Punjab-Haryana High Court
Gulab Singh vs State Of Haryana on 30 October, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(i) Criminal Appeal No.D-584-DB of 2008
Date of decision : 30.10.2012
Gulab Singh
....APPELLANT
VERSUS
State of Haryana
....RESPONDENT
(ii) Criminal Appeal No.D-655-DB of 2008
Dharambir
....APPELLANT
VERSUS
State of Haryana
....RESPONDENT
CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Mr.A.S.Trikha, Advocate, for the appellant in Criminal Appeal No.D-584-DB of 2008. Mr.Deepak Garg, Advocate, for the appellant in Criminal Appeal No.D-655-DB of 2008. Mr.R.K.S.Brar, Addl. Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J This judgment shall dispose of Criminal Appeal No.D- 584-DB of 2008, filed by appellant Gulab Singh and Criminal Appeal No.D-655-DB of 2008, filed by appellant Dharmbir as these arise out of the same judgment dated 30.07.2008 and order of Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [2] sentence dated 31.07.2008 passed by the Sessions Judge, Jind vide which appellant-accused Gulab Singh has been convicted under Section 120-B IPC and also under Section 302 read with Section 120-B IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- on each count and in default of payment of fine to further undergo rigorous imprisonment for one year each. Appellant-accused Dharambir has been convicted under Section 302 and also under Section 120-B IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- on each count and in default of payment of fine to further undergo rigorous imprisonment for one year each. However, sentences awarded to the appellants-accused were ordered to run concurrently.
Prosecution case in brief is that on 11.09.2007 when the police party headed by Sub Inspector Suresh Kumar, SHO, Police Station Julana, was on patrolling, one Rajpati wife of Ram Chander came there and got recorded her statement at 9:30 a.m. She stated that her elder son Sanjay runs a shop of barber in the room constructed in the plot, situated on the road of the village. Her house adjoins the house of accused Gulab Son of Ram Kishan Dhanak. About one month ago, her brother-in-law (Devar) Chand Ram got an altercation with Gulab and Ashok after consuming liquor. The matter was compromised but Gulab kept a grudge in his heart. 4-5 days before the occurrence, he started urinating while standing in the street. The complainant told this fact to Ramanand, who made Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [3] complaint to Ram Kishan, father of Gulab, regarding the same. On the intervening night of 10/11.09.2007, Gulab called Dharambir, who had earlier murdered a Saint of the temple, at his house. At that time, complainant heard some noise in the street and when she came out she saw Gulab and Dharambir having conversation in the street. On seeing her, Gulab went to his house and Dharambir, who was having a sword like thing, went towards the road. Complainant having suspicion and keeping a distance from Dharambir, followed him. On arriving at the road, Dharambir assaulted Ram Chander, husband of complainant, who was sleeping on a cot outside the shop. She got perplexed and raised alarm. On hearing her calls, her son Sanjay and one Dalbir came on the spot and accused Dharambir alongwith his weapon ran away towards the village. Complainant Rajpati also told to the police that hatching a conspiracy, Gulab and Dharambir have murdered her husband by inflicting injuries on right side of temple, on back side of the face and temple with a sharp weapon. She stated that they could not come in the night due to non-availability of vehicle with them. Sub Inspector Suresh Kumar, after recording the statement of Rajpati, sent ruqa to the police station on the basis of which FIR was registered. Then he alongwith police official, complainant and Dalbir Singh went to the spot. Photographer was called and the photographs of the dead body were taken. Inquest report Ex.PC was prepared and blood stained earth was taken into police possession after preparing the sealed parcel. Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [4] One mattress, one blanket and plastic cane, which was stained with blood, after cutting from the cot, were also taken into police possession after preparing separate sealed parcels. Rough site plan of the place of occurrence was prepared and statements of witnesses were recorded. Dead body of Ram Chander was sent for postmortem examination. Accused Gulab was produced by his father at bus-stand Julana and was arrested. On the same day, accused Dharambir was also arrested from the place near Railway Station, Julana. On 12.09.2007, accused Dharambir made disclosure statement which was lateron stated by him to be false. On 13.09.2007, Investigating Officer again interrogated him and he suffered disclosure statement Ex.PJ in the presence of Dalbir Singh to the fact that he had kept concealed a sword in the bushes near a kotha situated at bus-stand of village Gosain Khera and as per his disclosure statement, he got recovered the same which was taken into police possession vide memo Ex.PL. Rough site plan Ex.PR regarding place of recovery of sword was prepared. After completion of investigation, challan was presented.
On presentation of challan, the copy of challan and other documents were supplied to the accused under Section 207 Cr.P.C. Finding a prima facie case against both the accused, accused Gulab was charged for the offence under Sections 120-B and 302 read with Section 120-B IPC whereas accused Dharambir was charged for the offence under Section 120-B and 302 IPC to which they pleaded not Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [5] guilty and claimed trial.
In support of its case, the prosecution examined PW1 Dr.Nand Lal Walecha, who mainly deposed that on 11.09.2007, he alongwith Dr.Kuldeep Rana conducted the post-mortem examination on the dead body of Ram Chander and found following injuries on his person:-
1. Incised wound of size 3.5 cm x 0.9 cm xd buccal cavity deep on right sxide of face extending from right lateral aspect of lower lip and extending upto the cheek. The intervening teeth were broken. Clotted blood was present.
2. Incised wound of size 2.5 cm x 0.5 cm x bone deep on right side of forehead extending from lateral end of right upper eyebrow towards forehead. Clotted blood present.
3. Incised wound of size 2 cm x 0.5 cm x bone deep on right side of forehead, 1 cm medial to injury No.2. Clotted blood was present.
4. Incised wound of size 1.5 cm x 0.5 cm x bone deep on right side of forehead, 0.8 cm medial to injury No.3.
5. Incised wound of size 0.8 cm x 0.5 cm x bone deep on right frontal area of scalp near hair line, 2.5 cm from mid line. Clotted blood present. On dissection of injuries No.2, 3, 4 and 5 underlying bones were found fractured, on further dissection there is a sub dural haematoma of size 7 cm x 6 cm on the corresponding with lacerations of brain matter present.
6. Incised wound of size 1 cm x 0.5 cm x muscle deep on back of upper part of right pinna. Clotted blood was present.
Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [6]
7. Incised wound of size 0.5 cm x 0.2 cm x muscle deep on right mastoid area. Clotted blood present on dissection underlying bone was found fractured. On further dissection a sub dural haematoma of size 5 cm x 4 cm was present on the corresponding area of brain and brain matter was found lacerated.
8. Incised wound of size 1.5 cm x 0.5 cm x muscle deep on right of scalp, 1 cm behind lower part of right pinna. Clotted blood present. On dissection underlying bone was found fractured. On further dissection a sub dural heamotoma of size 5 cm x 4 cm present on the corresponding area of brain and brain matter was lacerated.
9. An abraded bruise reddish in colour of size 2 cm x 0.5 cm on the bridge of nose was present with deformity of nose. On dissection corresponding nasal bone was found fractured.
As per the opinion of the doctor, the cause of death in this case was due to shock and haemorrhage as a result of injuries to the vital organ i.e. brain which were anti-mortem and sufficient to cause death in ordinary course of nature. PW2 Head Constable Bhim Singh is a formal witness, who tendered into evidence his affidavit Ex.PE. PW3 Kuldeep Gupta, Senior Engineer mainly deposed regarding scaled site plan Ex.PF. PW4 Sub Inspector Virender Singh, SHO, Police Station Julana mainly deposed regarding obtaining the opinion of the doctors regarding the weapon of offence i.e. regarding causing of injuries by the said sword. PW5 Jaibir Singh, Photographer, mainly deposed regarding the Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [7] photographs Ex.P4 to Ex.P10 and negatives Ex.P11 to Ex.P17. PW6 ASI Shish Ram mainly deposed regarding scribing of FIR Ex.PH on receiving the statement of Rajpati Ex.PG having endorsement Ex.PG/1 of Suresh Kumar, Sub Inspector, SHO. PW7 Constable Sunil Kumar is a formal witness, who tendered into evidence his affidavit Ex.P1. PW8 Smt.Rajpati, complainant, wife of Ram Chander (deceased), mainly deposed as per prosecution version. PW9 Dalbir, who also reached at the spot on hearing the alarm raised by Rajpati, complainant, also deposed that on reaching the spot accused Dharambir fled away from the spot alongwith his weapon i.e. sword. PW10 Constable Vijender Singh mainly deposed regarding delivery of special report. PW11 Sub Inspector Suresh Kumar deposed regarding the investigation of the case. Public Prosecutor, after tendering into evidence Forensic Science Laboratory report Ex.PS, closed its evidence.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of the evidence and pleaded themselves as innocent. Accused Gulab mainly deposed that he had no connection with co-accused Dharambir either before or at the time of commission of offence and he has been falsely implicated. Accused Dharambir also taken the same plea that he has no connection with co-accused Gulab and has no connection with the murder of Ram Chander deceased and he Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [8] has been falsely implicated in this case.
The trial Court, after appreciation of evidence and material on record, convicted and sentenced the accused as stated above.
At the time of arguments, learned counsel for the appellant firstly contended that the appellants-accused are innocent and have been falsely implicated in this case. There is delay of about ten hours in recording the FIR. There is no motive for Dharambir to cause the occurrence. Learned counsel for the appellants next contended that there is no evidence to prove any criminal conspiracy against accused Gulab and no independent witness is there to support and corroborate the prosecution version, therefore, the appeals should be accepted.
On the other hand, learned Addl. Advocate General, Haryana, contended that case of the prosecution has been duly proved by two eye-witnesses i.e. PW8 Smt.Rajpati, complainant, and PW9 Dalbir. The motive has been duly proved by both these PWs. He further contended that there is criminal conspiracy between both the accused to commit the murder of Ram Chander and this criminal conspiracy has been duly proved as both the accused were seen in conversation immediately prior to the occurrence. Learned Addl. Advocate General, Haryana, further contended that no independent witness has seen the occurrence as it took place at 11:30 p.m. PW8 Rajpati and PW9 Dalbir have seen the occurrence, Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [9] therefore, they have been examined and they have consistently deposed regarding their eye-witness account. He also contended that their statements are duly supported by medical evidence. The prosecution has duly proved its case by leading cogent evidence, therefore, the appeals should be dismissed.
We have heard learned counsel for the appellants and learned Addl. Advocate General, Haryana, and with their assistance have gone through the evidence on record minutely and carefully.
From the evidence on record, we find that there is no cogent evidence on record to prove the criminal conspiracy and involvement of appellant-accused Gulab. The motive against him is the earlier dispute which was stated to have been compromised. Accused Gulab has not caused any injury to Ram Chander (deceased) nor he was present at the time of occurrence. The only evidence against accused Gulab is that he was having some conversation with accused Dharambir and on seeing PW8 Rajpati, he went to his house. There is not an iota of evidence on the record as to what conversation took place between accused Gulab and Dharambir. Therefore, no inference can be drawn regarding the criminal conspiracy only due to this fact. Appellant Dharambir is not related in any way with appellant Gulab. Appellant Dharambir is Jatt by caste whereas appellant Gulab is of another caste. There is no evidence on record why Dharambir will commit the murder at the instance of Gulab. As there is no cogent evidence on record, Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [10] therefore, it cannot be held that Dharambir has committed the murder at the instance of Gulab. There is no evidence on the record that Dharambir was friend of Gulab or in any way he is aggrieved from Ram Chander(deceased) or Dharambir was under the influence of Gulab in any way or Dharambir has committed the crime by taking money etc. from Gulab, therefore, from the evidence on record, we find that there is no cogent evidence on record to prove the criminal conspiracy involving appellant-accused Gulab in the commission of offence. A reasonable doubt exists regarding the involvement of appellant-accused Gulab in the present case. Hence, giving benefit of doubt, we hold appellant-accused Gulab not guilty of the charges framed against him.
As regarding the arguments relating to appellant-accused Dharambir, we find that PW8 Rajpati, complainant, wife of Ram Chander (deceased) and PW9 Dalbir have consistently deposed that he caused injuries with sword to the deceased. The oral statements of both these eye witnesses are supported and corroborated by medical evidence. In the case of eye witness account, motive loses its significance. If prosecution failed to prove any motive then it cannot be held as fatal to the prosecution case. The present case is case of direct evidence and it is not the case of circumstantial evidence where the motive has much significance. On perusal of statement of PW8 Rajpati and PW9 Dalbir, it shows that there are no material contradictions nor there is any material improvements which Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [11] may go to the root of the case. Both the PWs have consistently deposed regarding the prosecution version. Their statements have been duly supported and corroborated by medical evidence and the investigation of the case. Further, recovery of sword in pursuance of disclosure statement of accused Dharambir supports and corroborates the prosecution version. As per Forensic Science Laboratory report, though serological examination was not possible due to traces of blood being so small but traces of blood were found on the sword which also supports and corroborates the prosecution version. Perusal of evidence shows that no independent witness was present on the spot who has seen the occurrence, therefore, question of examination of independent witness does not arise in the present case.
As regarding the delay in recording the FIR, it has been duly explained by PW8 Rajpati. She has stated that due to night, they did not report the matter to the police. She also explained that no conveyance was available at night. It is also in evidence that due to fear also, the complainant party has not reported the matter to the police. It is now settled law that delay in itself is not fatal to the prosecution case. In the case of delay, the Court is to scrutinize the statements of the witnesses more cautiously and carefully to find out the truth, therefore, we find no merit in this argument.
As already discussed, there is nothing on the record to show the innocence of accused Dharambir. Further, there is no Criminal Appeal No.D-584-DB of 2008 and Criminal Appeal No.D-655-DB of 2008 [12] motive for the PWs specially for the police officials to falsely deposed against accused Dharambir, therefore, we find that PWs are reliable and truthful witnesses and they are trustworthy. Relying upon their statements, we hold that prosecution has duly proved its case by leading cogent evidence beyond any reasonable doubt against appellant-accused Dharambir.
Therefore, judgment of conviction and order of sentence passed against appellant-accused Dharambir are upheld and Criminal Appeal No.D-655-DB of 2008 filed by him is dismissed.
As regarding appellant-accused Gulab, he is acquitted of the charges framed against him and consequently Criminal Appeal D-584-DB of 2008 filed by him is allowed. Appellant-accused Gulab is on bail, therefore, his bail bond/surety bond stands discharged.
(SATISH KUMAR MITTAL) (INDERJIT SINGH)
JUDGE JUDGE
30.10.2012
mamta