Punjab-Haryana High Court
Devi And Others vs State Of Haryana on 6 November, 2013
Author: Hemant Gupta
Bench: Hemant Gupta
CRA No.D-709-DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-709-DB of 2009
Date of decision: 6.11.2013
Devi and others .....Appellants
VERSUS
State of Haryana .....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Pavit Mattewal, Amicus Curiae.
Mr. Sandeep Vermani, Additional Advocate General, Haryana.
*******
HEMANT GUPTA, J.
The present appeal is directed against an order dated 21.04.2009 convicting the appellants for an offence under Section 302 and 506 IPC read with Section 34 Indian Penal Code (for short 'IPC'). The appellants have been sentenced, vide order of the same date, to undergo life imprisonment and to pay a fine of `5000/- each for commission of offence under Section 302 read with Section 34 IPC and imprisonment for one year for commission of offence under Section 506 IPC.
Angrej, nephew of the deceased Maya Devi, aged 28 years, gave a statement to Prakash Chand, SI/SHO, Police Station, Sadar, Sonepat at about 11:50 PM on 14.04.1998 on the basis of which FIR No.135 dated 15.04.1998 Ex.PC was lodged at 6:10 AM. He stated that at about half past one in the afternoon on 14.04.1998 he was standing in front of his house Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 2 after lunch, when he noticed Devi son of Kale Ram and Ranbir son of Phooli Ram calling loudly at his auntie Maya Devi wife of Dharambir. They both shouted that she is the cause of 20 years of imprisonment to both of them and will teach her lesson. They caught hold of his auntie. In the meantime, Suresh son of Phooli Ram armed with an axe and Raju son of Chattar Singh armed with a sickle came and instantly attacked Maya Devi by saying that they will not leave her today. Suresh hit on the right side of the head of Maya Devi with axe and then again hit on the neck below the left ear of Maya Devi with reverse side of axe. Maya Devi fell down on the ground. Raju attacked her when she was lying on the ground with sickle in his hand, firstly on the left side of the forehead, secondly on the nose and thirdly on the thigh of the left leg. Maya Devi became unconscious. Suresh again attacked her when she was lying unconscious on the ground firstly on the left ear and then on the right ear with the reverse side of axe. He raised alarm on which his uncle Dharambir and Rajender Mason son of Ram Chander came there. All the accused ran away with their respective weapons saying that they will kill her one day even if she survives. He and his uncle Dharambir took Maya Devi in unconscious condition to PGI Medical College Rohtak, where the doctors admitted her. They returned back to arrange some money and after returning to PGI, Rohtak made a statement to HC Kadam Singh, P.S. Sadar, Sonepat. On such statement, SI Parkash Chand, SI/SHO, Police Station Sadar, Sonepat, recorded proceeding disclosing an offence under Section 323/506/34 IPC and requested registration of an FIR. Maya Devi breathed her last on 18.04.1998 at PGI, Rohtak. The offence was amended to that under Section 302 IPC and special report was sent to Illaqa Magistrate vide Ex.PF. Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 3
The inquest proceedings were conducted by SI/SHO Police Station Sadar, Sonepat. The inquest report is Ex.PB dated 19.04.1998. The apparent cause of death was noticed as due to inflicting injuries. It was observed that though Maya Devi has died due to injuries received in a quarrel, even then it is necessary to know actual cause of death. Therefore, PW1 Dr. Narender Singh conducted postmortem examination on the dead body of Maya Devi on 19.04.1998. The following injuries were found on the person of deceased:-
1. A stitched wound with six stitches, 4 cm on right side of parito occipital region.
2. A heeled wound with one stitch present on left side of left eye, .5 cm x 1 cm. into size.
On dissection, after removing the scalp, there is big hymotoma over the left zygomatic left temporal and left parietal region. There is extra vasation of blood in left side muscle of the area. On removing skull bones, there is extra dual heamorrhage present. On removing dura, there is subdural heamorrhage present. There is heamorrhage at brain stem present. All other organs were healthy except uterus pregnant and containing a fetus and contents. Right chamber of heart was full of blood".
In the investigations carried out by Ravinder Kumar, District Inspector, Sonepat, a report was submitted on 16.06.1998 (Ex. D2) including recording of the statements of Angrej son of Ram Singh Ex.D5 and Savitri wife of Bhale Ram Ex.D8. On such statements, it was inferred that Maya Devi received injuries at the time of cutting of woods. It was reported that Angrej and Dharambir have disappeared from the village. In the investigations carried out, it was found that there is old enmity on account of conviction of the four accused for an offence under Section 323/304/34 IPC Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 4 in a case arising out of case FIR No.146 dated 16.06.1995 registered at Police Station Sadar, Sonepat for murder of Jaipal son of Chandu Ram. In the said case, the accused stand punished for 10 years imprisonment and had been bailed from the High Court. It was concluded that Angrej had given fake application.
Thereafter, another report has been sent by Superintendent of Police, (Ex.D1) to Inspector General of Police on 27.08.1999 that due to the previous conviction of the accused in a case arising out of FIR No.146 dated 16.06.1995 under Section 304 IPC, the complainant might be producing the false evidence by putting false name of the accused. It is also mentioned that it is found that the complainant preferred CWP No.12004 dated 13.05.1998 (number seems to be incorrect) demanding CBI enquiry into the matter but no order is received.
The present trial is result of the complaint filed by Angrej Ex.PD dated 07.05.1998 presented on 08.05.1998. In such complaint, after recording of the preliminary evidence, the learned Additional Chief Judicial Magistrate, Sonepat, passed an order on 14.07.2007 to summon the accused for committing the offence punishable under Section 304/506 read with Section 34 IPC. Subsequently, the learned trial Court passed an order of committing the accused to the Court of learned Sessions Judge vide order dated 17.08.2007. Still further, a perusal of the record shows that a communication dated 31.10.2008 from Police Station Sadar, Sonepat was forwarded by Public Prosecutor to Court on the same date noticing the earlier report dated 29.03.2000, that no case was found against the accused. It is in this background, the present appeal is required to be decided. Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 5
In the complaint filed, it was averred by Angrej Singh, after giving his version of the occurrence that he and his uncle immediately took Maya Devi in unconscious condition to PGI Rohtak where doctor admitted her. The police from Police Station Sadar got his signatures on blank papers which were not read over to him. Maya Devi was speechless in PGI Rohtak and she died at about 4 PM on 18.04.1998 and that the postmortem was conducted on 19.04.1998. He visited Police Station Sadar many times but police colluded with the accused and did not arrest the accused. Instead, police used to threaten him, beat the complainant Dharambir, Rajinder and Roshan. It is the accused No.1 to 4 who have murdered Maya Devi. The motive behind the murder was said to be that Maya Devi was the witness in the murder of Jaipal, brother of her husband Dharambir, for which they were tried for the offences under Section 323, 506, 302 IPC read Section 34 IPC and were sentenced for life imprisonment. The accused were on bail those days. It is also pleaded that Parkash Chand, SI/SHO, Police Station Sadar, Sonepat, and other officials are not proceeding intentionally and are trying to protect the accused. In spite of complaints, no one took any action and, therefore, the complaint was filed.
Apart from proving of postmortem report by PW1 Dr. Narender Singh, the complainant examined PW-5 Dr. B.S. Sharma who medico legally examined Maya Devi on 14.04.1998 while working at PGI Rohtak. He has found the following injuries on the person of deceased:-
"1. Lacerated wound 4 x 1 cm over the right parieto occipital region of skull, vertically placed. Fresh bleeding present.Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 6
2. Lacerated wound 1 x .5 cm over the left eyebrow. Fresh bleeding present.
3. Redish diffuse swelling 3 x 2.5 cm. over the left zygomatic arch.
4. Bilateral fresh bleeding present from both ear and nose.
For injuries no.1 to 3, surgeon opinion was advised whereas for injury No.4, ENT opinion was advised."
PW-2 is Constable Jasbir Singh, who has brought the FIR register of the year 1995 and 1998 and proved FIR No.135 dated 15.4.1998 (Ex.PC) and also FIR No.146 dated 16.6.1995 recorded by HC Raj Singh on the complaint of Maya Devi wife of Dharambir. The said FIR is Ex.PC/1.
PW6 is Parkash Chand, the then SI/SHO, Police Station Sadar, Sonepat. He has proved the recording of FIR, inquest proceedings and the request for postmortem report. In the cross-examination, he admitted that he did not visit the village during the time when the investigation was with him. The investigation was entrusted to some other senior police officers later on under the orders of the then Superintendent of Police.
PW-3 Angrej Singh reiterated the version given in the FIR and in the complaint. He further deposed that the police did not conduct proper investigation. He went to the office of Superintendent of Police 2-3 times, but was not heard and then he filed a complaint. In cross-examination, he admitted that Jaipal and Dharambir-PW are real brothers and deceased Maya Devi was wife of Dharambir whereas the name of wife of Jaipal is Roshni. He denied the suggestion that Roshni is more beautiful than Maya Devi and that after the death of Jaipal, Dharambir and Roshni wanted to stay together Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 7 which was to the disliking of Maya Devi. He denied the suggestion that Maya Devi has been killed by Roshni and Dharambir. He admitted that he is running a tyre puncture repair shop for the last 15-16 years and his shop is at a distance of 1 to 1-1/2 KM from his house. Usually he goes to shop at 6 AM and returns at about 8:30-9:00 PM. In further cross-examination, he stated that except the officers of Police Station Sadar, no other higher authority came to village to conduct any inquiry. He denied the suggestion that during the investigations, the accused were not found present in the village on the date of occurrence. He stated that police came to village only once, which was 3-4 days after the funeral of his Chachi Maya Devi. He denied any knowledge about the statement made by Rajender Mistri that the accused had not murdered Maya Devi. He stated that Rajender told him that he had been beaten by police at the Police Station and that he had murdered Maya Devi. He denied the suggestion that accused did not commit murder of Maya Devi and that he has falsely implicated them. He denied the suggestion that Dharambir demanded money from the accused and in case money will be paid they will withdraw from the prosecution. He stated that it had taken about 30 to 45 minutes to reach Navjivan Hospital from the spot as he had to arrange Auto in the meantime. No villager came as it was a harvesting season. PW-4 Dharambir reiterated the version given by Angrej in examination-in-chief. He denied the suggestion that he and Roshni were having illicit relations and Maya was obstacle and that he and Roshni murdered Maya Devi. He stated that Roshni was like his child being younger brother's wife. He stated that when he reached Gitwar he saw two of the accused were catching hold of Maya Devi. The occurrence took place at about 1:30 P M for about 2 or 3 minutes. They reached Navjivan Hospital Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 8 after about half an hour and Rohtak Hospital at 5:30 PM. He stated that it was hospital people who informed police and when the police went to the spot they were in hospital. The police did not take any action against the accused. At the time of recording statement of Angrej, he had gone to take medicine. Thereafter, the police came only on the date of postmortem examination. He narrated the entire occurrence to Inspector Ravinder after 13th day ceremony but instead of taking any action against the accused he started pressurizing them. They did not tell about the occurrence to any villager or Sarpanch etc. but the entire village knew about the occurrence. Before filing the complaint in Court they had made complaints to Ch. Bansi Lal, Superintendent of Police, Deputy Superintendent of Police etc. In defence, the accused examined DW-1 Ram Kishan, Complaint Clerk, S.P. Office, Sonepat, who has produced reports Ex.D1 and Ex.D2 the reference to which has already been made. DW-2 is Angrej Singh son of Ram Singh. He deposed that Raju son of Chattar and Ranbir son of Phooli Ram were working in his fields from 10 AM to 4:30 PM on 14.04.1998 for harvesting the crops. He stated that he did not know who murdered the wife of Dharambir but the accused were not involved in that murder, as two of the accused were working with him. He admitted to have given statement Ex.D5 disclosing that Dharambir had murdered his wife. In cross-examination, he admitted the purchase of plot of accused Devi- accused after payment of sale consideration, about 5 years prior to recording of statement on 26.02.2009. He admitted that no sale deed was executed but the reliance is placed upon writing. He denied this suggestion that he is deposing falsely and that accused were doing any work in his fields on the Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 9 day of occurrence. DW-3 is Savitri wife of Bhale Ram, who deposed that about 11 years back wife of Dharambir was lying injured in the street and Dharambir was standing there. He asked them to help him in checking his wife and take her to hospital. Kamla accompanied her at that time and Dharambir was accompanied by his father. She supported the statement Ex.D8 made by her before the police. Angrej was said to be not present at the spot on that date. In the cross-examination she admitted that her house is situated ahead to the place where wife of Dharambir was lying and that her house is not visible from the place where wife of Dharambir was lying. She admitted that accused Devi etc. are residing near her house and that police recorded her statement after 7-8 days of the occurrence. She has not seen Angrej Singh, DW-2, on that day. She denied the suggestion that murder of Dharambir's wife is committed by the accused. DW-4 is ASI Ishwar Singh, who has brought record which are reports Ex.D1 and Ex.D2 and the originals of the statements recorded during police investigations including of DW Savitri.
In the statements recorded under Section 313 of the Code of Criminal Procedure (for short 'Cr.P.C.'), the stand of the accused is that false FIR was lodged against them. Inquiry and investigation was conducted and they were found innocent. Even, the higher authorities found them innocent. Therefore, the complainant filed this false complaint as he is adamant to harass and humiliate them.
After considering the evidence so led, the learned trial Court convicted and sentenced the accused as mentioned above. Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 10
Learned counsel for the appellant has vehemently argued that presence of PW-3 Angrej is doubtful as he admitted that he goes to his shop situated at a distance of 1 to 1-1/2 KM at 6 AM and returns back at 8:30- 9:00 PM. Therefore, his presence at about 1:30 PM on 14.04.1998 near his house is doubtful. It is also argued that Rajender Mistri, whose name finds mention in the FIR has not been examined by the complainant either at the preliminary examination before summoning or later. Therefore, the reason not to examine the said witness that he has been won over is a made out ground. It is argued that statement of Rajender Mistri under Section 161 Cr.P.C. is on record wherein he has denied having witnessed the occurrence. On the other hand, apart from the investigation reports conducted by the District Inspector and Superintendent of Police Ex.D2 and Ex.D1 respectively, the evidence of DW-2 Angrej Singh and DW-3 Savitri belies the complainant case. The complainant had a motive to implicate the appellants for the reason that the appellants were on bail in a murder case of brother of Dharambir. The police in its investigation not found any truth in the allegations and consequently not charged the appellants for any offence. Therefore, in the private complaint, the conviction of the accused is wholly unwarranted and unjustified.
We have heard learned counsel for the parties and find no merit in the present appeal. Though PW-3 Angrej has stated that he goes to his shop at 6 AM and comes back at about 8:30-9:00 PM, but the fact remains that he, in the witness box, has stated that he was standing near his house after taking his meals around 1:30 PM. It is natural for a person to go to his house for lunch, from the place of work situated in the same town. The Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 11 MLR Ex.P-2 records that the patient was brought at 5:30 PM on 14.04.1998 by Dharambir son of Chandu Ram. Keeping in view the distance and the fact that the arrangement has to be made for transportation of the injured to Rohtak, the recording of MLR at 5:30 PM corroborates the stand of the complainant that the occurrence had taken place at 1:30 PM. Even otherwise, there is no cross-examination conducted in respect of time and place of occurrence. She died on 18.4.1998 on account of the injuries suffered. Even the defence witness DW3 Savitri's testimony corroborates the complainant case about the time and place of occurrence. Therefore, we find that Maya Devi, a pregnant woman, died on 18.04.1998 on account of the injuries inflicted by sharp edged weapons on 14.04.1998 around 1:30 PM.
Suggestion given to PW-3 Angrej is of relations between Dharambir and Roshni or causing death of Maya by Dharambir. The graphic details of the manner of occurrence, the fact that his house is near the house of Maya Devi-deceased and the fact that the statement of Angrej that he was standing outside his house after taking meals conclusively leads to presence of Angrej at the time of occurrence. In the lengthy cross-examination conducted, it could not be pointed out that he was not witness to the occurrence except to the extent that he goes to his shop at 6 AM and comes back at 8:30-9:00 PM. Even such long working hours does not lead to the inference that the witness could not go to his house for lunch which is situated at 1 to 1-1/2 KM from his shop.
On the other hand, presence of Dharambir, who is also an eye- witness of the occurrence is admitted by Savitri, examined by the defence as Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 12 DW3, in examination-in-chief itself to the effect that wife of Dharambir was lying injured in the street, when Dharambir asked her to help him. Meaning thereby, she is not eye-witness of the occurrence but came to the spot after the occurrence and saw Dharambir at the spot. The defence that Dharambir has murdered his wife, as suggested in the cross examination, stands shattered that it is unbelievable that after murder in a locality, the murderer would keep standing at the place of occurrence. Her statement that Angrej was not present at the spot is a self-serving statement which is not sufficient to counter the statement of Angrej regarding his presence. The statement of Angrej has been believed by the learned trial Court and we find no reason not to believe the statement of Angrej regarding his presence and his deposition regarding manner of occurrence.
PW-4 Dharambir has also deposed the manner of occurrence. His presence as mentioned above is admitted by Savitri (DW3). On the basis of such statements, the learned trial Court has rightly convicted the accused for the offence under Section 302 IPC read with Section 34 IPC and 506 IPC.
We find that the argument that Rajender Mistri or any other independent witness from the locality has not been examined is not conclusive to doubt the version of the complainant. Non-joining of independent witnesses is a factum to consider the statement of the near relations with more care and caution but the statement of the near relations cannot be excluded only for the reason that independent witnesses have not been joined. We also find that the defence witnesses, DW-2 Angrej Singh or DW-3 Savitri, do not advance the case of the defence any further. DW-3 Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-709-DB of 2009 13 Savitri, in fact, contradicts the presence of Dharambir at the spot, whereas it is a case of simple denial of presence of two of the accused at the time of occurrence. Such type of evidence can be produced by any person at any time.
However, we note the shoddy investigations carried out by the District Inspector culminating into report (Ex.D2) and the communication of Superintendent of Police, Sonepat (Ex.D1). Such reports, though are on record, but are not evidence in the present case as the mere production of the reports and the previous statements are not per se admissible. There is nothing on record that the cancellation report dated 29.03.2000 or 31.10.2008 was considered by the concerned Court at any time. Such reports should have been considered by the learned trial Court at the time of recording of the final judgment. It is expected that the cancellation report, if any, submitted is considered by the Court seized of a complaint.
In view of the finding recorded, we find no merit in the appeal. The present criminal appeal is, thus, dismissed.
(HEMANT GUPTA)
JUDGE
NOVEMBER 6, 2013 (FATEH DEEP SINGH)
'D. Gulati' JUDGE
Diwakar Gulati
2013.11.18 12:06
I attest to the accuracy and
integrity of this document