Punjab-Haryana High Court
Devi Singh vs State Of Haryana on 12 December, 2008
Author: S.S.Saron
Bench: S.S.Saron, Rakesh Kumar Jain
Crl.Appeal No.414-DB of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No.414-DB of 1998
Decided on December 12,2008
Devi Singh
-- APPELLANT
VERSUS
STATE OF HARYANA
--RESPONDENT
AND CRL.APPEALNo.158-DB of 1999 Decided December 12,2008 Rajender
-- APPELLANT VERSUS STATE OF HARYANA
--RESPONDENT CORAM: HON BLE MR.JUSTICE S.S.SARON HON BLE MR.JUSTICE RAKESH KUMAR JAIN PRESENT: Mrs. Baljeet Mann, and Mr. B.S.Saroha,Advocates for the appellants.
Mr.Kartar Singh,Assistant Advocate General, Haryana, for the respondent.
S.S.Saron, J:
This order shall dispose of above-mentioned two appeals i.e. Devi Singh vs. State of Haryana (Crl. Appeal No.414-DB of 1998) and Crl.Appeal No.414-DB of 1998 2 Rajender vs. State of Haryana (Crl. Appeal No.158-DB of 1999) as they arise out of the same judgment and order dated 26.8.1998,passed by the learned Sessions Judge, Rohtak.
Devi Singh (Appellant in Criminal Appeal No.414-DB of 1998) Naresh (since acquitted) sons of Jai Narain and Rajender (Appellant in Criminal Appeal No.158-DB of 1999) and Bijender (since acquitted) sons of Munshi Ram, were tried for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code ( for short, I.P.C.) for the murder of Chhotan son of Chet Ram. Vide order dated 26/8/1998 passed by the learned Sessions Judge, Rohtak; Bijender son of Munshi Ram and Naresh son of Jai Narain were acquitted while Devi Singh (appellant) son of Jai Narain and Rajender (appellant) son of Munshi Ram were convicted having been found guilty of the offence punishable under Section 302 read with Section 34 I.P.C. They were ordered to undergo imprisonment for life besides to pay a fine of Rs.500/-and in default of payment of fine, to undergo further R.I for one year for the said offence. The period spent by them in judicial or police custody was ordered to be set off from the period of sentence awarded. Two separate appeals i.e. Crl. Appeal No.414- DB of 1998 and Crl. Appeal No. 158 DB of 1999 have been filed by appellants Devi Singh and Rajender, respectively.
Succinctly, the prosecution version as narrated by Ram Phal
-complainant PW10 is that on 4.3.1996 at about 8 A.M, he and his wife Muni Devi (PW 11) had gone to their Gher (enclosure) to tether their cattle. In the mean time, his father Chhotan (deceased) returned after answering the Crl.Appeal No.414-DB of 1998 3 call of nature and when he reached in front of the house of Ram Gopal, then Rajender (appellant) son of Munshi Ram and Devi Singh (appellant) son of Jai Narain armed with knives were present there alongwith Bijender (since acquitted) son of Munshi Ram and Naresh (since acquitted) son of Jai Narain who were empty handed. When his father passed in front of them, Rajender and Devi Singh (appellants) said that they would teach him a lesson for accusing them of theft and getting them proceeded against in proceedings under Sections 107/151 of the Code of Criminal Procedure ( for short, Cr.P.C.), but his father replied that the proceedings would be decided in the Court. On saying this by his father, Rajender gave two knife blows on the right side of his chest. Devi Singh also gave a knife blow on the left side near the lungs. He gave another blow thrust-wise on the abdomen of his father. Rajender gave another blow of knife on the left side of his chest and Devi Singh gave blow of knife on the right thigh, as a result of which his father fell down. Bijender and Naresh accused gave fist and slap blows to him while he was lying on the ground. He (complainant Ram Phal PW 10) and his wife (Muni Devi PW 11) intervened and asked them that they should stop beating but the assailants rushed toward them, as a result of which they ( i.e.Complainant and his wife) ran away out of fear and then the assailants also escaped with their respective weapons.
Initially,on the basis of the aforesaid statement, case under Section 307 read with Section 34 IPC was registered, but when Chhotan died, because of the injuries, at PGI,MS, Rohtak then the case was converted to one under Section 302 of IPC. After completion of necessary investigation, the accused were challaned. Devi Singh and Rajander were Crl.Appeal No.414-DB of 1998 4 charged for having committed the offence under Section 302 IPC and all the four accused were charged for the offence under Section 302 read with Section 34 IPC., to which they pleaded not guilty and claimed trial.
The prosecution in order to establish its case examined as many as 20 witnesses besides tendered documents in evidence. The statements of the accused in terms of Section 313 Cr.P.C.were recorded. Devi Singh appellant inter-alia stated that he was innocent. Knife had been planted by fabricating false document at the Police Station and obtaining his signatures forcibly. It was stated that some unknown person caused the injuries to Chhotan (deceased) on 04.3.1996 during early hours while it was still dark and the assailants could not be pin pointed. Parkash, real brother of the complainant-Ram Phal PW 10 who was not produced during the trial had rushed to the Police Station. He was advised by the police to take Chhotan injured to Medical College and Hospital, Rohtak where the police would reach . Statement of Ram Phal PW 10 son of Chhotan constituting the F.I.R. was recorded very late after deliberations and consultations by showing the time of recording as 3. P.M. even then his statement was recorded after 3.P.M. in the light of medicolegal report (MLR) recorded by the police. It is submitted that no reliance can be placed on the solitary statement of an interested witness i.e. Ram Phal PW 10 who was a lier. Devi Singh appellant further stated that he was framed in the case and he was not present at the place of occurrence. Rajender the other appellant took a similar stand that he was innocent and knife had been planted on him by fabricating false document at the Police Station after obtaining his signatures forcibly. Some unknown person had Crl.Appeal No.414-DB of 1998 5 caused injuries to Chhotan (deceased) on 04.3.1996 during early hours.
While it was still dark, the assailants could not be pin pointed. Parkash, real brother of Ram Phal PW 10 who had not been produced during the trial had rushed to the Police Station. He was advised by the police to take Chhotan injured to Medical College and Hospital, Rohtak,where the police would reach. Statement of Ram Phal PW 10 constituting the F.I.R. was recorded very late and after deliberations and consultations by showing the time of recording it as 3.P.M. In fact, statement of Ram Phal PW 10 was recorded even after 3.P.M in the light of medicolegal report recorded by the police. It was stated that no reliance could be placed on the solitary statement of an interested witness i.e. Ram Phal PW 10 who was a lier. He (Rajender appellant) had been falsely framed in the case and he was not present at the time of occurrence. In defence, the appellants tendered in evidence Ex. DA i.e. certified copy of the order in case Anand vs. Ram Phal and others regarding correction of khasra girdawari passed by Tehsildar, Rohtak. Besides, Naresh- DW1 son of Ghasi Ram was examined, which is primarily to the effect that after the occurrence, Ram Phal PW 10, his wife Muni Devi PW 11 and Rohtas, uncle of Ram Phal had informed him that some body gave injuries to Chhotan (deceased) and had run away under the cover of darkness. When the police had come to the village on the next day after the occurrence, he (Naresh DW 1) was also present and every body told the police that some unknown person had caused the injuries to Chhotan (deceased). It was also stated that Chhotan was a money lender and had litigation with him.
The prosecution examined Dr. Rajpal Verma, Casualty Crl.Appeal No.414-DB of 1998 6 Medical ,PGIMS, Rohtak as PW1, who stated that he had medico-legally examined Chhotan S/o Chet Ram on 4.3.1996 at 10.15 A.M and had found the following injuries on his person:
1. Approximately 7 cm x .5 cm.size incised wound on the left hypochondrium area. Surgeon opinion was advised.
2. 6cm x 2 cm. incised wound on the right side of lower chest present anteriorly. Surgeon opinion was advised.
3. Two incised wound size 6 cm x 2 cm and 4 cm x 1 c.m. on the upper right chest present anteriorly. Surgeon opinion was advised.
4. 2cm x 3 cm. incised wound on left side of chest present anteriorly and below the left nipple. Surgeon opinion was advised.
5. 10cm x 3 cm. incised wound on anterio-medial aspect of right thigh. Opinion of the Ortho-Surgeon was advised.
All the aforesaid injuries were kept under observations which were caused by sharp edged weapon within a probable duration of 24 hours. He further stated that carbon copy of the MLR was Ex. Ex.PA, which bears his signatures. Ruqa Ex.PB was sent to the Incharge Police Post, PGIMS, Rohtak under his signature on the same day at 11.00AM. On 8.4.1996, an application Ex.PC was made by the police to him for giving opinion regarding the injuries mentioned in the MLR Ex.PA. As per statement of Dr. Verma PW1), he gave his opinion Ex.PC/1, which bears his signatures in which he had opined that the injuries mentioned in the MLR, Ex.PA could Crl.Appeal No.414-DB of 1998 7 be caused by weapon which was shown to him. He further stated that on the application Ex.PD dated 26.3.1996, he had opined vide Ex.PD/1 that the possibility of injuries mentioned in Ex.PA with the knife Ex.P2 cannot be ruled out.
Dr.Narinder Singh,appeared as PW2 ,who had conducted the postmortem on the dead body of the deceased at 4.00.PM in which he found the following injuries on his person:-
1.A stitched wound 7 cm on the left hypochondrium, 9 cm away to the medial line.
2. A stitched wound 6 cm long, 6 cm above right nipple.
3. A stitched wound 6 cm, 10 cm above right nipple.
4. A stitched wound 4cm,2 cm below the injury No.3.
5. .A stitched wound 2 cm,over left side below the left nipple.
6. .An incised wound 10 cm x 6 c x 3 cm exposing muscles present on the anterior medial aspect of right thigh.
The cause of death it was opined was due to shock and massive internal bleeding. It was also observed that such type of injuries were sufficient to cause death in the ordinary course of nature.
After autopsy, this witness handed over to the police the following articles:
1. A male dead body after post mortem duly stitched.
2. A copy of MLR No.223/96 dated 05.3.1996.
3. Police papers numbering 13, duly signed.
4. Sample seals two in number duly attested.Crl.Appeal No.414-DB of 1998 8
5. A vial bearing four seals duly signed.
6. A packet containing clothes bearing five seals.
It was further stated by the aforesaid witness that inquest report is EX.PF and postmortem report is Ex.PE which were conducted on the request of the police EX.PG. Probable time between injuries and death was 36 hours and between death and postmortem 12 hours.
Dr.Naveen Chitkara was examined as PW12, who stated that he was the Registrar in the PGIMS, Rohtak in the month of March 1996 and continued in that hospital till December 1996. It was stated by him that he had operated upon Chhotan (deceased) and Exs.PT/1 to PT/3 are the treatment file of Chhotan. PW19 is Dr. Shimmi Sachdeva, who was working as Surgeon on 4.3.1996 in the Casualty Department of PGIMS,Rohtak and stated that on the said date, the police had submitted an application Ex.PW for the purpose of recording condition of Chhotan as to whether or not he was in a position to make a statement on which an opinion was given vide Ex.PW/A that the patient had already been shifted to the Operation Theatre for his operation at 1.10.p.m. Dr.Vishal Dheer appeared as PW- 20. He was working as Post Graduate student on 4.3.1996 in the General Surgery Department. He stated that an application was given to him by the police to ascertain about the condition of the patient and as to whether or not he was in a position to make a statement, on which he had opined vide Ex.PW/2 at 3.10.p.m. that the patient was unfit to make a statement.
Besides the aforesaid medical evidence, the prosecution had also examined PW-3 Constable Raju, who had stated that in the month of Crl.Appeal No.414-DB of 1998 9 March,1996, he was posted in CRO Branch, SP Office, Rohtak and on receipt of message from S.H.O, Police Station, Sampla, he went to village Rurkee and prepared the scaled site plan Ex.PH as pointed out by Ram Phal (PW-10) with marginal notes under his signatures. Sri Niwas Constable was examined as PW-4. He stated that on 04.3.1996 he was posted as MHC at Police Station Sampla. Samunder Singh Head Constable appeared as PW-5. He stated that on 2.4.1996, while he was posted at Police Station,Sampla, he received a telephonic message from the Naib Court of Illaqa Magistrate regarding surrender of accused Rajender who was wanted in the present case on which he filed an application Ex.PK in the Court of Sh. Sanjeev Kumar Aggarwal, the then Judicial Magistrate Ist Class, Rohtak for allowing him to join the accused in the investigation. The accused Rajender was joined in the investigation and during the course of investigation, he made a disclosure statement Ex.PL in the presence of Rajender and Constable Satinder Kumar. Constable Surender Singh appeared as PW-6 and he tendered in evidence his affidavit Ex.PN. Similarly, Constable Jai Pal appeared as PW 7 and he also tendered his affidavit Ex.PO. It was stated by PW 6 and PW 7 that their affidavits may be read as part of their statements. Constable Suresh Kumar appeared as PW 14. He tendered in evidence his affidavit Ex.PV. Sumeer Kumar Record Keeper, P.G.I.M.S. Rohtak appeared as PW-8. He produced the medical record of the deceased Chhotan. Ram Karan Constable while appearing as PW-9 stated that on 4.3.1996, in the presence of Head Constable Moti Ram, he lifted blood stained earth from the scene of occurrence vide memo Ex.PR. Ram Phal- (complainant) son of the deceased Chhotan appeared as PW-10. He is an Crl.Appeal No.414-DB of 1998 10 eye witness to the occurrence, whose version has already been narrated above. Muni Devi appeared as PW 11. She was tendered (produced) for cross examination but the opportunity was not availed by the defence. Head Constable Sri Krishan appeared as PW-13 and produced true copy of the FIR Ex.PU. Head Constable Moti Ram appeared as PW-15 and stated that on 9.3.1996 he had received V.T. message at Police Station Sampla from Police Post, MCH, Rohtak. After that, he collected the MLR of Chhotan (deceased) and ruqa and had gone to Casualty Ward of the said hospital where an application Ex.PW was submitted for the purpose of seeking fitness of injured Chhotan to make a statement which was declined by the doctor. Ram Phal PW-10 met him in the hospital outside the Operation Theatre where his statement Ex.PJ was recorded which was sent to the Police Station for registration of the case (FIR ) and thereafter, he went to the place of occurrence in the company of Muni Devi (PW 11) whose statement was also recorded. It was also stated that he prepared the rough site plan Ex.PX on pointing out by Muni Devi and had lifted blood stained earth which was put in a parcel and had sealed the same. S.I. Ram Parkash appeared as PW-16, who stated that on 17.5.1996 as S.H.O Police Station, Sampla, he had challaned the accused after completion of the investigation under section 173 of the Cr.P.C.. S.I. Daya Singh while appearing as PW- 17 stated that on 5.3.1996, he was posted at Police Station, Sample and was present at Sampla turning along-with other police officials in a Govt. jeep when he received a V.T. Message regarding the death of Chhotan at MHC, Rohtak. According to him, he went there and found ASI Ishwar Singh, Head Constable Moti Ram and relatives of the deceased present there. It is also Crl.Appeal No.414-DB of 1998 11 stated by this witness that he verified the investigation and went in search of the accused and on his way back to the Police station, he met Satyewan Constable who handed over two sealed parcels and post mortem report of the deceased Chhotan, which were taken into possession vide memo Ex.PZ. He deposited the case property with MHC on the same day. ASI Ishwar Singh appeared as PW-18 and stated that on 5.3.1996, he received a telephonic message at Police Station Sampla from the Police Post at PGI MS,Rohtak regarding the death of Chhotan after which he converted the offence into Section 302 I.P.C. and sent a special report. Ex.PZ is the copy of the DDR No.6 dated 5.3.1996 regarding the aforesaid proceedings. Thereafter, he had gone to the Police Post, PGI, MS Rohtak and collected the papers from there and reached Ward No.4 and had conducted the post mortem on the dead body of the deceased and prepared the inquest report Ex.PF in the presence of Ram Phal -PW 10 and Om Parkash son of Chhotan deceased running into 10 pages. Thereafter the dead body of the deceased was handed over to Om Parkash for taking to the concerned doctor for post mortem and a request Ex.PG was made for that purpose. He further stated that Bijender and Devi Singh accused had surrendered in the Court on which he moved an application Ex.PZ/ B for seeking their arrest for further proceedings which was ordered by the Court vide Ex.PZ/C. According to this witness, both the accused were interrogated on 12.3.1996. Devi Singh accused made a disclosure statement that he had kept concealed a knife in the heap of 'Tura' lying in a room on the rear side of his house in village Rurkee and his statement Ex.PZ/D was recorded which was signed by Devi Singh. On 13.3.1996 Ram Phal complainant had come to the Police Station. Crl.Appeal No.414-DB of 1998 12 Accused Devi Singh led the police to the place of recovery and got the knife recovered from the southern part of the room beneath a heap of Tura. Ex.PS/1 is the sketch of the knife which was taken in possession vide memo Ex.PS, whereas Ex.PZ/G is the rough site plan of the place of recovery . As per the further statement of Ishwar Singh A.S.I Police Station City Rohtak PW-18, Naresh accused was arrested on 16.3.1996. On 26.3.1996 Doctor's opinion was sought vide application Ex. PZJ which was given vide Ex.PZK. Accused Rajender (appellant) had also surrendered. He was taken out of the police lock up on 4.4.1996 and interrogated in the presence of Head Constable Stayawan. He reiterated the statement which he had already made before Head Constable Samunder Singh. Thereafter, Rajender accused had taken the witness to the disclosed place but on the way at the Bus Stand Rurkee, Om Parkash son of Chhotan (deceased) had met them and in their presence, said accused made another statement that he had concealed one knife near the 'kotha' adjoining the well in his fields and the knife was concealed in a ditch which was covered by a brick. This statement was recorded and signed by constable Satyawan, Om Parkash and the accused Rajender himself. Thereafter, Rajender accused led the police party to the place disclosed by him and got the knife recovered . Sketch of the knife Ex. PZL was drawn and was taken in possession vide memo Ex. PZM which was duly signed by the witnesses. Rough site plan of the place of recovery Ex.PZN was also prepared.
Other witnesses Parkash son of Chhotan, Constable Om Parkash, Constable Suraj Bhan and Constable Satyawan were given up as unnecessary.
Crl.Appeal No.414-DB of 1998 13
The prosecution tendered in evidence reports of the F.S.L. Ex.PQ and Ex.PQ/1.
On the said date, statement (Ex.PJ) of Ram Phal recorded by Head Constable Moti Ram was received at the Police Station through Constable Ram Karan. On the basis of the said statement (Ex.PJ), formal F.I.R. Ex.PJ/1 was recorded by Shri Niwas Constable (PW 4) at 4.P.M. After considering the evidence and material on record, the trial Court had found that there was nothing to disbelieve the eye witness account of Ram Phal PW 10. It was also found that the appellants Rajender and Devi Singh had got recovered the weapons of offence and the said knives got recovered by them were produced before Dr. Rajpal Verma PW- 1, who had opined that the injuries on the person of deceased Chhotan could have been caused with the knives produced before him by the police. However, the trial Court did not find the involvement of accused Naresh and Bijender of having caused fist and slap blows on the person of the deceased because as per Medicolegal report nothing was found in this regard much-less swelling on any part of the body of the deceased Chhotan except for the incised wounds. It was also observed that the complainant party was naming all the male members of the accused for inflicting maximum punishment upon them. Therefore, the presence of Bijender and Naresh (since acquitted) was found to be doubtful at the time of occurrence and resultantly, they have been given the benefit of doubt and were acquitted,whereas the other two accused who have filed the aforesaid appeals were found to be guilty of the offence and, accordingly, they were convicted and sentenced as has already been noticed. Crl.Appeal No.414-DB of 1998 14
Learned counsel for the appellants has vehemently contended that no reliance can be placed on the statement of Ram Phal ( PW 10 ), the alleged solitary eye witness, specially when the other witness namely Muni Devi PW-11 was tendered (produced) only for cross examination without recording her examination-in-chief. It was also contended that the conduct of Ram Phal-PW 10 does not inspire confidence as he did not intervene when his father was being done to death by the four assailants in his presence. Moreover, it was improbable that the accused would spare the eye witness even without inflicting any injury. Therefore, presence of PW-10 Ram Phal at the place of occurrence is not established.
It is also contended that in fact, Chhotan was murdered at night and on finding his dead body, the appellants had been framed. In fact, there was no motive for the appellants to commit the murder of Chhotan, who was a money lender and had considerable litigation which is evident from the deposition of the defence witness Naresh (DW 1). The occurrence is alleged to have taken place at 8. A.M on 04.3.1996 and the wireless message is sent to the Police Station after more than three hours at 11.20.A.M. from the Police Post, P.G.I.M.S, Rohtak. Thereafter the statement of Ram Phal PW 10 is recorded at 3.P.M. and the F.I.R. is registered at 4.P.M. The Special Report reached the Court of Chief Judicial Magistrate on the next day i.e. 05.3.1996 at 12.05 P.M. This, according to the learned counsel for the appellants gave sufficient time to the prosecution to deliberate and set up a false case. It is submitted that in fact F.I.R. was recorded on 05.3.1996 and had reached the Illaqa Magistrate on the said date.
Crl.Appeal No.414-DB of 1998 15
In response, learned Assistant Advocate General, appearing for the State of Haryana has submitted that the contentions as raised by the learned counsel for the appellants are not such which would warrant the setting aside of the judgment and order of the learned trial Court so as to acquit the appellants. It is submitted that keeping in view the nature of injuries that are there on the person of the deceased Chhotan, it is evident that the appellants had committed his murder. Besides the appellants had a motive to commit the murder inasmuch as a complaint of theft had been lodged against Rajender the appellant besides the proceedings under Sections 107/151 Cr.P.C. initiated against them.
We have given our thoughtful consideration to the contentions of the learned counsel appearing for the respective parties.
It may be noticed that Ram Phal PW 10 and Muni Devi PW 11 had witnessed the occurrence. Ram Phal PW 10 is the son of Chhotan (deceased). It was quite natural for him and his wife Muni Devi PW 11 to be present in their gher (enclosure) in village Rurkee at 8. A.M. In the morning on the day of the occurrence i.e. 04.3.1996. Chhotan (deceased) father of Ram Phal had returned after the call of nature. When he passed in front of the gher at a distance of 32 to 34 feet, there is a shop of one Ram Gopal and in front of the said shop, the appellants were present with knives in their hands, while Naresh and Bijender (since acquitted) were empty handed. The assailants (appellants) pointed towards Chhotan (deceased) and told that he would be taught a lesson for accusing them for theft and also for initiating proceedings under Sections 107/151 Cr.P.C. When Chhotan replied that the proceedings are before a Court Crl.Appeal No.414-DB of 1998 16 which would be decided by the Court, Rajender gave a knife know on the right side of the chest of Chhotan and Devi Singh too gave two blows, one in the stomach and the second below the stomach towards left side. Another knife blow was given by Rajender on the left side of the chest. Because of these four knife injuries, Chhotan fell down. Keeping in view the fact that presence of Ram Phal PW 10 is natural at his house and the presence of his father is also natural, we have no reason to doubt that he (Ram Phal ) was not present at his house. In fact, some body other than the appellants had committed the murder, then endeavour of the family of the victim would be to ensure that real culprits are proceeded against for rather than innocent persons being falsely implicated. The contention of the learned counsel for the appellants, however, is that the conduct of Ram Phal PW 10 is quite unnatural inasmuch as he is a young man and in case he saw that his father was being assaulted, he would have definitely intervened rather than his father being injured. Ram Phal PW 10 has given his age as 29 years,therefore, he,in deed, is quite young. However, Ram Phal had explained in his deposition before the Court that he and his wife (Muni Devi PW 11) had intervened and had asked the appellants not to beat his father. It is then that all the four assailants ran towards them (Ram Phal and Muni Devi) and out of fear, they ran away, though two out of four assailants who were named by the complainant Ram Phal PW 10 i.e. Naresh and Bijender have been acquitted. It may, in any case, be noticed that both the appellants were armed with knives and after having caused the injuries to Chhotan, their temper must have been high and being charged up of theft case must have advanced towards the complainant Crl.Appeal No.414-DB of 1998 17 Ram Phal PW 10 and his wife Muni Devi PW 11, who, in turn, must have been taken unaware and keeping in view their unpreparedness besides being empty handed, must have run away out of fear. In these circumstances, it cannot be said that conduct of Ram Phal PW 10 was, in any manner, unnatural or that he would not have intervened to save his father Chhotan. Even otherwise, it has come on record that the incident had taken place at the shop of Ram Gopal, which is towards east side of gher at a distance of 32 to 34 feet. Therefore, when the injuries were being caused to Chhotan by the assailants (appellants) then by that time, Ram Phal PW 10 had advanced towards them, they had caused injuries and rather ran away after him (Ram Phal). Therefore, the presence of Ram Phal PW 10 and his having witnessed the occurrence is clearly established. The manner in which Muni Devi PW 11 was only produced for the purpose of cross examination, though may be improper as it was for the prosecution to either examine her or to give her up. In the absence of examination-in- chief, in deed, there was no occasion for the appellants to cross examine her. Therefore, it is to be taken that there was no material that does not, in any manner, dislodge the presence of Ram Phal PW 10 who has, in any case, been subjected to cross examination by the defence. In the cross examination that was conducted, nothing could be brought out which would, in any manner, help the appellants. The case of the appellants is that Chhotan was doing the business of money lending. However, to a situation put to Ram Phal PW-10 in this regard, it is stated to be incorrect that his father did money lending business. He was also cross examined as regard the theft case and it was stated as incorrect to a suggestion that a Crl.Appeal No.414-DB of 1998 18 theft case of his sister against Rajender was false.
The contention that there has been delay in the registration of the F.I.R. in the facts and circumstances is quite inconsequential. It is well known that prompt lodging of F.I.R. is not an unmistakable guarantee for the truthfulness of the prosecution version and delay is also not always fatal as in the present case, though there has been delay in the lodging of the F.I.R. the same does not show that the case has been done with the intention to falsely implicate the appellants. Besides two of the appellants, namely Naresh and Bijender have already been acquitted. Therefore, it cannot be said that the prosecution has exaggerated its version or that the appellants have been falsely implicated. The Investigating Officer ASI Ishwar Singh PW 18 had interrogated the appellants on 12.3.1996 and in pursuance of their respective disclosure statements, the knives that they used in the commission of crime were recovered. The recoveries that were effected from the person of the appellants do fortify the prosecution case as to their involvement. Ishwar Singh ASI PW 18 was cross examined at length by the learned counsel for the appellants, however, nothing could be brought out which would show that the F.I.R. was lodged after considerable delay which would, in any manner, help the appellants or show falsity of the prosecution case.
Learned counsel for the appellants has further argued that there was no motive in the present case because the FIR Ex.PU is one year prior to the alleged occurrence having been registered in July,1995 by one Savitri. It is further argued that the occurrence had taken place at a public place but no independent witness has been joined and so far as the recoveries of Crl.Appeal No.414-DB of 1998 19 weapons of offence are concerned, the same have been witnessed by Ram Phal son of the deceased.
So far as the motive part is concerned, it has been observed by the Hon'ble Supreme Court in the case of State of U.P. V. Hari Parshad AIR 1974 Supreme Court 1740 that the prosecution cannot fail because of the reasons that the motive for the crime is difficult to ascertain even if the witnesses are truthful. However, it has been held that it not incumbent on the part of the prosecution to prove the motive of the crime. The motive is indicated in order to high-light the possibility that the offence has been committed by the person impelled by that motive. In the present case, not only has the occurrence has been witnessed by the son of the deceased along-with his wife who were also threatened by the accused/appellants when they tried to intervene and had run away from the place of occurrence to save their own lives, but there is motive also inasmuch as Chhotan had got a complaint of theft registered against Rajender appellant may be a year earlier. Besides the appellants were also proceeded against in proceedings under Sections 107/151 Cr.P.C. Moreover, we have already held that the deposition of Ram Phal PW 10 is cogent and convincing and his presence at the time of occurrence is well established.
Another contention that has been raised by the learned counsel for the appellants is that no independent witness was joined at the time of recovery which was witnessed only by Ram Phal PW 10. In this regard, it may be noticed that the people in the villages normally are hesitant to join the prosecution case as independent witnesses because of fear of having enmity in the area and in view of their reluctance, mere fact that no Crl.Appeal No.414-DB of 1998 20 independent witness was joined in the facts and circumstances of the present case is quite in consequential.
In view of our above discussion, there is no merit in these appeals and the same are,accordingly, dismissed.
( S.S.SARON )
JUDGE
December12,2008 (RAKESH KUMAR JAIN )
RR JUDGE
TO BE REFERRED TO REPORTER: YES/NO.