Punjab-Haryana High Court
Sanjay And Others vs State Of Haryana on 24 July, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.D-168-DB of 2009
.....
Date of decision:24.7.2012
Sanjay and others
...Appellants
v.
State of Haryana
...Respondent
....
Coram: Hon'ble Mr. Justice Satish Kumar Mittal
Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. Shilak Ram Hooda, Advocate for the appellants.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
......
(2) Criminal Appeal No.D-299-DB of 2009
.....
Satish and another
...Appellants
v.
State of Haryana
...Respondent
....
Present: Mr. J.S. Lalli, Advocate for the appellants.
Mr. R.K.S. Brar, Additional Advocate General, Haryana for the
respondent-State.
......
Inderjit Singh, J.
This order will dispose of Criminal Appeal No.D-168-DB of 2009 filed by appellants-Sanjay, Anita and Ramesh alias Mesha and Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [2] Criminal Appeal No.D-299-DB of 2009 filed by appellants-Satish and Krishan as these arise out of the same judgment dated 15.12.2008 and order dated 16.12.2008 passed by the learned Additional Sessions Judge, Sonepat whereby all the appellants in the two appeals were found guilty and convicted for the offences punishable under Sections 120-B read with Sections 302 of the Indian Penal Code (`IPC' - for short). Appellants- Satish, Sanjay, Krishan and Anita were held guilty for the offence under Section 302 read with Section 34 IPC. Appellants-Sanjay, Satish and Krishan were also held guilty for the offence under Section 201 read with Section 34 IPC. Appellant-Satish was also held guilty for the offence under Section 25(1B)(a) of the Arms Act and appellant Sanjay was also held guilty for the offence under Section 25(1B(b) of the Arms Act. They were all sentenced to undergo rigorous imprisonment for life and to pay a fine of `5,000/- each and in default of payment of fine to further undergo rigorous imprisonment for three months each for the offence under Section 120-B read with Section 302 IPC. Satish, Sanjay, Krishan and Anita were sentenced to undergo rigorous imprisonment for life and to pay a fine of `10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each for the offence under Section 302 read with Section 34 IPC. Satish, Sanjay and Krishan were also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of `5,000/- each and in default of payment of fine to further undergo rigorous imprisonment for three months each for the offence under Section 201 read with Section 34 IPC. Satish was also sentenced to undergo Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [3] rigorous imprisonment for a period of two years and to pay a fine of `2,000/- and in default of payment of fine to further undergo imprisonment for one and half months for the offence under Section 25 1B(a) of the Arms Act. Sanjay was also sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of `2,000/- and in default of payment of fine to further undergo imprisonment for one and half months for the offence under Section 25 1B(b) of the Arms Act. However, all the substantive sentences were ordered to run concurrently.
The brief facts of the prosecution case are that FIR No.54 (Ex.PH/1) in the present case was registered on the statement of Sunita which was got recorded at about 8.40 a.m. on 1.4.2007 by SI/SHO Satpal Singh, Police Station Sadar, Sonepat. As per statement of the complainant, her brother-in-law Hari Om and they had constructed a residential house on the road in the fields on the outskirts of the village and were residing there along with children. Her husband had already died about 10 months back. She resides separately in her home with her children. Her brother-in-law Hari Om resides in his separate house along with his children. On that day at about 1.30 a.m. in the night Sahil-son of her brother-in-law Hari Om knocked at the door and when she opened the door, Sahil told her that some people had assaulted his father. On hearing this, she and her mother-in-law, namely, Sunehari rushed to the house of Hari Om along with Sahil and saw that her sister-in-law (Devrani) Anita was lying unconscious on the gate of the house due to the injuries suffered on her head. They entered in the room and saw that Hari Om was lying in a pool of blood on the bed. His head and Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [4] torso was on the bed but legs were hanging. He had multiple injuries on his abdomen and chest caused by sharp edged weapon and a lot of blood was oozing out from the injuries. When they saw, they found that he had succumbed to his injuries. Household articles of the box and `diwan' were lying scattered. The complainant also stated that her brother-in-law Hari Om had been murdered by some unknown culprits due to grudge. They had informed their relative Baljeet Nandal, resident of Bahadurgarh about this incident. They had also given information in the village of her mother-in- law. She along with her mother-in-law were going to Police Station to inform the Police after leaving her son Sandeep and Sahil son of Hari Om near the dead body when the Police party met on the turn of Rathdhana and got recorded the statement at 8.40 a.m. by SI/SHO Satpal Singh, Police Station Sadar, Sonepat. `Ruqa' was sent to the Police Station on the basis of which FIR was registered.
The Investigating Officer also recorded the statement of Sunehari Devi, mother-in-law of the complainant. Then he went to the spot of the crime. He prepared rough site plan. The inquest report was prepared. He lifted blood stained bed sheet piece and sealed with seal of `RS' and taken into possession vide recovery memo. The dead body was sent for post-mortem examination.
Dr. Suman Tanwar, who was posted as Medical Officer in General Hospital, Sonepat, conducted post-mortem examination along with Dr. Adarsh Sharma on the dead body of Hari Om and found the following injuries:-
Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [5] "1. Incised wound of size 3.5 x 1 cm on the left side of forehead, bone deep with clotted blood present. Bones were intact.
2. Three incised wound of size 3 x 1 cm, 3 x 1 cm and 3.5 x 1 cm present on the front of chest in the mid sternum area, bone deep with clotted blood present over it.
3. Three penetrating incised wound of sizes 3 x 1 cm., 2 x 1 cm. And 2 x 1 cm. present on the left side of chest in the supra mammary area lying side by side.
4. Two penetrating incise wound present over right side of chest in supra mammary area lying side by side of size 3 x 1 cm. Each with clotted blood present.
On opening the chest, injuries corresponding to No.3 and 4 are penetrating upto the longs with injuries on pleura and longs bilateral, massive, haemo pneumo thorax present.
5. Two incised wound of (a) sizes 2 x 1 cm. present in the left auxiliary area, 5 cm. below auxila and (b) 3.5 x 1 cm. on the left lateral side of chest in the lower part of the mid auxiliary line. These injuries are muscle deep with clotted blood present over it.
6. Three penetrating incised wounds of sizes 3 x 1 cm., 2.5 x 1 cm. and 2.5 x 1 cm. present in the right hypochondria, clotted blood present.
7. An incised penetrating wound in the right lumber area of Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [6] lower abdomen of size 1 cm. x 3 cm. with clotted blood present over it.
8. Four penetrating incised wound on right side of abdomen, para emblical area of sizes 3.5 x 1 cm., 3 x 1 cm., 2.5 x 1 cm and 2.1 x 1 cm., omentum and gut going out through the two larger wounds.
9. Four penetrating incised wounds of sized 3 x 1 cm., 3 x 1 cm., 2.5 x 1 cm. and 2.5 x 1 cm. present on the right lower abdomen with clotted blood present.
10. A penetrating incised wound 2.5 x 1 cm. in the left lateral side of abdomen in the lumber area with clotted blood present over it.
11. Incised wound of 2 x .5 x 1 cm. in the interio medial side of right upper arm, skin deep with clotted blood present.
On opening abdomen, injuries corresponding to injuries No.6, 7, 8, 9 and 10 are penetrating in peritoneal cavity, massive haemo peritoneal present. Intestinal contents mesentery omentum and right lobe of liver having tears." As per opinion of the doctors, the cause of death of deceased was shock and haemohrrage due to above described injuries. All injuries were ante-mortem in nature and sufficient to cause death in natural course of life. The probable time that elapsed between injury and death was within few minutes; whereas probable time that elapsed between death and post- mortem examination was within 24 hours. On 23.4.2007, an application Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [7] was moved seeking the opinion of the Board that whether injuries on deceased Hari Om were possible by knife produced by Police in a sealed parcel. After seeing that knife, the Medical Board gave the opinion that the possibilities of the injuries to deceased Hari Om could not be ruled out by that knife. The knife was again sealed with the seal of Dr. A.K. Sharma.
On 8.4.2007, at Geeta Bhawan Chowk, Mahabir Singh met the I.O. and got recorded his statement and he produced before him appellants- accused Sanjay, Satish and Krishan. The appellants were arrested in the case. They suffered disclosure statements separately. Then the Investigating Officer along with the appellants reached near Railway crossing where he met PW-Baljeet son of Chander Singh and he got recorded his statement and produced Anita wife of the deceased as accused. He recorded her statement on 9.4.2007. In pursuance of her disclosure statement, appellant-Anita got recovered a pillow from her house from Village Rathdhana. On 11.4.2007, appellant-Satish got recovered a pistol of .315 bore from beneath the railway over bridge along with two live cartridges and one live cartridge from the chamber of the pistol. The same were taken into possession vide memo (Ex.PM/7). The sketch (Ex.PM/8) of the pistol was prepared. The site plan of the place of recovery was prepared, which is Ex.PO/1. Appellant-Satish also got recovered a motorcycle which was used at the time of occurrence, which was taken into possession vide memo (Ex.PM/6). On the same day, appellant-Sanjay got recovered a knife. The same was taken into possession vide memo (Ex.PM/10). The sketch of the knife was prepared, which is Ex.PM/11 and Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [8] site plan of the place of recovery was also prepared. On the same day, appellant-Sanjay also got recovered the telephone which was taken into possession vide memo Ex.PM/12. On the same day, appellant-Krishan got recovered the ashes of clothes of the accused which they were bearing at the time of incident. The same were taken into sealed parcel and taken into possession vide memo Ex.PM/14. The site plan of the place of recovery was also prepared vide memo Ex.PO/5. The statements of the witnesses were also recorded. After necessary investigation, the report under Section 173 Cr.P.C. was prepared by Om Parkash, SI.
On presentation of challan, the trial Court finding prima facie charges against all the accused-appellants framed charges for the offences under Sections 120-B IPC read with Section 302 IPC. Charges against accused-appellants Sanjay, Satish, Anita and Krishan were framed for the offences under Sections 302 read with Section 34 and 120-B IPC. Charge under Section 201 read with Section 34 IPC was also framed against accused-appellants Sanjay, Satish and Krishan. Charges under Section 25 1B(a) and 25 1B(b) of Arms Act respectively were also framed against accused-appellants Satish and Sanjay. The accused pleaded not guilty to above charges and claimed trial.
To prove its case, the prosecution examined PW-1 Sunita- complainant who mainly deposed the same facts as stated above while giving brief facts of the case. She also stated that they noticed that her Devrani Anita was weeping while sitting on the door. Anita told that the assailants had hit her on her head due to which she had become Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [9] unconscious. She also deposed that all the articles of the house were lying scattered.
PW-2 Sahil is the minor son of Hari Om aged about 12 years. He is the eye witness of the occurrence and deposed regarding the occurrence. He deposed that on 31.3.2007, he had gone to sleep at about 9.00 p.m. after taking the meals. At about 1.30 a.m. in the night, he was awoken on hearing commotion. He saw that three persons were beatings his father. His mother was standing on a side. One of the assailant asked his mother to send the children at which his mother sent them upstairs. As they were being sent upstairs, he overheard that one of the assailants was telling the others to scatter the articles. One of the assailants was holding knife, the other was holding a pistol and the third one was empty handed. After 10-15 minutes, he heard the sound of start of motorcycle and saw from the roof that the three assailants were fleeing on motorcycle towards Sonepat. Her mother then called them to come down telling that those assailants had killed his father and had also injured her and had taken away money. She also asked him to inform his `Tai'. PW-2 Sahil further stated that he saw that his father was lying half body on the bed and the other half hanging downwards. He was having injuries on his chest and head. He knocked at the door of his `Tai', namely, Sunita, who came there and then his `Dadi' Sunehari also reached. His `Dadi' went to the village to inform the villagers. After some times, villagers came from the village. His `Tai' and `Dadi' then went to Sonepat to inform the Police. PW-2 next deposed that he could identify the three assailants who caused injuries to his father. One Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [10] of them was standing in the Court wearing yellow shirt (witness pointed out towards accused-Sanjay). Said person had also come to their house 7/8 days prior to the occurrence. The other two accused were also present in the Court. Witness was asked to identify and by going to the accused box, witness pointed towards accused-Krishan and Satish. He further deposed that Police had come to the spot in the morning and had recorded his statement.
In cross-examination, a Court question was asked to this witness whether he could clarify that which of the accused was holding which weapon. Witness pointed out towards accused Satish by stating that he was holding pistol and witness pointed out towards accused-Sanjay by stating that he was holding knife.
PW-3 HC Ranbir Singh is a formal witness, who tendered in evidence his affidavit (Ex.PB). PW-4 Baljeet son of Chander Singh mainly deposed regarding extra-judicial confession made by Anita to him on 8.4.2007 in the house of Suresh. She told that she had differences with Hari Om who used to maltreat her and that she had a talk in this regard with her sister's husband-Ramesh and he told her that he had a talk with some persons of Baiyapur and he would get the work done for a consideration of `5 Lacs. Said talk was done by Ramesh with Sanjay, Satish and Krishan of Village Baiyapur. Ramesh was resident of Village Baiyapur whereas accused-Sanjay and Satish etc. were of Village Bandepur. Anita further disclosed that she had aforesaid talk with Ramesh about one month prior to the occurrence and that about twenty days ago, an amount of `15,000/- had Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [11] been paid by Ramesh to Sanjay etc. She also disclosed that as per planing Sanjay had come about eight days ago and had a talk with Anita on the pretext of purchasing some plot and had gone after inspecting the place. She also disclosed that as per the planning three persons, namely, Sanjay, Satish and they were calling the name of third as Krishan came in the midnight of 31.3.2007 on a motorcycle. As per planning main gate was not closed from inside, so they entered the house, where she (Anita) was waiting for them. She disclosed further that as per planning Satish sat on the knees of Hari Om and Krishan took Hari Om in grip from behind and then Sanjay inflicted blows with knife to Hari Om and she pressed the mouth of Hari Om with a pillow. Anita further disclosed that though Satish was also taking a pistol but it did not work, so the murder was committed with knife. 20/25 knife blows were given by Sanjay to Hari Om. Hari Om died on the spot. She also disclosed that it was planned that while leaving the place the assailants would cause injuries to her and scatter the articles so that the incident is looked to be that of dacoity. It is also stated that after placing a clothe on her head, Sanjay hit `Danda' on her head, so that injury was not severe. She disclosed that after the assailants left, she called her children, who were present at the roof and she asked her son Sahil to call his `Tai' and tell that looting had taken place. Anita laid in front of the door so as to support the drama. This witness PW-4 also deposed that Anita disclosed at the last that she had committed the mistake. She pleaded to save her from the beatings of the Police and also to help her so that she could bring up her children. On the same day i.e. 8.4.2007 at about 5.00 Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [12] p.m., he proceeded towards Police Station taking Anita along with him. When he reached near Hindu College, Police vehicle was coming from the side of Railway Phatak. He got the police vehicle stopped and Police recorded his statement.
PW-5 Constable Babu Lal mainly deposed regarding tendering in evidence his affidavit (Ex.PC). PW-6 Ashish Chauhan of Tata Indicom mainly deposed regarding telephone No.6417233 but this witness could not produce the record. PW-7 Smt. Sunehari also mainly deposed as per prosecution version. PW-8 Raj Singh has not supported the prosecution version and was declared hostile. PW-9 Jaibir Singh son of Raj Singh also did not support the prosecution version and was also declared hostile. PW- 10 Dr. Suman Tanwar mainly deposed regarding conducting of post-mortem on the dead body of Hari Om. PW-11 Ram Parkash is Reader to District Magistrate, who deposed regarding the sanction order passed by learned District Magistrate. PW-12 Rohtas, Halqa Patwari deposed regarding the scaled site plan (Ex.PB). PW-13 Manoj Kumar mainly deposed that motorcycle No.HR-10E-2964 was taken away by Sonepat Police from their stand on 10.4.2007. This witness did not support the prosecution version and got declared hostile. PW-14 Constable Kishore Kumar deposed regarding handing over the special report to Illaqa Magistrate at 11.30 a.m. on 1.4.2007. PW-15 Om Parkash mainly deposed regarding preparing challan under Section 173 Cr.P.C. PW-16 Umesh Singh, Photographer deposed regarding photographs Exs.P.1 to P.6. PW-17 ASI Rajbir Singh mainly deposed regarding recording the FIR in this case. PW-18 ASI Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [13] Sombir is the recovery witness and has also deposed regarding the disclosure statement etc. given by the accused. PW-19 HC Ramesh Chander is also a formal witness to whom the doctor handed over a sealed parcel after post-mortem examination which he handed over to SI Satpal Singh. PW-20 Satpal Singh, Inspector, who is Investigating Officer of the case, deposed regarding the investigation.
At the close of the prosecution evidence the accused were examined under Section 313 Cr.P.C. and were confronted with the evidence of the prosecution. They denied the correctness of the evidence and pleaded themselves as innocent. They also deposed that this is a blind murder and they have been falsely implicated in this case in collusion with the complainant.
From the evidence on record, the learned trial Court convicted and sentenced the accused for the offences as mentioned above.
We have heard learned counsel for the parties and with their assistance have gone through the evidence on record carefully.
At the time of arguments, the learned counsel for the appellants firstly argued on the point that identity of the accused have not been established. There is no test identification parade conducted by the Investigating Officer. The identification by PW-2 in the Court is not proper and cannot be relied upon. The next contention of the leaned counsel for the appellants is that after the occurrence since PW-2 Sahil was in the custody of PW-4 Baljeet and he being a minor, has been tutored to depose against the accused. Learned counsel for the appellants next contended that Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [14] there is no evidence on the record to prove criminal conspiracy under Section 120-B IPC and there is no evidence regarding the involvement of appellant-Ramesh. Learned counsel further argued that accused Sanjay, Satish and Krishan are linked through appellant-Ramesh and when there is no evidence against accused-Ramesh the other accused also cannot be held guilty. Learned counsel further argued that all the accused have been falsely implicated in the present case to disinherit accused-Anita so that a benefit can be taken by PW-4 Baljeet from the property of the deceased. He argued that prosecution has failed to prove the guilt of the accused beyond reasonable doubt and the accused should be acquitted accordingly.
On the other hand, learned Additional Advocate General argued that the testimony of PW-2 Sahil can be relied upon by the Court. He being truthful and reliable witness and his presence on the spot cannot be doubted. He also argued that PW-2 Sahil has consistently deposed regarding the occurrence and has stood the test of cross-examination. Nothing could be found in his cross-examination. He has stated in chief-examination that he can identify the accused and he identified all the three accused who had come to the house and caused the injuries to his father. The learned Additional Advocate General further argued that there is no evidence on the record regarding tutoring Sahil. Merely that the witness is of 12 years age, it cannot be held that he was tutored. There is nothing in the cross- examination from which it can be held that he is a tutored witness. He also contended that the case against all the accused has been duly proved by the PWs. Oral evidence has been duly supported by medical evidence and the Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [15] investigation of the case and prayed that the appeals be dismissed.
As regards the first contention of the learned counsel regarding the identity, we find that the identity of the accused has been duly established in the present case. PW-2 Sahil, who is a minor child of the deceased Hari Om and has seen the occurrence, has stated in his chief examination that he could identify the accused. Even he identified one of the accused by pointing out towards him who was Sanjay. He stated that this person had also come to their house 7/8 days prior to the occurrence. Similarly, when the witness was asked to identify the other accused, he by going to the accused box pointed towards accused Krishan and Satish. The identification in the Court is substantial evidence whereas the test identification parade is a corroborative piece of evidence. Appellant Sanjay had visited their house 7/8 days prior to the occurrence also and the witness had specifically identified Sanjay. Again in the cross-examination when Court question was put to the child witness to tell which of the accused was holding which weapon. The accused had correctly pointed out that Satish was holding a pistol and Sanjay was holding a knife. This statement of the witness is as per prosecution version. A perusal of the statement of PW-2 Sahil specially when he identified the accused who had come to their house 7/8 days before the occurrence also and further by pointing out as to which of the accused was holding pistol and who was holding knife correctly leaves no doubt regarding the identity of the accused.
Learned counsel for the appellants placed reliance on the judgment of the Supreme Court in Bhagwan Singh and others v. State of Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [16] M.P., (2003) 3 SCC 21. This case is having distinguished facts and will not apply in this case, as in that case the child was of six years age and the Court held his conduct as unusual. The statement of the child was also not recorded by the Police immediately but was recorded after a few days and keeping in view the facts and circumstances of that case the Court observed that his version being tutored cannot be ruled out which are not the facts in the present case in hand. Learned counsel for the appellants also placed reliance on the judgment of the Supreme Court in State of U.P. v. Ashok Dixit and another, (2000) 3 SCC 70. We have also gone through this judgment. In this case also the child at the time of occurrence was 9½ years old. Her statement was recorded after two days and in that case there was material omissions etc. and there was no electricity and Court observed that it is difficult to accept that she being 9½ years old could have identified accused Chaman Lal during the occurrence, which are not the facts in the present case. Therefore, that case having distinguished facts will not apply to this case. In the present case in hand firstly PW-2 Sahil was of 12 years age. He has stood the test of cross-examination. There is no material improvements in his version which may go to the root of the case. There is also no material inconsistency in his statement. He has deposed consistently as per prosecution version. Therefore, the argument of the learned counsel for the appellants has no merit.
As regards the second argument, we find that there is no evidence on the record to show that this witness is tutored one. This witness was cross-examined at length but nothing substantial came out from his Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [17] cross-examination. The mere fact that he was residing with his father's sister's husband after some days of the occurrence to till date and his uncle Baljeet and Aunt Kamla and his sister also came along with him cannot be held a ground to presume that he has been tutored. Even when the Court question was asked regarding the assailants, the witness has correctly deposed regarding the same. Similarly, this witness has consistently deposed regarding the prosecution version. The minor himself has pointed out which of the accused was holding which weapon. He was confronted with his statement (Ex.DA), which also does not go to the root of the case. These improvements are not material improvements and have no bearing on the merits of the case. PW-2 is the truthful and reliable witness. He has given the occurrence correctly and there is no material discrepancy in his statement and we rely upon his statement.
As regards the next contention that the criminal conspiracy regarding Ramesh has not been proved and there is no evidence to connect him with the crime, we find merit in the argument. A perusal of the evidence on record shows that there is no cogent evidence produced by the prosecution to connect appellant-Ramesh with the crime. There is no direct or circumstantial evidence against him to hold him guilty. Admittedly, appellant-Ramesh was not present on the spot and has not taken active part in the commission of the offence. Only conspiracy is alleged against him but there is also no evidence regarding criminal conspiracy produced on the record by the prosecution qua him. The only evidence against him is that his name came in the extra-judicial confession made by Anita to PW-4 Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [18] Baljeet. Ramesh-appellant has not made any extra-judicial confession nor any PW has deposed regarding his participation in the commission of crime. The disclosure statement made by co-accused i.e. Anita is not binding against accused-Ramesh specially when there is no other evidence produced by the prosecution against appellant-Ramesh. Therefore, prosecution has failed to prove the guilt of the accused/charges against Ramesh by leading cogent evidence beyond any reasonable doubt. As there is direct evidence against accused Sanjay, Satish and Krishan, who committed the crime, therefore, in no way, it can be held that they are linked through accused- Ramesh only and also the case is not proved against them.
As regards the next contention that the accused have been falsely implicated in the present case, we find that firstly as per evidence nothing was stolen from the house, therefore, it was not the case of robbery or dacoity etc. Secondly, no injury has been caused to Anita nor she was medico-legally examined nor she was taken to hospital and she created the drama regarding receiving of injuries on her head shows her participation in the commission of the crime. No explanation has been given under Section 313 Cr.P.C. as to how this occurrence took place and how the assailants entered the house etc. It is nobody's case that they had broken the door or that they had come to the house after scaling the wall etc. shows the conspiracy of Anita with the accused and she kept the door open or allowed the other accused to enter the house. Further the conduct of Anita also shows that she was a party to the crime as she no where tried to save her husband as she was standing there. Further, the assailants told her to send Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [19] the children upstairs and she sent the children upstairs. When the accused left the house after committing the crime, Anita called the children down- stairs. From the statement of PW-2 Sahil, who is a minor child, the conduct of Anita can also be seen. The non-explanation in the statement under Section 313 Cr.P.C. by accused-Anita, who was present in the house and has seen the occurrence also goes against her. Further PW-4 Baljeet, who is the witness of extra-judicial confession is a trust-worthy and reliable witness. Extra-judicial confession has been made to him by accused-Anita. PW-4 Baljeet produced accused Anita before the Police. All these facts show that Anita-appellant is guilty of the charges framed against her. As already discussed, the statement of PW-2, who is eye witness to the occurrence, cannot be disbelieved. He is a truthful and reliable witness and we fully rely upon the statement of PW-2 Sahil. His statement is further supported and corroborated by complainant PW-1 Sunita and by PW-7 Sunehari mother-in-law of Sunita. The statements of these PWs are duly supported and corroborated by medical evidence and the investigation of the case. There is nothing on the record as to why PWs would depose falsely against the accused. PW-4 Baljeet in his statement has deposed that on the thirteenth day ceremony of Hari Om, the custody of the children was given to him by the brotherhood Panchayat. He also stated that an amount of `95,000/-, which was sale consideration of the car, was got deposited by him in the account of children of the deceased. This conduct itself shows that PW-4 Baljeet was in no way interested in the properties of the deceased. He is not the legal heir or the beneficiary of Hari Om. Otherwise also, Hari Cr. A. No.D-168-DB of 2009 and Cr. Appeal No.D-299-DB of 2009 [20] Om's sister was married to him about 30 years earlier to the occurrence. Therefore, in no way PW-4 can be held as the interested witness. He is also a reliable witness and there is nothing improbable in making extra-judicial confession by Anita to him. This extra-judicial confession also supports and corroborates the prosecution version.
Therefore, from the above discussion, Criminal Appeal No.D- 168-DB of 2009 is partly allowed qua appellant No.3-Ramesh alias Mesha. The impugned orders of conviction and sentence dated 15/16.12.2008 qua appellant No.3-Ramesh alias Mesha passed by the learned trial Court are set aside and he is acquitted of the offences alleged against him. This appeal qua appellants No.1 and 2 i.e. Sanjay and Anita is dismissed and impugned orders of conviction and sentence qua them are upheld.
Criminal Appeal No.D-299-DB of 2009 is dismissed and impugned orders of conviction and sentence passed by the leaned trial Court are upheld.
(Satish Kumar Mittal) (Inderjit Singh)
Judge Judge
July 24, 2012.
*hsp*