Punjab-Haryana High Court
Sant Lal And Others vs State Of Haryana on 3 May, 2012
Author: S.S. Saron
Bench: S.S.Saron, Naresh Kumar Sanghi
CRA No.662-DB of 2007 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.662-DB of 2007
Date of decision : 03.5.2012
Sant Lal and Others
.... Appellants
Versus
State of Haryana
.... Respondent
CORAM : HON'BLE MR. JUSTICE S.S.SARON.
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI.
Present : Mr. Sukhdeep Parmar, Advocate for the appellants.
Mr. Dhruv Dayal, DAG, Haryana for the State.
***
S.S. SARON, J.
The appeal has been filed by the appellants namely Sant Lal, Fatta Ram and Bira alias Bhira against the judgment dated 16.5.2007 passed by the learned Sessions Judge, Kaithal whereby they have been convicted for the offences under Sections 302 and 323 read with Section 34 Indian Penal Code ("IPC" - for short) as also against the order of sentence dated 18.5.2007 whereby they have been sentenced to undergo rigorous imprisonment for life, besides, pay a fine of Rs.5000/- each and in default thereof to undergo further rigorous imprisonment for six months each for the offence under Section CRA No.662-DB of 2007 [2] 302/34 IPC and to undergo rigorous imprisonment for six months each for the offence under Section 323/34 IPC. Both the sentences have been ordered to run concurrently.
The FIR (Ex.PH/2) has been registered on the statement (Ex.PH) of Tehla Ram (PW7) resident of Darauli, Police Station Gagga District Patiala. It is stated by the complainant Tehla Ram (PW7) that he does labour work. About 14-15 years back Atma Ram son of Danu Ram resident of Nagal, Police Station Siwan was murdered. It was suspected that his brother-in-law (sister's husband) namely Vakil Singh (deceased in the present case) had committed the murder and a case was registered against him. In that case Vakil Singh was acquitted a month earlier to the occurrence in the present case (i.e. 8.5.2005). After the case of murder of Atma Ram, Vakil Singh (deceased), brother-in-law (sister's husband) of the complainant Tehla Ram (PW7) started residing at village Darauli along with his children. On the date of the incident i.e. on 8.5.2005 at about 9.00 a.m. in the morning, Tehla Ram (PW7), his brother-in- law Vakil Singh, his sister Balbiro (PW8) who is the wife of Vakil Singh and Mohan Singh (not examined) residents of village Darauli came from their village Darauli on motorcycles to village Bichhian for paying condolences regarding the death of Channa Ram son of Sohan Singh resident of Dera Bichhian who had died three days earlier. After paying condolences, they had CRA No.662-DB of 2007 [3] started back at about 11.00 a.m. from Dera Bichhian to village Darauli on their motorcycles. When they reached near the house of Mehru Pandit resident of village Bichhian at about 11.15 a.m., the motorcycle on which the complainant (PW7) and Mohan Singh were riding was ahead of the motorcycle of his brother-in-law Vakil Singh (deceased) with whom his sister Balbiro (PW8) was sitting and was following them. Within the sight of the complainant Tehla Ram (PW7), on two motorcycles Fatta Ram (appellant No.2) resident of Dera Kangthali carrying a 'lathi' in his hand, Sant Lal (appellant No.1) resident of Naggal carrying a 'gandasi' in his hand and Bira alias Bhira (appellant No.3) resident of Kharodi carrying a 'saria' (iron rod) in his hand came. At once on coming there, they raised a 'lalkara' and attacked Vakil Singh (deceased), brother-in-law of the complainant (PW7). Sant Lal (appellant No.1) inflicted a blow with the 'gandasi' that he was carrying in his hand on the head of Vakil Singh (deceased), Fatta Ram (appellant No.2) gave a blow with the 'lathi' which he was carrying in his hand on the left cheek of Vakil Singh (deceased) and Bira alias Bhira (appellant No.3) gave a blow with the 'saria' (iron rod) that he was carrying on the left ear of Vakil Singh. Sant Lal (appellant No.1) gave a second 'gandasi' blow on the right hand ring finger. When sister of the complainant (PW7) namely Balbiro (PW8) went to rescue his brother-in-law, then Sant Lal (appellant No.1) gave a gandasi blow on her mouth. When the CRA No.662-DB of 2007 [4] complainant (PW7) and Mohan Singh ran to rescue them, then all the three persons stated to run away from the spot with their respective weapons. In the meanwhile the motorcycle of Fatta Ram (appellant No.2) who was alone on it, fell down and he received injuries due to the fall. The villagers had caught hold of him. Sant Lal (appellant No.1) and Bira alias Bhira (appellant No.3) fled away from the spot on their motorcycle. After arranging a private vehicle when they along with Vakil Singh, brother-in-law of the complainant (PW7) and his sister Balbiro (PW8) were coming to Cheeka, then Vakil Singh succumbed to his injuries. Balbiro (PW8) was initially treated at Mahavir Dal Hospital, Cheeka and she was thereafter referred to Guhla Hospital for treatment. The dead body of Vakil Singh was lying at Mahavir Dal Hospital, Cheeka. After leaving Mohan Singh with the dead body, the complainant Tehla Ram (PW7) was coming to the Police Station for giving information that Dharampal ASI (PW12) met him at Cheeka Chowk and he recorded the statement of the complainant which was heard by him and accepted as correct. Legal action was asked to be taken. The statement (Ex.PH) was thumb marked by Tehla Ram (PW7) by putting his left thumb impression and was attested by Dharampal ASI (PW12). Dhrampal ASI (PW12) thereafter recorded police proceedings (EX.PH/3) to the effect that on 8.5.2005, he along with HC Sant Lal, Constable Rajesh Kumar and Constable Balwant Singh were present at CRA No.662-DB of 2007 [5] Cheeka Chowk in connection with patrolling that Tehla Ram (PW7) complainant got his statement (Ex.PH) recorded which was read over to him and he after understanding it and accepting it as correct put his left thumb impression which was attested by Dharam Pal ASI (PW12). From his statement, a case for the offences under Sections 323, 302 and 34 IPC was found to be committed. The writing was sent to the Police Station for registration of a case (FIR) through Constable Balwan Singh. After registration of the case its number was asked to be informed. Besides, special report of the case was asked to be sent to the officers. Dharam Pal ASI (PW12) along with his companions and Tehla Ram (PW7) left for Mahavir Dal Hospital, Cheeka. The statement (Ex.PH) of Tehla Ram (PW7) was recorded at 3.15 p.m. Beer Bhan MHC Police Station Cheeka vide Rapat No.17 at 3.30 p.m. on 8.5.2005 registered case FIR No.62 dated 8.5.2005 (Ex.PH/2) for the offences under Sections 323, 302/34 IPC. At Mahavir Dal Hospital Dharampal ASI (PW12) along with complainant Tehla Ram (PW7) conducted inquest proceedings and prepared his report (Ex.PD). The statements of the witnesses were recorded. The dead body of Vakil Singh was sent to the Government Hospital, Kaithal for post-mortem examination along with an application (Ex.PB). Thereafter, when they were returning to Cheeka Chowk, Dharam Pal ASI (PW12) met Balbiro (PW8) and he recorded her statement. CRA No.662-DB of 2007 [6] She produced copy of her medico-legal report (MLR), which was taken in possession. Dharam Pal, ASI (PW12) then went to the place of occurrence at village Bichhian. He prepared rough site plan (Ex.PK) of the place of occurrence; besides, recorded the statements of witnesses. He also lifted blood-stained earth which was converted into a sealed parcel and taken in possession vide recovery memo Ex.PL. He also vide memo Ex.PM took in possession a motorcycle make Hero Honda, besides, recorded statements of the witnesses.
The investigation was then taken over by Brij Mohan SI/SHO (PW13). He on 8.5.2005 arrested Fatta Ram (appellant No.2) who handed over a 'lathi' to him which was taken in possession vide memo Ex.PN. On the same day HC Sant Lal produced before SI/SHO Brij Mohan (PW13) a parcel prepared by the doctor containing clothes of the deceased which was taken in possession vide memo Ex.PO. Fatta Ram (appellant No.2) was got medico- legally examined. The case property was deposited with the MHC. The accused was put in the lock up. A sketch (Ex.PN/1) of the lathi was prepared. On 10.5.2005 SI/SHO Brij Mohan (PW13) arrested Bira alias Bhira (appellant No.3) and Sant Lal (appellant No.1). A 'Suzuki' motorcycle was taken in possession vide memo Ex.PN/2. The accused were put in the lock up and the motorcycle was deposited with the MHC. On 11.5.2005 SI/SHO Brij Mohan CRA No.662-DB of 2007 [7] (PW13) interrogated Sant Lal (appellant No.1) and Bira alias Bhira (appellant No.3). They made disclosure statements Ex.PQ and Ex.PR respectively. Sant Lal (appellant No.1) disclosed that he could get recovered a 'gandasi' which he had kept concealed in the forest near village Bichhian. Bira alias Bhira (appellant No.3) disclosed that he had kept concealed an iron rod in the forest and could get the same recovered. On the basis of their respective disclosure statements, firstly Sant Lal (appellant No.1) led the police party to some bushes and took out a 'gandasi' which he handed over to the police. Its sketch (PQ/1) was prepared. The 'gandasi' was put in a sealed parcel by using seal of 'SL' and was taken in possession vide memo (Ex.PQ/2). Rough site plan (Ex.PQ/3) of the place of recovery was prepared. Thereafter Bira alias Bhira (appellant No.3) led the police party to some bushes and took out an iron rod. Its sketch (Ex.PR/1) was prepared. It was converted into a sealed parcel using the same seal 'SL' and taken in possession vide memo (Ex.PR/2). Rough site plan (Ex.PR/3) of the place of recovery was prepared. On return to the Police Station, the accused were put in the lock up and the case property was deposited intact with the MHC.
SI Surta Ram (PW3) was posted as SHO Police Station Cheeka. On 28.5.2005, during investigation on the present case he recorded the statements of MHC Bir Bhan and Constable Gurvinder Singh. Then on CRA No.662-DB of 2007 [8] 13.6.2005 after completing investigations in the case he prepared final report under Section 173 of the Code of Criminal Procedure ("CrPC" - for short) which bears his signatures. The police report was filed in the Court of the learned Sub-Divisional Judicial Magistrate, Guhla on 29.7.2005. The learned Magistrate vide his order dated 13.8.2005 observed that since the alleged offence punishable under Section 302 IPC was exclusively triable by the Court of Session, committed the case to the said Court for trial.
The learned Sessions Judge, Kaithal on 22.9.2005 framed charges against the appellants on the allegations that on 8.5.2005 at about 11.15 a.m. in the area of village Bichhian, District Kaithal all of them in furtherance of their common intention did commit murder by intentionally causing the death of Vakil Singh and thereby they all committed an offence punishable under Section 302/34 IPC. Secondly, on the aforesaid date, time and place, all of them in furtherance of their common intention voluntarily caused hurt to Balbiro (PW8) and thereby they all committed an offence punishable under Section 323/34 IPC. The appellants were directed to be tried on the above said charges. The charge sheet was read over and explained to the accused in simple vernacular to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 13 witnesses; besides, tendered documents in evidence including the FSL reports (Ex.PS and CRA No.662-DB of 2007 [9] Ex.PS/1). The statements of the respective accused/appellants in terms of Section 313 CrPC were recorded and the substance of the evidence appearing against them was put to them. Sant Lal (appellant No.1) in his defence stated that he was innocent. He had been falsely implicated in this case as his father Atma Ram was murdered by Vakil Singh and Mewa Ram and for that a case under Section 302/420 (sic. 34) IPC was registered in the year 1992 against the said persons at Police Station Gagga. In that case they were convicted by the Sessions Court, Patiala and that was the grudge in the mind of the witnesses and due to which they had been falsely implicated in the present case. No recovery was effected from them. Fatta Ram (appellant No.2) took the defence that he was innocent. He was falsely implicated in this case. On 8.5.2005 he along with Ramesh Kumar of Kangthali went to the bus stand, Kangthali in the afternoon at the shop of Garibu Ram (DW2) on motorcycle No.HR09A 5783 for purchasing household goods. Some police officials came there and forcibly took him to the Police Station Cheeka where he was beaten by the police and then falsely involved in this case. No recovery was effected from him. Bira alias Bhira (appellant No.3) in his defence stated that he was innocent. He had been falsely implicated in this case. His relative Atma Ram was murdered by Vakil Singh and two others for which a case under Section 302 IPC was registered at Police Station Gagga. In that case they were CRA No.662-DB of 2007 [10] convicted. On 10.5.2005 he was taken to Police Station Cheeka and there he was falsely involved in the present case. No recovery was effected from him. In defence, the appellants examined Ajmer Singh (DW1) Garibu Ram (DW2) and Puran Singh (DW3). Certified copy of the judgment (Ex.DB) in which Sant Lal (appellant No.1) was acquitted for the offence under Section 25 of the Arms Act, which he committed on 10.5.2005 was tendered in evidence and the defence evidence was closed. The learned Sessions Judge, Kaithal after considering the evidence and material on record has convicted and sentenced the appellants for the offences under Sections 302 and 323 read with Section 34 IPC. They have been sentenced to undergo imprisonment for life, besides, pay a fine of Rs.5000/- each and in default of payment of fine, to undergo further rigorous imprisonment for six months for the offence under Section 302/34 IPC. Besides, undergo imprisonment for a period of six months for the offence under Section 323/34 IPC. Both the sentences have, however, been ordered to run concurrently. Aggrieved against the same, the present appeal has been filed.
Sh. Sukhdeep Parmar, Advocate learned counsel appearing for the appellants has submitted that the prosecution has miserably failed to establish its case against the appellants and they have been convicted and sentenced on wholly untenable grounds. It is submitted that the case relating to the death of CRA No.662-DB of 2007 [11] Vakil Singh was one of a blind murder but because of the prior enmity on account of the murder of Atma Ram, father of Sant Lal (appellant No.1) allegedly by Vakil Singh (deceased), the appellants have been implicated. The prosecution case that Vakil Singh had been acquitted in the murder case of Atma Ram about a month earlier, it is submitted, is inconsequential as Vakil Singh had been on bail for the past six years even as per the deposition of Tehla Ram (PW7) but nothing serious had happened for all these years. It is also submitted that in terms of the FSL report (Ex.PS), no blood was found on the weapons that were recovered which would cast serious doubts on the prosecution case. Lastly, it is contended that in any case the presence of Fatta Ram (appellant No.2) and Bira alias Bhira (appellant No.3) at the time of occurrence is not at all established and their presence is highly doubtful. It is submitted that Fatta Ram (appellant No.2) was arrested by the Police after the occurrence in the present case. Thereafter, he was given beating by the police and then this case was foisted on him by showing him to have been arrested by the villagers and produced before the police in the evening. Dr. Aman Sood (PW2) who conducted the post-mortem examination on the dead body of Vakil Singh, it is submitted, stated that the death of Vakil Singh had taken place before 6.00 a.m. on 8.5.2005. Therefore, the time of occurrence i.e. 11.15 a.m. is clearly a result of manipulation. Bira alias Bhira (appellant No.3), it is CRA No.662-DB of 2007 [12] submitted, is the son-in-law of Atma Ram. Sant Lal (appellant No.1) and Fatta Ram (appellant No.2) are the son and brother-in-law (sister's husband) of Atma Ram respectively. The latter would not in any case take along with them Bira alias Bhira (appellant No.3) on account of their such relationship.
In response, Sh. Dhruv Dayal, learned Deputy Advocate General appearing for the State of Haryana has submitted that the prosecution has established its case against the appellants beyond shadow of reasonable doubt. It is submitted that the appellants had a motive to commit the murder of Vakil Singh (deceased) as he had been acquitted only a month earlier to occurrence in the present case for the murder of Atma Ram, father of Sant Lal (appellant No.1). It is submitted that the prosecution witnesses had no reason to falsely implicate the appellants. The present it is submitted is not a case of blind murder as stated by the learned counsel for the appellants but that of eye witnesses account. Tehla Ram (PW7) and Balbiro (PW8) had seen the occurrence and deposed regarding the manner in which the incident had occurred and was witnessed by them. The appellants, it is submitted, had committed the murder of Vakil Singh. It cannot be said that Vakil Singh was on bail for the last six years but nothing serious had happened in all these years. As regards, the blood being not found on the recovered weapons in terms of the FSL report (Ex.PS), it is submitted that the same is CRA No.662-DB of 2007 [13] inconsequential as it is only corroborative in nature. The deposition of Dr. Aman Sood (PW2) regarding the death of Vakil Singh having occurred before 6.00 a.m. on 8.5.2005 it is submitted is only an opinion of likelihood and would not out in any manner affect the eye witnesses account. The motorcycle No.HR09A 5783 of Fatta Ram (appellant No.2) was recovered from the place of occurrence vide recovery memo (Ex.PM) and the place of recovery is depicted in the site plan (Ex.PK). Therefore, Fatta Ram (appellant No.2) was very much involved in the case. Bira alias Bhira (appellant No.3), it is submitted, was with the other accused and was present at the time of occurrence. Therefore, the findings and conclusions reached at by the learned trial Court, it is submitted, are liable to be upheld and sustained.
We have given our thoughtful considerations to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records of the case. The contention of the learned counsel for the appellants that it is a case of blind murder and because of prior enmity the appellants have been implicated is not tenable. It may be noticed that the incident had occurred on 8.5.2005 at about 11.15 a.m. when the complainant Tehla Ram (PW7) along with Mohan Singh on one motorcycle and Vakil Singh (deceased) with his wife Balbiro (PW8) on the other motorcycle were returning from village Bichhain to their village Darauli after paying condolence CRA No.662-DB of 2007 [14] for the death of Channa Ram son of Sohan Singh. It is within the sight of Tehla Ram (PW7) and Balbiro (PW8) that Fatta Ram (appellant No.2) with a 'lathi' in his hand and Sant Lal (appellant No.1) with a 'gandasi' in his hand besides, Bira alias Bhira (appellant No.3) with an 'iron rod' came on two motorcycles. Sant Lal (appellant No.1) gave a 'gandasi' blow on the head of Vakil Singh while Fatta Ram (appellant No.2) gave a 'lathi' blow on the left cheek of Vakil Singh. Bira alias Bhira (appellant No.3) is attributed a blow with an 'iron rod' on the left ear of Vakil Singh. Sant Lal (appellant No.1) is attributed another 'gandasi' blow on the right hand ring finger of Vakil Singh. When Balbiro (PW8) sister of Tehla Ram (PW7) went ahead to rescue her husband Vakil Singh then Sant Lal (appellant No.1) gave a 'gandasi' blow on her mouth. Tehla Ram (PW7) and Mohan Singh tried to rescue them by running towards them. Then all the three persons with their respective weapons tried to run away from the spot. Fatta Ram (appellant No.2) was alone on a motorcycle and his motorcycle fell down due to which he received injuries and the villagers caught hold of him. Sant Lal (appellant No.1) and Bira alias Bhira (appellant No.3) ran away from the spot on the motorcycle. This version of Tehla Ram (PW7) as given in his statement (Ex.PH) before the police on the basis of which FIR (Ex.PH/2) was registered has been reiterated by him (PW7) while deposing in Court. It is deposed in Court that Sant Lal CRA No.662-DB of 2007 [15] (appellant No.1) gave a 'gandasi' blow on the head of Vakil Singh (deceased), Fatta Ram (appellant No.2) gave a 'lathi' blow on his head and Bira alias Bhira (appellant No.3) gave a blow with a handle on the head of Vakil Singh. Besides, Sant Lal (appellant No.1) gave a 'gandasi' blow on the right hand of Vakil Singh. Balbiro (PW8) sister of Tehla Ram (PW7) intervened and tried to save her husband Vakil Singh and she was given a 'gandasi' blow on her face by Sant Lal (appellant No.1). On hearing the 'raula' (noise) they i.e. complainant Tehla Ram (PW7) and Mohan Singh turned back and when they reached near Vakil Singh; Sant Lal and Bira alias Bhira (appellants No.1 and 3) managed to escape on their motorcycle. Fatta Ram (appellant No.2) also tried to escape but his motorcycle skidded and he fell down. He was caught hold of by the villagers. Tehla Ram (PW7) was confronted with the discrepancies in his statement (Ex.PH) before the Police. He stated that he had told the police that they had turned back on the motorcycle after hearing 'raula' (noise). He was confronted with his statement (Ex.PH) where it is not recorded that the witness had heard any 'raula' and then turned back. It is accepted as correct that Vakil Singh was released from jail about six years prior to his death. However, his case was pending in the Supreme Court which was decided only one month before his death.
Balbiro (PW8) is the widow of Vakil Singh (deceased). It is stated CRA No.662-DB of 2007 [16] by her that about 13-14 years back Atma Ram was murdered and her husband Vakil Singh was implicated as an accused on suspicion in that case. He was initially convicted but ultimately he was acquitted by the Court and about one month prior to the occurrence he was released from jail (sic. he was acquitted). When her husband was in custody she had along with her children shifted to village Darauli where her parents were residing. After release from custody, her husband (Vakil Singh) also shifted to village Darauli. She narrates the occurrence in the manner as has been narrated by Tehla Ram (PW7). She was cross-examined at considerable length. However nothing favourable for the accused could be brought out.
The manner in which the occurrence had occurred is corroborated by the medical evidence on record. Dr. Aman Sood (PW2), Medical Officer, Civil Hospital (Kaithal) along with doctors of the Medical Board conducted the post-mortem examination on the dead body of Vakil Singh. It is inter alia stated that the rigor mortis was present throughout the body. On examination of the dead body, the following injuries were found:-
"1. There was a lacerated wound 8 x 2 cm with fracture of bone in left temporo parietal region. Brain matter was coming out of it.CRA No.662-DB of 2007 [17]
2. There was incised wound over left temporal region 3 x 1 cm. On deep dissection, there was extra dural haematoma of the size of 5 x 3 cm.
3. There was lacerated wound over the left maxillary. Clotted blood was present around the wound.
4. There was lacerated wound over the right ring finger with fracture of proximal phalynix."
In the opinion of the Board of Doctors, the cause of death was injuries to the vital organs i.e. brain and shock and hemorrhage, which were sufficient to cause death in the normal course of life. All the injuries were ante-mortem in nature. The duration between injuries and death was within few minutes and between death and post-mortem was between 12 to 24 hours. It is further stated by Dr. Aman Sood (PW2) that on police application (Ex.PE) dated 18.5.2005, the Medical Board including himself after examining the weapons produced by the police gave opinion (Ex.PE/1). At the said stage a, 'gandasi' (Ex.P1) was taken out from a sealed parcel and shown to Dr. Aman Sood (PW2). It was produced by the police and was mentioned as weapon 1 in CRA No.662-DB of 2007 [18] his opinion (Ex.PE/1). Another sealed parcel was opened. It was found to contain a handle of hand pump (Ex.P2). It was also produced by the police which is mentioned as weapon No.2 in the report (Ex.PE/1). Besides, another sealed parcel was opened. It was a 'lathi' (Ex.P3). It was also produced by the police. The opinion (Ex.PE/1) is to the effect that the possibility of injury No.2 with 'gandasi' (Ex.P1) i.e. Weapon No.1 could not be ruled out. Besides, the possibility of other injuries (i.e. No.1, 3 and 4) to be caused with weapon No.2 i.e. 'nalke ki hathi' (handle of hand pump) could not be ruled out. As regards weapon No.3 i.e. 'lathi' (Ex.P3) it is stated that the possibilities of injuries No.1 and 4 to be caused with this weapon could not be ruled out. In cross- examination it is stated that in this case, the death could have taken place before 6.00 a.m. on 8.5.2005. It is from the said deposition in the cross- examination regarding death having taken place before 6.00 a.m. that learned counsel for the appellants has contended that the time of incident on 8.5.2005 at 11.15 a.m. is not the actual time of occurrence as death according to the doctor had taken place before 6.00 a.m. on 8.5.2005. It may, however, be noticed that in the examination-in-chief, the doctor (PW2) has stated that the time between the death and post mortem was 12 to 24 hours. The post mortem was conducted on 8.5.2005 at 5.45 p.m. Therefore, the period of 12 to 24 hours before this works out to 5.45 a.m. till 5.45 p.m. of 8.5.2005. It could be CRA No.662-DB of 2007 [19] any time between these. Besides, it is merely mentioned that death may have taken place before 6.00 a.m. on 8.5.2005 and it is not with certainty that the death indeed had taken place at that time. Moreover, as already noticed it is stated that rigor mortis was present throughout the body. Cadaveric Rigidity th or Rigor Mortis in Modi's Medical Jurisprudence and Toxicology (24 Edition) has been mentioned and described. It is stated that cadaveric rigidity, which is also know as death stiffening, comes on immediately after the muscles have lost the power of contractility and is due to the irreversible changes in the muscles of the body, both voluntarily and involuntarily. The time of onset and duration as has been mentioned in the Modi's Jurisprudence and Toxicology th Textbook (24 Edition) is as follows:-
"1. Time of onset - This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India, it usually commences in one to two hours after death.
2. Duration - In temperate regions, rigor mortis usually lasts for two to three CRA No.662-DB of 2007 [20] days. In northern India, the usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours and the longest forty hours. In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one or two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance CRA No.662-DB of 2007 [21] of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination."
The death of Vakil Singh in the present case had occurred in the month of May which is in the summer months. In India according to Dr. Modi rigor mortis usually commences in one to two hours after death. The duration of rigor mortis is 24 hours to 48 hours in winter and 18 to 36 hours in summer. Therefore, when the doctor has recorded that the rigor mortis was present throughout the body it would mean that it had commenced within one hour or two hours after the death of Vakil Singh and its duration was to continue for 18 to 36 hours being summer. This evidently means that the time of death before 6.00 a.m. as is sought to be contended by learned counsel for the appellants is not specific and it cannot be said that the incident had not occurred at 11.15 a.m. as has been deposed by Tehla Ram (PW7) and his sister Balbiro (PW8). In fact death could have occurred any time between 5.45 a.m. till 5.45 p.m. of 8.5.2005. Besides, the eye witness account, clearly shows that Sant Lal (appellant No.1) and Fatta Ram (appellant No.2) had inflicted the injuries. In CRA No.662-DB of 2007 [22] fact Fatta Ram (appellant No.2) was apprehended at the spot and he suffered injuries on his person. His motorcycle No.HR09 A 5783 was taken in possession vide memo Ex.PM. Fatta Ram (appellant No.2) in his statement under Section 313 CrPC also states that he was on motorcycle No. HR09A 5783 when the police had apprehended him while purchasing household goods from Garibu Ram (DW2). Therefore, it is established that motor cycle No.HR09A 5783 belongs to Fatta Ram (appellant No.2). The said motorcycle was recovered vide recovery memo Ex.PM from the place of occurrence. The recovery memo is signed by Mohan Singh who though has not been examined but nevertheless the recovery of the motor cycle at the spot coupled with the fact that injuries were suffered by Fatta Ram (appellant No.2) clearly go to show his involvement. In fact the injuries on Fatta Ram (appellant No.2) have been established by Dr. Ajit Pal Singh, Medical officer, PHC (Guhla) (PW1) who stated that on 8.5.2005 at 10.05 p.m. he medico legally examined Fatta Ram (appellant No.2) and found the following injuries on his person:-
"1. A lacerated wound 1.3 cm x 2.5 cm x bone deep. On left parietal region 4 cm from mid line of skull and 18 cm from frontal hair line. Advised X-ray.
2. Lacerated wound 1 cm x 1cm x bone CRA No.662-DB of 2007 [23] deep on mid line of skull and 19 cm from frontal hair line. X-ray was advised.
3. Lacerated wound 3 cm x 1.5 cm x bone deep on right parietal region 2 cm from mid line of skull and 19 cm from frontal hair line. X-ray was advised.
4. Lacerated wound on right temporal region 6 cm from mid line of skull, 5 cm from right ear pinna and 9 cm from frontal hair line, measuring 4.5 x 1.6 x bone deep. Advised X-ray.
5. Contused swelling on right fore-arm 3 cm below right elbow joint measuring 3 cm x 4 cm. Advised X-ray.
6. Swelling 3 cm x 2 cm on right side of back, 6 cm from vertebral column, corresponding to L. X-ray was advised. All the injuries were kept under observation and were caused with blunt weapon. The duration of the injuries was within 12 hours. Ex.PA was the correct carbon copy of the medico legal report. In cross-examination it is CRA No.662-DB of 2007 [24] stated that there was a remote possibility of injuries No.1 to 3 having been suffered by a fall from the motorcycle or scooter. The possibility of injures No.4 to 6 being suffered by fall could not be ruled out. The learned counsel for the appellants submits that since injuries No.1 to 3 on the person of Fatta Ram (appellant No.2 ) are not on account of fall from the motorcycle, the prosecution case is not established. It may, however, be noticed that the prosecution case is that the persons who had apprehended Fatta Ram (appellant No.2) at the spot had given a beating to him. Therefore, the said injuries being suffered on account of his being given a beating by the persons who apprehended him i.e. Fatta Ram (appellant No.2) cannot be ruled out. The defence version of Fatta Ram (appellant No.2) that the police had beaten him and then he was falsely involved in the present case does not appear to be probable as there was no occasion for the police to beat him and then get him medico legally examined. The recovery of the motorcycle of Fatta Ram (appellant No.2) at the spot and the beating that was given by the persons who apprehended him is established. Besides, Dr. Ajit Pal Singh (PW1) also states that possibility of injuries No.4 to 6 being suffered by fall cannot be ruled out. Therefore, the said circumstances go a long way to show that Fatta Ram (appellant No.2) had been caused injuries.
The prosecution case is further corroborated by Balbir Kaur CRA No.662-DB of 2007 [25] (PW8) who was at the spot at the time of the incident. She was riding pillion on the motor cycle of her husband Vakil Singh and is a stamped witness who had suffered injuries in the occurrence. She was medico-legally examined by Dr. Romila Jhanji, Medical officer CHC Guhla (PW6). It is stated by Dr. Romila Jhanji (PW6) that on 8.5.2005 at 4.00 p.m., she medico-legally examined Balbir Kaur (PW8) wife of Vakil Singh, resident of village Darauli.
It is stated that the alleged incident was at village Bichhian. On examination of Balbir Kaur (PW8), Dr. Romila Jhanji (PW6) found her fully conscious, well- oriented to time, place and person. Pulse was 80 per minute. B.P. 120/90 mm hg. All the clothes were well-placed. There were blood-stained on the clothes. The following injuries were found on her person:-
1. A lacerated wound of 1 cm x 1/2 cm on the left cheek. Wound was bleeding. She was referred to CH Kaithal for X-ray of left cheek and expert opinion.
2. There was an abrasion of the size of 1 cm x 1 cm on left knee.
Injury No.1 was kept under observation for X-ray report. Injury No.2 was simple in nature. Both the injuries were caused with blunt weapon with the duration of 12 hours. The correct carbon copy of MLR is Ex.PG and CRA No.662-DB of 2007 [26] the diagram showing the seats of injuries is Ex.PG/1. Dr. Jhanji (PW6) had sent a ruqa (memo) to Police Station Cheeka regarding Balbir Kaur (PW8) coming to the hospital. In cross-examination it is stated by Dr. Jhanji (PW6) that no X-ray report with regard to Balbir Kaur (PW8) was shown to her at any time so far. The possibility of injuries No.1 and 2 having been caused by a friendly hand, it is stated, could not be ruled out.
In defence Ajmer Singh (DW1), Garibu Ram (DW2) and Puran Singh (DW3) were examined. Ajmer Singh (DW1) stated that he was Sarpanch of village Bichhian from 2000 to 2005. On 8.5.2005 at 6 a.m. he had gone for a walk in the fields. His house was situated on the Bichhian to Karali village road and was opposite to the house of Mehru Pandit. When he was going for a walk, he saw some persons had collected in front of the house of Mehru Pandit. He went there and saw a dead body lying there. Then hundreds of persons had collected. He made a telephone call at Police Station Cheeka. Some police officials had arrived at about 7.00 a.m. They had carried the dead body. He did not know any Fatta Ram (appellant No.2) and he never produced him before the police. In cross-examination by the Public Prosecutor, the prosecution case was put to him. He stated that Channa Ram had died about one or one and a half months before 8.5.2005. It was incorrect that Channa Ram had died three days before 8.5.2005 and that on 8.5.2005 CRA No.662-DB of 2007 [27] Vakil Singh along with his wife Balbiro (PW8), Tehla Ram (PW7) and Mohan Singh had gone to the Dera of Channa Ram for condolence and they were coming back when they were attacked by the present accused in which Vakil Singh had died at the spot and Balbiro (PW8) had received injuries and that Fatta Ram (appellant No.2) one of the assailants had been caught by the villagers at the spot and handed over to the police in the evening. It was incorrect that he himself and Om Parkash had handed him (Fatta Ram) over to the police and he had also produced a 'lathi' before the police.
Garibu Ram (DW2) stated that about two months less from two years back i.e. from the date he was deposing in Court, which was on 9.3.2007 at about 2.30 p.m. Fatta Ram (appellant No.2) and Ramesh alias Rama had come to his shop for purchasing some Kariyana (grocery) articles. They had come on a motorcycle. At that time, a police party had arrived on a jeep and they had forcibly taken away Fatta Ram (appellant No.2) in the jeep to the police Station. The motor cycle was driven away by the police to his shop. Garibu Ram (DW2) himself and other shop-keepers of that area had inquired from the person as to why they had apprehended Fatta Ram (appellant No.2). The police said that they were to interrogate Fatta Ram (appellant No.2). Garibu Ram (DW2) and many other persons from the village had met DSP Guhla on the same day and then again after two days. The DSP told them that CRA No.662-DB of 2007 [28] Fatta Ram (appellant No.2) was required for interrogation. Garibu Ram (DW2) was cross-examined by the learned Public Prosecutor. It is stated that they had not filed any written application before the DSP or before any other authority that Fatta Ram (appellant No.2) had been apprehended by the Police from his shop. Bichhain was about 30 kms from his village Kangthali. It is stated that it was incorrect that he being a co-villager and a relative of Fatta Ram (appellant No.2) had made a false statement to save him from the murder charges. It was incorrect Fatta Ram (appellant No.2) was never apprehended by the police from his shop and that he had been apprehended at village Bichhian at the time of commission of murder of Vakil Singh. Om Parkash (DW) was given up as unnecessary.
Puran Singh (DW3) was examined who stated that he knew Vakil Singh (deceased). It is stated that about 1 to 3/4 years back at about 6/6.30 a.m. he was present in his field. He saw that many persons had collected near the house of Mehru Pandit, so he had gone there. One person was lying dead besides the road. He (DW3) remained there for 10 minutes and then went to his house. It is also stated that Balbiro (PW8), sister of Vakil Singh was married with Mammi Ram. Balbiro (PW8) had deserted Mammi Ram and started residing with one Puran of village Kharkan. In cross-examination it is stated that there was no criminal litigation between Mami Ram and Vakil CRA No.662-DB of 2007 [29] Singh. It may be noticed that Balbiro (PW8) is the sister of Tehla Ram (PW7). However, Puran Singh (DW3) mentions her as sister of Vakil Singh. In fact she is the wife of Vakil Singh.
The depositions of the said defence witnesses does not in any manner affect or dislodge the prosecution case. The eye-witness account of Tehla Ram (PW7) and that of his sister Balbiro (PW8) who is the wife of Vakil Singh (deceased) clearly go to show the involvement of Sant Lal (appellant No.1) and Fatta Ram (appellant No.2). Ajmer Singh (DW1) has been examined primarily to disprove the presence of Fatta Ram (appellant No.2). He (DW1) states that he never produced him before the police. However, as already noticed, Fatta Ram (appellant No.2) was arrested at the spot at the time of incident and his motorcycle was recovered from the spot, which was taken in possession vide memo (Ex.PM). Garibu Ram (DW2) has been examined to show that at the time of incident Fatta Ram (appellant No.2) was buying groceries from him. Fatta Ram (appellant No.2) in his statement under Section 313 CrPC states that he was on motorcycle No.HR09A 5783 which in fact was the motorcycle recovered from him at the spot. Puran Singh (DW3) has been examined to establish that Balbiro (PW8) had deserted Mami Ram and started residing with one Puran of village Kharka. The same is of no consequence regarding the involvement of Sant Lal (appellant No.1) and Fatta Ram CRA No.662-DB of 2007 [30] (appellant No.2).
The motive for committing the murder of Vakil Singh is also established inasmuch as Atma Ram father of Sant Lal (appellant No.1) was said to have been murdered by Vakil Singh. Only a month earlier to the occurrence on 8.5.2005 Vakil Singh had been acquitted by the Hon'ble Supreme Court for the murder of Atma Ram. The stand of the learned counsel for the appellants that Vakil Singh had been on bail for the last about six years is not of any consequence as it is his acquittal that gave the impetus to Sant Lal (appellant No.1) and Fatta Ram (appellant No.2) to commit his (Vakil Singh's) murder.
The FSL report (Ex.PS) mentions Exhibit-1 as dried lumps of earth (approximately 20 gm) stained with brownish stains and described as blood stained earth. Exhibit 2a is mentioned as one white terrycot 'kurta' stained with several medium and small brownish stains. Exhibit 2b is mentioned as one white terrycot 'pyjama' stained with several medium and small brownish stains. Exhibit 3 is mentioned as one bamboo danda (approximately 96 cms), Exhibit 4 is mentioned as one all metallic 'hathi/saria' (approximately 99 cms) and Exhibit 5 is mentioned as one gandasi (approximately 104 cms) having rusty metallic blade and a bamboo handle. Laboratory examination mentions that Ex.1a (Kurta) and Ex.1b (Pyjama) were CRA No.662-DB of 2007 [31] stained with several medium and small blood stains. However, blood could not be detected on Exhibit 2 (Danda), Exhibit 4 (Hathi/Saria) and Exhibit 5 (Gandasi). As per serological analysis of blood (Ex.PS/1), human blood was detected on kurta and pyjama (Ex.2a and Ex.2b). However, in respect of blood-stained earth (Ex.1) it is mentioned that the material had disintegrated.
The contention of the learned counsel for the appellants that blood was not found on the weapons is, however, not of much consequence as there is eye-witnesses account of the occurrence as regards Sant Lal and Fatta Ram (appellants No.1 and 2). Therefore, the evidence against them clearly goes to show that they had committed the offences.
However, the prosecution case as regards Bira alias Bhira (appellant No.3) is doubtful. It may be noticed that Bira alias Bhira (appellant No3) is the son-in-law of Atma Ram. Fatta Ram (appellant No.2) is the brother-in-law (sister's husband) of Atma Ram. It is quite unlikely that Sant Lal and Fatta Ram (appellants No.1 and 2) would involve their own son-in-law Bira alias Bhira (appellant No.3) in the commission of the crime. It is for the said reason that there is a material discrepancy in the weapon that is said to have been used by Bira alias Bhira (appellant No.3) in the incident. In the FIR (Ex.PH/2) it is stated by Tehla Ram (PW7) that Bira alias Bhira (appellant No.3) was carrying an iron rod. It is alleged that Bira alias Bhira (appellant CRA No.662-DB of 2007 [32] No.3) gave a blow with an iron rod he had in his hand on the left ear of Vakil Singh. However, Tehla Ram (PW7) while appearing in Court states that Bira alias Bhira (appellant No.3) was carrying an iron handle of a hand pump and he had given a blow with it on the head of Vakil Singh. Bira Ram alias Bhira (appellant No.3) made a disclosure statement and memo of disclosure (Ex.PR) was recorded. It is recorded in the said memo that Bira Ram alias Bhira (appellant No.3) in the presence of the witnesses while in police custody disclosed that on 8.5.2005 he used an iron rod for the murder of Vakil Singh (deceased) which he had concealed in the bushes on the back side of Peer in the jungle of Bichhian. Nobody knew about it and he could get it recovered by demarcation. In pursuance of the said memo of disclosure statement (Ex.PR), Bira alias Bhira (appellant No.3) entered into the jungle of village Bichhian from the back side of the Mazar of Peer and took out one handle shape iron rod from beneath of bushes and produced it. Total length of the handle shape iron rod was 3 feet 6 cm and width was 1 feet 8 inch. Two holes are on its front side which are in the shape of circles. A separate sketch (Ex.PR/I) of the handle shape iron rod was prepared and the parcel prepared and sealed. Site plan (Ex.PR/III) of the place of recovery was prepared. Mark B is depicted in the site plan as the place where the Mazar of Peer is there and behind it Mark A in the jungle is depicted as the place where Bira alias Bhira CRA No.662-DB of 2007 [33] (appellant No.3) took out one handle shape iron rod from underneath the bushes and produced it. It is about 20 steps from the Mazar of Peer. The Mazar of Peer is on the northern side of the metalled road. A perual of the Sketch (Ex.PR/I) clearly depicts the recovered weapon of offence to be the handle of a hand pump and it cannot be mistaken with an iron rod. The FSL report (Ex.PS) also mentions that Parcel IV contained Exhibit 4. Ex.4 is mentioned as one all metallic 'hathi/Saria' (approximately 99 cms). Therefore, the weapon of offence that Bira alias Bhira (appellant No.3) is said to be carrying at the time of incident is quite doubtful.
Bira alias Bhira (appellant No.3) as already noticed is the son-in- law of Atma Ram and in the social set up he would not be involved by the family of his in-laws in the commission of the murder of Vakil Singh. Besides, the nature of weapon that Bira alias Bhira (appellant No.3) is said to be carrying at the time of the incident is discrepant and the prosecution has not been able to clearly establish as to whether it was an iron rod or a handle of a hand pump. Moreover, generally people do implicate all members of the opposing family so as to inflate their version. In the circumstances, benefit of doubt is liable to be given to Bira alias Bhira (appellant No.3).
For the foregoing reasons, the appeal as against Sant Lal (appellant No.1) and Fatta Ram (appellant No.2) is dismissed. However, the CRA No.662-DB of 2007 [34] same is allowed as against Bira alias Bhira (appellant No.3). The impugned judgment and order is set aside qua Bira alias Bhira (appellant No.3) and he is acquitted of the offences for which he was charged. In terms of order dated 7.10.2010 passed by this Court, Bira alias Bhira (appellant No.3) was granted bail. The bail bonds furnished by him shall stand discharged.
(S.S. SARON) JUDGE (NARESH KUMAR SANGHI) JUDGE May 3, 2012 amit