot be thrown away qua these accused for this defective investigation by the Investigating Officer.
The presence of Krishan and Chanda @ Chand Singh (PW-5) has been doubted by the counsel for the appellants on the ground that Krishan was not examined by the prosecution. In this regard, it may be observed that it is not the quantity of evidence, but quality thereof, which matters to prove the prosecution case. The prosecutor being the dominus lites of the case, could choose as to how many witnesses were relevant to examine and to prove the case against the accused. Therefore, non-examination of Krishan in the light of the consistent testimonies of Chand Singh (PW-5) and Rajmah (PW-6), was not destructive to the prosecution version. Even otherwise, PW-6 Rajma has stated that the hue and cry, raised by him, attracted Krishan, who arrived at the spot probably after the accused had already caused injuries to Maman (deceased) as well as Rajma, therefore, it was not essential for the prosecution to examine such witness.
Learned counsel for the accused-appellants has urged that no injury was caused to Chanda Singh (PW-5) and, had he been present at the spot, then he must have suffered injuries. He did not intervene in the matter. This is also against the prudent conduct of a common man that he would stay away on seeing the injuries being caused to his brothers. The contentions are not tenable. There is no dispute that Chanda Singh (PW-5) did not suffer any injury, while Rajma (PW-7) is an injured witness. Both the witnesses are consistent qua the fact that they had left their fields and were on the passage near the place of occurrence and they were carrying the milk of their cattle to their Crl. Appeal No.661-DB of 2002 & 18 Crl. Revision No.23 of 2003 houses. At that time Chanda Singh was going from the tubewell of Rajma, where all of them (Maman, Chanda and Rajma) had slept during night, towards his field. So in these circumstances, it was obvious that after milching the cattle, all the three brothers had left the field, two brothers started for their houses, whereas Chanda Singh was to join them later. When Maman and Rajma reached near the field, they were waylaid and caused injuries. On hearing the exhortion, Chanda Singh also reached the place of occurrence and witnessed the occurrence. Mere fact that Chanda Singh did not suffer any injury, is hardly of any relevance, as Chanda Singh has stated that he was empty handed, whereas the accused were armed with deadly weapons. They were more in number, whereas they were only three. Chanda Singh has stated that after working for some time, he had left for his field, whereas Maman and Rajma had left for the village after milching the cattle. He reached the place of occurrence when attracted by the lalkara raised by Hem Raj. He has given complete description of the injuries caused to both his brothers. The mere fact that he did not intervene and stayed away to see the occurrence belies his version, is not correct. It is settled time and again that different persons do differently. It depends upon the nature, physique and mindset of the person. Only daring person could take the bull by the horns, even at the risk of his own life. Commonly, person having seen the people in numbers armed with deadly weapons attacking a person, would prefer to stay away and raise hue and cry. In these circumstances, the conduct of such witness cannot be said to be purely unnatural and his testimony cannot be said to be unworthy of credence on this account and his presence cannot be doubted for that reason. Anyway, his testimony Crl. Appeal No.661-DB of 2002 & 19 Crl. Revision No.23 of 2003 stands corroborated by PW-6 Rajma, who is quite consistent on all material particulars while stating that the accused were armed with deadly weapons, including gandasis and swords. Both the witnesses stated that Jangli gave gandasi blow from reverse side on the forehead of Maman. Randhir Singh gave sword blow on the backside of his head. Jangli gave another gandasi blow from the reverse side on his forehead. Ram Singh gave one lathi blow on the left thigh of Rajma. Dharam Pal gave gandasi blow on the left arm of Maman. Joginder inflicted a sword blow on the left arm of Maman. On receiving these injuries, he fell down. Thereafter, Hem Raj and other co-accused caused injuries with their respective weapons on the person of Rajma. Thereafter, Rajma fell down. On rescue call given by Chanda and Rajma, Krishan also arrived there, then all the accused fled away. Both these witnesses have not stated that Jangli gave gandasi blow from reverse side on the forehead of Maman. Although there is no such mention that it was given from the reverse side, but in view of the fact that there are injuries on the forehead, this fact pales into insignificance. It was observed in case State of Rajasthan Vs. Major Singh, 1999 (1) RCR (Criminal) 828 that when a witness did not state whether the injury was caused by accused by blunt side or sharp side, this is no ground to disbelieve them, especially when the eye-witnesses themselves received injuries. In that situation it would be practically impossible for an injured witness to exactly notice and memorise as to which accused was assaulting by blunt side of the weapon and which accused was causing injury by the sharp edged weapon because even if such statement is made it may amount to an exaggeration because when number of assailants are there, injuries are not inflicted in a manner Crl. Appeal No.661-DB of 2002 & 20 Crl. Revision No.23 of 2003 which could be exactly noted by the witnesses. Thus, their statements cannot be discarded merely on the ground that the witnesses did not describe, the side of the weapon with which the injury was caused. The testimony of the injured witness not only stands corroborated by his brother Chanda Singh, but also by medical evidence. Dr. Kuldeep Singh (PW-4) and Dr.Rakesh Mittal (PW-10), who conducted autopsy on the body of Maman vide PMR Ex.PD. Dr. Sham Wadhwa, Radiologist (PW-8) also had detected fracture of shaft left fibula and fracture of acromian process of right scapula on the person of Rajma.
No doubt, the prosecution could not prove the injury attributed to Ram Singh, therefore, benefit of doubt was to be extended to him. But, the witnesses, in their categorical statements have stated that the accused having grudge in their mind with regard to the dispute over the watercourse, had waylaid them in the wee hours of the day and caused injuries to Maman, as a result of which he died, whereas Rajma survived. The testimonies of the witnesses cannot be discarded, particularly over the minor discrepancies and contradictions at some places because none of them is vital, which may affect the substratum of the prosecution case. Human memory is likely to fade with the passage of time. The witnesses cannot be expected to give photographic scenario and minor discrepancies are rather the proof of their truthfulness. The time of occurrence being the wee hours, no independent witness could be expected to be present at the place of occurrence. Even otherwise, evidence of the witnesses cannot be discarded for their relationship when they were proved to be truthful.
As regard the contention that there is delay in lodging the FIR, the same lacks merit. The occurrence in this case took place at Crl. Appeal No.661-DB of 2002 & 21 Crl. Revision No.23 of 2003 about 5.30 A.M., on 02.05.1999. The place of occurrence is at a distance of 12 kilometers from the police station. Chanda (complainant), sent his brother Krishan along with Rajma to the hospital and after leaving Sunehra son of Chanda at the spot, he along with Banarsi Dass, Sarpanch, proceeded to the police station. However, Inspector Kalu Ram met him on the way, recorded his statement (Ex.PF), which was completed at 11.55 A.M., on the basis of which, FIR (Ex.PC) was recorded at 12.30 P.M. and special report was dispatched at 1.30 P.M. Thus, in the circumstances and keeping in view the distance covered by the complainant and that he contacted the village Sarpanch and made arrangement for sending his brother Rajma to the hospital, the delay, if any, stands duly explained and cannot be said to be fatal to the prosecution case. No plausible defence evidence has been led, over which we could place reliance.
No other argument has been raised.
Thus, for the aforesaid reasons, we are of the considered opinion that the prosecution has been able to prove the case against the accused-appellants beyond reasonable doubt. As such, finding no merit in Criminal Appeal No. 661-DB of 2002, the same is hereby, dismissed.
Finding no merit in Criminal Revision No.23 of 2003, preferred by complainant Chanda Singh, is hereby dismissed.
Amicus Curiae would be at liberty to claim remuneration from the competent authority.
(HEMANT GUPTA) (A.N. JINDAL)
JUDGE JUDGE
12.05.2011
ajp