Punjab-Haryana High Court
Ombir And Others vs State Of Haryana on 25 September, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Criminal Appeal No. D-644-DB of 2009 and
Criminal Revision No. 1460 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. D-644-DB of 2009
DATE OF DECISION : September 25, 2013
Ombir and others ...Appellants
Versus
State of Haryana ...Respondent
Criminal Revision No. 1460 of 2013
Lokesh ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL
HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Present Mr. Raj Mohan Singh, Advocate for the appellants in
Criminal Appeal No. D-644-DB of 2009.
Mr. G.C. Shahpuri, Advocate for the petitioner in
Criminal Revision No. 1460 of 2013.
Mr. Dhruv Dayal, Deputy Advocate General, Haryana
for the State-respondent.
****
1. Whether the judgment should be reported in the digest? Yes
M.JEYAPAUL, J.
1. Accused Ombir, Amar Singh and Raj Kumar have challenged the conviction and sentence recorded by the trial court under Section 302 read with Section 34 IPC. Accused Lokesh who Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 2 was a juvenile has challenged the conviction recorded under Section 302 read with Section 34 IPC by the Juvenile Justice Board and confirmed by the Appellate Court in the Criminal Revision filed by him. Both the cases have been taken up together for common disposal.
2. The case of the prosecution is well projected in the First Information Report lodged by complainant Chotey Lal. He has stated in his First Information Report that accused Amar Singh owed a sum of `70,000/- to his brother Khempal (deceased). On 4.12.2007 accused Amar Singh and Ombir asked his brother Khempal to accompany them to village Chhainsa where they had proposed to settle the dues. As Khempal did not return till evening of 5.12.2007, the complainant along with his brother Jatan Singh came down to village Chhainsa to trace his brother Khempal. Firstly, they proceeded to the house of Mahender who told them that Khempal along with Amar Singh, Ombir and Raju had gone to the house of Joginder across the Yamuna river. Chotey Lal and Jatan Singh crossed river Yamuna at 7.30-8.00 P.M. and reached the other bank of the river. They witnessed accused Amar Singh and Ombir strangulating their brother Khempal, while accused Raju and Deepak were holding his legs. They made an attempt to apprehend all of them but they pushed them and fled away from the spot. Khempal was found dead by strangulation.
Criminal Appeal No. 644-DB of 2009
1. On the side of the prosecution ten witnesses were Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 3 examined and on the side of the defence eight witnesses were examined.
2. PW8 Chotey Lal and PW10 Jatan Singh are the star witnesses in this case. They have been examined as witnesses to the occurrence. They have supported the case of the prosecution.
3. PW1 Dr. Subhash Gupta conducted post mortem examination on the dead body of Khempal. He had deposed that he conducted post mortem examination on 6.12.2007. The ligature mark was found on the neck of the deceased. The ligature mark was found in the form of reddish bruise. Both the legs had been tied loosely by a brown belt. Bleeding was present in both the ears. Thyroid Cartilage was found fractured and there was haemorrhage present in both the eyes. He had opined that the deceased died due to asphyxia as a result of strangulation which was ante mortem in the ordinary course of nature and sufficient to cause death in the normal course of nature.
4. The accused have come with a statement under Section 313 Cr.P.C. that a false case was foisted on them.
5. The learned counsel appearing for the appellant would vehemently submit that PW8 Chotey Lal and PW10 Jatan Singh who were brothers would not have witnessed the occurrence as it was pitch dark in the field at about 7.30 P.M. in the month of December. Referring to the evidence of DW5 Rajpal, he would submit that there was no boat operation across Yamuna river during winter season after 6.00 P.M. Referring to the evidence of PW3 Head Constable Kuldeep Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 4 Singh, he would submit that police officials received the communication even before 8.00 P.M. on 5.12.2007 as to the murder of Khempal and reached the place of occurrence at 9.00 P.M. itself. Therefore, the presence of PW8 and PW10 at the scene of occurrence is highly doubtful. He would also submit that there would have been no occasion for accused Raj Kumar to catch hold of the legs when the legs had already been tied. Referring to the defence evidence, he would submit that it was a case of blind murder but the investigating agency purposely planted PW8 and PW10 as eye witnesses to the case.
6. We heard the submission made by learned Deputy Advocate General appearing for the State of Haryana supporting the verdict of conviction and sentence passed by the trial court.
7. PW8 Chotey Lal and PW10 Jatan Singh are the star witnesses in this case. Though, they are real brothers, their testimony cannot be rejected because of their close relationship. When PW8 and PW10 were at their house on 4.12.2007, accused Amar Singh and accused Ombir had taken away the deceased Khempal on the premise that they would arrange money at village Chhainsa and settle the dues payable to Khempal by Amar Singh. Khempal was none other than the brother of PW8 and PW10. As Khempal had not returned to the house till evening of 5.12.2007, PW8 and PW10 having been gripped with the anxiety, proceeded in search of their brother Khempal. They having collected information on the way from Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 5 Mahender of village Chhainsa, they crossed river Yamuna and heard the wailing noise and found the accused Amar Singh and Ombir strangulating their brother Khempal to death. Of course, the occurrence had taken place at about 7.30 P.M. in an open field. It might have been difficult for a person to identify a stranger at this point of time. But a person can very well identify known person even in mild darkness. Further, PW8 and PW10 have deposed that the accused Ombir and Amar Singh pushed them down and sped away. Therefore, there had been every chance for PW8 and PW10 to identify accused Ombir and Amar Singh.
8. The evidence of PW8 and PW10 would also go to establish that Amar Singh owed a sum of `70,000/- to Khempal. Amar Singh and Ombir had come down to the house of Khempal and taken him the previous day. In our considered view, the ocular evidence of PW8 and PW10 establishes beyond reasonable doubt that accused Ombir and Amar Singh strangulated Khempal to death. The medical evidence also corroborates the ocular testimony.
9. It was submitted by the learned counsel appearing for the appellants that the information as to the murder of Khempal was received by the police station at 8.30 P.M. on 5.12.2007 as per the evidence of PW3. Firstly, we find that PW3 has come out with such a version during the course of cross examination beyond his brief. There is no record to show that police officials received the information of murder of Khempal at 8.30 P.M. on 5.12.2007 and they Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 6 descended on the scene of occurrence by 9.00 P.M. itself. Therefore, the evidence of PW8 which does not receive any corroboration from the police records does not create any dent in the case of the prosecution.
10. Of course, it is submitted by the learned counsel appearing for the appellants that DW1 has deposed that the murder of Khempal came to light by 7.30 P.M. itself. In our considered view, the entire defence version had been set up only based on the loose and irresponsible deposition found in the cross examination of PW3. Therefore we are not inclined to go by the defence version that the dead body was detected even before PW8 and PW10 arrived the scene of occurrence.
11. DW5 Rajpal had not produced any document to show that he was a boat contractor. He would simply state that during winter season boat operation would be stopped around 5.30-6.00 P.M. As no document was produced to show that he was a boat operation contractor, we are unable to accept the evidence of DW5 Rajpal. Even otherwise, when there is a customer for travelling in the boat, the boat operator would naturally try to capitalise the urgency of the customer. There can also be no hard and fast rule as regards the boat operation even during winter season.
12. In the light of the foregoing discussion, we can come to a definite conclusion that accused Ombir and Amar singh had committed the murder of Khempal by strangulation and thereby they Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 7 committed the offence punishable under Section 302 read with Section 34 IPC.
13. Coming to the role of accused Raj Kumar, we find that Raj Kumar was not the person who accompanied Ombir and Amar Singh to the house of Khempal to take him in the guise of repaying the debt. The role assigned to accused Raj Kumar was that he held the leg of the deceased. There would have been no occasion for Raj Kumar to hold the leg of Khempal as the legs had already been found tied. Further, we find that Raj Kumar was none other than the son of Mahender whom PW8 and PW10 approached to know the whereabouts of their brother Khempal. If at all, accused Raj Kumar had accompanied accused Ombir and Amar Singh taking the victim Khempal from the village Chhainsa, Mahender would not have informed that his son Raj Kumar also went along with Ombir, Amar Singh and Khempal.
14. The motorcycle of accused Raj Kumar was recovered from the scene of crime. In our considered view, as the motorcycle of Raj Kumar was found at the scene of crime, Raj Kumar had been implicated on suspicion. For the foregoing reasons, we entertain a doubt as to the involvement of accused Raj Kumar in the murder of Khempal. Therefore, accused Raj Kumar is entitled to the benefit of doubt.
15. In view of the above, we confirm the judgment of conviction and sentence recorded by the trial court as against Ombir Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 8 and Amar Singh and as a result the trial court judgment qua accused Ombir and Amar Singh stands confirmed but accused Raj Kumar is found not guilty of the charge under Section 302 read with Section 34 IPC. He be set at liberty forth if his custody is not required in connection with any other case. Resultantly, the appeal qua accused Raj Kumar stands allowed.
Criminal Revision No. 1460 of 2013
1. Accused Lokesh was a juvenile at the time when the offence was committed on 5.12.2007. He was tried by the Juvenile Justice Board. The verdict of conviction recorded by the Juvenile Justice Board was carried in appeal before the Additional Sessions court. The Additional Sessions Court, Faridabad confirmed the conviction recorded by the Juvenile Justice Board.
2. The learned counsel appearing for the petitioner Lokesh would submit that the first informant Chotey Lal had not referred to the name of accused Lokesh in the First Information Report. Chotey Lal had improved his original version during the course of enquiry before the Juvenile Justice Board. Jatan Singh also had not whispered anything about the role of Lokesh in his statement under Section 161 Cr.P.C. He has come out with a material improvement only during the course of enquiry. The role assigned to accused Lokesh is also found unnatural, it is further submitted.
3. We also heard the submission made by learned Deputy Advocate General appearing for the State of Haryana supporting the Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 9 verdict of conviction.
4. Under Section 397 Cr.P.C. this court can examine the records and interfere with the judgment under challenge to satisfy itself as to the correctness, legality or propriety of the finding, sentence or order passed by the court below.
5. On a careful perusal of the First Information Report lodged by PW2 Chotey Lal we find that specific role had been assigned to other accused and not to the accused Lokesh. In fact there is no reference as to the name of Lokesh in the First Information Report. The First Information Report had been lodged by the ocular witness. He had also graphically accounted the role of all other accused. If at all Lokesh had been present and committed some act at the scene of crime, there was no reason for PW2 Chotey Lal to omit the presence of Lokesh at the scene of occurrence in the F.I.R.
6. In the letter shot off by PW2 on 6.12.2007 to the Investigating Officer, he chose to put the blame on the police official and made an attempt to introduce Lokesh as one of the offenders. Such a communication had been created only to rope in accused Lokesh as well in the crime of murder.
7. It is found that PW4 Jatan Singh also had not whispered anything about the role of Lokesh in his statement under Section 161 Cr.P.C. He was also an eyewitness to the occurrence. Had Lokesh been present at the scene of crime, there was no reason for him to omit to refer the presence of Lokesh at the scene of crime when he Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document Criminal Appeal No. D-644-DB of 2009 and Criminal Revision No. 1460 of 2013 10 was interrogated by the Investigating Officer. Further, we find that not only PW2 but also PW4 had consistently come out with the first version that Lokesh was not at all present at the scene of crime and he had also not played any role in the crime of murder.
8. In our view, the Juvenile Justice Board as well the Additional Sessions Judge had lost sight of the above material facts. The finding of guilt recorded by them is found to be improper.
9. In the result, the judgment of conviction recorded by the Juvenile Justice Board and confirmed by the Additional Sessions Judge, Faridabad stands reversed. Accused Lokesh is acquitted of the charge under Section 302 read with Section 34 IPC. He is on bail. The bail bond executed by him shall stand discharged. Consequently, the Revision is allowed.
(M.JEYAPAUL) JUDGE (ANITA CHAUDHRY) JUDGE September 25, 2013 p.singh Singh Parvinder 2013.09.30 10:18 I attest to the accuracy and integrity of this document