Punjab-Haryana High Court
State Of Haryana vs Asha Ram And Others on 27 September, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.168-DBA of 1998
Criminal Revision No.147 of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:September 27, 2011
Criminal Appeal No.168-DBA of 1998
State of Haryana ......Appellant
Versus
Asha Ram and others .......Respondents
Criminal Revision No.147 of 1998
Zile Singh ......petitioner
Versus
Asha Ram and others .......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Saurav Mohunta, DAG, Haryana.
Mr.S.K.Sheokand, Advocate
for respondent No.1.
Mr.V.K.Bali, Advocate,
for respondents No.2 to 6.
Mr.Atul Lakhanpal, Sr.Advocate with
Mr.J.S.Bhinder, Advocate for the petitioner,
in CRR No.147 of 1998.
****
JUDGMENT
Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 2 SABINA, J.
Vide this judgment, the above mentioned appeal and revision petition would be disposed of as these have arisen out of a common judgment.
The trial Court vide judgment dated 19.9.1997 acquitted the respondents-accused of the charges framed against them. Hence, the State has preferred an appeal against the said judgment and the complainant has filed the revision petition.
The prosecution story, in brief, is that Puran had fought panchayat election against Asha Ram, Sarpanch. Due to this reason, a grudge existed between Puran and Asha Ram. A quarrel took place between Puran and Lilu Ram in the month of January, 1995 due to the said grudge. In the said case, Puran and others were facing the trial. On 22.8.1995 at about 7 a.m., Puran and Chatru left for Safidon Mandi. The complainant along with Ram Sarup were following them at some distance. Fateh (Fatta), Suresh, and Hukma armed with gandasis, Madan armed with a ballum and Pala armed with a jelli came out from the house of Fateh and ran towards Puran with an intention to kill him. On seeing them, Puran started running and when he reached near the shop of Padam Jain in the street, Suresh gave a gandasi blow on his head; Fateh gave a gandasi blow on his forehead towards left side; Hukma gave a gandasi blow on his head ; Madan gave a ballam blow on his right eye brow and Pala gave a jelli blow near his right collarbone. On receipt of the said injuries, Puran fell on the ground. Thereafter, all Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 3 the accused caused injuries on the head, neck, right arm, collarbone and back of Puran with their respective weapons. On hearing the alarm raised by the complainant, accused fled away from the spot with their respective weapons towards bus stand. Injuries had been caused on the person of Puran by the assailants in conspiracy with Asha Ram, Sarpanch, who had got the matter compromised with the opposite party of Fateh and others a day before. The statement of the complainant was recorded by ASI Hans Raj and on the basis of the same, formal FIR No.370 was registered at Police Station Safidon under Sections 302, 148, 149, 120-B of the Indian Penal Code, 1860 (IPC for short).
After competition of investigation and necessary formalities, challan was presented against the accused. Charge was framed against the accused under Sections 302/ 120-B, 148, 302/ 149 IPC by the trial Court vide order dated 27.2.1996. The accused did not plead guilty and claimed trial. The prosecution, in order to prove its case, examined 12 witnesses.
After the close of prosecution evidence, the accused, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), prayed that they were innocent and had been falsely involved in this case. It was a case of blind murder, which had been committed during the night. Accused examined DW-1HC Rajinder Singh and DW-2 Constable Gopal Ram in their defence.
Medical Evidence PW-5, Dr.V.P.Kakkar deposed that he had conducted the Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 4 postmortem examination on the dead body of Puran along with Dr.G.D.Gupta and had found following injuries on his person:-
1. Incised wound of size 5cm × 2cm elliptical in shape vertically placed present on left parietal zone 3 cm away from mid line and 5 cm posterior to anterior hair line.
Clotted blood was present. On dissection the wound was cutting through skin subcutaneous tissue and muscular layer. Clotted blood was present.
2. Incised wound 4 cm × 1.5 cm scalp deep transversely placed at anterior hair line on left side of mid line Elliptical in shape. Clotted blood was present.
3. Incised wound 1.5 cm × ½ cm, scalp deep present on left side of fore-head 1.5 cm below injury No. 2. Clotted blood was present.
4. Two incises wound of size 1.25 cm 0.5 cm transversely placed 0.7 cm part bone deep present on right side of fore-head just above the right eye brow. Clotted blood was present.
5. Incised wound 3 cm × 1.5 cm elliptical shape obliquely placed on the lateral aspect of right fore-arm just above the elbow joint muscle deep and clotted blood was present.
6. Incised wound 4 cm × 2 cm elliptical shape muscle deep present on the posterior lateral aspect of right fore- arm 1.5 cm below and posterior to injury No.5 and clotted blood was present.
Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 5
7. Incised wound 4 cm × 2 cm elliptical muscle deep present on posterior surface of right fore-arm in the middle third clotted blood was present.
8. Incised wound 4 cm × ½ cm skin deep on back of neck clotted blood was present.
9. Two punctured wounds with incised margins of size 1.2cm × ½ cm and 1 cm deeplying 1.5 cm apart present just above the middle third of right clavicle. The wounds cut through the skin and underlying muscle. Clotted blood was present.
10. Punctured wound with sharp margins of size 1.25 × 0.5 × 1 cm deep present on lateral aspect of left arm six cm above left elbow. The wound cuts through skin and underlying muscles.
11. Incised wound of size 1.25 cm × half cm bone deep vertically placed on right scapular region 2 cm below top of right shoulder. The wound cuts through skin and muscles.
12. Incised wound of size 1.25 cm × ½ cm bone deep cutting through skin and muscle present vertically on the right scapular region 3 cm below injury No. 11.
13. Lacerated wound of size 3 cm × 1.5 cm scalp deep present on left parietal zone 2 cm anterior to injury No. 1
14. Lacerated wound 4 cm × 2 cm scalp deep present on right parietal zone 5 cm above route of five pinna.
15. Reddish contusion of size 15 cm 5 cm present on front of lift side of chest vertically placed 4 cm below left cleival Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 6 on its upper end, there was an abresion of size 10 cm × 1 cm transversely placed. On dissection there was infiltration of blood in the sub-quataneous tissue 4th to 8th rib on left side were fractured at the level of anterior axillary line. The pleural cavity of left side was full of blood. The pleura and left lung corresponding to fractures were lacerated.
16. Reddish contusion of size 5 cm × 3 cm present on back of right side of chest in the lower part just above costal margin. On dissection there was peritoneal cavity was full of blood. The liver was lacerated of size 6 cm × 3 × 2.5 cm deep on superior posterior surface. There was fracture of 9th and 10 rib of right side on the back 4 cm away from vertebral column.
17. There was reddish contusion 3 cm × 1 cm obliquely placed on left side of fore-head 2 cm above left eye brow. On dissection clotted blood was present.
18. Abrasion of size 4 cm × 2.5 cm on front of left leg just below knee. Clotted blood was present.
19. Three abrasions of size 8 cm × 1 cm placed parallel and 2cm apart from each other on top of right shoulder extending to back of chest.
20. An abrasion of size 4 cm × 1 cm obliquely place on front of right side of chest just above the costal margin.
21. There were present nine abrasions of size between 10 to 12 cm and width of 1 cm present on the back. One vertically placed on right scapular region, one vertically Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 7 placed on left scapular region, one obliquely placed on left infra scapular region, two obliquely placed below left costal margin, two in the left iliac region and two in the mid line between scapulae.
22. One dressed wound present on lateral aspect of left side of chest. On removing the dressing there was fresh healing scar of size 3 cm × 1 cm, 10 cm below axilla.
23. There was dressed wound present on the right index finger on removing the dressing fresh scar of size 1 cm × ½ cm present on back of finger. On dissection there was fracture of middle phalanx. There was formation of soft callous at fracture site"
In their opinion, the cause of death was due to haemorrhage, shock and injuries to vital organs like liver, and lungs. The injuries were ante mortem in nature and sufficient to cause death in normal course of nature. Rigor mortis was present in all the limbs. The probable time between injuries and death was within half an hour and the time between death and postmortem was within 4 to 48 hours. Injuries No.22 and 23 were dressed wounds which had been caused prior to the occurrence. The possibility of injuries No.1 to 3 having been caused with gandasi could not be ruled out. Injury No.4 could have been caused with ballam Ex.P-9. Injury No.9 could have been caused with a jelli Ex.P-10.
Ocular Version:
PW-1 Chatru deposed that about one year and nine months back, gram panchayat elections had been held in their Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 8 village. Asha Ram contested the election for the post of Sarpanch. Complainant and Puran had supported Bal Kishan, who had also contested the election for the post of Sarpanch. After 2-3 months of the election, Puran and others had caused injuries on the person of Lilu, who was supporting Asha Ram. The said trial was pending. After 7-8 months Puran was caused injuries by Fateh and Madan. After 15-16 days of the said occurrence, Asha Ram in connivance with police had pressurized Puran and others and a compromise was effected between the parties. On the same evening at about 9 p.m. when he was passing through the street where the shop of Fateh was located, he saw that Asha Ram along with Fateh, Madan, Pala, Suresh and Hukma were present there. He heard Asha Ram telling others that unless Puran was done away with, the compromise got effected by him would be meaningless. He went to the house of Puran and told him about the conspiracy being hatched against him. On the next day at about 6 a.m., he was accompanying Puran towards Safidon Mandi. Zile Singh and Ram Sarup were following them. When they reached in the street near the shop of Fateh, Suresh, Fateh and Hukma armed with gandasis, Madan armed with a ballam and Pala armed with a jelli came out of the shop. Asha Ram remained sitting in the shop. The assailants ran towards Puran armed with their respective weapons. Suresh gave a gandasi blow on the head of Puran, Fateh gave a gandasi blow on the forehead of Puran, Madan gave a ballam blow on the right eyebrow of Puran and Pala gave a jelli blow on the person of Puran near clavicle region. Puran fell on the ground. Thereafter, the assailants continued giving Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 9 injuries on the person of Puran with their respective weapons on different parts of his body. Puran died at the spot. The accused ran away from the spot along with their respective weapons on hearing their alarm. Zile Singh lodged the report with the police.
PW-2 Zile Singh deposed as per the contents of the FIR. He also deposed that accused Asha Ram was present with the other five assailants.
Investigation PW-6 Hans Raj deposed that on 22.8.1995, he had recorded the statement of the complainant and on the basis of the same, formal FIR was registered. Thereafter, he reached the spot and found Nathu, Chatru, Ram Sarup and Balbir sitting near the dead body of Puran. He carried out the inquest proceedings. Blood stained earth was lifted from the spot and was taken in possession. He recorded the statements of the witnesses and prepared rough site plan. Dead body was sent for postmortem examination.
PW-9 ASI Mohinder Singh deposed that he took over the investigation of the case from ASI Hans Raj on 25.8.1995. On 1.9.1995, he arrested accused Madan, Suresh, Fateh, Hukma and Pala. Accused Madan produced before him one ballum Ex.P-9.
Rough sketch Ex.PK of ballam was prepared and the same was taken in possession after converting it into a sealed parcel. Accused Suresh produced before him a gandasi Ex.P-6. Rough sketch Ex.PL of gandasi was prepared and the same was taken in possession after converting it into a sealed parcel. On 3.9.1995, accused Fateh suffered a disclosure statement and on the basis of the same, he got Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 10 recovered a gandasi Ex.P-7 from the disclosed place. Rough sketch Ex.PM/1 of gandasi was prepared and the same was taken in possession after converting it into a sealed parcel. On the same day, accused Hukma suffered a disclosure statement and got recovered a gandasi Ex.P-8 from the disclosed place. Rough sketch of gandasi Ex.PN/1 was prepared and the same was taken in possession after converting it into a sealed parcel. On the same day, accused Pala suffered a disclosure statement and got recovered jelli Ex.P-10 from the disclosed place. Rough sketch Ex.PO/1 of jelli was prepared and the same was taken in possession after converting it into a sealed parcel. Rough site plans of places of recovery were prepared. After the completion of investigation, he prepared final report.
PW-11 Vajinder Singh deposed that on 22.8.1995, he had been handed over special report for delivering the same to Area Magistrate, Safidon, Deputy Superintendent of Police, Safidon and Superintendent of Police, Jind. First of all, he went to the house of Sub Divisional Magistrate but the Magistrate was not available. Then he went to the house of Deputy Superintendent of Police and delivered the special report and thereafter, he went to Jind and delivered the special report to Superintendent of Police, Jind and thereafter, he delivered the special report to Area Magistrate without any delay.
Defence Evidence DW-1 HC Rajinder Singh deposed that docket dated 21.9.1995 was addressed to Director, Forensic Science Laboratory, Madhuban, Karnal. As per the same, the police had sought Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 11 information in respect of human blood on the clothes and not regarding the blood group.
DW-2 Constable Gopal Ram deposed that gypsy bearing No.HR-05/2895 given to police station had not been used on 1.9.1995 for investigation of this case.
Learned State counsel, who is assisted by counsel for the petitioner-complainant, has submitted that the prosecution had been successful in proving its case. It was a case of an eye witness account and there was no occasion for the eye witnesses to have shielded the real culprits and involve the accused falsely in this case. The eye witness account was duly corroborated by medical evidence. The trial Court, while relying on irrelevant/ minor discrepancies, had proceeded to acquit the accused of the charge framed against them. FIR in this case had been promptly registered and the special report had been sent to the Area Magistrate without any delay. The accused had committed the murder of Puran due to previous enmity.
Learned counsel for the respondents, on the other hand, have submitted that the prosecution had failed to prove its case. The injuries on the person of the deceased, which he had suffered on an earlier occasion, had not been explained by the prosecution. There were material contradictions in the statements of the witnesses. The factum of conspiracy had not been established on record. There was inordinate delay in lodging of the FIR. The presence of Asha Ram at the spot was not established. In fact, Puran had been murdered during the night by some un-known persons. His dead body was Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 12 recovered in the morning and thereafter, the accused had been falsely involved in the case.
First of all, let us examine whether the factum of criminal conspiracy entered into by the accused has been established on record by the prosecution.
In this regard, the prosecution case hinges on the statement of PW-1 Chatru. The said witness has deposed that a day prior to the occurrence, he had heard all the accused conspiring together to kill Puran, while sitting in the shop of Fateh. However, the statement of PW-1 in this regard fails to inspire confidence. As per PW-1, only two houses intervened the shop of Fateh and house of Puran deceased. It is not believable that all the accused would have hatched the conspiracy to commit murder of the deceased Puran in an open shop near the house of the deceased. As per PW- 1, the area of the shop was 10 feet x 6 feet. Both the doors of the shop of Fateh were open at that time. It appears that the story of conspiracy has been put forth by the prosecution witnesses with a view to involve accused Asha Ram in the case. The possibility that Asha Ram has been falsely involved in this case cannot be ruled out. In these circumstances, trial Court rightly held that the prosecution had failed to prove that all the accused had hatched criminal conspiracy to commit the murder of Puran Singh.
At the time of lodging of the FIR, the complainant had not stated qua the presence of Asha Ram at the spot. However, while appearing in the witness box, the complainant has made Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 13 improvement in his statement and has deposed that Asha Ram was also present at the spot. PW-2 has also deposed that Asha Ram remained sitting in the shop, while the other accused had inflicted injuries on the person of the deceased. In these circumstances, the testimonies of PW-1 and PW-2 qua presence of Asha Ram accused at the spot do not inspire confidence.
The next question that requires consideration is as to whether accused Fateh, Suresh, Hukma, Madan and Pala had inflicted injuries on the person of Puran with an intention to kill him.
PW-1 and PW-2 have given the manner of occurrence. Both the said witnesses have deposed that at the time of occurrence, Fateh, Suresh and Hukma were armed with gandasis, whereas, accused Madan was armed with a ballam and accused Pala was armed with a jelli. The said five accused had inflicted injuries on the person of Puran with their respective weapons. PW-1 and PW-2 had been cross-examined at length but their testimonies in this regard could not be shaken. The ocular version in this regard is duly corroborated by medical evidence. As per the opinion of the doctor, PW-5, the injuries on the person of the deceased could have been caused with the weapons carried by the accused. Merely because injuries No.22 and 23 had been caused on the person of the deceased prior to the occurrence does not lead to the inference that the entire prosecution version was liable to be discarded. Apart from these injuries No.22 and 23, the deceased had suffered 21 injuries. Many of the injuries are incised wounds. The deceased had also suffered punctured wounds. Some of the wounds were lacerated Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 14 wounds. The weapons used by the accused at the time of the occurrence were recovered from them during investigation. The said weapons were duly shown to the doctor, PW-5 and the doctor had opined that injuries on the person of the deceased could have been caused with the same. In these circumstances, the trial Court had erred in dis-believing the statements of PW-1 and PW-2 qua the manner of occurrence basing reliance on some minor contradictions in their statements. The contradictions relied upon by the learned trial Court could not be said to be fatal to the prosecution case being minor in nature. Rather PW-1 and PW-2 have deposed in a most natural manner and their statements qua manner of occurrence inspire confidence. Since the deceased had suffered as many as 21 injuries on his person, it was not possible for the eye witnesses to have given account of each and every wound. Moreover, the eye witnesses had no reason to shield the real culprits and involve the accused falsely in this case.
PW-5 has opined that the death had occurred due to haemorrhage, shock and injuries to vital organs like liver and lungs. In these circumstances, the trial Court fell in error while holding that the doctor had not given any specific opinion qua the cause of death and hence, the ocular version was not corroborated by medical evidence.
The trial Court fell in error, while placing reliance on minor discrepancies in the statements of witnesses. PW-1, in his cross- examination had deposed that the dead body was removed to the chabutra of the shop of Chhotu, whereas, PW-6 Hans Raj deposed Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 15 that he had found the dead body lying in the street. The said discrepancy would not be sufficient to dis-believe the prosecution case. The statements of the eye witnesses qua the manner of occurrence inspire confidence. As per the eye witnesses, the occurrence had taken place in the street. The blood stained earth has been lifted from the street by the Investigating Officer. It is possible that the dead body of the deceased might have been lifted by the witnesses and placed on the chabutra with a view to provide some assistance to the injured. A perusal of Ex.PF reveals that the dead body was lying in front of the shop of Chhota. The said discrepancy being minor in nature was liable to be ignored and could not be said to be fatal to the prosecution case, which is otherwise duly established by the ocular as well as medical evidence.
The next question that requires consideration is as to whether there was any unexplained delay in lodging of the FIR or sending of the special report to the Magistrate. In this regard, learned trial Court had erred in holding that there was delay in lodging of the FIR and the special report was also sent to the Magistrate after delay . There is no doubt that in a case where there is unexplained delay in lodging of the FIR or sending of the special report to the Magistrate, the same can be fatal to the prosecution case, as the delay can be used by the prosecution for deliberations, consultations and confabulations. The delay can be used by the prosecution to put up a false version. However, in the present case, there is nothing on record to suggest that the FIR in question had been lodged after due deliberations and consultations or that the Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 16 prosecution had put up a false version qua the occurrence. As per the prosecution case, the occurrence had taken place at about 7 a.m. It is natural for the witnesses to have taken care of the deceased at the first instance and approached the police after recovering from the initial shock of witnessing the occurrence which has resulted in the death of their relative. Some time can also be consumed as the relatives are also required to be informed qua the occurrence.
PW-2, in his cross-examination, has deposed that he had gone to the police station by bus and had reached there at about 10- 11 a.m.. Thereafter, he had narrated the occurrence to the police. FIR in this case was registered at 10.15 a.m. In the facts and circumstances of the present case, it cannot be said that there was delay in lodging the FIR. Although the special report had reached the Magistrate at 3 p.m. on 28.8.1995 but PW-11 has explained the delay in this regard. As per PW-11, he had gone to the house of the Magistrate with the special report but since the Magistrate was not found present, he delivered the special report to Deputy Superintendent of Police and Superintendent of Police, Jind first and thereafter he delivered the special report to the Area magistrate. In his cross-examination, he deposed that he had inquired from the court peon about the whereabouts of the Magistrate and he had been informed that the Magistrate would come after some time. Thus, there was no unexplained delay in sending the special report to the Magistrate. Learned trial Court has erred in holding that the delay in sending the special report to the Magistrate was fatal to the Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 17 prosecution case.
The defence witnesses fail to rebut the trustworthy evidence led by the prosecution. Thus, in the present case, the prosecution had been successful in proving its case against accused Fateh, Suresh, Madan, Hukma and Pala. The said accused had come to the place of occurrence armed with deadly weapon and had, thus, formed an unlawful assembly and had caused injuries on the person of Puran with their respective weapons. The trial Court erred in disbelieving the prosecution case against them. We are conscience of the fact that in an appeal filed against acquittal, this Court should be slow in interfering with the judgment of the trial Court. However, in the present case the view taken by the trial Court while acquitting accused Fateh, Suresh, Madan, Hukma and Pala is erroneous. The said view was not possible from the evidence on record. In these circumstances, the appeal filed by the State is partly allowed. Respondents No. 2 to 6 are held guilty of an offence under Sections 148, 302 read with Section 149 IPC and are convicted thereunder. The said respondents are sentenced to undergo rigorous imprisonment for three years for an offence under Section 148 IPC and are sentenced to undergo imprisonment for life for an offence under Section 302 read with Section 149 IPC and fine of ` 5,000/- each. In default of payment of fine, the said respondents shall further undergo rigorous imprisonment for two years. Respondents No.2 to 6 be taken in custody to undergo the sentence.
The appeal, so far as respondent No.1 Asha Ram is Criminal Appeal No.168-DBA of 1998 Criminal Revision No.147 of 1998 18 concerned, stands dismissed.
The revision petition filed by the complainant is rendered infructuous and is disposed of accordingly.
(SABINA) JUDGE (JASBIR SINGH) JUDGE September 27, 2011 anita