Punjab-Haryana High Court
Baljit And Another vs State Of Haryana on 5 July, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
Criminal Appeal Nos.D-828 & 843-DB of 2002 and
Criminal Revision No.168 of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(i) Crl. Appeal No.D-828-DB of 2002 (O&M)
Date of Decision: 05.07.2012
Baljit and another ...Appellants
VERSUS
State of Haryana ...Respondent
(ii) Crl. Appeal No.D-843-DB of 2002 (O&M)
Rajinder ...Appellant
VERSUS
State of Haryana ...Respondent
(iii)
Crl. Revision No.168 of 2003(O&M)
Virender @ Inder ...Petitioner
VERSUS
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE INDERJIT SINGH
******
Present: Mr.B.S.Saroha, Advocate,
for the appellants in Crl. Appeal No.D-828-DB of 2002.
Mr.K.D.S.Hooda, Advocate,
for the appellant in Crl. Appeal No.D-843-DB of 2002.
Mr.R.N.Lohan, Advocate,
for the petitioner in Criminal Revision No.168 of 2003
Mr.R.K.S.Brar, Addl. Advocate General, Haryana,
for the respondent-State.
INDERJIT SINGH, J.
This judgment shall dispose of two connected Criminal Appeal Nos.D-828-DB of 2002 filed by Baljit and Ashok and D-843- DB of 2002 filed by Rajinder and Criminal Revision No.168 of 2003 filed by the petitioner.
The appellants have preferred the aforesaid appeals against the judgment dated 28.09.2002, passed by Addl. Sessions Judge (Ad-hoc), Hisar, convicting and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each under Section 302 read with Section 34 IPC and rigorous imprisonment for a period of seven years under Section 449 IPC.
Criminal Revision No.168 of 2003 has been filed by the Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -2- petitioner against the aforesaid judgment whereby accused Suberu, Chandi Rajesh Sanjay, and Suba have been acquitted.
Brief facts of the case are that complainant Virender @ Inder son of Churia Ram are three brothers i.e. complainant, Joginder Singh and Surender and one sister. Churia Ram, father of the complainant, had been adopted by his maternal uncle Bhale Ram, therefore, the complainant and his brothers were cultivating the land of maternal uncle of his father. They were living in their fields as they have constructed a Dhani there. Bhale Ram, maternal uncle of the father of complainant, was issueless, therefore, Tau's sons of Bhale Ram were not happy to see the complainant and his brother on the land and they want to take the possession of the said land.
On 12.05.2000 at about 9.00 P.M., when complainant Virender Singh along with his brothers, Joginder and Surender, Bhabhi Anita wife of Joginder, mother Krishna, father Churia Ram, Bua Nano and grandfather Bhale Ram was present in his dhani, accused Baljit, Rajender and Ashok having gandasas and Virender, Suba, Rajesh, Mange Ram, Anil, Chandi and Sanjay armed with lathies came there. On reaching there, Baljit said that they would give them the real advance about the land and attacked on his father Churia Ram with their respective weapons. When the mother and brother of the complainant tried to rescue Churia Ram, the accused persons caused injuries to them also. Due to fear and to save their lives, complainant, his mother Krishna, bhabhi Anita and brothers Joginder and Surender ran away from the spot and reached Dhani Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -3- Mirdad. From there, they hired a Tata Sumo and went to the in-laws of his brother Joginder at village Kanheri. The complainant with the help of his Mausa namely Mange Ram resident of village Kanheri got admitted his mother and brother Joginder in Government Hospital, Tohana. Thereafter, the complainant accompanied his Mausa came back to his dhani and saw his father dead having injuries on his neck, head, arms and legs. A gandasa stained with blood was lying under the neck of his father. As Churia Ram (deceased), father of the complainant, was having some talk with Jagbir in order to sell the land to him, therefore, the accused persons felt annoyed and having murdered his father by giving him injuries.
On 13.05.2000, the complainant along with his uncle (Mausa) Mange Ram went to police station and got recorded the FIR. Thereafter, Sub-Inspector Davender Singh reached the spot and got clicked the photographs of the dead body through Satish Kumar, Photographer. He lifted the blood from the spot and put it into a parcel and sealed it. A gandasa stained with blood which was found lying under the neck of dead body of deceased Churia Ram, a piece of bamboo stick, the chaddar and the blanket were also taken into possession vide recovery memos. Rough site plan of the place of occurrence was prepared and dead body was sent for post mortem examination. All the accused persons were arrested on 16.05.2000 and two gandasas were recovered from accused Rajender and Ashok. After preparing the sketches of these gandasas, the same were taken into possession vide recovery memos. The lathies were Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -4- also recovered from the other accused and the same were also taken into possession vide recovery memos. On completion of investigation, challan against all the eight accused was presented.
The accused were charged for the offences under Sections 148, 302, 449, 323, 324 read with Section 149 IPC to which they pleaded not guilty and claimed trial.
The prosecution in order to substantiate the charges against the accused persons, examined Dr.O.P.Charaya (PW-1), who conducted the postmortem on the dead body of Churia Ram, Dr.H.S.Sagu, Medical Officer, Government Hospital, Tohana (PW2), who medico legally examined Joginder and Krishna, Sub Inspector Jagbir Singh (PW3), who partly investigated the case, Head Constable Ram Kumar (PW4), Head Constable Bijender Singh (PW5), Constable Krishan Kumar (PW6), Constable Prem Singh (PW7), Dev Karan Patwari (PW8), who prepared the scaled site plan, Satish Kumar, Photographer (PW9), who took the photographs on 13.05.2000, Constable Ramesh Kumar (PW10), who brought the parcels from the hospital, Virender @ Inder (PW11) as complainant, Krishana (PW12) and Joginder (PW13), eye witnesses to the occurrence and Sub Inspector Devender Kumar (PW14) Investigating Officer.
On closure of prosecution evidence, when the accused were examined under Section 313 Cr.P.C., they denied all the incriminating material against them and pleaded their false implication in the case.
Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -5- The trial Court after appreciation of evidence convicted and sentenced the accused as stated above.
We have heard counsel for the parties and gone through the record carefully.
Learned counsel for the appellants have contended that in the present case there is no motive to cause the occurrence as Churia Ram was adopted by Bhale Ram about 40 years back and Churia Ram was residing with Bhale Ram at his village, therefore, no motive to cause the occurrence on this ground arises. They have further contended that PWs have deposed that Churia Ram (deceased) was selling the property to one Jagbir but neither any agreement to sell was produced nor Jagbir was examined in the present case, therefore, no motive has been proved.
In the present case motive has been duly proved by PWs. It is duly proved on the record that Churia Ram (deceased) was adopted by Bhale Ram when he was about six years old as stated by the complainant Virender @ Inder (PW11) in his statement. Complainant Virender (PW11) in his cross-examination has deposed that about 4-5 days before the occurrence, they had talked with one Jagbir regarding the sale of their land. They have demanded price of land @ Rs.1,80,000/- per acre but neither any advance was given to them nor any writing was done for the transaction. This cross- examination shows that no agreement was executed with Jagbir and only talk of agreement had taken place, therefore, question of producing the agreement to sell in evidence does not arise. Similarly, Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -6- even if Jagbir was not examined, it cannot be held that motive has not been proved. Otherwise also complainant Virender (PW11) in his examination-in-Chief has stated that Baljit accused challenged the complainant party that advance/earnest money will be paid to them and on saying so, accused Baljit, Ashok and Rajender with their respective weapons i.e. Gandasas and other accused with lathies attacked on his father. As such, the motive has been duly proved by the prosecution witnesses in the present case. The accused persons are collateral and close relatives of Bhale Ram. Bhale Ram was having no other legal heir except his adopted son Churia Ram and the accused might be feeling aggrieved that the land of Bhale Ram will go to Churia Ram (deceased) and his heirs. Otherwise also in the case of direct evidence/eye witnesses account, it is not necessary to prove the motive strictly.
Learned counsel for the appellants have also contended that there is delay in lodging the FIR. They have further contended that Joginder and Krishana, eye witnesses to the occurrence, have fabricated injuries so that all the family members can be roped into of this case.
As per the prosecution version, the deceased Churia Ram alongwith his family members was residing in Dhani (farm house) in the revenue estate of village Gurana. The occurrence took place at about 9:00 p.m. on 12.05.2000. It is in the evidence that Dhani was at a distance of village Gurana and was not situated in the Abadi area, therefore, question of coming of other persons or witnesses at Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -7- that site also does not arise. Complainant and eye-witnesses have deposed that to save their lives they ran away from the spot and firstly they went to Dhani Mirdad and from there they hired vehicle Tata Sumo and went to village Kanhari at the house of Mange Ram, father-in-law of Joginder Singh and thereafter they accompanied Mange Ram went to Civil Hospital, Tohana. Krishana (PW12) in her cross examination has stated that their Dhani is located about 4 kilometers away from village Gorana. She has also deposed that they ran from Dhani through the gate of Western side of Dhani. Virender (PW11) has also deposed in his statement that he alongwith his mother and brothers Joginder and Surender, his Bhabhi Anita in order to save their lives ran away from Dhani towards Dhani Mirdad but conduct of PWs in no way can be held as improbable as the accused Baljit, Ashok and Rajinder were armed with deadly weapons i.e. Gandasas and they started causing injuries to Churia Ram, therefore, these family members saved their lives by running from the spot and their conduct looks natural.
As regards the delay in lodging the FIR, the FIR was got registered at 10:20 a.m. on the next day i.e. 13.05.2000 whereas the occurrence took place at 9:00 p.m. on 12.05.2000. It is settled law that the delay in itself cannot be held fatal to the prosecution case or in other words due to delay, the whole prosecution case cannot be thrown out. The only effect of the delay in recording the FIR is that the Court is to scrutinize and appreciate the evidence cautiously and carefully which the learned trial Court has already Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -8- taken note of and has already acquitted accused Suberu and Chandi, sons of Mange Ram, Suba son of Rajpat, Sanjay son of Chandi Ram and Rajesh son of Suberu, who were alleged to have been armed with lathies.
Learned counsel for the appellants have further contended that PWs Joginder and Krishana, eye witnesses to the occurrence, have fabricated injuries and MLRs, therefore, they cannot be believed. Dr.H.S.Sagu (PW2), who medico legally examined Joginder (PW13) on 12.05.2000 at about 11:15 p.m., found four injuries on his person. In his cross-examination, he has stated that these injuries can be caused with friendly hand. He had also medico legally examined Krishana (PW12) at 11:40 p.m. on the same day and found five injuries on her person. Injury No.1 was incised wound of size 3 cm. X .5 cm., skin deep over the left parietal region of skull. The other injuries are the contusion and linear abrasions. Except injury No.1 on the person of Krishana (PW12), remaining injuries can be caused by friendly hand as per the opinion of Dr.H.S.Sagu (PW2), given in his cross-examination. From the statement of PW2 Dr.H.S.Sagoo, we find that there was no injury on the head of Krishana (PW12) which was incised wound, therefore, the injuries on her person cannot be falsely created or fabricated. Nobody will fabricate the injury on the head to falsely implicate some person, therefore, the version of PW12 Krishana, wife of deceased, cannot be disbelieved. However, the cross-examination of Dr.H.S.Sagoo (PW2) creates some doubt regarding sending of Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -9- application Ex.P12 to Police Station, Narnaund. The original of Ex.P12 has been misplaced and was not produced. Similarly, there is no receipt showing the entrustment of Ex.P12 to Police Station, Tohana. Similarly, PW2 Dr.H.S.Sagoo has not given the time when application Ex.P13 was produced before him. He has stated that application was put up before him in between the time 12 midnight till next midnight on 12.05.2000. At the same time, he told that he remained on duty upto 8:00 a.m. on 13.05.2000. As per the Investigating Officer, he sought the opinion of the doctor regarding fitness of the injured in the evening of 13.05.2000. Otherwise also at the time of arguments, the presence of the witnesses on the spot or in the house is not contested. We have also gone through the statements of Krishana (PW12), wife of the deceased and Virender (PW11) & Joginder (PW13), sons of Churia Ram and found no material contradictions or material improvements in their statements which may go to the root of the case. The fact of delay has already been considered by the learned trial Court.
There is also some doubt regarding causing injuries by accused Suberu, Chandi Rajesh Sanjay, and Suba with the lathies. No injury on the person of deceased was caused with lathi, therefore, a reasonable doubt exists regarding the involvement of abovesaid five accused who were armed with lathies. Similarly, the injuries on the person of Joginder (PW13) and four injuries on the person of Krishana (PW12) can be caused with friendly hand as stated by PW2 Dr.H.S.Sagoo (PW2), therefore, the findings of the learned trial Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -10- Court to the extent of acquitting accused Suberu, Chandi, Suba, Sanjay and Rajesh are correct and the revision filed by the complainant Virender @ Inder for convicting the aforesaid five accused is having no merit.
Learned counsel for the appellants have further contended that Injury No.4 is a punctured wound and the same cannot be given with gandasa or lathi, which shows that the appellants have been falsely implicated in the case.
Baljit son of Mange Ram, Ashok son of Chandi Ram and Rajender son of Suba were armed with Gandasa each and the eye witnesses have alleged that they have caused the injuries to the deceased, therefore, their involvement in the commission of offence is duly proved beyond. The statements of the eye witnesses are duly supported and corroborated by medical evidence. On the mere fact that injury No.4 is a punctured wound and cannot be given with Gandasa or the lathi, the whole prosecution case cannot be disbelieved. It is in the statement of Virender (PW11) that they keep in their Dhani jaili, gandasi and other implements of agriculture land. Dr.H.S.Sagoo (PW2) has already stated in his statement that such type of injuries can be caused by a blunt weapon. Moreover, PWs ran away from the spot when the accused were causing injuries.
Learned counsel for the petitioners have further contended that injuries have been caused by some unknown persons at night time and the appellants have been falsely implicated in this case.
Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -11- As per evidence of eye witnesses, injuries have been caused by the appellants, therefore, the defence version that these injuries have been caused by some unknown person, cannot be believed. There is no strong motive to falsely implicate the accused Baljit, Ashok and Rajinder in such a serious case. Otherwise also, there is no reason or ground why they will leave the actual culprit and falsely implicate these accused, therefore, the judgment of the learned trial Court convicting the accused Baljit, Ashok and Rajinder and acquitting accused Suba, Chandi, Suberu, Sanjay and Rajesh is hereby upheld.
During the pendency of the appeal, report was called from the Sessions Judge, Hisar, whether the appellant Ashok is juvenile or not and the report was received that at the time of occurrence, appellant-accused Ashok was juvenile. As per record, he has already undergone three years sentence. As per Section 2(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000, a child who has not completed eighteenth year of age was taken to be a juvenile.
Keeping in view the said finding and the definitions of 'juvenile' and 'juvenile in conflict with law' as given in Sections 2(k) and 2(I) as well as Section 7-A of the Juvenile Justice Act, 2000, which was introduced by Amendment Act No.33 of 2006 and Section 20 which was further amended by the aforesaid amendment and the subsequent Juvenile Justice Rules, 2007 which were brought into force on 26.10.2007, we hold that on the day of the commission of Criminal Appeal Nos.D-828 & 843-DB of 2002 and Criminal Revision No.168 of 2003 -12- offence, appellant Ashok was a juvenile and he is to be governed by the provisions of the Juvenile Justice Act, 2000. Under Section 15 of the Juvenile Justice Act, 2000, a juvenile can be given maximum sentence for three years i.e. he can be sent to the Juvenile Justice Home under the supervision of the Probation Officers for a period not exceeding three years. Therefore, even in the event of upholding the conviction of appellant Ashok, his sentence of life imprisonment awarded by the trial Court is not sustainable and the same is set aside. Since in the present case, appellant Ashok is on bail and has already undergone more than three years of actual sentence, therefore, there is no purpose to send him to the Juvenile Justice Home as he has completed more than the maximum period of sentence as provided under Section 15 of the Juvenile Justice Act, 2000. Therefore, the order of sentence qua Ashok Kumar in Criminal Appeal No.D-828-DB of 2002 is modified to that extent. The sentence awarded by the trial Court to accused Baljit and Rajinder is upheld. As such, Criminal Appeal No.828-DB of 2002 qua Baljit and Criminal Appeal No.D-843-DB of 2002 of Rajinder are dismissed.
The acquittal of accused Suberu, Chandi Rajesh Sanjay, and Suba has already been found justified, therefore, Criminal Revision No. 168 of 2003 preferred by the complainant Virender @ Inder is also dismissed.
(SATISH KUMAR MITTAL) (INDERJIT SINGH)
JUDGE JUDGE
05.07.2012
mamta