Punjab-Haryana High Court
Rajan vs State Of Haryana on 2 January, 2012
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 743-DB of 2002
Date of decision: January 02, 2012
Rajan
.. Appellant
Vs.
State of Haryana
.. Respondent
Criminal Revision No. 841 of 2003
Darshana Devi
.. Petitioner
Vs.
Rajan and others
.. Respondents
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice A.N. Jindal
Present: Mr. T.S. Sangha, Sr. Advocate with
Mr. J.S. Lalli, Advocate and
Mr. Rajesh Lamba, Advocate for the appellant.
Ms. Baljit K. Mann, Advocate for the revision petitioner.
Mr. Aman Chaudhary, Addl. A.G. Haryana
for the respondent- State.
***
A.N. Jindal, J This judgment shall dispose of criminal appeal No. 743-DB of 2002 filed by the accused- appellant Rajan as well as Criminal Revision No.841 of 2003 filed by Darshana Devi against the acquittal of the accused Kanshi Ram and Zile Singh.
Three accused namely Rajan, Zile Singh both sons of Kanshi Ram and their father Kanshi Ram were tried for the offence under Sections 302/506/34 IPC for killing Jai Chand (the other son of Kanshi Ram). Consequently, the trial court vide judgment dated 28.9.2002 while extending benefit of doubt to Kanshi Ram and Zile Singh, convicted Rajan accused- appellant (herein referred as, 'the accused') and sentenced him to undergo rigorous imprisonment for life and to pay fine of `1.05 lacs and in default of payment of fine, to further undergo rigorous imprisonment for Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -2- three years.
Kanshi Ram had three sons namely Rajan, Zile Singh and Jai Chand. Jai Chand was employed in the military and posted at Manipur and was on two months' annual leave. He was residing separately from Kanshi Ram and his two other sons, whereas, Rajan and Zile Singh were living with Kanshi Ram. Kanshi Ram had partitioned the agricultural land amongst his sons and the share of Jai Chand was given to him. But, still the accused were cultivating the land of the share of Jai Chand. One plot was also purchased by Kanshi Ram, but he had not given the share out of the said plot to Jai Chand.
On 21.2.1999 Jai Chand when made a request to give him his share in the plot, then Kanshi Ram invited quarrel and gave beatings to him. It was further stated by Darshana in her statement that on 23.2.1999, at about 6.30 p.m. when his son Rakesh was playing near Hanuman Temple in the street, Jai Chand had gone to fetch him and, when he reached near the house of Kanshi Ram, all the three accused came out. Kanshi Ram raised lalkara not to loose the opportunity and Jai Chand be taught a lesson for demanding share in the plot. The complainant also reached there, who was returning after answering the call of nature. In the meantime, accused Kanshi Ram caught hold of Jai Chand and Rajan inflicted pharsa blow on the right side of his neck while standing on the backside. Consequently, Jai Chand fell down on the ground, Rajan inflicted another pharsa blow on the neck near the ear. Zile Singh inflicted lathi blow on his leg. Rajan again inflicted pharsa blow on his right leg. Eventually, Jai Chand died at the spot. At that time Zile Singh was holding a pistol also and had threatened them. After causing injuries, the accused fled away. After leaving Jaggi at the spot, the complainant went to the police station and made a statement, on the basis of which the case was registered at 8.00 p.m. The copy of the FIR was received by the Illaqa Magistrate at 12.05 p.m. (ought to have been mentioned as 'AM') The case was investigated and the accused were challaned.
The trial court charged the accused Rajan under Section 302 IPC, whereas, the remaining accused were charged under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -3- In order to prove the charge, the prosecution examined as many as ten witnesses, out of whom, C. Bharat Singh (PW2), Anoj Kumar (PW4), HC Mahesh Chander (PW7) and C. Jagdish (PW8) are the formal witnesses. Jaggi (PW1), Darshna Devi (PW5) and Rakesh (PW6) are the eye witnesses to the occurrence. Dr. M.C. Sehrawat MO (PW3) had conducted the postmortem examination on the body of Jai Chand son of Kanshi Ram aged about 35 years, on 24.2.1999 and found the following injuries on his person :-
"1. Contusion in size 1inch x 1.5 cms over medial aspect of left thigh. Petechial haemorrhage present in sub- cutaneous tissue. Deep muscles, healthy.
2. ½ inch x ½ inch contusion over left facial prominence with bleeding in subcutaneous tissue. On dissection underlying bone is normal.
3. 9 inch x ½ inch x 3- ½ inch incised wound transversely placed at the level of tragus and neck of right mandible cutting ear at middle with cutting neck of right mandible temporal artery facial nerve internal carotid, artery sternocliodiamastoid muscle, mastoid occipital bone exposed grey matter with clotted blood in cranial cavity and surrounding muscle.
4. 5 inch x 1 inch x 3- ½ inch incised wound, started from neck of mandible right side and going posteriorly in transverse direction cutting mandible external carotid artery internal carotid artery internal carotid artery sternocliodo mastoid muscle, occipital bone spinal cord (upper part) vertebra artery. Clotted blood present and and around the muscle.
5. 9 inchs x 1 inch x 3- 1/3 inchs incised wound starting from neck of right mandible situated in between the third and fourth wound cutting all muscle, vessels up to base of occipital condyles and cutting medulla oblongata. Clotted blood present in and around the wound. Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -4-
6. 9 inchs x 2 inchs transversely placed contusion over back 1 cm below the lower margin neck. On dissection haemorrhage spots present in subcutaneous tissues.
7. 8 inchs x 2 inchs transversely placed contusion over upper part of back 2 cm below to previously described i.e. injury No.6. On dissection haemorrhage spots present in surrounding tissues."
Dr. M.C. Sehrawat (PW3) after examining the injuries opined that the injuries No.3 to 5 were on the vital organs which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Duration of the death and the postmortem was 12 to 24 hours. He proved the postmortem report Ex.PC, pictorial diagram showing the seats of the injuries Ex.PC/1, police request Ex.PD and inquest Ex.PE. Dharam Singh (PW9) is the Investigating Officer and is a witness to the recovery of pharsa (Ex.P1). Ranjit Singh (PW10) SI, CIA Staff has stated about the arrest of the accused Zile Singh.
On closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. They denied all the incriminating circumstances appearing against them and pleaded their false implication in the case.
In defence, they examined Balwant Rai (DW1). He being Patwari produced the copy of jamabandi Ex.DC for the year 1997-98 which reveals the joint cultivation of the parties over the land. Prem Chand (DW2) has stated that his father had sold his plot to Kanshi Ram vide sale deed mark-A. Girraj (DW3) has stated that he had gone to the place of occurrence where the dead body of Jai Chand was lying, but he did not make any recovery except taking of blood stained earth . Deepa (DW4) had stated that he was cultivating the land of Jai Chand for the last 5-7 years on batai.
The trial resulted into conviction of the accused Rajan. However, Kanshi Ram and Zile Singh were acquitted of the charges.
The point for determination in the case are as under :
Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -5- "1. Whether the evidence of the child witness could be placed reliance?
2. Whether the testimony of the witnesses namely Deepa and Darshna find corroboration from the medical evidence?
3. Whether the motive is proved?
Arguments heard. Record perused.
The case relates to the murder of Jai Chand at the hands of his own brothers and father. The occurrence in this case took place at 6.30 p.m. on 23.2.1999 and Darshana Devi went to the police station at 7.30 p.m. The FIR was registered on the basis of the statement made by her on the same day forthwith. Thus, there is nothing to suggest if Darshana Devi lost any time to concoct the prosecution version. The promptness in lodging the FIR also leads this court to make out that the prosecution story is shorn of any falsehood.
As regards the argument that no motive is proved, it is well settled by now that some times the murders are committed for a serious or little motive. But the motive is a state of mind of the accused and some times it becomes very difficult to explore his mind for bringing the motive to the fore. However, in the instant case, the motive for killing Jai Chand stands established. The factum with regard to purchase of plot by Kanshi Ram stands proved from the testimony of DW2 Prem Chand who had stated that his father had sold the plot to Kanshi Ram vide sale deed mark-A. The witness examined by the prosecution itself proves the motive and certainly since the plot was in the name of Kanshi Ram, the deceased must be demanding his share in the plot as he had already received his share in the remaining property of Kanshi Ram in a family settlement.
As regards the oral testimonies of the witnesses, the complainant Darshana while appearing in the witness box as PW5 and Rakesh while appearing as PW-6 have explored the prosecution story threadbare and their testimonies stand corroborated by the medical evidence. The recovery of the weapon of offence i.e. Pharsa which was found to be stained with blood as per report Ex.PN issued by the Forensic Science Laboratory also lends support to the prosecution case. No doubt, Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -6- Darshana Devi (PW5) is the wife of the deceased. Her testimony could not be dis-believed qua the complicity of Rajan in the case as she would be the last person to involve the accused while substituting the real culprit. She has narrated the occurrence in minute details. She has been subjected to the test of cross examination but nothing fruitful could be elicited from her testimony except that the court as an abandoned caution held Rajan guilty of the offence and acquitted Kanshi Ram and Zile Singh of the offences. Actually, Kanshi Ram was given benefit of doubt for the reason that he had only exhorted to teach Jai Chand his son for demanding his share in the plot. At that time, he may not be having any intention or knowledge to cause death of Jai Chand. Except exhortion nothing was attributed to Kanshi Ram, but, it was only Rajan who had given the fatal blows to the deceased. The trial court also observed that Zile Singh had no intention to kill Jai Chand for the twin reasons that as per the prosecution version Zile Singh was handling a pistol but he did not fire from his pistol and it is not possible and probable that if Zile Singh wanted to attack him, then he would have not used the pistol and inflicted lathi blow only. Thus, in these circumstances, these two accused were given benefit of doubt.
While giving deep thought to the aforesaid observations by the trial court, this court is also not poised to convict these two accused while taking into consideration the aforesaid grounds.
Now coming to the testimony of the child witness namely Rakesh (PW6), the learned counsel has urged that the testimony of the child witness cannot be believed as possibility of such witnesses being tutored cannot be ruled out and they live in the realm of dreams and make out the story of their own.
Having considered the contention and having perused the statement of Rakesh (PW6), a child witness, aged about 11 years, this court does not feel inclined to disbelieve his testimony and no doubt could be raised about his competency to appear as a witness. The trial court who had the opportunity to see his demeanor and examined him, had recorded its satisfaction that Rakesh (PW6) could understand the questions put to him. Rakesh (PW6) was not illiterate person but was studying in 5th class at that time. He did not mince the words while stating that on 23.2.1999 when he Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -7- was playing in the street, at about 6.30 p.m. his father came to call him and at that time his mother was also returning from the fields after answering the call of nature. In the meantime, the accused came over there. Rajesh had given pharsa blow to his father. He has also not alleged any injury to Kanshi Ram except that he had taken Jai Chand in his grip, Zile Singh had given a lathi blow on the foot of his father Jai Chand. He was also cross examined but his credentials could not be discredited and he stuck to his guns. The child witnesses are not always untruthful, if they clear the test of cross- examination and are clear and definite qua their answers. The child witnesses are competent witnesses unless the court considers that he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. The Apex Court while appreciating the evidence of the child witnesses observed in case Rameshwar S/o Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54, as under :-
"...... It is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate ....."
In Mangoo & Anr. v. State of Madhya Pradesh, 1995 (2) R.C.R. (Criminal) 481, the Apex Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -8- In Panchhi & Ors. v. State of U.P. 1998 (4) R.C.R. (Criminal) 74 the Apex Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
While approving the aforesaid law on the point, the Apex Court in a recent judgment delivered in case State of M.P. vs. Ramesh and another 2011 (2) R.C.R. (Criminal) 582 laid down the following principle of law to be taken care of at the time of appreciating the evidence of the child witness:
"13. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."
Having gone through the deposition of Rakesh (PW6), as well as the circumstances that Rakesh was playing in the street within a short distance of his house and the occurrence took place when his father had gone to call him. The houses of the accused and the deceased are in the Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -9- same vicinity and the presence of Rakesh at that juncture cannot be said to be doubtful at the spot. His testimony appears to be quite natural and he appears to have given rational answers and did not appear to be tutored, trained or influenced. He has also admitted the presence of his mother at the spot. Under these circumstances there is no reason to discard his statement.
As regards the defence set up by the accused, the same appears to be concocted one. No specific plea has been raised by the appellant as to how this case was false against him. No evidence of previous enmity between the two brothers has come on the record. It would also be pertinent to mention here that Zile Singh and Kanshi Ram have also not denied in their supplementary statement dated 18.2.2002, rather stated that injuries No.3 to 5 are the result of pharsa (Ex.P1) which was recovered from the accused Rajan which was taken into possession from him. Similarly, Rajan has also admitted that the injuries are the result of pharsa (Ex.P1) which was recovered from him vide memo Ex.PK/3. In view of no specific plea raised in defence, no such reliance could be placed on the witnesses examined by the accused in their defence.
Now coming to the revision petition preferred by the complainant Darshana Devi, qua the acquittal of Kanshi Ram and Zile Singh, it has already been observed that part attributed to Kanshi Ram is that he had taken the deceased Jai Chand in grip and only had made exhortation. The deceased was the son of Kanshi Ram. He had no weapon in his hand, therefore, he may not be having any intention to commit murder of Jai Chand. Similarly, the intention of Zile Singh to commit murder cannot be conferred as Zile Singh, according to the prosecution, was handling the pistol. He never used the pistol. Had he any intention to kill Jai Chand, then he would have used the said pistol. Since Rajan caused fatal injuries with sharp edged weapon i.e. deadly weapon of offence like pharsa, on the vital part of the body of Jai Chand killing him there and then, therefore the intention and knowledge to kill Jai Chand at the hands of the appellant stands fully established. The Apex Court while elaborating the ingredients of common intention set out the following principles of law in case Nand Kishore vs. State of Madhya Pradesh 2011 (3) R.C.R. Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -10- (Criminal) 658, at the time of segregating the case of each of the accused and to find out if they had any common intention to commit the act :-
"1. Criminal act is done by several persons;
2. Such act is done in furtherance of the common intention of all; and
3. Each of such persons is liable for that act in the same manner as if it were done by him alone.
4. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence.
5. Once criminal act and common intentions are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise.
6. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
7. Every individual offender is associated with criminal act both physically and mentally.
8. Courts must keep in mind the fine distinction between 'common intention' on the one hand and 'mens rea' as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be co-incidental with or collateral to the former but they are distinct and different.
9. Section 34 also deals with constructive criminal liability. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them.
10. Common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not Criminal Appeal No. 743-DB of 2002 & Criminal Revision No. 841 of 2003 -11- be the result of any pre-determined plan to commit such an offence. 1991 (1) RCR (Crl.) 565, relied, 1995 (1) RCR (Crl.) 127 : 1999 (1) RCR (Crl.) 845, Distinguished."
In the present case, there is no doubt that the criminal act stands established and all the accused were found present at the spot. They were members of one family. The occurrence appears to have taken place when the accused had seen the deceased in the street. Kanshi Ram had no weapon of offence with him, whereas, though Zile Singh was holding pistol did not use the same and caused simple injury on the foot only, cannot be said to have common intention to commit murder of Jai Chand. As such, it would be difficult to hold all the accused except accused Rajan guilty of the offence under Section 302 IPC.
For the foregoing reasons, the Criminal Appeal No.743-DB of 2002 filed by the accused Rajan, as well as the Criminal Revision No. 841 of 2003 filed by the complainant Darshana Devi, stand dismissed.
(Hemant Gupta) (A.N. Jindal)
Judge Judge
January 02, 2012
deepak