Punjab-Haryana High Court
Raj Kumar @ Raju Son Of Chander Singh vs State Of Haryana on 26 August, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-445-DB OF 2005 -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO.D-445-DB OF 2005
Date of decision: August 26, 2013
Raj Kumar @ Raju son of Chander Singh, resident of Village Biholi,
Police Station Bapoli, District Panipat
.................Appellant
versus
State of Haryana
.............Respondent
CORAM:HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present:-Mr. A.S. Tewatia, Advocate for the appellant.
Mr. H.S. Sran, Addl. Advocate General, Haryana for the respondent.
S.P. BANGARH, J The case of the prosecution is that on 15.04.2003 at about 6.00 P.M. Ranbir Singh (deceased) had left his village Biholi on tractor No. HRK 8834 after loading sugar cane in a trolley attached with this tractor for sale, thereof, at Patran Sugar Mills. Ranbir Singh was accompanied by the appellant, who was from his village. On 17.04.2003 at about 8.30 A.M. a telephone call was received from the appellant by Dilawar Singh, a neighbour of Randhir Singh- complainant (brother of the deceased) informing that the tractor (supra) had met with an accident, resulting into death of a person, Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -2 - that is now parked at Siswan bypass Kaithal. Upon this information, Randhir Singh-complainant accompanied by his brother Raghbir Singh and one Azad Singh reached near bypass Kaithal, where they found the tractor and trolley parked and the corpse of Ranbir Singh (deceased) lying near the tractor having an injury on the left temple from which blood had oozed out. The corpse was found covered with a quilt. On search of the corpse, they found a receipt dated 17.04.2003, in the pocket of the deceased (Ranbir Singh) showing receipt of payment of `13,338/-. They also found the human hair lying near the corpse. They concluded that the appellant in order to snatch the amount (supra) from the deceased had a scuffle with him and during that, they must have caught each other by the hair. Randhir Singh-complainant and others suspected that the appellant had caused injuries to the deceased in order to snatch the cash amount and Ranbir Singh-deceased succumbed to these injuries. After his death, the appellant had taken out the cash amount and fled from the spot and he made a telephone call from Jind giving false information that the tractor had met with an accident.
The aforesaid statement Ex.PA of Randhir Singh- complainant was recorded by ASI Rajmal on 17.04.2003 near Baba Shitalpuri temple, Kaithal, that was read over to the complainant, who in token of correctness, thereof, signed the same. Later, ASI Rajmal made endorsement Ex.PA/3 and sent the same to the police station through Constable Balwan Singh for registration of the case. On the basis of this statement Ex.PA, formal FIR Ex.PA/1 was recorded in Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -3 - the Police Station City, Kaithal. Later, ASI Rajmal alongwith Randhir Singh-complainant and police officials visited the place of occurrence. He summoned the photographer, dog squad, as also inspected the corpse of the deceased (Ranbir Singh) and prepared inquest report Ex.PE. The photographer took the photographs of the corpse and surrounding area. ASI Rajmal lifted the blood stained earth from the place of incident and converted the same into a parcel, that was sealed with the seal bearing impression 'RM' and seized vide memo Ex.PO, that was attested by the complainant- Randhir Singh and Azad Singh.
ASI Rajmal also lifted an empty nip of liquor from the spot, that was converted into a parcel, which was sealed and seized vide memo Ex.PQ. ASI Rajmal also lifted hairs from the spot from two places, that were made into different parcels, that were sealed with the seal bearing impression 'RM' and seized vide memos Ex.PR and Ex.PR/1, which were attested by the witnesses. From the pocket of the corpse of Ranbir Singh, a slip of sugar mill Ex.PX was taken out, that was seized vide memo Ex.PS. Pieces of glass of bottle were also lifted from the place of incident, that were made into another parcel which was sealed by him with his seal bearing impression 'RM' and seized vide memo Ex.PN, that was attested by the witnesses. Tractor bearing registration No. HNK 8834 make HMT-3511 alongwith tralla was seized vide memo Ex.PM. All the memos were attested by Raghbir Singh and Azad Singh prosecution witnesses.
The container containing hairs Ex.P9, another container of Sunder Sham hair Ex.P10 were produced during the deposition of ASI Rajmal. ASI 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -4 - Rajmal also recorded the supplementary statements of Randhir Singh and Azad Singh prosecution witnesses. He also prepared the rough site plan Ex.PY of the place of occurrence with correct marginal notes. He also drafted application Ex.PD for conducting the autopsy on the corpse of Ranbir Singh (deceased) and sent the same for autopsy to the mortuary through HC Shamsher Singh and Surinder Singh alongwith application Ex.PD.
On 21.04.2003, appellant was produced by Raghbir Singh Sarpanch before Inspector Raj Pal and he (appellant) was interrogated. During interrogation, appellant suffered disclosure statement Ex.PZ that on 17.04.2003, after committing the murder of Ranbir Singh, he had taken out currency notes amounting to `13,338/- from the pocket of the deceased (Ranbir Singh) that he had taken, as a price of sugar cane at Patran Sugar Mills. He (appellant) further disclosed that then he went to Jind, where he purchased readymade clothes and he wore those new clothes and threw the clothes that he had already been wearing in the Rani pond located at Jind and then he rang at his house and at the house of Sarpanch and a sum of `9500/- had been kept concealed by him in the almirah lying in his residential house and could get those, as also the clothes thrown by him recovered. The disclosure statement (supra) Ex.PZ was signed by the appellant and attested by ASI Rajmal and HC Shamsher Singh.
Pursuant to his disclosure statement Ex.PZ, appellant led the police party to the place of concealment and got recovered Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -5 - `9000/- from the disclosed place. On 24.04.2003, appellant got recovered old clothes, that he was wearing at the time of incident and those clothes were sealed into a parcel after drying those and that parcel was seized vide memo Ex.PAA. Rough site plan of the place of recovery of clothes Ex.PBB was also prepared by ASI Rajmal who also recorded the statements of witnesses under Section 161 Cr.P.C. Sealed parcel shirt Ex.P11 was shown to ASI Rajmal during his deposition. On 25.04.2003, appellant led the police party to Panipat and got recovered currency notes of `2000/- from the owner of Namdhari Hotel that were seized vide memo Ex.PL. The currency notes Ex.P12 and Ex.P13 of the denomination of `500/- each and remaining ten currency notes of the denomination of `100/- each Ex.P14 to Ex.P23 were also produced during the deposition of ASI Rajmal. On return to the police station, ASI Rajmal deposited the case property with MHC in an intact condition.
On 26.04.2003, appellant was produced before the Chief Judicial Magistrate alongwith application Ex.PCC in whose presence his (appellant's) finger prints, as also hairs were taken in possession vide memo Ex.PL. The finger prints were attested by the Chief Judicial Magistrate. ASI Rajmal recorded the statements of J.S. Cheema, Pawan Kumar, Photographer, Dilawar Singh, MHC Jiya Lal and Gurvinder Singh, on 28.04.2003, 04.05.2003, 06.05.2003 and 14.05.2003 respectively.
After completion of investigation, Station House Officer of Police Station City, Kaithal instituted police report under Section 173 Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -6 - Cr.P.C against the appellant before the learned Illaqa Magistrate to the effect that it appeared that he had committed an offence punishable under Section 302 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellant by the learned Illaqa Magistrate, who later committed the case to the Court of Session, at Kaithal, where charge under Sections 302 and 404 IPC was framed against the appellant, whereto, latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, the prosecution examined, as many as, 15 witnesses who testified as under: -
PW-1 ASI Bijender Singh recorded the formal FIR Ex.PA/1 on receipt of ruqa Ex.PA through EHC Balwan Singh. He testified that he made his endorsement Ex.PA/2 on the FIR and sent the special reports, thereof, through Constable Chander Bhan No. 326 to the learned Illaqa Magistrate and other senior police officers without any delay.
PW-2 Pawan Kumar, Photographer testified that on 17.04.2003, he visited the spot at Guhla Cheeka bypass road, Kaithal on the direction of the investigating officer and took four snaps of the corpse and tractor trolley Ex.P1 to Ex.P4 whose negatives are Ex.P5 to Ex.P8.
PW-3 Dr. S.K. Jain testified that on 17.04.2003, he alongwith Dr. Manoj Kumar conducted the autopsy on the corpse of Sunder Sham Ranbir Singh (deceased) son of Ram Dhari, Jat, resident of Village 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -7 - Bapoli, District Panipat, about 27 years male, that was brought by HC Surinder Kumar and identified by Randhir Singh and Azad Singh. He testified that autopsy was conducted at 12.30 P.M. They observed as under:
1. There was a lacerated wound C shape round 6 cm x 7 cm skin deep over left temporal region. Clotted blood was present. Wound was solid at places. On dissection, there was no fracture. No haemotoma in subdural or extradural region.
2. Bruise brownish in colour with abrasion over right shoulder, frontal area 4.5 x 3 cms. Clotted blood was present.
3. Bruise brownish in colour over the right elbow 2 cm 1.5 cms three in number.
4. Abrasions with bruise 6 cms x 5 cms over the frontal and inferior aspect of testis. Clotted blood was present in small quantity.
He further testified that the cause of death was due to injuries to testis which were ante-mortem and sufficient to cause death in the ordinary course of nature. He testified that they handed over to the police; well sutured dead body, a parcel having clothes of the deceased, box with 12 seals having five jars having visceras taken out from the corpse as explained above, an envelope with four seals having police papers duly signed numbering 14, forwarding letter, sample of seal and copy of the autopsy report.
PW-3 Dr. S.K. Jain further testified that the duration between death and autopsy was within 6 to 24 hours. He brought the original autopsy report and proved the copy Ex.PC, thereof. He Sunder Sham also proved the application Ex.PD of the police for conducting 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -8 - autopsy on the corpse of Ranbir Singh (deceased), as also police papers Ex.PE.
PW-4 Constable Ram Mehar testified that on 21.04.2003, MHC handed over to him sealed parcels of this case for deposit, thereof, with the Chemical Examiner, Madhuban and he took those, but some objections were raised by the Laboratory and he brought those back and handed over to the MHC in an intact condition. He further testified that neither he nor anyone else tampered, therewith.
PW-5 Ram Niwas Draftsman testified that on 17.05.2003, he visited the spot and prepared the scaled site plan Ex.PF with correct marginal notes at the instance of Randhir Singh prosecution witness.
PW-6 HC Ram Partap tendered in evidence his affidavit Ex.PG to the effect that on 13.05.2003, he was posted as AMM in Police Station City, Kaithal and on that day, HC Jai Lal handed over to him sealed parcel of viscera of Ranbir Singh-deceased alongwith envelope papers for deposit, thereof, with the Chemical Examiner, Karnal and he deposited the same on 13.05.2003 in an intact condition and on return, handed over the receipt, thereof, to HC Jai Lal. He further testified that neither he, nor anyone else tampered, therewith.
PW-7 HC Surinder Singh testified that on 17.04.2003, after autopsy on the corpse of Ranbir Singh-deceased, doctor handed over to him a parcel containing clothes of the deceased, one parcel containing viscera with an envelope duly sealed and he handed over Sunder Sham those to Inspector Raj Pal, that were seized vide memo Ex.PH and 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -9 - attested by him and others.
PW-8 HC Jai Lal tendered in evidence his affidavit Ex.PJ. PW-9 Constable Bagirath testified that on 25.04.2003, he joined the investigation of this case with ASI Rajmal, who interrogated the appellant who got recovered `2000/- from Namdhari Hotel, which were seized vide memo Ex.PK, that was attested by him and others. He also testified that on 26.04.2003, sample of hairs and finger prints of the appellant were taken by ASI Rajmal in his presence with the permission of Chief Judicial Magistrate and memo Ex.PL to this effect was prepared by him.
PW-10 Randhir Singh deposed on the lines of his statement Ex.PA, that has been reproduced in the earlier parts of this judgment. He also deposed about the investigation that was conducted in his presence, that, too, has been reproduced in the earlier parts of this judgment.
PW-11 J.S. Cheema testified that on 16.04.2003, he was posted as General Manager Pikadli, Sugar and Allied Industries Ltd. Patran, District Patiala. They used to procure sugar cane through their contractor Jagdeep Singh & Company Panipat. He testified that the sugar cane brought in their Company for sale used to be weighed and payment made to the person who approached them according to weight. He testified that after payment, they used to obtain the thumb impression of the person, who brought the sugar cane for sale. He proved the slip Ex.PX, that was signed by the person who took the amount. He testified that Ranbir Singh had taken the Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -10 - payment of sugar cane sold to them to the tune of `13,338/-, according to slip Ex.PX.
PW-12 Ajeet Singh also testified that on 18.04.2003, appellant came to him in his village Kithana at his house and he served him tea and he asked him the purpose of his visit. Then the appellant told him that on 15.04.2003, he and Ranbir Singh- deceased had taken sugar cane from village Bioli for Patran and that they sold the sugar cane at Patran and started their return journey for the village. The appellant further disclosed that on the way, they purchased a bottle of wine and reached village Sangatpura at the border of Punjab and Haryana and from there, appellant started driving the tractor and also started taking wine. He further disclosed that he started driving the tractor at a fast speed and on 17.04.2003, they reached at Vishwakarma Chowk, Kaithal and parked the tractor there for taking water, when it was about 4.00 or 5.00 A.M. He further disclosed that after drinking water, Ranbir Singh-deceased started the tractor and the appellant insisted to drive the tractor himself and in that process, he gave a bottle blow on the side of the ear, as a result, thereof, it started bleeding and Ranbir Singh- deceased fell down on the ground.
Appellant further disclosed to PW-12 (Ajeet Singh) that he drank a nip of wine. Then he took out a sum of `13,338/- from the pocket of Ranbir Singh-deceased, which they had brought from Patran for the sale of sugar cane. Appellant further disclosed that he left the tractor at the spot and came to him. Appellant further Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -11 - disclosed that he also gave telephonic call at the residence of Ranbir Singh-deceased and he also disclosed that Ranbir Singh-deceased died due to injuries. Appellant further stated that a mistake had been done by him and his brother Jai Narain be called and that he be produced before the police. He further testified that the appellant assured to come to him on 21.04.2003, but he did not return. He further testified that he disclosed the facts to the police.
PW-13 Dilawar Singh deposed that he has been running a STD booth in village Bioli and his STD connection number is 2568285 and the code No. is 180. On 17.04.2003, when he was present at his STD booth at about 8.00 A.M, he received a telephonic call from Jind and a person talked with him saying that he is Raju son of Chander Singh of his village and he asked him to call the family members from the house of Randhir Singh and stated that some accident had taken place at Kaithal. He further testified that he then summoned Randhir Singh. However, Raghbir Singh younger brother of Randhir Singh came and talked with the person who gave telephonic call. He further testified that Raju is presence in Court.
PW-14 ASI Rajmal conducted the investigation of this case and deposed on the lines of investigation, that has been reproduced in the earlier parts of this judgment.
PW-15 Inspector Raj Pal Singh also conducted the investigation and testified on the lines of investigation, that has also been reproduced in the earlier parts of this judgment.
After tendering the reports of the Forensic Science Sunder Sham Laboratory Ex.PEE and Ex.PEE/1, the prosecution evidence was 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -12 - closed.
After the closure of prosecution evidence, appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of the prosecution, pleaded innocence and false implication in this case. He gave his own version that he has been falsely implicated at the instance of the complainant-Ranbir Singh with the connivance of the police.
Appellant was called upon to enter in defence and he closed the same without examining any witness in defence.
After hearing both the sides, as also, after perusing the evidence and documents on record, the learned trial Court vide impugned judgment of conviction dated 01.06.2005, convicted the appellant for commission of offences punishable under Sections 302 and 404 IPC and vide impugned order of sentence dated 03.06.2005 sentenced him to undergo imprisonment for life and to pay a fine of `10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months for commission of offence punishable under Section 302 IPC. He has also been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of `1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month for commission of offence punishable under Section 404 IPC. Both the sentences were ordered to run concurrently. Period of imprisonment already undergone by the appellant during investigation and trial was ordered to be set off towards the substantive sentence awarded to Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -13 - him. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of the offences punishable under Sections 302 and 404 IPC .
Learned counsel for the appellant contended that the learned trial Court has convicted the appellant without taking into consideration the version of the defence, as also, without applicability of mind. He also contended that medical report would show that the injuries on the person of the deceased (Ranbir Singh) were simple in nature, which could be caused by fall or push or otherwise and the same has not been caused by any weapon. He also contended that even PW-3 (Dr. S.K. Jain), who conducted the autopsy on the corpse of the deceased (Ranbir Singh) withheld his opinion regarding the cause of death, therefore, no importance could be attached to his testimony to the effect that the injury on the testis was the cause of death of the deceased (Ranbir Singh).
Learned counsel for the appellant also contended that the learned trial Court wrongly relied upon the alleged extra judicial confession of the appellant, that was made by him (appellant) before PW-12 (Ajit Singh Sarpanch), who was one of the relatives of the deceased (Ranbir Singh). He also contended that the prosecution has failed to prove the motive for causing death of the deceased. He also contended that the recovery of the cash amount from the appellant has been fabricated. He also contended that the evidence of PW-10 (Randhir Singh) is most unreliable and untrustworthy, as Sunder Sham he tried to implicate the appellant and indeed, was not a witness of 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -14 - the alleged occurrence. He also contended that the evidence on the file is that the deceased (Ranbir Singh) had taken liquor and was driving the tractor and had fallen from the tractor, that seems to be a cause of death.
Learned counsel for the appellant also contended that the bunches of hair lying at the spot have not been proved to be of the appellant and, therefore, the whole story of the prosecution appears to be false and the appellant has been falsely implicated in the case. He then contended that in these circumstances, the learned trial Court fell in grave error in convicting and sentencing the appellant for the offences for which he was charged by the learned trial Court. He, thus, prayed that the appellant may be acquitted of the offences punishable under Sections 302 and 404 IPC.
Learned Additional Advocate General, Haryana contended that the learned trial Court rightly convicted and sentenced the appellant for commission of offences punishable under Sections 302 and 404 IPC, as he was lastly seen with the deceased (Ranbir Singh) at the time of incident. He also contended that it was for the appellant to prove, as to where he was on the day of incident, if he was not with the deceased. He further contended that since this evidence is lacking on behalf of the appellant, he alone was with the deceased who died an unnatural death and it was for him (appellant) to explain the circumstances, whereunder, Ranbir Singh (deceased) turned into corpse in his company.
Learned Additional Advocate General, Haryana also Sunder Sham contended that the appellant suffered extra judicial confession before 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -15 - PW-12 (Ajit Singh) and some amount out of the said amount, which the deceased (Ranbir Singh) had received from Patran Sugar Mills was misappropriated by the appellant and a sum of `9500/- was recovered from him during investigation. So, he contended that the impugned judgment of conviction dated 01.06.2005 and order of sentence dated 03.06.2005, may be upheld and affirmed, as these do not suffer from any illegality or impropriety.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties, as also, perused the evidence and documents placed on the record of the learned trial Court with their assistance.
From the evidence of PW-10 (Randhir Singh), it becomes candid that on 15.04.2003 at about 6.00 P.M., his brother Ranbir Singh (deceased) alongwith the appellant went to Sugar Mills Patran for sale of sugar cane after loading the same on a trolley attached to tractor bearing registration No. HNK 8834 make HMT. At that time, when he (Ranbir Singh-deceased) started from his village, he was accompanied by the appellant, as can be seen from the testimony of PW-10 (Randhir Singh), which could not be shattered during cross- examination. Therefore, there is no reason to disbelieve the testimony of PW-10 (Randhir Singh) and on the basis, thereof, it must be held that it was the appellant who alone was with the deceased (Ranbir Singh) throughout his journey to Sugar Mills Patran, as also, during return journey till his death.
Appellant has not led any evidence that he had parted Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -16 - company with the appellant and he went to some other place. When specific allegation is being levelled against the appellant, that he remained with the deceased (Ranbir Singh) from 15.04.2003 till his death, it was for him to explain as to where he was in these days. It has also come in the evidence of Randhir Singh (PW-10) that on 17.04.2003 at about 8.30 A.M., a telephonic message was received from the appellant by Dilawar Singh (PW-13) of his village, that a person had met with an accident with tractor and that person had expired and the appellant informed that he by hiding himself managed to run away and reached Jind and was giving call from there. This evidence of PW-10 (Randhir Singh) also could not be shattered during cross-examination.
It is not the case of the appellant that he did not make a phone call. Dilawar Singh (PW-13) confirmed this telephonic conversation. He has been running an STD booth in his village Beoli and on 17.04.2003, when he was present in his STD booth at about 8.00 A.M., he received a telephonic call from Jind and a person talked with him saying that he is Raju son of Chander Singh and he asked him to call the family member from the house of Randhir Singh and stated that some accident had taken place at Kaithal. It has also come in the testimony of Dilawar Singh (PW-13) that when he summoned Randhir Singh, Raghbir Singh his younger brother came at his booth and talked with the person who gave telephone call. He (PW-13) also testified that Raju (appellant) is present in the Court. So, from the testimony of PW-13 (Dilawar Singh), it is established Sunder Sham that after the incident only, appellant ran away from the place of 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -17 - incident and made a phone call to Raghbir Singh younger brother of the deceased (Ranbir Singh) from Jind. This evidence of PW-13 (Dilawar Singh) also could not be shattered during cross- examination.
There is no reason to disbelieve the same. So, it is satisfied that the deceased (Ranbir Singh) and the appellant were together when the incident took place and after the incident, appellant got frightened and he removed `13,338/- from the pocket of the deceased (Ranbir Singh) and went to Jind from where he informed the family members of the deceased (Ranbir Singh) by distorting the manner in which the incident had taken place.
Indubitably, the accident, as alleged by the appellant on phone had not taken place. Through this telephonic conversation, appellant himself admitted his presence with the deceased (Ranbir Singh). There is nothing on the record to indicate that the accident had taken place in which one person other than the deceased (Ranbir Singh) had died. Under Section 106 of the Evidence Act, the burden of proving the fact is on a person which is specifically within his knowledge. However, this section does not relieve the prosecution of its burden to prove the guilt beyond doubt. In the case in hand, the fact is that the deceased and the appellant were together. Since the deceased (Ranbir Singh) was found dead, it must enable the Court to draw presumption that the appellant would have killed the deceased (Ranbir Singh), unless the appellant explained otherwise.
Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -18 - Reliance can be placed upon State of West Bengal v. Mir Mohammad Omar; 2000 SCC (Criminal) 1516; passed by the Hon'ble Supreme Court of India, wherein, it was held that under Section 106 of the Evidence Act, the burden of proving the fact is on a person which is specifically within his knowledge. It was also held that the deceased was abducted by accused. It was further held that if the deceased was found murdered shortly, thereafter, it will enable the court to draw presumption that accused would have murdered the deceased unless accused explained otherwise.
Similar view was taken by the Hon'ble Supreme Court of India in Murlidhar & Ors. v. State of Rajasthan; 2005 (2) Apex Criminal 373; wherein, it was held that prosecution is not to prove those facts which are specifically within knowledge of accused and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts.
Hon'ble Supreme Court of India in State of Rajasthan v. Kashi Ram; 2007 (1) RCR (Criminal) 131; also held that under Section 106 of the Evidence Act, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. It was held that in a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him.
Similar view was taken by the Hon'ble Supreme Court of India in Shambu Nath Mehra v. State of Ajmer; 1956 AIR (SC) 404; Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -19 - wherein, it was held that in a criminal case, the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. It was also held that Section 106 is an exception to Section 101 of the Evidence Act. It has been mentioned in Section 101 of the Evidence Act that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When once it is established that the deceased and the appellant were together and Ranbir Singh-deceased died an unnatural death in his company, it must follow that it was the appellant who alone knew that how Ranbir Singh-deceased turned into corpse. It was for the appellant to explain the circumstances, whereunder, Ranbir Singh-deceased died an unnatural death. In the absence of any explanation on his behalf, it must be held that this unnatural death of the deceased (Ranbir Singh) was caused by the appellant.
Though the appellant has suffered extra judicial confession before PW-12 (Ajit Singh) yet he has denied the same. At the same time, PW-12 (Ajit Singh) before whom the appellant suffered extra judicial confession was subjected to searching cross-examination by Sunder Sham the learned counsel for the appellant before the learned trial Court, 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -20 - but long cross-examination failed to elicit anything worth the name, which could possibly cause any dent. From the testimony of PW-12 (Ajit Singh), it transpires that the appellant told him that on 15.04.2003, he and Ranbir Singh (deceased) had taken sugar cane from village Beoli for Patran and they sold the sugar cane at Patran and started their return journey for the village and the appellant further disclosed that on the way, they purchased a bottle of wine and reached village Sangatpura at the border of Punjab and Haryana and from there, appellant started driving the tractor and also started taking wine. He (appellant) further disclosed that he started driving the tractor at a fast speed and on 17.04.2003, they reached at Vishwakarma Chowk, Kaithal and parked the tractor there for taking water, when it was about 4.00 or 5.00 A.M. He further disclosed that after drinking water, Ranbir-deceased started the tractor and the appellant insisted to drive the tractor himself and in that process, he gave a bottle blow on the side of the ear, as a result, thereof, it started bleeding and Ranbir Singh-deceased fell down on the ground.
This extra judicial confession could not be disbelieved. As per further disclosure, appellant drank a nip of wine and removed money amounting to `13,338/- from the pocket of Ranbir Singh- deceased, which they had brought from Patran, as a sale price of sugar cane. Appellant further disclosed that he left the tractor at the spot and came to him. It has further come in his extra judicial confession that he also gave telephonic call at the residence of Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -21 - Ranbir Singh-deceased. So, one thing is very much certain that it was the appellant who killed the deceased. He was not having intention to murder him. Even he removed an amount of `13,338/- from the pocket of the deceased (Ranbir Singh), after he turned into corpse and later `9500/- and `2000/- were recovered from him during investigation and remaining amount was expended by him. So far as the sale price of sugar cane is concerned, it has come in the testimony of PW-11 (J.S. Cheema) that the deceased had sold the sugar cane at Patran Sugar Mills on 16.04.2003, where he (PW-
11) was posted as General Manager. This evidence also could not be shattered during cross-examination and it must follow that an amount of `13,338/- was received by the deceased (Ranbir Singh) as a sale price of sugar cane from Patran Sugar Mills and when he died, this amount was removed by the appellant from his pocket.
As per medical evidence, there were four injuries on the person of the deceased. Injury No.4 relates to abrasions over the frontal and inferior aspect of testis where clotted blood was present in small quantity. As per opinion of PW-3 (Dr. S.K. Jain) the cause of death was due to injuries to testis, which was ante-mortem and sufficient to cause death in the ordinary course of nature. These injuries would have been caused by the appellant only through kick blows. If the appellant had intended to kill Ranbir Singh (deceased), in that event, he would have used some other weapon for causing injuries to the deceased (Ranbir Singh).
As per Section 300 IPC except in the cases excepted, Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -22 - culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. As per exception 4 of Section 300 IPC; culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unsual manner. Culpable homicide is a murder, if it does not fall in the exceptions of this Section.
The present case is covered in exception 4 of Section 300 IPC, wherein, it has been enshrined that culpable homicide is not a murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unsual manner. There is explanation to exception 4 of Section 300 IPC that it is immaterial in such cases which party offers the provocation or commits the first assault. It appears that both, appellant and the deceased had consumed liquor. They were in an inebriated condition and the appellant wanted to drive the tractor, but the deceased was not allowing him to drive the same. Sequelly, quarrel ensued and in order to snatch the tractor, appellant gave blow of bottle on the ear of the deceased and caused injuries on the testicles of the deceased.
Nobody saw the incident and the fact remains that the appellant had no intention to kill the deceased. He was travelling with him peacefully and a sudden fight took place between them on return journey. It was immaterial, as to who caused provocation and Sunder Sham committed first assault. But the fact remains that the act of causing 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -23 - death of the deceased by the appellant was without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, which had taken place, as the appellant wanted to snatch the tractor for driving the same to his village. The resistance caused by the deceased, provoked the appellant to cause him injuries resulting into his death.
If the extra judicial confession, that was made by the appellant before PW-12 (Ajit Singh), is examined that will reveal that the appellant had not intention to commit the murder of the deceased. He was not carrying any weapon throughout his journey. It is also not the case of the respondent, that the appellant was carrying some weapon, wherewith, he committed the murder of the deceased. The appellant had no enmity with the deceased. If he had any kind of animus against the deceased or his family members, in that event, he would not have been allowed to accompany the deceased on tractor-trolley, whereon, sugar cane was loaded for sale, thereof, at Patran Sugar Mills.
The learned trial Court, thus, fell in grave error in holding the appellant guilty of murder of the deceased realising little that extra judicial confession of the appellant, that was suffered by him before PW-12 (Ajit Singh), does not reveal that the appellant had murdered Ranbir Singh (deceased), while on the contrary, this extra judicial confession reveals only the sudden fight in the heat of passion upon a sudden quarrel without premeditation. Sudden quarrel in this case was that the appellant himself wanted to drive the tractor. Both had Sunder Sham consumed liquor. This desire of the appellant to drive the tractor 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -24 - could not be swallowed by the deceased, who resisted the attempt of the appellant to take control of the tractor for purpose of driving the same to the village. In that process, fight ensued. There was heat of passion and the appellant injured the ear of the deceased with the bottle of liquor. In that process, the deceased fell from the tractor on the ground. Injuries on the testicles of the deceased indicate that while latter had fallen on the ground, he had been given kick blows by the appellant on his testicles.
Even in the evidence of PW-10 (Randhir Singh) and PW-12 (Ajit Singh), it has come that there were marks of scuffle, where the corpse of the deceased was found and there were pieces of broken bottle. There was an empty nip of liquor; besides, bunches of hair. The learned trial Court held that in view of injury No.4, that was abrasion on the testicles of the deceased, it was a homicidal assault. It was not a case of any motor vehicular accident and the tractor had not suffered any damage. This is not a case of murder. Even, it has not been established that the appellant had intention to kill the deceased, who, however, had knowledge that the deceased could succumb to the injuries, that had been caused by him on the deceased.
The appellant, thus knew full well that what he was doing with the deceased, was likely to cause his death. He explained the manner in which the incident had taken place, in his extra judicial confession, suffered before PW-12 (Ajit Singh). He (appellant) himself ran away from the place of incident. Initially, appellant had Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -25 - no intention to rob the deceased of `13,338/-, that was received by him from Patran Sugar Mills for the sale of sugar cane, but when he realised that Ranbir Singh (deceased) had died and in case of his fleeing away from the spot, someone else would rob that amount from the deceased, he removed that amount from the pocket of the deceased for converting those to his use. By doing so, the appellant committed offence punishable under Section 404 IPC. There is no illegality or impropriety in the finding of the learned trial Court to this extent.
The learned trial Court wrongly held that the appellant committed the murder of Ranbir Singh (deceased) with intent to rob him of the cash amount, that he was carrying with him. We fail to understand as to how the learned trial Court came to this finding especially when in the extra judicial confession, that was suffered by the appellant before PW-12 (Ajit Singh), this thing is missing. In the extra judicial confession, appellant explained the manner in which the incident had taken place and that explanation is genuine which would make out a case against the appellant, that was covered under exception 4 of Section 300 IPC. It was a culpable homicidal not amounting to murder. The act was committed by the appellant without any prior intention, as already held.
When once the respondent had relied upon extra judicial confession of the appellant, that was suffered before PW-12 (Ajit Singh) then they could not make some other case and whatever was told by the appellant to PW-12 (Ajit Singh) does not make out a case Sunder Sham of murder against him (appellant). The appellant in this case, as per 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -26 - his extra judicial confession, did not inflict injuries to the deceased with intent to cause his death and even, the injuries that were caused by the appellant to the deceased, were not with any lethal weapon, those were only abrasions on the testicles of the deceased. Other injuries on the person of the deceased were not the cause of his death. Even those injuries were not grievous in nature, as per the testimony of PW-3 (Dr. S.K. Jain).
According to PW-3 (Dr. S.K. Jain), injury No.1 was on the head and was not grievous. Injury No.2 was also simple in nature at shoulder. There was no fracture on it and thus injury No.2 could be possibly due to fall by push or slip and hit against the round substance.
The learned trial Court, however rejected the evidence of extra judicial confession of the appellant suffered before PW-12 (Ajit Singh) in para 15 of the judgment. We fail to understand as to how without relying on extra judicial confession of the appellant, the learned trial Court concluded that it was a case of murder of the deceased by the appellant especially, when no lethal weapon was being carried by the appellant at the time of occurrence and there was no animus or hostility of the appellant towards the deceased and his family members.
Even the injuries, as per testimony of PW-3 (Dr. S.K. Jain) were not grievous in nature and those could be a result of fall by push. Even the learned trial Court failed to appreciate the injuries that were found on the corpse of the deceased. Injuries Nos. 1 to 3 Sunder Sham were not the cause of death of the deceased. Only abrasions with 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -27 - bruise on the testis of the deceased were found to be the cause of death of the deceased. No weapon was used for causing these injuries and, therefore, on the basis of these four injuries on the corpse of the deceased, it could not be held to be a a case of commission of murder of the deceased by the appellant.
We are, therefore, conclude that the appellant was wrongly convicted and sentenced for commission of offence punishable under Section 302 IPC by the learned trial Court vide impugned judgment and order of sentence. However, he was rightly convicted and sentenced for commission of offence punishable under Section 404 IPC. On the contrary, we hold that the appellant had no intention to kill the deceased. He was not carrying any weapon at the time of occurrence and there was no premeditation in the mind of the appellant to kill the deceased. Sudden quarrel took place and in that quarrel, the appellant caused the death of the deceased. It is immaterial, as to whether the appellant offered the provocation or committed the first assault upon the deceased and so, the case against the appellant cannot be said to be a case of murder on the ground that it was he, who caused provocation or committed the first assault upon the deceased.
The fact remains that the appellant caused injuries to the deceased knowing full well that latter could succumbed, thereto, but he (appellant) had no intention to kill him. So, in these circumstances the case against the appellant would fall in Part II of Section 304 IPC. It also does not fall within Part I of Section 304 Sunder Sham IPC, as it is not made out from the material on the record that he had 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -28 - an intention to cause the death of the deceased or he had an intention causing such bodily injuries to the deceased, which were likely to cause his death.
Resultantly, the appellant is acquitted of the offence punishable under Section 302 IPC and in its place, he is convicted for commission of offence punishable under Section 304 Part II of the Indian Penal Code. The appellant has already undergone imprisonment of 04 years, as can be seen from the order dated 15.05.2007 passed by this Court. The sentence of imprisonment of the appellant was suspended by this Court vide order dated 15.05.2007. Period of six years has elapsed. Now, it will not be in the interest of justice to send him to imprisonment again. The sentence of imprisonment already undergone by him for a period of 04 years shall be condign punishment and shall meet the ends of justice. Therefore, the appellant is sentenced to the period already undergone by him in jail, which shall run concurrently with the sentence of one year, awarded to him for commission of offence punishable under Section 404 IPC.
So, the appellant is sentenced to the period already undergone by him during investigation, trial and pendency of the appeal; besides, to pay a fine of `10,000/- or in default of payment of fine to further undergo rigorous imprisonment for one year. The sentence of fine that was imposed upon the appellant for commission of offence punishable under Section 404 IPC to the tune of `1000/- is, however, maintained. The appellant shall deposit the amount of Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -29 - fine to the tune of `11,000/- within three months from today in the learned trial Court, failing which he shall surrender before the learned Chief Judicial Magistrate, Kaithal for undergoing the sentence that has been awarded to him in default of payment of fine.
In case the amount of compensation is not deposited by the appellant within stipulated period, the learned Chief Judicial Magistrate shall take necessary steps for realization of the said amount from the appellant, as arrears of land revenue from his moveable or immovable property or both. For this purpose, he can take the help of Collector of the district for realization of the amount of compensation.
Resultantly, appeal succeeds partly and is, hereby, allowed partly. The impugned judgment and order of sentence are partly set aside and partly upheld.
Before parting with this judgment, we are of the view that after the order of conviction, it is mandatory duty of the Court to consider the question of award of compensation to victim of offence under Section 357 Cr.P.C. This mandatory duty has not been performed by the learned trial Court, which is now required to be performed by all the judges, in view of the judgment passed by the Hon'ble Supreme Court of India, captioned as Ankush Shivaji Gaikwad vs. State of Maharashtra:, 2013 (2) RCR (Criminal) 1036.
It has been held in the judgment (supra) that after order of conviction, it is mandatory duty of the court to consider the question of award of compensation to victim of crime. However, it is discretion Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -30 - of Court to award or not to award compensation. It was also held that the capacity of the accused to pay compensation would involve certain enquiry albeit summary.
In Section 357 (1) (c) of the Cr.P.C., it has been enshrined that when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death.
Learned counsel for the appellant contended that the appellant is a poor person and, therefore, the compensation in terms of Section 357 Cr.P.C. should not be imposed upon him.
On the contrary, the learned Additional Advocate General, Haryana contended that in view of judgment of Hon'ble Supreme Court of India (supra), compensation to the victim of this case should be awarded.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
We have come to the conclusion that it is the appellant who caused the death of the deceased and this death has been categorized, as a culpable homicide not amounting to murder. In these circumstances, appellant must be held liable for payment of compensation to the legal representatives of Ranbir Singh (deceased), who was 27 years of age at the time of his death, as can Sunder Sham be seen from the testimony of PW-3 (Dr. S.K. Jain). There is no 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -31 - evidence repugnant, thereto. Appellant indeed led no evidence in defence. So. it is held that the deceased at the time of his death in this case, was 27 years of age.
Ranbir Singh (deceased), however, was not holding any degree or diploma and was not trained in any vocation. He was, thus, unskilled worker. He being a manual workman at the time of his death could earn `2400/- or `2500/- per month by doing manual labour. So, his monthly income is assessed as `2400/- or `2500/- per month. Out of this amount, he would have kept 1/3rd for his own personal expenses and contributed the remaining 2/3rd for the maintenance and support of his legal representatives to whom, he was legally bound to maintain and support.
In this manner, the legal representatives of the deceased suffered monthly loss of dependency to the tune of `1500/- and annually to the tune of `18,000/-. He was 27 years of age at the time of his death. The multiplier in this case shall be of 15 and by applying the multiplier of 15, the compensation payable to his legal representatives shall come to `18,000/- x 15 = `2,70,000/-. To make it a round figure, compensation to the tune of `3,00,000/- is awarded to the legal representatives of the deceased against the appellant and the latter shall deposit this amount in the Court of learned Chief Judicial Magistrate, Kaithal within a period of three months from today and the latter shall distribute the said amount amongst the legal representatives of Ranbir Singh (deceased) in equal shares. On the failure of the appellant to deposit the amount within three Sunder Sham 2013.09.06 15:53 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-445-DB OF 2005 -32 - months, he shall be liable to pay interest at the rate of 9% per annum from today onwards till the realisation of the entire amount of compensation.
His personal bond and surety bond shall be discharged only after the realization of the amounts of fine and compensation.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
August 26, 2013
sham
Sunder Sham
2013.09.06 15:53
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh