Punjab-Haryana High Court
Vinod & Anr vs State Of Haryana on 26 February, 2016
Author: Amol Rattan Singh
Bench: Rajive Bhalla, Amol Rattan Singh
Criminal Appeal No.D-633-DB-2009 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
1. Criminal Appeal No.D-633-DB of 2009
Date of Decision: February 26, 2016
Vinod and another
...Appellants
Versus
State of Haryana
...Respondent
2. Criminal Appeal No. CRA-D-1080-DB-2009
State of Haryana
...... Appellant
versus
Mohan Lal and others
... Respondents
3. CR No. 2585 of 2009
Surjit Kumar
... Petitioner
versus
State of Haryana and others
... Respondents
CORAM:HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Ms. Manjari Nehru Kaul, Advocate and
Mr. A. S. Sullar, Advocate,
for the appellants in CRA-D-633-DB of 2009.
Mr. Ashwani Bhardwaj and Mr. Jagjit Gill, Advocates,
for the petitioner in Crl. Revision No.2585 of 2009.
Mr. Baldev Singh, Addl. A.G., Haryana and Ms. Tanisha
Peshawaria, DAG, Haryana, for the appellant in CRA-D-1080-
DB of 2009), for the respondent-State in CRA-D-633-DB of 2009
DINESH
and in Crl. Rev.No.2585 of 2009.
2016.03.01 13:12
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integrity of this document
Chandigarh
Criminal Appeal No.D-633-DB-2009 -2-
Amol Rattan Singh, J.
Two appeals and a revision petition arise from the judgment of the learned Sessions Judge, Sirsa, dated 05.05.2009. Criminal Appeal No.633 of 2009 has been filed by Vinod and Perhlad, both sons of Gangajal, residents of village Malikpura, District Sirsa, against their conviction by the learned trial Court, for the commission of an offence punishable under Section 302, read with Section 34 of the IPC and their consequent sentencing to life imprisonment and payment of a fine of Rs.5000/- each, in default of which they have been ordered to further undergo rigorous imprisonment for one month each.
Criminal Revision No.2885 of 2009 has been filed by Surjit Kumar son of Jiwan Ram, also resident of village Malikpura, against the acquittal of Mohan Lal and Satpal, both sons of Dhanraj @ Moman Ram, both also resident of village Malikpura, vide the aforesaid judgment. Criminal Appeal No.1080-DB of 2009, has been filed by the State of Haryana, also against the acquittal of the aforesaid two persons.
2. The facts giving rise to the case, are that on 20.02.2008, Surjit Kumar son of Jiwan Ram, aged about 21 years (petitioner in Criminal Revision No.2885 of 2009), is shown to have stated before SI Ranbir Singh, SHO, P.S. Odhan, District Sirsa, at that he (complainant) and his uncle, Chhotu Ram son of Ram Kumar, were present at his uncles' shop when they heard a noise at about 1:00 AM and came outside the shop and saw that Vinod Kumar, Perhlad, Satpal and Mohan Lal aforesaid, were dragging his brother, Sandeep Kumar, by holding his hands and legs, towards the house of Sohan Lal son of Mani Ram, caste Jat, resident of village Malikpura.
As per the statement (Ex.P15), there was an axe in the hands of DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -3- Vinod Kumar, an iron rod in the hands of Satpal, "toplin" (Top-link/ coupling rod) of a tractor in the hands of Perhlad and a "Gandasi" in the hands of Mohan Lal. The complainants' brother, Sandeep Kumar, was crying and asking the aforesaid persons not to beat him and to let him go. His brother was taken into the house of Sohan Lal and the door of the house was then shut. Upon the complainant and his uncle going after them, they saw from gaps in the door, that all the aforesaid persons were causing injuries with their weapons to Sandeep Kumar, on his head, face and legs and were saying that he should be taught a lesson for coming to the house of Sohan Lal.
(It needs to be said here that though the English version of Ex. P-15 shows the statement to read at the relevant part to say that the Gandasi was in the hands of Sohan Lal, the Hindi version, checked from the lower court record, reads to say that it was in the hands of Mohan Lal. Therefore, the name has been taken from the original (Hindi) document, hereinabove.) The statement further goes on to narrate that Sohan Lals' wife, Sunita Devi, was also crying and saying that Sandeep Kumar should not be beaten as he had committed no fault.
The complainant and his uncle are stated to have "called" from the outside, but were chased by the four persons named above and therefore, they entered their shop and kept on sitting inside the shop, due to fear. 2-A. On the rising of the sun, they reached the spot and saw the dead body of Sandeep Kumar lying there, stained with blood and they heard the sound of Sunita Devi weeping, from inside a room which was bolted from outside. After unbolting the door, she was taken out, and while continuing to weep, she disclosed the entire episode.
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The axe, "Gandasi", iron rod and "toplin" of the tractor are also stated to have been lying there.
The complainant, therefore, stated that Vinod, Satpal, Perhlad and Mohan Lal, after hatching a conspiracy, had committed the murder of his brother, for the reason that they all (the complainant and his family) were on friendly terms with Sohan Lal and the complainants' brother, Sandeep Kumar, used to frequent the house of Sohan Lal, which was not liked by the aforesaid four persons and they nursed a grudge on that count, due to which they had murdered his brother.
3. The above statement (Ex. P-15) is stated to have been recorded at Bus Stand, Mithri, when the police party was present there at 11.50 a.m., on 20.02.2008. Having been recorded and sent to the Police Station for registration of the FIR, and for sending the special reports to the Area Magistrate and police officers, the SHO is stated to have gone to the spot with a police party, to find a large number of people gathered there. The names of 15 people have been recorded in his report, by the Investigating Officer (aforesaid SHO, SI Ranbir Singh). The said list includes the complainant, Surjit Kumar, his uncle Chhotu Ram, and Sunita Devi, along with 12 others. The said report was exhibited as Ex.P4 before the trial Court.
4. Photographs of the place of occurrence, with the dead body lying there, were taken by Kaur Singh, Photographer. Dr. Ajmer Singh, Incharge of the "Scene of Crime" mobile van of the FSL team, is stated to have come present, in whose supervision the house of Sohan Lal is stated to have been inspected.
The description of the house is given in Ex.P39 (Crime Detail Form), wherein it is stated that the dead body of Sandeep Kumar, the DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -5- weapons of offence, clothes and "Chappal" etc. were also lying on the spot.
The weapons shown to be recovered are, an iron rod, axe and "toplin" of the tractor, besides clothes and a "Chappal". A seizure memo (Ex.P17) was sealed with the seal of the Investigating Officer, with the initials "RS" on it.
The body was identified by the complainant and was found to have various injuries on different parts.
Blood stained sand (Ex.P16), from near the dead body, was taken into possession and also sealed. The statements of Rajpal and Chhotu Ram are stated to have been recorded, under Section 175 Cr.P.C. and further inquiries were made from various persons present there, including Meghar Singh son of Mehla and Bajrang son of Mahabir, who are stated to have disclosed that the reason for murdering Sandeep Kumar was an illicit relationship between him and Sohan Lals' wife, Sunita Devi.
The site plan, Ex.P39, was also stated to have been prepared by the Investigating Officer.
Upon completion of the proceedings at the place of occurrence, the dead body of Sandeep Kumar was sent for post mortem examination, to the hospital.
5. As per the post mortem report, the body had 18 injuries on it, of which six were incised wounds on various parts of the body, including four on the head and forehead and one each on the left lower arm and right knee. There were seven lacerated wounds, of which two were described as badly lacerated, on the occipital region of the skull. One wound on the ear is shown to be a 'crushed' wound and the others are contusions on various parts of the body.
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6. All four persons are stated to have been produced before the Investigating Officer on 21.02.2008, at Bus-stand Odhan, by Darshan Singh, Sarpanch of village Odhan, after which they were interrogated and are stated to have made disclosure statements.
As per the disclosure statement of accused Satpal (Ex.P31), he had concealed a "Jailly" and clothes in his house, under a heap of bricks; accused Mohan Lal made a disclosure statement (Ex.P32), regarding concealment of a "Gandasi"; accused Vinod made a disclosure statement (Ex.P33), regarding the concealment of clothes with blood stains and accused Perhlad Singh with regard to concealment of his shoes having blood stains (Ex.P34). All the aforesaid items, stated to have been concealed by the four accused, are shown to have been recovered, vide memos Ex.P35 to Ex.P38.
7. The matter having been investigated and the report under Section 173 Cr.P.C. having been submitted to the competent Court, and the case thereafter committed to the Court of Sessions, vide order dated 01.05.2008, implicating all four accused, i.e. the two appellants in Criminal Appeal No.633 of 2009 and respondents No.3 and 4 in Criminal Revision No.2585 of 2009, a charge for an offence punishable under Section 302 read with Section 34 of the IPC was framed against all of them and with all of them having pleaded that they were not guilty, they were put to trial.
8. The prosecution examined twelve witnesses and placed on record the following exhibits:-
1) Post Mortem Report : Ex.P1, Ex.P2
2) Ruqa to M.O. : Ex.P3
3) Inquest report : Ex.P4
4) Readymade Pyjama : Ex.P5
5) Shirt : Ex.P6
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Chandigarh
Criminal Appeal No.D-633-DB-2009 -7-
6) Baniyan : Ex.P7
7) Jacket : Ex.P8
8) Kachha : Ex.P9
9) Tractor Toplin : Ex.P10
10) Kulhari : Ex.P11
11) Gandasi : Ex.P12
12) Broken Jailly : Ex.P13
13) Ruqa and First Information Report : Ex.P15, Ex.P15/A & Ex.P20
14) Property search & seizure memo : Ex.P16
15) Property search & seizure memo : Ex.P17
16) Scaled site plan : Ex.P18
17) Recovery memo of clothes of deceased : Ex.P19
18) Ruqa to SHO : Ex.P9
19) Affidavit of HC Jeet Ram : Ex.P21
20) Affidavit of EHC Pal Singh : Ex.P22
21) Photographs and negatives : Ex.P23 to Ex.P26 & Ex.27 to
Ex.P30
22) Disclosure statement of accused Satpal : Ex.P31
23) Disclosure statement of accused Mohan Lal: Ex.P32
24) Disclosure statement of accused Vinod : Ex.P33
25) Disclosure statement of accused Perhlad : Ex.P34
26) Recovery memo of Jailly : Ex.P35
27) Recovery memo of Gandasi : Ex.P36
28) Recovery memo of Clothes : Ex.P37
29) Recovery memo of Shoes : Ex.P38
30) Site plan of the place of recovery of shoes of accused : Ex.P39
31) Crime detail Form and rough site plan of place of occurrence : Ex.P39
32) Site plan of the place of recovery of clothes : Ex.40
33) Rough site plan of the place of recovery of Gandasi : Ex.P41 34 Rough site plan of the place of recovery of clothes and Jelly from accused Satpal : Ex.P42
35) Forensic Science Laboratory Report : Ex.P43, Ex.P44 The defence examined two witnesses and relied upon one document, i.e. the statement of Sunita Devi, which was exhibited as Ex.D1, before the trial Court.
9. The first witness for the prosecution was Dr.Hans Raj Baseer, DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -8- Medical Officer, Government Hospital, Sirsa who, along with Dr. Jagdeep Aggarwal, Medical Officer, is stated to have conducted the post mortem examination on the body of Sandeep Kumar. He deposed in terms of the post mortem report and stated that death was a result of the injuries described in the report, which were all ante-mortem in nature and that the probable time between injuries and death "was variable" and between death and post- mortem was within 24 hours.
Upon the alleged weapons of offence having been taken out from their sealed covers (in the trial Court), this witness stated that the possibility of the injuries having been caused by these weapons, could not be ruled out.
In cross-examination, he admitted that he had not shown corresponding markings/cuts/holes in the clothes worn by the deceased, in the PMR, and stated that presently (on the day of his testimony), there was one big hole in the cloth due to the piece cut out in the Forensic Science Laboratory, and there are three cuts by other weapons.
He further admitted, upon cross-examination, that there was one vertical tear-cut in the "right trouser" and that there was one injury shown on the right leg with no corresponding injury to the other cut in the leg. He, thereafter, testified to another cut in the shirt corresponding to an injury near the elbow.
He also admitted having not shown the presence of any hair cut on the head, and further admitted that an injury by a blunt weapon on the bony region like the skull, may look like an incised wound.
The doctor further stated that he and his colleague had used a magnifying glass to see the injuries but this fact was not mentioned in the DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -9- PMR. He denied the suggestion that they had given the wrong nature of injuries, i.e. he denied that incised wounds in the skull region also, were actually caused by blunt weapons.
The doctor further stated that seeing the presence of rigor mortis on the limbs, the possibility of death in this case at about 8/9:00 PM on 19.02.2008, could not be ruled out. He further stated that it takes 3 to 6 hours for digestion of food and that the possibility of death in this case, may have been within 3-4 hours after taking of his meal, by the deceased. He also stated that if a person remains alive, the digestive system will work upto his death.
PW1 deposed with regard to receipt of an application for conducting of the post mortem examination at 3:00 PM and that it was actually conducted at 4:00 PM, though he did not know at what time the body had been received in the hospital.
10. The next witness was the complainant, Surjit Kumar (PW2), who, in his examination-in-chief, largely deposed as per the statement made by him on the basis of which the FIR was registered and further stated that after the complaint was lodged, the police came to the spot and lifted blood stained earth and took weapons, i.e. the "Gandasi", "toplin", iron pipe and a pair of "Chappals" (slippers) belonging to Sandeep Kumar, sealing them with the seal of "SR" and that memos of recovery/possession of the aforesaid items were prepared, which this witness identified as Exs. P16 and P17, signed by him and Chhotu Ram.
In cross-examination, PW2 stated that he had seen the "Gandasi", the broken "Jailly" and "Kulhari" lifted from the spot by the police, in Court. He further stated that the police came to the spot at about DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -10- 8/8:30 AM and continued proceedings till 11:00 AM and that his signatures were obtained at the spot by the police.
Thus there is a discrepancy with regard to the weapons recovered from the spot, in his examination-in-chief (and initial complaint) and his cross-examination.
He further stated that after 11:50 AM the dead body was taken "by us" to Government Hospital, Sirsa and that all the members of his family had come to the hospital, except Sunita. The dead body is stated to have been handed over to the family at 7:00 PM, after the post mortem examination. (It needs to be noted that Sunita seems to have been wrongly included by this witness in the term "family", as she was Sohan Lals' wife, who is not of the complainants' family).
The complainant further stated in his cross-examination that though there was a telephone installed at their house, they did not have mobile phones, though Sandeep had one which was not traceable.
He further stated that they had a joint family, including his Uncle. (As per the trial Courts' recording, the witness broke down at this stage).
PW2 thereafter, in his cross-examination, gave the distance between his uncles' shop and their house to be about 1 km and further stated that there were about 20/25 houses of "our Pandit" community in the village and that there were about 20/25 adults/youths (in Hindi stated as "Yuva") members of the community and that there were telephone connections in other houses in the community also.
He further gave the distance between their shop and the spot of occurrence to be about 20/25 paces.
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He gave the dimension of the shop to be about 10/10 ft. and stated that articles worth Rs.2000/- to Rs.3000/- were lying in it. He further stated that occasionally they used to sleep in the shop.
The witness also admitted that his uncle, Chhotu Ram, was addicted to liquor.
He further stated that the place of occurrence is surrounded by other houses and that the height of the boundary walls of the houses of Gangajal and Sohan Lal would be about 5/6 ft., as were boundary walls of other houses. He then stated that Gangajal had two brothers, Mani Ram and Dhanraj @ Moman Ram but they had been living separately for the last ten years and had separate cultivation. He also stated that Mani Ram was the father-in-law of Sunita.
As per this witness, he came to the shop from his house at about 9:00 PM and when he had left the house, Sandeep was present there and that he, Sandeep and Chhotu Ram had taken dinner at 8/8:30 PM. He however denied knowledge as to whether Sandeep had gone to the house of Sunita.
When he was recalled for further cross-examination, PW2 stated that he witnessed the accused persons beating his brother in the street, at a distance of 5/7 paces from the house of Sunita, however, he could not say as to the number of injuries that his brother had sustained at that time, though he said that his brother fell down on the ground, while he was being beaten in the street for about 5/7 minutes.
He next stated that his brother had fallen unconscious on account of the injuries in the street and that "we were also at a distance of 5/7 paces from my brother".
According to the complainant, they raised a cry in the street but DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -12- did not try to rescue his brother and he further stated that he did not inform anyone when his brother was being beaten.
He next stated that he saw his brother being beaten inside the house of Sohan Lal for about 10/15 minutes but could not state as to where the accused had gone after the occurrence.
As per PW2, he and his uncle came out from their shop at about 8:00 AM and went to the Police Station to lodge the report, on a bicycle, and upon return, found that other villagers had also gathered at the spot. According to him, the police arrived before they returned to the spot.
PW2 next stated that the statement of his uncle, Chhotu Ram, was also recorded by the police but denied knowledge as to whether the statements of other people were recorded or not.
According to this witness, Sohan Lal (husband of Sunita) was "present in the house" but was "not present inside the house" when his brother was being beaten. He further stated that Sohan Lal remained present during the proceedings conducted by the police at the spot.
He also stated that Sohan Lal had two sons, aged about 8 years and 5 years and that Harbans @ Dholu was the brother of Sohan Lal. He further stated that Dholu had one son and one daughter and that he resided in the village itself.
Next, as per this witness, Sandeep had cordial relations with Sohan Lal but he could not tell since how long. He further stated that he had not seen Sandeep visiting Sohan Lals' house and also did not know if Sunita had tried to commit suicide after the occurrence. However, he said that she was residing at her parental house after the occurrence. He denied knowledge of how many brothers Sunita had and further stated that there DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -13- was a quarrel between Sohan Lal and Sunita prior to the occurrence, though he did not know the reason for the same and as to whether any Panchayat was convened on the issue. He further denied the suggestion that Sandeep had been 'beaten' by Sohan Lal and the brothers and father of Sunita and further stated that he did not see Sandeep in the house of Perhlad on the day of the occurrence. He further denied the suggestion that they had saved Sunitas' husband and brothers at her instance and falsely implicated the accused because they (the accused persons), used to tell Sohan Lal and his in-laws that Sunita had illicit relations with Sandeep.
He, lastly, denied the suggestion that he did not witness any occurrence and that he had been introduced as a false witness in the case, being the brother of the deceased.
11. Sunita, wife of Sohan Lal, aged 30 years, appeared as PW3 before the trial Court and identified the accused persons in the Court and further stated that her father-in-law, Mani Ram, had two brothers, Gangajal and Moman Ram, who were residing separately and that her brother-in-law (husbands' younger brother) was also living separately.
She further stated that Sandeep, deceased, was on visiting terms with her husband, which was objected to by Satpal and Vinod (sons of Moman Ram and Gangajal respectively) and that on the night of 19/20.02.2008, her husband had gone to village Risalia Khera to meet his sister and that at about 1/1:30 AM, she heard some noise from the house of Vinod, upon which she opened the door of her room and "it came to my notice" that Satpal, Vinod, Mohan Lal and Perhlad, whom she again identified in Court, were beating Sandeep in the house of Vinod.
According to this witness, Mohan Lal was armed with a DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -14- "Gandasi", Satpal with an iron pipe, Perhlad with a "toplin" and Vinod with a "Kulhari".
She next stated that Vinod came into her house by scaling the common wall and opened the main gate and thereafter, all the remaining accused dragged Sandeep inside her house. She further stated that Sandeep cried for help and she tried to rescue him but she was put inside a room and the door latched from outside.
She stated that she remembered that Mohan Lal had given a "Gandasi" blow below the ear and neck of Sandeep and Perhlad had given a "toplin" blow on his head and Satpal had given a blow with his iron pipe on Sandeeps' chest and back and that Vinod gave "Kulhari" blows on his leg and hand, though she did not remember precisely which hand.
This witness further stated that in the morning at about 7:00/8:00 AM, Surjit Kumar and his uncle, Chhotu Ram, had opened the door of the room that she had been shut in and that after some time the police came there and found the "toplin", iron pipe and "Gandasi" lying at the spot.
She further stated that she had narrated the entire story to the police.
On cross-examination, she said that her statement was recorded by the police between 11:15 to 11:30 AM and that the police had left their house "on 19.02.2008 at about 10:00 AM" (cross-checked from the Hindi version, where it is also recorded as such.) This witness further stated that the deceased was on visiting terms with her husband for the last one or two years but never came to their house in the absence of her husband. She further stated that he also did not DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -15- visit their house on the night of the occurrence. She denied that in her statement (Ex.D1), she had stated that Sandeep had visited their house on that very night and stayed upto 1:00 AM and that she was alone and he was going back to his house. She was confronted with the statement (Ex.D1), where it was so recorded to the contrary.
The witness also denied the statement to the extent that Satpal and Vinod were hiding in their houses and that when Sandeep reached near the gate, Satpal gave a "Lalkara" that the enemy had come and due to fear, Sandeep tried to hide himself in the house of Vinod. At this point, she was again confronted with the statement (Ex.D1), where it was recorded to the contrary.
Upon this, she stated that this part of her statement (in Ex.D1) had been inserted at the instance of the accused persons. She further stated that when her statement was recorded by the police, Vinod and Satpal were present near her and the other two had quietly slipped away (taken from the Hindi version).
She gave the height of the wall of the house of Satpal to be about 4 ft.
She then stated that she could not tell the number of injuries inflicted by the accused persons in Vinods' house but said that they inflicted injuries (upon Sandeep) for about 3 to 4 minutes in that house and that blood may have fallen on the ground in Vinods' house and, as per this witness, Sandeep had remained in his senses at that time.
Sunita further stated in her cross-examination, that in her statement, Ex.D1, she had stated that Vinod had came to her house by scaling the wall in between and had opened the main gate. At this point, she DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -16- was again confronted with the statement (Ex.D1), where it was not recorded as such.
She further stated that she saw Surjit Kumar and Chhotu Ram for the first time when they took her out of the room where she had been confined and further stated that her husband had come home at the same time that the police had reached there, about 9/9:30 a.m. She further stated that her husband had been called by the accused persons themselves and that there was no telephone connection in her house.
She further testified that she was residing with her parents since 21.02.2008 but denied that there was a dispute between her husband and her, prior to the occurrence.
She admitted that she had tried to commit suicide on 21.02.2008 at her in-laws' house, as she was under immense pressure from the side of the accused for having made a statement against them to the police. This witness denied the suggestion that she had illicit relations with Sandeep or that the accused had told her husband about this. She further denied that Satpal and Vinod had ill-will against her husband and therefore she had been made a tool in this occurrence. She also denied the convening of any Panchayat prior to the occurrence.
PW3 further denied the suggestion that Sandeep had received injuries at the hands of her husband, her brother and father instead of at the hands of the accused persons, or that the accused persons had disclosed her illicit relations with Sandeep to her husband and her father and because of that they were being falsely implicated, in order to save her husband and brother.
She, lastly, denied the suggestion that her husband had not gone DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -17- to Risalia Khera (to visit his sister).
12. Radhey Sham, Draftsman, was a formal witness (PW4) who stated that he had visited the spot on 29.03.2008 and prepared the scaled site plan which he identified as Ex.P18 and stated that it was prepared at the instance of the complainant, Surjit Kumar.
13. PW5 HC Dharamvir deposed with regard to being present at the hospital at the time of post mortem examination and to the factum of him having been handed over a parcel of clothes by the doctor, which was then handed over to the Investigating Officer, who took the parcel into possession, vide memo Ex.P19, under signatures of this witness.
On cross-examination, this witness stated that the parcel had been handed over to him by the doctor but he did not remember the exact time and that he had produced the parcel before the Investigating Officer on the next day at the Police Station, again expressing ignorance about the time.
14. ASI Subhash Chander of Police Station Odhan was PW6, who deposed that on 20.02.2008 he received a "ruqa" (communication), Ex.P15, sent by SI/SHO Ranbir Singh through EHC Karambir, on the basis of which this witness recorded the FIR (Ex.P20), on which he identified his signatures and further stated that he had sent special reports to the Area Magistrate and senior officers through Constable Bihari Lal.
On cross-examination, he stated that he received the "ruqa" at 12:30 PM and that it took about 1½ hours in getting the FIR written, through the MHC and that he handed over the special reports to Bihari Lal at 1:30 PM. He gave the distance of the residence of the Area Magistrate to be about 30 kms from Police Station Odhan. He denied the suggestion that the entry with regard to the special reports did not contain the name of the eye DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -18- witnesses.
15. PWs7 and 8 were formal witnesses, who tendered their affidavits, Exs.P21 and P22 in evidence, the first of which was sworn by HC Jeet Ram (PW7), with regard to the case property, i.e. alleged weapons of offence, blood stained earth, specimen seal and clothes of the deceased, sealed with the seal of the SHO, i.e. "RS". As per the affidavit, the case property was deposited on 21.02.2008 and also consisted of one parcel of "Jailly", used by accused Satpal, one parcel containing shoes worn by accused Perhlad Singh at the time of occurrence and one parcel containing blood stained clothes worn by accused Vinod at the time of occurrence, as also one parcel containing a "Gandasi" 'presented' by accused Mohan Lal, sealed with "SS", along with the specimen seal. The case property, aforesaid, was sealed with the seal "RS".
The affidavit further states that the case property was handed over to EHC Pal Singh on 03.03.2008, to be deposited at the FSL Madhuban, which was duly done by him and the receipt also handed over to him (PW7) by PW8, EHC Pal Singh, on return.
Ex.P22 is the affidavit of EHC Pal Singh (PW8), corroborating the affidavit of HC Jeet Ram.
16. PW9 was another formal witness, Kaur Singh, Photographer, who stated that he was summoned by the police on 20.02.2008 and accordingly, had gone to village Malikpura and taken photographs of the deceased from various angles, which he identified to be Ex.P23 to Ex.P26 and the negatives thereof as Ex.P27 to Ex.P30.
17. Constable Bihari Lal was PW10, who corroborated that he was handed over the special report by Subhash Chander, which was delivered to DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -19- the Illaqa Magistrate at 2:30 PM and to the Reader of the Superintendent of Police, Sirsa and Additional Superintendent of Police, Sirsa.
On cross-examination, he stated that he had gone to the residence of the Illaqa Magistrate by bus. He denied the suggestion that he had received the special report at 1:45 PM.
18. Head Constable Satbir Singh appeared as PW11 and stated that on 21.02.2008 he was posted as an ASI at Police Station Odhan and was present along with SI Ranbir Singh and other police officials, in connection with investigation of the case at Bus-stand Odhan, when Darshan Singh, Sarpanch, produced all the four accused before the SHO (SI Ranbir Singh), after which they were interrogated by the said SHO.
The witness further stated that, first, accused Satpal made a disclosure statement (Ex.P31), that he had kept concealed a "Jailly" and clothes worn by him, underneath the bricks at his house and would get them recovered. Similarly, as per this witness, accused Mohan Lal, on interrogation, made a disclosure statement (Ex.P32) with regard to getting the "Gandasi" recovered and accused Vinod stated that he would get his clothes recovered, concealed by him in the "Toori" lying in his house. Accused Perhlad also is stated to have made a disclosure statement that he had kept concealed his blood stained shoes in the "Toori" lying in the, courtyard of his house and would get the same recovered.
As per the witness, all the accused signed their respective disclosure statements as did ASI Jagdish Prashad and this witness, in attestation of the documents.
He further went on testify that the accused, as per the disclosure statements, got all the above mentioned articles recovered, vide recovery DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -20- memos, Exhibits-P35 to P38, which were also signed by the accused and attested by ASI Jagdish Prashad and this witness, after which all the articles are stated to have been sealed with the seal of "SS" separately and the seal is stated to have been given to this witness, after use.
On cross-examination, he stated that the police party started from Police Station Odhan at 8:30 AM in Government Jeep No.HR-24F- 8707 to go to village Malikpura and that Darshan Singh, Sarpanch, had met them at Bus-stand Odhan, which was at a distance of about 100 yards from the Police Station. He further stated that village Malikpura falls after the Bus-stand, if one started from Police Station Odhan. He next stated that they reached the Bus-stand at 11:00 AM, as, before that, they had gone to village Malikpura at 9:00 AM and stayed there for about one hour. He testified that the police party had gone to the houses of Moman and Gangajal and ladies were found present there.
After this, there is a discrepancy between the Hindi and English versions of the witness' testimony, inasmuch as, the English version states that "we left village Malikpura at 10:15 AM", whereas the Hindi version states that they reached village Malikpura at 10:15 AM.
He further stated that Darshan Singh, Sarpanch of village Odhan, arrived 5/7 minutes after the arrival of the police party and that the police party was standing on the right side of the road, if a person comes from Dabwali to Sirsa.
This witness further stated that the accused were interrogated "there upto 3:00 PM" and people from the public were passing by and were also available at Bus-stand Odhan and that the population of village Odhan is situated on both sides of the road with many shops situated at the Bus- DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -21- stand. He however, did not remember if anyone was asked to become a witness by the Investigating Officer or not.
He next stated that the police party left the Bus-stand at 3:30 PM to go to village Malikpura, where they reached at 4:15 PM and stayed there till 7:00 PM. He also could not remember if any person was asked to become a witness after reaching the village and further stated that nobody was sent in his presence by the Investigating Officer to summon such public witness.
PW11 further stated that no passer-by met them on the way while going to effect recoveries and stated that all the recoveries were made from the places situated within the "Abadi" of the village.
He then stated that they returned to the Police Station at 9:30 PM and denied the suggestion that the accused were not produced by Darshan Singh, Sarpanch, or that they were already in the custody of the police and nothing was got recovered from them. He also denied the suggestion that no disclosure statements were made by the accused and false recoveries were shown and the signatures obtained in the Police Station.
The witness next stated that he was with the Investigating Officer on 20.02.2008 (i.e. on the day of the occurrence), when they went to inspect the spot where the dead body was lying and reached there at 9:15 AM. Though he could not remember for how long they stayed at the spot, he further stated that after starting from the Police Station at 8:15 AM on 20.02.2008, they reached directly at the place of occurrence and that the distance between village Malikpura and Odhan is about 20 kms, which was covered in half an hour. (Obviously, there is a discrepancy here, inasmuch as, if the distance was covered in half an hour, either the time of reaching, or DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -22- the time of starting from the Police Station, is wrongly given, because 8:15 AM and 9:15 AM are one hour, not half an hour, apart). He further stated that they did not stay anywhere on the way between Police Station Odhan and Malikpura.
Lastly, PW11 denied the suggestion that the "Jailly" and "Gandasi" were found lying near the dead body and stated that the "toplin", iron pipe and "Kulhari" were found lying near the body when the police party reached there.
19. The last witness for the prosecution, PW12, was the Investigating Officer, SI Ranbir Singh, who stated that on 20.02.2008, when he was posted as the SHO of Police Station Odhan, he along with SI Jagdish Parshad, ASI Satbir Singh, HC Karambir and HC Pal Singh, were present at the Bus-stand of village Mithri, with the Government jeep allotted to him, when Surjit Kumar, complainant, met the police party, along with his uncle, and made his statement (Ex.P15), which this witness stated he endorsed as Ex.P15/A and sent to the Police Station for registration of a case, through HC Karambir, consequent upon which the FIR (Ex.P20) was registered.
He further stated that he summoned the "Scene of Crime" team and photographer to the spot and that they all reached village Malikpura, where, after joining the complainant upon reaching the spot, he held "inquest" proceedings, and got the dead body photographed.
The Investigating Officer next testified that he recovered a "Kulhari", "toplin", iron pipe and clothes of the deceased, along with a pair of "Chappals" and jacket, which were converted into separate parcels and sealed with the seal "RS" and were taken into possession, vide memo Ex.P17.
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He also testified that he lifted blood stains from the spot, which were again sealed with the same seal and were taken into possession, vide memo Ex.P16. He also identified the rough site plan that he had prepared, as Ex.P39 and stated that thereafter, he sent the dead body to the Government Hospital at Sirsa for conducting the post mortem examination.
[Note:- The paper book of this Court wrongly shows Ex. P-39 to be only the site plan of the place of recovery of shoes of the accused, because the trial Court record shows two documents as Ex.39, i.e. the place of recovery of the shoes, as also the rough site plan of the place of occurrence of the murder. The said site plan is made on the back of the 2nd page of the Crime Detail From.] As per the witness, he also recorded the statements of relevant witnesses.
He further stated that in the meantime, DSP Partap Singh reached the spot and "verified the investigation done by me."
He next testified that after getting the post mortem examination done, HC Karambir produced before him a sealed parcel of the clothes of the deceased, alongwith a copy of the post mortem report, which he took into possession, vide memo Ex.P19, attested by HC Karambir, after which he searched for the accused and on return to the Police Station, he deposited the case property with the MHC.
As per the Investigating Officers' testimony, he further searched for the accused on 21.02.2008 and when he reached Bus-stand Odhan, Darshan Singh, Sarpanch, produced all the four accused, whom he identified in Court and further stated that he interrogated them, leading to their disclosure statements.
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Thereafter, his statement with regard to the recovery of the "Gandasi", clothes and shoes is the same as the testimony of PW11 and in addition, he stated that he recorded the statements of relevant witnesses and completed the investigation on 03.04.2008 and prepared the report under Section 173 Cr.P.C.
On cross-examination, this witness stated that on 20.02.2008 they started from the Police Station at 8:15 AM, further giving the distance of Mithri to be 16/17 kms from Odhan and that of village Chormar to be 5/7 km from Odhan. He further stated that they reached village Mithri (not Malikpur), at 9:15/9:30 AM and that the complainant Surjit Kumar, came there 30/45 minutes later, accompanied by his uncle Chhotu Ram and further stated that they had both alighted from a vehicle, the make or kind of which he could not remember.
Further in cross-examination, this witness stated that he spent about 1 to 1½ hours at Bus-stand Mithri and sent the "ruqa" at 11:50 AM, after recording the statement of the complainant. He thereafter stated, that Surjit Kumar and Chhotu Ram came on the police gypsy, to go to village Malikpura (place of occurrence), where they all reached at 12/12:15 PM and found 20/30 persons from the public, present there.
He next stated that the husband of Sunita had also come there but he could not remember the time of his (Sohan Lals') arrival, including whether he came in the morning or after-noon. (Actually, as per the time of arrival at village Malikpura, given immediately above by this witness, he could not have known about any morning arrival.) The Investigating Officer further stated that he did not record the statement of Sunitas' husband under Section 161 Cr.P.C. and that DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -25- Sunitas' minor children were present in the house, though her father and brothers did not come there. The witness further stated that he had summoned them through a Constable but they were not found available in their houses, upon which the Constable returned after "10 minutes".
He further stated that he had read over the contents of the statement of Surjit Kumar and that in such statement, the complainant had said that a "Kulhari", "Gandasi", tractor "toplin" and iron rod were lying at the spot.
He further deposed that the police party stayed at the spot for about 3/3½ hours and left the place at 5:30 PM, though the body had been sent for post mortem examination at 3:30 PM.
He next stated that he had recorded the statements of Surjit Kumar and Sunita correctly and that Sunitas' statement was recorded at 2/2:30 PM, when Chhotu Rams' statement was also recorded.
This witness gave the time of completion of the "inquest report"
as 2:30 PM and admitted that in the site plan he had not shown the place from where the witnesses allegedly saw the occurrence.
He next stated that Sunita was taken out of the room at 12:30 PM and that she was confined in the first room situated on the right side of the house, though he admitted that the room was not shown by him in the site plan.
The Investigating Officer then, in his cross-examination, stated that the clothes of the deceased were received by him in a sealed parcel at 5:30 PM and admitted that in the recovery memo, Ex.P19, the name of the accused was not mentioned and that the column was lying vacant. He further stated that except at the places shown in the site plan, there was no blood at DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -26- any other place and that the "Scene of Crime" team came at 1:00 PM and stayed for about 30/45 minutes and that the DSP reached the spot at 3:00/3:30 PM. He further stated that Sunitas' father and brothers had not come there till then and the DSP also did not summon them.
As per SI Ranbir Singhs' statement, further, it did not come in his investigation that Sunita and the deceased were having illicit relations and he further denied the suggestion that there existed any such relations between them (Sunita and the deceased).
As regards Darshan Singh, Sarpanch, the IO stated that he knew him for the last six months and that he had produced the accused at about 11:00/11:15 AM (on 21.02.2008), after which he interrogated them "then and there" for 2½ to 3 hours till 3:30 PM. He further deposed that though he had tried to join independent witnesses, they had refused to do so, though he could not give the names of the persons who were so asked.
He next stated that they reached village Malikpura at 5:00 PM for effecting recoveries (on 21.02.2008), where he again tried to join independent witnesses without success, though he did not summon the Sarpanch, Namberdar or Member Panchayat to join in the investigation. He gave the time of return to Police Station Odhan as 9:30/10:00 PM and denied the suggestion that all the weapons of offence were lying at the spot and were recovered on 20.02.2008 itself. He also denied the suggestion that the "Gandasi" and "Jailly" were planted upon the accused and that they did not suffer any disclosure statement. He further denied the suggestion that the clothes allegedly recovered had also been planted upon the accused and no recovery was effected from them, or that the blood on the clothes and shoes had been fabricated at the instance of the complainant party. DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -27-
He next denied the suggestion that Chhotu Ram and Surjit Kumar were not eye-witnesses and were falsely introduced and also denied that Sandeep had been murdered by Sunitas' husband, father and brothers, as she had illicit relations with Sandeep.
The IO next denied the suggestion that Sunitas' statement had been procured by him in order to save her brothers, father and husband. He then stated that he did not join any neighbour in the investigation and again stated that nobody was ready to become a witness.
He denied that the date of arrest of the accused was 20.02.2008 itself and that they had not absconded (between 20.02.2008 and 21.02.2008).
PW12, lastly, denied the suggestion that the FIR was ante-timed and that Surjit Kumars' statement was actually not reduced to writing at the Bus-stand and that it was actually reduced to writing at the spot, after preparing the inquest report.
20. During the course of examination of prosecution witnesses, the prosecution gave up PWs Rajpal, Chhotu Ram, Dr. Jagdeep Aggarwal and ASI Jagdish Parshad, as unnecessary.
21. After closing of the prosecution evidence, the statements of the four accused before the trial Court, under Section 313 Cr.P.C., were almost identical, in stating that Sunita had illicit relations with Sandeep for about two years prior to the occurrence and that Sandeep used to go to her house in the absence of her husband, sometimes at night and that they had informed Sohan Lal, as also Sunitas' father and brothers of such visits.
They further stated that on the day of the occurrence, appellant Vinod was sleeping in his own house and had no knowledge of the murder till he was told of the same at about 8:00 AM in the morning and came to the DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -28- place of occurrence, where the police was brought by Sunitas' husband, Sohan Lal and his father-in-law.
They all further stated that all the weapons of offence, i.e. the "Gandasi", "toplin", iron pipe, "Kulhari" and "Jailly" were lying in the house of Sunita.
As per Vinods' statement, his co-accused came to Sohan Lals' house at about 8:30 AM, which was also stated by the other co-accused.
All their statements also go on to say that all of them (the four accused persons) and other people shifted the dead body from the spot, to the vehicle which took the body for post mortem examination and that they had been taken to the Police Station for further investigation, when the police left the place.
All their statements further say that they had been falsely implicated at the instance of Sunita, Sohan Lal and his father-in-law, who had actually murdered Sandeep and that the police had colluded with them.
Also identically stated by them, was that Surjit Kumar (the complainant) was called by the police at 9:00 AM to the house of Sunita. Their statements also say that they did not suffer any disclosure statements and never got recovered any weapons. The police is stated (by them) to have removed their clothes and shoes, at the Police Station.
22. Two defence witnesses appeared for the accused.
DW-1 was Darshan Singh, Sarpanch, who is stated, by the prosecution, to have produced all the four accused before the Investigating Officer on 21.02.2008. This witness, however, appeared and stated that he did not know the accused persons present in the Court, nor had he produced them before the police, though he used to visit the Police Station frequently, DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -29- being the Sarpanch of his village, Odhan.
On cross-examination by the Public Prosecutor, he admitted that SI Ranbir Singh was posted at Police Station Odhan at that time, though he again denied the suggestion that he had produced the accused before him on 21.02.2008. He further stated that he was a summoned witness and that other than Naseeb Kaur, Sarpanch of village Malikpura, he did not know any other person in that village.
23. The other defence witness was Ram Partap son of Khyali Ram, aged 48 years, an agriculturist, resident of village Malikpura.
This witness stated that he was the Namberdar of village Malikpura since 1990 and that his house was situated at a distance of about 1½ acres from the house of Sohan Lal and that the house of Darshan Singh son of Jarnail Singh (different to Darshan Singh, DW1) was situated at a distance of 20 paces from Sohan Lals' house and the shop of Chhotu Ram PW was also at a distance of about 20 paces from Sohan Lals' house. He further testified that nobody in the village slept in their shops at night. He next stated that the houses of Chhotu Ram and Surjit Kumar PWs are at a distance of about 2/3 acres from the shop of Chhotu Ram.
This defence witness next testified that about one year back he was present in front of his house when the police came in a 'Gypsy', which stopped at the house of Sohan Lal, though he did not know as to which Police Station they had come from.
He further stated that he did not see any villager accompanying the police at the time, which was about 6:45 AM.
DW2 then stated that on seeing the police, he went to the house of Sohan Lal and that 4-5 other persons had come there, including Darshan DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -30- Singh son of Jarnail Singh (not Darshan Singh, DW1).
He stated that he saw that Sandeep was lying dead in Sohan Lals' house, with injuries on his person and that a "Tangli, "Kulhari", "Gandasa" and "toplin" and an iron pipe were lying near the dead body, as was a "Chaddar" (sheet) and a pair of "Chappals" (slippers). He further stated that blood was oozing out of the injuries of the deceased.
As per DW2, Sohan Lal (Sunitas' husband), was sent by the Police to summon Meghar Singh, Chowkidar of the village, who came to the spot at 7:30 AM with Sohan Lal, upon which the Chowkidar was told to summon any other respectable persons and relatives of the deceased to the spot.
He next stated that Chhotu Ram and Surjit Kumar PWs were then called by the Chowkidar and that 2-3 ladies were present in Sohan Lals' house, including his wife Sunita, who he had also noticed when he came to the spot.
As per this witness, the police lifted the weapons and blood stains from the spot and took them into possession, after sealing them into parcels.
He identified all the accused persons present there as people whom he knew and stated that they had come to the house of Sohan Lal at about 8:00 AM and that the police remained present there upto 10:30 AM and conducted its proceedings.
The witness further stated that the dead body of Sandeep was taken by the police at about 10:30/11:00 AM in a 'Canter' "perhaps to Sirsa"
and that the dead body had been put into the Canter by the accused persons at the asking of the police. However, he denied knowledge as to whether the DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -31- accused had accompanied the dead body in the canter or not. He also denied knowledge of any noise during the night.
[Note:-Though the last two sentences are shown as part of the examination-in-chief, they seem to be replies to questions put during cross- examination.] In cross-examination, this witness stated that he was a matriculate but did not maintain any record (as Namberdar) regarding the number of shops, their owners and as to who sleeps in the shops at night. He further stated that no such record was maintained by anybody else also, in the village.
He next stated in cross-examination, that he did not keep anything in writing about the proceedings held by the police, as were undertaken by the police in his presence, though the police had conducted proceedings. He further submitted that nothing was asked from him, nor did he tell anything to the police and further stated that the police did not record the statement of any person in his presence.
Further in cross-examination, DW2 stated that when he reached the spot, 10/12 villagers were found present there, who had come on the arrival of the police and that after that about 100 persons had gathered there, who were mostly outside the house of Sohan Lal.
He next stated that Sohan Lal may have been present before his, i.e. before this witness', arrival at the spot. However, he further stated that no inquiry was made by the police from Sohan Lal, in his presence. He admitted to be correct, that when the police reached at the spot, none of the accused was present there, though he noticed their presence in the house, later.
He denied the suggestion that the accused persons had not put DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -32- the dead body in the 'Canter' on the asking of the police, or that they were not present at the spot. He did not remember as to who caught what part of the deceased while putting the body in the Canter and further denied knowledge as to where the cloth for wrapping the weapons and other articles was procured.
The witness further stated that he did not remember whether any proceedings regarding the taking of the weapons into possession were conducted by the police, at the spot, or not.
He further stated that he did not narrate these facts before any authority, prior to the date of his testimony.
DW2 next denied the suggestion that the police had reached the spot at about 11:00 AM/12:00 noon.
Next, in his cross-examination, Ram Partap stated that he was a "Kumhar" by caste and the the deceased belonged to the "Pandit"
community.
In the last part of his testimony, this witness stated that he was neither friendly nor inimical to either of the parties.
24. DWs Darshan Singh son of Jarnail Singh and Meghar Singh, Chowkidar, were given up by the counsel for the accused as defence witnesses, as having been won over by the complainant party, though they were stated to be present. DW Gangajal who was also stated to be present, was given up as being unnecessary.
25. Thus, in the light of the above detailed evidence, we are to determine as to whether the guilt of appellants Vinod and Perhlad, both sons of Gangajal, has been proved beyond all reasonable doubt and, on the other hand, whether the acquittal of their co-accused, Satpal and Mohan Lal, both DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -33- sons of Moman Ram was warranted, or they too are guilty of the crime that Vinod and Perhlad have been convicted for.
26. Breaking up the evidence into parts, it is seen that there were two witnesses for the prosecution who claimed to be eye witnesses, i.e. the complainant, Surjit Kumar and Sunita wife of Sohan Lal (PWs2 and 3 respectively), and four material witnesses who testified with regard to the police proceedings, either with regard to the investigation conducted on 20.02.2008. These were PW6 ASI Subhash Chander who testified with regard to having received information in the Police Station and lodging of the FIR on 20.02.2008, HC/ASI Satbir Singh (PW11) and Investigating Officer ASI Ranbir Singh (PW12) and DW2 Ram Partap (for the defence), all of whom testified with regard to proceedings conducted by the police at the spot on 20.02.2008. Additionally, PW9 was Kaur Singh, Photographer who testified with regard to taking photographs of the dead body, on that date.
PWs11 and 12 also testified with regard to the investigation conducted the next day, i.e. on 21.02.2008.
Other than these witnesses, were formal official witnesses and PW1 Dr. Hans Raj Baseer, who testified with regard to the post mortem examination and report.
Even though we have categorised the main witnesses into largely two categories, i.e. those who claimed to be eye witnesses of the occurrence and those who claimed to be witnesses of the police proceedings, necessarily we will travel from one category to the other in order to try and determine as to whether the testimony of each individual witness, can be believed or not.
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27. Coming first to those who claimed to be eye witnesses of the occurrence. The first amongst these would be the complainant, Surjit Kumar, who later appeared as PW2, and stated that his uncle Chhotu Ram and he saw the attack on his brother, by the four accused. Chhotu Ram, as already noticed earlier, was given up as an unnecessary witness, even though he is shown to have been present in the trial Court on the date that he was given up by the prosecution (on 26.08.2008).
Thus, the only other person claiming to be an eye witness of the occurrence and who deposed before the trial Court, was Sunita Devi wife of Sohan Lal.
28. An appraisal of the testimony of both these witnesses, shows that though their initial statements, i.e. Exhibits-P15 and D1 respectively, are largely in consonance with each other as to material facts, there are some discrepancies in Sunitas' subsequent testimony before the trial Court.
However, before that, we need to appraise whether the testimony of PW2, i.e. the complainant Surjit Kumar, and his statement (Ex. P-15) which led to the registration of the FIR, are believable per se, or not.
29. For that purpose, we first need look at the timing of the complaint having been made, as per the testimony of the different witnesses.
As per the complainant himself, when he testified in Court as PW2, he stated during cross-examination, that he and his uncle went back to the house of Sohan Lal in the morning, (after first having gone there at the time of the occurrence at night), with the time given by him being 8:00 AM. After letting Sunita out of the room in which she had been confined at night by the accused and hearing her version of the occurrence, he (the complainant) and his uncle Chhotu Ram proceeded to the Police Station to DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -35- lodge the report, on a bicycle. The Police Station is, as per the testimony of PW11 (ASI/HC Satbir Singh), about 20 kms from village Malikpura; but as per PW2, they met the police party led by PW12, at the bus-stand of village Mithri, where they narrated the entire occurrence, after which, his uncle and he and the police party, came to the place of occurrence.
As per PW2, the police came to the spot at about 8/8:30 AM and continued proceedings till 11/11:30 AM, which to an extent is corroborated by Sunita, PW3, who, in her testimony, stated that the complainant Surjit Kumar and his uncle Chhotu Ram, opened the door of her room at about 7:00/8:00 AM and that the police recorded her statement between 11:15 to 11:30 AM; though, according to her, the police and her husband, Sohan Lal, reached the spot at about the same time, about 9 or 9:30 a.m. However, as per PW2, the police came to the spot at 8/8:30 AM, and continued proceedings till 11:30 AM, that may be not entirely in consonance with the first part of Sunita Devis' testimony, inasmuch as, this witness could not have left the spot at 8:30 AM, reached the police, narrated the story and then returned to the spot at the same time, i.e. 8/8:30 AM. However, even taking the time that this witness and his uncle went to the house of Sohan Lal and opened the door of the room in which Sunita was confined, to be 7:00 AM, the testimonies of both witnesses, i.e. PWs2 and 3, are irreconcilable with the testimony of the IO himself, i.e. SI Ranbir Singh (PW12), who testified that they started from the Police Station at 8:15 AM, reached Bus-stand Mithri (stated to be at a distance of 16/17 kms from the Police Station, as per this witness), at about 9:15/9:30 AM and thereafter, the complainant and Chhotu Ram reached Mithri about 30/45 minutes later, DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -36- approximately between 10:00 AM and 10:30 AM.
The Investigating Officer further testified in cross-examination that he spent 1 to 1½ hours at Bus-stand Mithri, sent a "ruqa" (communication) to the Police Station for registration of the FIR at 11:50 AM and thereafter reached Malikpura at 12/12:15 PM (about noon time), where the police party stayed till 5:30 PM, during the course of which period, the "Scene of Crime" team, as also the DSP, visited the spot; the former at about 1:00 PM for about 30/45 minutes and the latter at about 3/3:30 PM.
Compared to the above is the deposition of ASI/HC Satbir Singh (PW11), in this regard, who though mainly deposed with regard to the arrests and recoveries made the next day (21.02.2008), however, stated in his cross-examination that the police party reached the spot were the dead body was lying, i.e. village Malikpura, at 9:15 AM (obviously on 20.02.2008); but strangely, he could not remember for how long they stayed there. What is further in direct contravention to the testimony of PW12, in the testimony of this witness (who is also shown to be a member of the police party, even as per the proceedings recorded by PW12, at the time of recording the statement of the complainant at the bus-stand of village Mithri), is the fact that this witness stated that the police party started from the Police Station on 20.02.2008 at 8:15 AM and went directly to the spot, giving the distance between Police Station Odhan and Malikpura to be 20 kms, which he then stated, that they covered in half an hour. Thus, the police team, as per this witness, reached the spot where the dead body was found, in the morning at about 8:45 AM and not 12/12:15 PM as stated by the Investigating Officer. It is also necessary to notice here that PW11 specifically stated in cross- DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -37- examination, that after starting from Police Station Odhan at 8:15 AM, the police party went directly to the spot.
Obviously, if this witness is to be believed, then the version of the complaint having been recorded at the Bus-stand of village Mithri, in the morning of 20.02.2008, would be a wholly concocted one.
We would be inclined to agree with this witness, on this point, in view of the fact that as regards the timing when the police party reached the spot, i.e. village Malikpura, at about 8:30 to 9:30 AM, it is corroborated by the statements of PW2 and PW3, respectively saying that the police reached at 8:30 AM and 9-9:30 a.m., though as per the testimony of DW2, Ram Partap, Namberdar of village Malikpura, the police party came to the village at about 6:45 AM and stayed there till about 10:30 to 11:00 AM.
In any case, the timing of the police party having left the spot before noon, is corroborated very clearly by three witnesses, i.e. PW2, PW11 and DW2 and can be inferred even from the statement of PW3, Sunita, who stated that the police reached at 9 or 9:30 a.m. And recorded her statement at about 11/11:15 AM. Obviously, if the police party reached in the after- noon, as stated by the Investigating Officer, her statement could not have been recorded by them in the fore-noon.
30. It seems that the testimony of the Investigating Officer, PW12, in this regard, was given by him to justify the fact that he, on record, showed the "ruqa" to have been sent by him at 11:40 AM, for registration of the FIR and the FIR itself is shown to be registered at 12:30 PM in Police Station Odhan, by ASI Subhash Chander (PW6). Thus, the time of recording the complaint and arrival at the spot of occurrence, seem to have been shown to be of a later time, to cover the delay in lodging the FIR. DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -38-
Factually, the special report sent to the JMIC, Dabwali, was received by him at 2:30 PM, as recorded under his signatures on Ex.P20 (copy of the FIR).
31. Thus, there is very clearly some delay in the lodging of the FIR, with the police actually having arrived at the spot anytime between 8:30 to 9:30 AM (but with the I.O. testifying otherwise). As such, the argument made in Court by Ms. Manjari Nehru Kaul, the learned counsel for the appellants, to the effect that the whole story is concocted, with even the complainant actually not having informed the police, and in fact, the entire sequence of events having been turned about, needs to be looked at carefully.
It is also important to notice here that though the complainants' statement (Ex.P15) is shown to be recorded when he met the police party at Bus-stand Mithri, in his testimony (in cross-examination), he stated that he went straight to the Police Station to lodge the report, in the morning (from Sunita and Sohan Lals' house), on a bicycle. However, this does not necessarily imply that he actually reached the Police Station, as it could be possible that he met the police on the way there, at Mithri itself.
On the other hand, the Investigating Officer, in his examination- in-chief, stated that "After joining the complainant and reaching the spot, I held inquest report Ex.P4" and subsequently, in cross-examination, he stated, firstly, that Chhotu Ram and the complainant, both alighted from a vehicle (at Mithri), though "I do not know the mode of the vehicle". The Hindi version of this reads to say that they both alighted from a "vaahan", though he did not know the "namoona" thereof. Usually, a bicycle would not be referred to as a 'vaahan', but simply as a 'cycle'. DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -39-
Secondly, this witness stated that Surjit Kumar and Chhotu Ram went alongwith the police on the police 'Gypsy' to Malikpura, where they all reached at 12/12:15 PM.
Opposed to this is the testimony of the complainant, in which he stated in cross-examination that the police arrived at the spot (from Mithri) before his uncle and him. He further stated, that his statement and his uncle Chhotu Rams' statements, were recorded by the police, but he did not know about the others; and before that, his statement reads to say that his signatures were obtained by the police at the spot. Obviously, this would need to be taken as an inference, seen with the other discrepancies, that his statement was not signed at bus-stand Mithri.
32. Further, DW2 also stated that when the police team came to the spot in their Gypsy (at 6:45 AM, according to this witness), no person from the village was accompanying them. He further stated that Sunita Devis' husband, Sohan Lal, was sent by the police to summon the village Chowkidar, who came with Sohan Lal at 7:30 AM and was thereafter told to summon other respectables and relatives of the deceased to the spot, upon which Chhotu Ram and Surjit PWs were called by the Chowkidar. He further stated that all the accused also came to the spot at about 8:00 AM, after which the police remained present till about 10:30 AM and thereafter, the dead body of Sandeep was taken by the police at 10:30/11:00 AM in a Canter. As per this witness, the dead body was put into the Canter by the accused, on the asking of the police, though he denied knowledge of whether the accused accompanied the dead body or not.
This witness also denied in cross-examination, that the police had reached the spot at 11/12:00 noon.
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33. The upshot of the discussion above, on this point, is that it is doubtful that the complainant, Surjit Kumar, PW2, actually went and lodged the report at Mithri. Actually, it flows from the testimony of two witnesses (PW11-a police official, and DW2), that the police reached village Malikpura and recorded the complainants' statement there.
Even if we are to discard the testimony of DW2, as possibly being tutored, though it does not seem so, even then, the statements of PWs3 and 11, as noticed herein above, are materially discrepant to that of PWs12 and 2, with regard to the time of arrival of the police at village Malikpura and, consequently, in the manner of lodging the FIR.
In our opinion, looking at the testimony of PWs2, 3 and 11 and DW2, we have to disregard the statement of the Investigating Officer himself, with regard to the timing of the proceedings conducted at the spot in village Malikpura, taking it that he was trying to support the documentary evidence signed by him.
Therefore, it seems certain, from all the testimonies of the prosecution witnesses, that police proceedings concluded in the village, on 20.02.2008, in the fore-noon itself. However, the delay of 3 to 4 hours, in lodging the FIR, by itself, would not be fatal to the prosecution case, if the evidence otherwise points without doubt, to the guilt of the accused.
34. We, therefore, now proceed to determine as to whether, given the above discrepancies with regard to the difference in timings, it warrants disbelieving of the prosecution story entirely, on the ground that Surjit Kumar actually did not lodge his complaint at village Mithri, but at village Malikpura itself, and as such, his testimony, and Sunitas' (PW3), is to be wholly discarded, or accepted in material parts. We therefore go on to see DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -41- the value of the testimony of the witnesses, with regard to the occurrence itself, the recovery of the weapons and linkage of such weapons to the two appellants before us and to the two accused who were acquitted by the trial Court. Thereafter, we shall consider as to whether the statements of Surjit Kumar and Sunita Devi are believable or not, with regard to the murder of Sandeep Kumar having taken place in the manner that it was testified to have taken place.
35. For that, we first refer to the testimonies of PWs2 and 3 again, with regard to the weapons with which each accused is supposed to have attacked the deceased.
In this respect, the testimonies of both, PWs2 and 3, are in consonance with each other, that appellant Vinod Kumar was armed with a "Kulhari" (axe), acquitted accused Mohan Lal with a "Gandasi", appellant Perhlad with a tractor "toplin" and acquitted accused Satpal with an iron pipe, though as per Sunita Devis' initial statement recorded under Section 161 Cr.P.C. (Ex.D1), Satpal later discarded the iron pipe and picked up a "Jailly" and inflicted injuries on the deceased, in her house.
The number of injuries on the person of the deceased, already detailed in the earlier part of the judgment, do not raise any doubt in our mind, with regard to the fact that the deceased was, in fact, inflicted injuries with both, weapons with sharp edges, like a 'gandasi' and an axe, as also with blunt weapons such as a tractor "toplin" and an iron pipe.
As per seizure memo Ex.P17, the blunt weapons, i.e. the iron rod and the iron "toplin", both had a thickness of 2 inches, with the rod being 6 ft. in length and the tractor "toplin" being 2 ft. in length. The iron axe is shown to be 26 inches in length.
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All three weapons are stated to have been seized from the site itself, on 20.02.2008, and were blood stained, as per the said seizure memo. PW1, Dr. Hans Raj Baseer, who conducted the post mortem examination, stated that the possibility of the injuries being caused by the said weapons, could not be ruled out. Though, in cross-examination, this witness stated that he had not recorded the fact that there was a vertical tear-cut in the right leg of the trouser, with no corresponding injury to another cut, (there being only one in the right leg on the knee), we do not see what eventually devolves upon such admission of the doctor, as argued by the learned counsel for the appellants, in the face of the fact that there were 18 injuries, of which six are shown to be "incised wounds", five as lacerated wounds, one as a "crushed" wound and the others as contusions, with obviously, therefore, sharp edged weapons like an axe and a "Gandasi", as also blunt weapons, having been used.
36. As to whether only these three weapons were seized from near the dead body on 20.02.2008 itself, or whether the other two weapons allegedly used in the crime, i.e. the "Gandasi" and the "Jailly", were also recovered from there itself, and were actually not recovered at the instance of the two accused who were acquitted, i.e. Satpal and Mohan Lal, is something that requires appraisal by this Court, on the basis of evidence before us.
As per the first statement of the complainant (Ex.P15), he informed the Investigating Officer, at the time of recording of his statement, that an axe ("Kulhari", a "Gandasi", a tractor "toplin" and an iron rod, were lying at the spot.
In his testimony as PW2, the complainant stated in his DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -43- examination-in-chief, that the police lifted the blood stained earth from the spot and took into possession the arms, i.e. the "Gandasi, "toplin", and iron pipe", as also a pair of "Chappals" (slippers) belonging to the deceased, on 20.02.2008. Though this witness did not state in his prime testimony, that the axe was also lifted from there, however, on cross-examination, he specifically stated that the broken "Jailly" which he had seen in Court, the "Gandasi" and the "Kulhari", were also lifted by the police from the spot itself, which were also the same as the ones that he had seen in the Court.
In her statement (Ex.D1), Sunita Devi stated that after accused Satpal first inflicted a blow with an iron pipe on the deceased, in the courtyard of the house of appellant Vinod Kumar, thereafter, upon the deceased having been brought by all the accused into her house, he threw away the pipe and picked up a "Jailly" in her house and inflicted a blow on the stomach of Sandeep.
In her testimony as PW3, this witness stated that the police found a "toplin", iron pipe and a "Gandasi" lying at the spot. Thus, she did not mention the presence of the "Kulhari (axe) and the "Jailly" on the spot, when the police reached there. However, she was not cross-examined on this aspect, by the defence.
37. As opposed to the above depositions, it was the specific case of the prosecution, before the trial Court, based on the documents of seizure and recovery (Ex.P17 and Exs.P35 & 36) and the testimony of PW12, that the weapons recovered from the spot on 20.02.2008, were an iron axe, an iron rod and iron "toplin" and that the other two weapons, i.e. the "Jailly" and the "Gandasi", were weapons that were recovered at the instance of the two acquitted accused, i.e. Satpal and Mohan Lal, who made disclosure DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -44- statements (Exs.P31 and P32) with regard to having hidden the said two weapons beneath some bricks in the courtyard of their house. The said disclosure statements are stated to have been made before ASI Satbir Singh, ASI Jagdish Parshad and SI Ranbir Singh and are shown to be signed by both the accused.
Similarly, the recovery memos, Exs.P35 and P36, also show that the said two accused led the police party to their houses and with their 'own hands', brought out the "Jailly" and the "Gandasi" respectively, from under the bricks, after which they are shown to have signed the said recovery memos, in the presence of the same aforesaid police officials.
38. In view of the above, one of the star arguments of Ms. Manjari Nehru Kaul, learned counsel for the appellants, was that in view of the obvious contradiction with regard to the alleged recovery of weapons, between the original statement of PW2 and his testimony in Court, and again between the two alleged eye witnesses (PWs2 and 3) and the witnesses for the investigating agency (specifically PW12), especially with regard to the 'gandasi' and the axe, it seems obvious that the recoveries were planted upon Mohan Lal and Satpal, which was also the reason leading to their acquittal by the trial Court.
She further submitted that since this part of the prosecution case is very obviously unbelievable, even the alleged eye witness accounts given by PWs2 and 3, in the entire circumstances as already enumerated hereinabove, cannot be believed and have to be discarded.
39. In our opinion, it is obvious from the statement of the complainant (Ex.P15), on the basis of which the FIR was registered, that an axe (Kulhari) was also lying on the spot of occurrence, alongwith a 'gandasi', DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -45- iron rod and tractor "toplin", which the complainant, as PW2, reiterated in his cross-examination, as regards the presence of the axe also on the spot. The Investigating Officer (PW12), as discussed, denied the presence of the 'gandasi' but admitted the presence of the Kulhari, "toplin" and iron pipe, on the spot, which he recovered from there, vide recovery memo, Ex.P17. Specifically, when a question was put to him with regard to the statement of the complainant, Ex.P15, showing that the 'gandasi' also lying on the spot, he obviously could not deny that it was so written in the complaint.
Therefore, in view of the testimonies of PWs2 and 3 both, that the "toplin", iron pipe and 'gandasi' were actually on the spot, and the admission of the Investigating Officer that the axe was also recovered from the spot (thereby corroborating the testimony of PW2 to that effect), all four weapons, i.e. the axe, 'gandasi', tractor "toplin" and iron rod were all recovered from the spot itself and as such, the recovery of the 'gandasi' on the disclosure statement of acquitted accused Mohan Lal, is not believable and is the result of the Investigating Officer, trying to "pad up" the case.
However, whether this alone is enough to acquit the appellants and to sustain the acquittal of Mohan Lal and Satpal, is something to be considered, when seen with the testimonies of PWs2 and 3, with regard to the occurrence itself.
40. But before we do that, we need to refer to the arguments made by Mr. Baldev Singh, learned Additional Advocate General, Haryana and Mr. Ashwani Bhardwaj, learned counsel for the complainant-appellant in Criminal Revision No.2585 of 2009. They both submitted that simply because of some discrepancy with regard to the seizure/recovery of weapons from the spot, the entire testimonies of the two eye witnesses, seen with the DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -46- number of injuries inflicted and the investigation conducted by the police, cannot be discarded and they have to be believed in the totality of the circumstances. As such, not only does the conviction of appellants Vinod and Perhlad need to be sustained, but the two accused acquitted, i.e. Satpal and Mohan Lal, also need to be convicted in the face of the testimonies of the eye witnesses, i.e. PWs2 and 3.
41. We, therefore, come back to analyzing the testimonies of these two witnesses, and statements (Ex.P15 and Ex.D1 respectively), with regard to the occurrence itself, to try and determine the truth or falsity thereof.
As already detailed earlier, the statements of these two witnesses with regard to the weapons used by each accused, are virtually identical, though the nature of injuries inflicted by each accused is far more detailed by PW3, than by PW2, on the premise that she (PW3) was inside the house when the injuries were being inflicted, whereas as per the statement of PW2, he and his uncle Chhotu Ram (given up as being unnecessary), saw through the cracks in the door of the house of PW3 when his brother was being beaten up.
42. We shall now first examine the statement and testimony of PW3, Sunita, with regard to the occurrence itself, on account of whom the crime is stated to have been committed, with allegations of illicit relations between her and the deceased, though denied by her, as also the I.O., PW12.
This witness, as already noticed, in her statement (Ex.D1) recorded on the morning immediately after the occurrence, i.e. on 21.02.2008, had stated that her husband, Sohan Lal, had gone to see her sister-in-law (his sister) in a different village, which she reiterated in her testimony as PW3, giving the date of his departure as 19.02.2008, in the DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -47- testimony.
She thereafter had stated (in her statement, Ex.D1), that her husband had good relations with deceased Sandeep Kumar, on account of which the latter used to often visit their house and also visited her house on the previous night to see her husband. As per Exhibit D1, she was alone when he started leaving the house at about 1:00 AM at night, when Satpal son of Moman Ram and Vinod son of Gangajal, were "hiding in their respective houses", and when Sandeep reached near the door, Satpal raised a "Lalkara" that the enemy had come and on account of the same, Sandeep tried to enter the house of Vinod, where Satpal inflicted a blow with his iron pipe on Sandeep Kumars' waist, on account of which he fell down in the courtyard of the house. As per the said statement, thereafter, Vinod Kumar and Satpal caused multiple injuries to Sandeep and later, Perhlad son of Gangajal and Mohan Lal son of Moman Ram (brothers/first cousins to Vinod and Satpal) also came there, holding their respective weapons in their hands. All four of them are stated to have caught hold of Sandeep Kumar from his hands and legs and brought/dragged him to the courtyard of Sunitas' house, from the house of Vinod Kumar.
In her house, Vinod is stated, by her (in Ex.D1), to have inflicted injuries with an axe on Sandeep Kumars' forehead, right knee and head, and Satpal on his chest, legs and mouth with his iron pipe and Perhlad is stated to have inflicted 2/3 injuries on the back of the victims' head and on his waist. As per Sunita Devis' statement, Mohan Lal inflicted injuries with a "Gandasi" on his ear, legs and neck, after which Satpal is stated to have thrown the iron pipe and lifted a "Jailly" from her house and though she tried to save him, the victim fell down on the ground in front of her, and DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -48- Satpal inflicted a blow with it into the stomach of Sandeep Kumar. After that, all four of them are stated to have dragged her into her room and bolted the door from outside.
The statement further goes on to say that Sandeep Kumar succumbed to his injuries at the spot, and in the morning, Surjit Kumar and Chhotu Ram came to her house and on hearing her weeping, opened the door, upon which she narrated the entire occurrence. She stated that Sandeep Kumar was murdered due to suspicion amongst the family members, as to the reason for the deceased visiting her house.
43. We have narrated the entire incidence from the statement again, at this stage, in order to compare it with her subsequent testimony and thereby appraise whether such testimony is believable or not.
The broad facts remained the same even in Sunitas' testimony as PW3, about six months later (26.08.2008), when she stated that at about 1/1:30 AM she heard a noise from the house of Vinod, on account of which she opened the door of her room and saw that Satpal, Vinod, Mohan Lal and Perhlad were present in the courtyard of Vinods' house and were beating Sandeep Kumar with the aforesaid weapons.
The part about Sandeep going back from her house at 1:00 AM and Satpal and Vinod lying in wait for him, hidden in their houses, is, however, missing from her testimony. In fact, on cross-examination, she denied that she had ever stated that they were so hiding and that Satpal raised a "Lalkara" that the enemy had come, after which Sandeep tried to hide himself in Vinods' house. She stated that this part of her statement had been added by the police at the instance of the accused, of whom Vinod and Satpal were present near her when the statement was being recorded, though DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -49- Perhlad and Mohan Lal had "slipped away" (as translated from the Hindi version).
Naturally, to our mind, the accused would hardly be likely to tutor her to say that they had been lying in wait for Sandeep and that one of them exhorted the others to attack him, thereby actually admitting their guilt. Hence, this part of her testimony seems to have been added on the spur of the moment by her, in Court.
In her examination-in-chief, she further testified that after seeing Sandeep being beaten and attacked by these persons in Vinods' house, Vinod came into her house by scaling the common wall and opened the main gate, after which all the remaining accused dragged Sandeep Kumar inside her house and thereafter, though she tried to rescue him, she was put inside a room and the door latched from outside. She further testified that she had seen that Mohan Lal had injured Sandeep on his neck and given a blow on his ear with a "Gandasi" and that Perhlad had hit the victim beneath his head with his "toplin" and Satpal had hit Sandeep Kumar on his chest and back etc. with his iron pipe and further, that Vinod had injured him on his leg and hand with the axe, but she did not know which hand. Thus, the weapons "assigned" to each accused, by PW3, remained the same even in the courtyard of this witness' own house.
Her testimony further states, as already detailed earlier, that at 7/8:00 AM the complainant and his uncle came and opened the door in which she had been confined, after which the police reached the spot and found the "toplin", iron pipe and "Gandasi" lying on the spot.
It also needs to be considered that in her testimony, Sunita stated that when she heard a noise at about 1/1:30 AM, coming from the DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -50- house of Vinod, she opened the door and it came to her notice that all the four accused were beating the deceased, in Vinods' house. Thereafter, her testimony goes on to describe the weapon that each of the accused was holding in his hand. As per the site plans, i.e. both the rough site plan Ex.P39 (made overleaf in the Crime Detail Form), as also the scaled site plan, Ex.P18, there is no window which is shown to be opening, from any room or from the courtyard of Sunitas' house, into Vinods' house. Therefore, this part of her testimony is also not wholly understandable, but is to be weighed along with the fact that PW12 (the IO) admitted that he had not shown the room in which Sunita was confined, in the rough site plan prepared by him. Hence, it is not clear whether it was the same room from which she saw the happenings in Vinods' house (as per her testimony) or it was a different room. Yet, in our opinion, the latter part of her testimony, with regard to the beatings that took place in her own house, is believable, in view of the details given therein, corroborated by her earlier statement (Ex.D1), as also by the medical evidence.
It is very possible that the first part of this witness' testimony with regard to her having actually seen anybody beating/attacking Sandeep Kumar in the house of Gangajal (father of both the convicted appellants), rather than her simply having heard the noise, was added on (to say that she actually saw them, rather than just heard them).
The essential part of this witness' testimony remained consistent, that all the four accused, with their weapons, attacked Sandeep Kumar and killed him. The details, however, are discrepant to the extent of the manner in which the victim was dragged into this witness' house, and as detailed above. Though she had not mentioned about Vinod having scaled DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -51- the boundary wall from inside, in her initial statement, she said so in her testimony. She testified that Vinod had scaled the wall and come into her house and thereafter, the remaining three accused dragged him into her house. Thereafter, other than the omission of her earlier version (Ex.D1), as regards Satpal throwing away the iron rod/pipe and picking up a "Jailly" to attack Sandeep, the rest of the deposition remained the same, as regards the weapons and roles attributed to each accused, in attacking Sandeep. It also needs to be noticed that she was not confronted, during cross-examination, with regard to the aforesaid omission, on Satpal having thrown away iron rod/pipe and having picked up a "Jailly". The possibility of the Jailly having been added by the police, in the initial statement (Ex.D1), which was recorded under Section 161 Cr.P.C., obviously cannot be ruled out by us, simply to pad up the prosecution case. However, that does not make her testimony in Court disbelieveable.
In any case, the entire description of the attack on the deceased, in this witness' courtyard, other than the aforesaid omission, remained constant. Hence, we have no reason to disbelieve her eye witness account.
As regards the argument raised by learned counsel for the appellants, as to how PW3 could have seen the occurrence when she had been locked behind the door, firstly, the exact time of her being locked behind the door when Sandeep cried for help and she tried to rescue him, is not given anywhere. Hence, it is very much possible that she tried to rescue him after the fist few blows that she saw had been inflicted by each person, almost simultaneously or in quick succession. It is also possible that village doors not being generally made to perfection, she could have seen part of the occurrence later, through a crevice. We, therefore, do not disbelieve her DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -52- having seen the accused hitting the deceased with their respective weapons, in the manner testified to by PW3, especially as she was not cross-examined on this specific part of her testimony.
44. Coming now again to the testimony of PW2, with regard to his version of the occurrence, as stated to be witnessed by him.
Though an argument was raised that it would not be natural for PWs2 and Chhotu Ram to be present in a 10x10 ft. shop at night, after meals, with only, admittedly, goods worth Rs.2000/- to Rs.3000/- lying there, however, we cannot obviously discount the possibility of PW2 and Chhotu Ram coming to the shop, even after meals, for any reason, even perhaps for a drink, given Chhotu Rams' propensity to drinking, as was not denied by PW2. Further, his version of seeing his brother (deceased Sandeep) being attacked and dragged by all four of the accused, from Vinods' house, through the street, to the house of Sunita and Sohan Lal, corroborates Sunitas' testimony in Court. Though we have pointed out the discrepancy between her testimony and her statement Ex.D1, in this regard, yet, in our opinion, there would be no reason for PW2 to shield any other person(s) for the murder of his brother. The suggestion made in cross- examination by the defence, to some of the PWs, that the father and brothers of Sunita were being shielded and in order to do so, the crime was being foisted on to the appellants and the two acquitted accused, does not merit acceptance in view of the fact that, firstly, there is no relationship between PW2 and Sunita and her family, for him to shield her brothers and implicate someone else falsely. Secondly, other than the mere suggestion put to the witnesses, by the defence, there is not an iota of evidence led by anybody, to the effect that the real culprits were actually not the accused but Sunitas' DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -53- family.
What also merits rejection, is the argument that it was actually Sohan Lal who killed the deceased. This would again be for the reason, that other than no evidence whatsoever pointing in that direction, PW2 would have no reason to shield Sohan Lal and implicate his (Sohan Lals') cousins. Further, as already discussed, the number of wounds on the deceased were far too many and with varied weapons, for it to be the "work" of a single person.
Coming back to the description of the eye witness account given by PW2, with regard to what happened after the deceased was dragged into Sunitas' house, the testimony reads to say that PW2 and his uncle saw Sandeep being attacked in the courtyard, through cracks in the main door. Though the main door is shown to be an iron door in the site plan, however, that still does not rule out the possibility that the crack in the door could be actually the gap between the two sides of a door.
No doubt, we have already held that part of PW2s' testimony, as regards him having lodged the complaint at the Bus Stand of village Mithri; is not believable; however, that by itself does not make his whole testimony unbelievable, with regard to having seen the assault on his brother. The reason given by him in not helping his brother, is also not entirely unbelievable, in view of the fact that the four accused were all armed with deadly weapons and as such, when PW2 and his uncle are stated to have come to his brothers' aid, they were chased away by the accused.
Even if, for the reason argued by Ms. Kaul, that since one part of testimony of PW2 had been disbelieved, therefore, the entire testimony should be disbelieved, while rejecting the argument, still, on a hypothesis, if DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -54- we were to accept it, that does not demolish the testimony of Sunita, in whose house the major part of the occurrence took place and the deceased was actually murdered. Further, as already said, there is no reason for PW2 to shield any person and falsely implicate others, for the murder of his brother. Hence, with the testimonies of both eye witnesses corroborating each other in the material aspects of the attack on the deceased, we have no reason to disbelieve their testimonies in that regard.
45. Thus, keeping in view the testimonies of both PWs2 and 3, read with the medical evidence and recovery of the weapons on the spot, we find that despite some discrepancies in the statements of the witnesses, in certain respects, the essence of the testimonies of the eye witnesses, with regard to the role of the four accused who were charged with the murder of deceased Sandeep, cannot be disbelieved.
If any citation with regard to conviction on the basis of testimonies is required, we may refer to Veer Singh and others v. State of Uttar Pradesh (2014) 2 SCC 455, where even the testimony of a single witness was held to be enough, if reliable, to come to a finding of guilt of the accused.
46. The trial Court acquitted Mohan Lal and Satpal, primarily on the ground that the 'gandasi' and the "Jailly" respectively, were not actually recovered from these two accused. Conversely, it convicted the other two accused, Vinod and Perhlad, largely on the ground that blood stained clothes and shoes were recovered from each of them. Whereas that may also be a good ground for the conviction of Vinod and Perhlad, the trial Court, in not appreciating the fact that Mohan Lal and Satpal were named alongwith these two brothers, by both the eye witnesses, specifically attributing individual DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -55- roles to each of them, with no ulterior motive for false 'roping in', wholly erred in its judgment, in our opinion.
If the eye witnesses were to 'rope in' other family members of appellants Vinod and Perhlad, as was argued by Ms. Kaul, there was nothing stopping them from roping in even the fathers of the accused and/or other family members of the extended family of appellants Vinod and Perhlad. That not having been done, as is often the case in villages in this part of the country, we have no reason to presume that just two other persons from the extended family of Vinod and Perhlad were so 'roped in', falsely.
47. As regards the delay in lodging the FIR, stated to be of 11 hours by the trial Court, thereby leaving room for manipulation, no doubt, there is a delay and as such, manipulation may be possible in the case of such a long delay; and, in fact, the manner of lodging of the complaint has been held by us to be falsely testified to by PWs2 & 12. Yet, firstly, the delay in lodging the FIR was not 11 hours as erroneously held by the trial Court, but was about 2 to 3 hours as already discussed by us. 11 hours' delay has been deduced by the trial Court, on the ground that though the crime took place (latest) by about 1 to 1:30 AM and the matter was reported to the police at 11:30 AM, i.e. the time shown of recording of the complaint, Ex.P15, at the Bus-stand of village Mithri. We have already discussed in great detail that the complaint was obviously not recorded at Bus-stand Mithri and that the police reached the spot at about 9:00 AM at the latest, after Sunita Devi was unlocked from her room between 7-8 AM. Thus, reporting of the crime in the early hours, after Sunita Devis' 'release' and lodging of the FIR at 12:30 PM, would, in that respect mean a delay of 2-3 hours by the police. Undoubtedly, from the point of commitment of the crime to the lodging of DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -56- the complaint, there is without doubt a large delay, however, that is not fatal to the prosecution case, in view of the above, which rests primarily on the testimony of the two eye witnesses, the recovery of the weapons from the spot and the medical evidence corroborating the usage of those weapons in the crime.
48. Lastly, the argument by Ms. Kaul, that Chhotu Ram having been given up as a witness, despite having been present at the spot of occurrence, (as per the testimony of PW2), is a strong inference against the prosecution, also does not detract from the case of the prosecution, in view of the fact that it is admitted that Chhotu Ram is a person given to drinking. Hence, very possibly, he may have been suspected by the prosecution to not depose correctly, leading to his being given up as an unnecessary witness. Though, this may otherwise be taken an inference against the prosecution, however, in the light of what has been discussed in detail hereinabove, his non- production as a witness, also does not create any doubt, in our opinion, with regard to the culpability of the four accused who were charged with the crime.
49. Therefore, considering the entire evidence as we have, in detail, hereinabove, we uphold the conviction of the appellants in Criminal Appeal No.CRA-D-1080-DB of 2009, Vinod and Perhlad, both sons of Gangajal; and further hold that the reasoning given by the learned trial Court in acquitting the other two accused, i.e. the respondents in Criminal Appeal No.CRA-D-1080-DB of 2009 and Criminal Revision No.2585 of 2009, Mohan Lal and Satpal, both sons of Dhanraj @ Moman Ram, to be erroneous.
The petitioner in Criminal Revision No.2585 of 2009 has also DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -57- prayed that compensation be paid to the family of deceased Sandeep Kumar.
Having considered that prayer, keeping in view the fact that the deceased is stated to have been only 18 years old, as per the post mortem report, and in any case, even if that report is not wholly accurate, was a very young man, we hold the legal heirs of the deceased to be entitled to compensation of Rs.2,00,000/-, to be paid by the four convicts, to the extent of Rs.50,000/- each. This would not preclude the legal heirs of deceased Sandeep Kumar from seeking further damages in appropriate proceedings but if such damages are awarded by a competent court, they would be defrayed by the aforesaid amount of Rs.2,00,000/- ordered to be paid by us as compensation, from the total amount of damages ordered to be paid by such Court (if any such damages are awarded).
Hence, in view of the above, Criminal Appeal No.D-633-DB of 2009 is dismissed and the conviction and sentence of Vinod and Perhlad, both sons of Gangajal, by the trial Court, is upheld. Criminal Appeal No.CRA-D-1080-DB of 2009 filed by the State of Haryana and Criminal Revision No.2585 of 2009 filed by the complainant, Surjit Kumar, are allowed. The respondents in these appeals, i.e. Mohan Lal and Satpal, both sons of Dhanraj @ Moman Ram, who were charged with the offence punishable under Section 302, read with Section 34 of the IPC, alongwith the aforesaid Vinod and Perhlad, are both also held guilty of having committed an offence punishable under Section 302 read with Section 34 of the IPC and are, consequently, sentenced to rigorous imprisonment for life. They both be taken into custody forthwith.
50. Before we part with these cases, we would like to add a footnote.
DINESH2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -58-
As already noticed in our earlier orders dated 12.03.2015 and 20.05.2015, we had put up these cases for re-hearing, to try and determine as to whether any evidence had been collected by the 'Scene of Crime' team that is stated to have come on the spot on 20.02.2008. Learned Deputy Advocate General, Ms. Tanisha Peshawaria, had informed us, on instructions, that the said "team" was comprised only of Dr.Ajmer Singh, who remained on the spot for about 30-40 minutes and had generally supervised the investigation. However, neither were any foot moulds lifted nor any finger prints taken on the spot. Obviously, the purpose of the 'Scene of Crime' van coming on the spot seems to have been only a cosmetic exercise, with no investigation worth the name having taken place. When, all over the world, extremely advanced method of investigation are being undertaken, it is not understood as to why, in our country, which undoubtedly does not lack in expertise in the form of either man power or technology, the investigating agency is still not using even basic means of any kind of scientific investigation. Possibly, the reason is that though expertise and means are otherwise available in the country with ease, however, due to lack of financial support such expertise is not being made available to the investigating agencies, thereby leaving us, practically, still in the dark ages, as far as investigation techniques are concerned. We are not stating anything further on this, as it is already subject matter of other proceedings before a Division Bench, of which one of us, Rajive Bhalla, J, is a member. However, a copy of this order be sent to the Chief Secretary, Government of Haryana, the Additional Chief Secretary, Home, Government of Haryana and the Director General of Police, Haryana, so as to at least ensure that, possibly and perhaps, Government may awaken to ground DINESH 2016.03.01 13:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-633-DB-2009 -59- realities and take some genuinely sincere measures, to try and ensure that some investigation worth the name, is conducted by its investigating agency.
Since a similar situation exists also in the State of Punjab, as we have repeatedly seen in criminal appeals coming from that State, a copy of this order be also sent to the Chief Secretary, Government of Punjab, the Additional Chief Secretary/Principal Secretary, Home, Government of Punjab and the Director General of Police, Punjab, with the same objective as we have given immediately hereinabove, in relation to the State of Haryana.
(RAJIVE BHALLA) (AMOL RATTAN SINGH)
February 26, 2016 JUDGE JUDGE
dinesh
DINESH
2016.03.01 13:12
I attest to the accuracy and
integrity of this document
Chandigarh