Punjab-Haryana High Court
Ram Mehar vs State Of Haryana on 27 January, 2012
Author: Naresh Kumar Sanghi
Bench: Rajive Bhalla, Naresh Kumar Sanghi
CRA NO. 486-DB OF 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO. 486-DB OF 2004
Ram Mehar ......Appellant
Versus
State of Haryana ......Respondent
AND
CRA NO. 547-DB OF 2004
Satbir and others ......Appellants
Versus
State of Haryana ......Respondent
DECIDED ON- JANUARY 27, 2012
CORAM HON'BLE MR.JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.R.S.Cheema,Sr. Advocate,
with Mr.Pawan Girdhar, Advocate, for the appellants.
Ms.Ritu Punj, Addl. A. G. Punjab.
****
NARESH KUMAR SANGHI, J Ram Mehar appellant has filed criminal appeal no.486-DB of 2004 while Satbir Singh, Balwan, Ravinder, Dharambir, Naresh, Subhash and Satish @ Shakti appellants have filed CRA No. 547- DB of 2004. Challenge in both the appeals is to the judgment of conviction and order of sentence passed by learned Additional CRA NO. 486-DB OF 2004 2 Sessions Judge, Bhiwani arising out of FIR No.205 dated 26.5.2001, under Sections 302, 307, 449, 148, 149, 323 and 216 IPC and 25/27 of The Arms Act, registered at Police Station Sadar, Bhiwani.
In addition to the appellants, Naseeb and Balbir Singh were also tried for the above said offences, however,the learned trial Court acquitted Balbir Singh but released Naseeb on probation since he was held to be a juvenile after the inquiry.
The brief facts of the case are that on 26.5.2001 at 09:00 a.m Smt. Rekha PW4 made statement (Ex.PE) to Sub Inspector Balwan Singh PW18 to the effect that her family members were supporters of Sudhir son of Rai Singh whose mother Smt. Kitabo was Sarpanch of their village. Kartar Singh son of Richpal Singh was former Vice Sarpanch of the village. About a year prior to the occurrence, Yudhvir son of Gugan Singh, a supporter of Kartar Singh was murdered in the village and in that case Bijender son of Gugan Singh, a person belonging to her family was involved. Bijender Singh and other accused of that case were confined in jail. Therefore, there were bitter relations between two factions for the last about one year. On the intervening night of 25/26.5.2001 at about 1:30 a.m Smt. Rekha and her husband Rishikesh were sleeping on the roof of their house. Bani Singh, her father-in-law, Smt. Phulla, mother-in-law, Smt. Sudha, sister-in-law (Nanad) who had come to meet them two days ago, were sleeping on the ground floor of the house. At that time. Dharambir son of Munshi carrying gandasa, Naresh son of Dharambir armed with country made pistol, Satbir son of Pirthi armed with gandasa, Shakti son of Pirthi, Dhillu CRA NO. 486-DB OF 2004 3 son of Ram Kishan, both armed with gandasa, Balwan son of Nathu carrying jelly, Ram Mehar son of Sher Singh having gandasa and Dhaula son of Ram Mehar armed with "darant" entered their house after scaling the boundary wall. The appellants had gone up stairs where Smt. Rekha and her husband Rishi Kesh were sleeping. Both of them were brought down stairs. The appellants exhorted that they should be killed to take revenge for the murder of Yudhvir. Thereafter, Shakti son of Pirthi inflicted a gandasa blow on the neck of Bani Singh; Satbir caused gandasa blow on the head of Bani Singh, as a result of which, he (Bani Singh) fell down and Dharamvir inflicted a gandasa blow on his right wrist. Dhillu gave a gandasa blow which hit him in between little and ring finger of the right hand. Dhaula son of Ram Mehar inflicted a 'darant' blow on the right leg of Rishi Kesh. The appellants also caused injuries to her (Smt,. Rekha) as well as to her sister-in-law Smt. Sudha Rani. Naresh son of Dharambir fired shots from the pistol which he was carrying. Ram Mehar inflicted two gandasa injuries on the left side of her back, Balwan son of Nathu caused an injury on the right hand of her mother-in-law by means of a jelly. The rescue calls raised by the injured persons attracted Umed Singh son of Lakhi Ram and Ram Kumar son of Fateh Singh to the spot. The appellants noticing their arrival, took to their heels with their respective weapons. Bani Singh scummbed to the injuries then and there. Rishi Kesh and Smt.Sudha were taken to General Hospital, Bhiwani for treatment.
It was also brought to the notice of the police that after the above incident,the appellants had also visited the house of CRA NO. 486-DB OF 2004 4 Sudhir son of Ran Singh. Smt. Rekha and Smt. Phulla remained present at house to look after the dead body of Bani Singh. The inquest proceedings were conducted. Smt. Rekha and Smt. Phullo were also sent to General Hospital, Bhiwani for their medico-legal examination while the dead body of Bani Singh was sent for conducting post mortem examination. Rishi Kesh and Smt. Sudha were referred to PGI MS, Rohtak for further treatment. Site plan of the place of occurrence was prepared. Blood stained earth was lifted from the spot for analysis by the Forensic Sciences Experts. Statements of the witnesses namely Rishi Kesh and Smt. Sudha were recorded in terms of Section 161 Cr. P.C and it came to the notice of the Investigating Officer that few more persons were present outside the house alongwith the appellants at the time of occurrence. In her statement Ex.DA recorded under Section 161 Cr.P.C, Smt. Rekha named three more persons namely Subhash, Naseeb and Raj Kumar @ Raju as culprits. The accused were arrested; their disclosure statements were recorded and in pursuance thereof, the weapons used for causing injuries were recovered. Sanction order for prosecution of appellants Naresh and Raj Kumar @ Raju for having in possession country made pistols and cartridges was obtained from District Magistrate, Bhiwani.
After completion of the investigation, report under Section 173 Cr. P.C was prepared and presented against the appellants before the Area Magistrate, who in turn, committed the case to the Court of Session for trial.
It is apposite to mention that Sudhir @ Bhaula son of CRA NO. 486-DB OF 2004 5 Ram Mehar and Raj Kumar @ Raju son of Balbir were found to be juveniles and hence, separate report under section 173, Cr. P.C was presented for inquiry in accordance with law.
Charges were framed, to which the appellants (except appellant Satish) and their co-accused pleaded not guilty and claimed trial.
It is made clear that at the time of presentation of the report under Section 173 Cr. P.C, Satish appellant was a proclaimed offencer, who was arrested after the charges were framed against his co-appellants. Therefore, after receipt of the supplementary report under Section 173 Cr. P. C, the charges were framed afresh against the appellants and their co-accused vide order dated 18.5.2002.
In order to substantiate its allegations, the prosecution has examined:-
PW1-Parshant Kumar: An official from Civil Hospital, Bhiwani who produced the bed head tickets Ex.PA and Ex.PB of Smt. Phulla and Smt. Rekha, respectively.
PW2-Constable Jai Bhagwan: He tendered his affidavit Ex.PC in evidence.
PW3-Sub Inspector Lakhpat: He had recorded the FIR Ex.PD.
PW4-Smt. Rekha-Complainant who deposed about the occurrence.
PW5-Smt. Sudha. She is an injured and eye witness to the occurrence and has fully supported the prosecution version.
PW6 Bhisham Chander: He is Reader to Deputy CRA NO. 486-DB OF 2004 6 Commissioner who proved the signatures of District Magistrate on sanction order, Ex.PF.
PW7-Inspector Ramesh Kumar: He had investigated the case, partly.
PW8-Dr. Vasundhara Gupta-On 26.5.2001 at 03:25 am, she medico-legally examined Rishikesh and found the following injuries:-
1. Lacerated wound of 8 cm x 6 cm over the anterior surface of right leg middle 1/3rd region. Fresh bleeding was present. Advised x-ray and ortho surgeon's opinion.
2. A lacerated wound of 12 x 4 cm over the left side of face extending from the cheek to left frontal region of scalp. Fresh bleeding was present. Advised x-ray band surgeon's opinion.
On the same day, she medicolegally examined Smt. Sudha and found the following injury on her person:-
1. Lacerated wound of 8 x 4 x 1 cover the left side of frontal region of scalp. Swelling was present. Profuse bleeding was present. Advised x-ray and surgeon's opinion. The patient was kept under observation and subjected to x-ray and opinion for nature of injuries.
Duration of injury was within 24 hours. Kind of weapon was to be given after x-ray report. Copy of MLR is Ex.PM which bears my signature.
She has also deposed about the information sent by her to the police. She has further deposed regarding the fractures of both bones of right leg with multiple small radio opaque shadow of CRA NO. 486-DB OF 2004 7 metalic density and fracture zygomatic bone left side on the person of Rishi Kesh. She also narrated to the police that Sudha had a fracture of the scalp on the left fronto parietal region.
PW9- HC Om Parkash:- He tendered his affidavit Ex.PQ in evidence.
PW10-Constable Mahender Singh: He handed over the Special Report to the Area Magistrate and the other officials.
PW11 Head Constable Roshan Lal: He got the autopsy done and handed over the sealed parcels to the Sub Inspector Balwan Singh. On 28.5.2001, in his presence Naseeb Singh suffered disclosure statement Ex.PT and got recovered lathi in pursuance thereof.
PW12-ASI Chhotu Ram: He investigated the matter partly and also remained associated alongwith SI Balwan Singh during interrogation.
PW13 Dr. R.P Sharma: He informed the police vide Ex.PK/1 that patient Rekha and Phulla had left hospital on 14.8.2001, without permission.
PW14 Dr. N.K.Chaudhary: On 26.5.2001, he had conducted the post mortem examination on the dead body of Bani Singh and found the following injuries:
1. An elepctial wound left side of neck starting from midline reaching up to mastoid process measuring 5.5 x 4" involving the left pinna partially amputated. The lower lateral lobule of pinna, muscles, caroted vessals were exposed and there was subcutanious achymosis present under the skin, caroted vessels ruptured.CRA NO. 486-DB OF 2004 8
Clotted blood present.
2. Incised wound 1 x .5 inch on the right hand at lower one third laterally placed. Muscle exposed.
3. Incised wound cutting through the centre of little finger and ring finger at right hand reaching up to middle of palm., Muscle deep. Fracture of second metacarpel present.
PW15 Dr.Mahender Kumar: He medicolegally examined Smt. Rekha and found the following injuries on her person:-
1. A lacerated wound triangular shape having 4 cm length of each arm on left lower back, superficial, radish in colour at the level of L4 and L5. Advised x-ray lumbar area AP and lateral also opined for General Surgeon opinion. Injury was kept under observation;
2. A lacerated wound present at upper back on the left lateral side measuring 6 cm x .5 cm x .5 cm and another just above it measuring 3 cm x .5 cm x .5 cm.
Advised x-ray thorasicreason AP and lateral and opined for surgeon opinion.
He also medico-legally examined Phulla and found the following injuries on her person:-
1. Swelling, tenderness the right forearm. Advised x-ray. AP and lateral and opined for ortho surgeon opinion.;
2. Complaint of pain in the left foot.
PW16 Sukhbir Singh: He had produced the medical record of Rishi Kesh and Smt. Sudha.
PW17-Inspector Subey Singh: He had investigated the case, partly.
CRA NO. 486-DB OF 2004 9
PW18 SI Balwan Singh: He too investigated the case, partly.
PW19 Asstt. Sub Inspector Bhram Dutt: He had taken the photographs Ex.P11 to Ex.P13 of the place of occurrence.
PW20 Head Constable Ram Niwas: At the asking of Sub Inspector Balwan Singh, he had taken Smt. Rekha and Smt. Phulla to hospital for their medicolegal examination.
PW21 Ran Singh: He deposed about the visit of the appellants alongwith their co-accused armed with respective weapons to the house of Sudhir and exhortation at about 2:00 am on the intervening night of 25/26.5.2001.
PW22 Dr.Gajender Singh: He has deposed about the admission and treatment administered to Smt. Sudha and Rishi Kesh.
PW23-Dr./ Vijender Gupta: He declared Smt. Sudha and Rishikesh fit for making statements.
PW24 ASI Subhash Chand: He had investigated the case partly.
PW25 Ex.- Policeman Lal Singh: He tendered his affidavit Ex.PWW in his evidence.
PW26 Kanwar Pal: He prepared the scaled site plan Ex.PXX.
PW27-Constable Vikram Singh He tendered his affidavit Ex.P44 in evidence.
After the statements of the above prosecution witnesses, learned Public Prosecutor tendered into evidence reports Ex.PZZ, CRA NO. 486-DB OF 2004 10 Ex.PZZ/1, Ex.PZZ/2 and Ex.PZZ/3 received from Forensic Sciences Laboratory and closed the prosecution evidence.
The appellants were individually examined in terms of Section 313, Cr.P.C. and the incriminating evidence was put to them. They denied the allegations and pleaded false implication.
In defence evidence, they examined Ramesh Chander (DW1), Record Clerk, from the office of District & Sessions Judge, Bhiwani, who produced the file of the case arising out of FIR No. 105 dated 27.3.2000, under Section 302/34 of Indian Penal Code and 25 of the Arms Act, Police Station Sadar Bhiwani. According to the documents of that file, complainant was Bharat Singh son of Chhotu Ram, resident of Bamla, who had made accusation against Ravinder alias Binder alias Sunda son of Rajal alias Rajmal, Surender alias Sunda son of Mahender Singh, Sanjeev alias Jagat son of Sher Singh, Surender alias Sunder son of Sunder, all residents of Bamla. DW1 also produced certain documents on the file of present case.
Gugan son of Sheo Karan was examined as DW2 who, inter alia, deposed that his son Yudhvir was murdered on 27.03.2000 by Goga son of Raj Pal, Surender son of Mahender Singh, Jagat son of Sher Singh and Surender son of Ombir, all residents of village Bamla. FIR in the said case was lodged by Bharat Singh. Satish accused of the present case was an eye witness to the murder of his son. The murder of his son was got arranged by Sudhir who was an active member of the Indian National Lok Dal, a ruling party in the State of Haryana, at that time. He further deposed that dead body of Bani Singh was recovered from a ground situated about 200 yards CRA NO. 486-DB OF 2004 11 away from his house. He further deposed that at the behest of the panchayat, Bharat and Shakti witnesses in the murder case of his son, did not support the prosecution version and hence, the accused of that case were acquitted.
After the evidence of prosecution and defence was over, learned trial court heard the arguments and acquitted Balbir Singh while holding the remaining nine accused guilty. Out of them, Naseeb was held to be juvenile and he was released on probation while the remaining eight appellants were ordered to undergo imprisonment for life and to pay fine of Rs.10,000/- each for the offence punishable under Section 302, read with Section 149, IPC. In default of payment of fine, they had to undergo further rigorous imprisonment for three years; the appellants were further sentenced to rigorous imprisonment for eight years and to pay fine of Rs.5,000/- each for the offence punishable under Section 307, read with Section 149, IPC. In default of payment of fine, they had to undergo further rigorous imprisonment for two years; they were further sentenced to rigorous imprisonment for five years and to pay fine of Rs.3,000/- each for the offence punishable under Section 449 read with Section 149, IPC. In default of payment of fine, they had to undergo further rigorous imprisonment for one year; the appellants were further sentenced to undergo rigorous imprisonment for two years each for the offence punishable under Section 148, IPC; the appellants were further sentenced to rigorous imprisonment for nine months each for the offence punishable under Section 323, read with Section 149, IPC. In addition, appellant Naresh was further sentenced to undergo CRA NO. 486-DB OF 2004 12 rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/-. In default of payment of fine, to undergo further rigorous imprisonment for nine months for commission of offence under Section 25 of the Arms Act.
Learned counsel for the appellants argued that the occurrence is alleged to have taken place at 01.30 A.M. on the intervening night of 25/26.05.2001 at the house of Bani Singh (deceased), in village Bamla, District Bhiwani. The witnesses were sleeping at that time. No source of light was mentioned in the FIR (Ex.PR) as well as in the rough site plan (Ex.PY/3). In such a situation, it was not possible for the witnesses to identify the appellants. It was also argued that there was a huge un-explained delay in reporting the matter to the police. According to learned counsel for the appellants, the alleged occurrence took place at 01.30 A.M. while the matter was reported by Smt. Rekha (PW4) to Sub Inspector Balwan Singh (PW18) at 9.00 A.M. i.e. about eight hours after the occurrence. He further submitted that on the statement (Ex.PE) made by Smt Rekha, FIR (Ex. PR) was recorded at 10.10 A.M. at police station Sadar, Bhiwani and the special report was delivered to the Area Magistrate at 11.30 P.M. on 26.05.2004, therefore, there was huge delay in the whole process and as such, the case of the prosecution should be discarded. It was also argued that there were four injured persons, namely, Rishikesh, Smt. Phula, Smt Rekha (PW4) & Smt. Sudha (PW5). Out of them only Smt. Rekha (PW4) and Smt. Sudha (PW5) were produced. Withholding of Risikesh and Smt. Phula from the test of cross-examination has CRA NO. 486-DB OF 2004 13 caused serious prejudice to the defence of the appellants. It was further argued that FIR contains the names of eight persons only while during investigation three more persons, namely, Subhash, Naseeb and Raj Kumar alias Raju were also arraigned as accused. Learned counsel for the appellants further argued that the blood alleged to have fallen at the spot was not shown in the rough site plan (Ex.PY/3) and as such, the occurrence had not taken place inside the house of Bani Singh. Learned counsel for the appellants in support of the said argument referred to the statement of Gugan (DW2) who deposed that the dead body of Bani Singh was found 200 yards away from his house on the morning hours of 26.05.2004. Learned counsel for the appellants further argued that there were severe contradictions in the inter se statements of the prosecution witnesses. Statements of the eye witnesses, namely, Smt. Rekha (PW4) and Smt. Sudha (PW5) are in direct conflict with the medical evidence and hence no credence could be attached to their depositions. In the end, it was submitted that there was no motive on the part of the appellants to have committed the murder of Bani Singh and they have been implicated in this case because one of the family members of the complainant side was involved in the murder of Yudhvir son of Gugan Singh. As retaliation to the said case, the appellants have been arraigned as accused in the present case. On the strength of the above submissions, the acceptance of the appeals and acquittal of appellants has been prayed for.
On the other hand, learned Additional Advocate General, Haryana, has argued that the identity of the appellants has been CRA NO. 486-DB OF 2004 14 established. The witnesses and the appellants are of the same village and well known to each other. It has come in evidence that the light was on at the first floor as well as at the ground floor. He further argued that there was no delay in reporting the matter to the police since the first priority of the witnesses was to provide medical help to the seriously injured persons in order to save their lives. Bamla village, where the occurrence had taken place, is about ten kilometer away from police station Sadar, Bhiwani. In view of the facts emerging on the file, it cannot be said that there was delay in reporting the matter to the police. It was also submitted by learned counsel for the State that it is the quality and not quantity of the evidence which matters. Deposition of the two injured witnesses have conclusively proved the occurrence and hence there was no necessity to multiply the evidence for proving the same set of facts. Learned counsel for the State has further argued that blood stained earth was lifted from inside the house of Bani Singh and, therefore, mere non mentioning of the said spot in the rough site plan would not have an adverse effect on the prosecution case. Regarding contradictions and improvements in the statements of the prosecution witnesses it was submitted by the learned State counsel that minor contradictions and improvements, are bound to occur in the deposition of truthful witnesses when they appear in the court after long lapse of time. It was also argued that there was motive for the appellants to cause the death of Bani Singh and injuries to his family members, namely, Smt. Sudha, Smt. Rekha, Smt. Phula and Rishikesh since the appellants were of the view that one of the family CRA NO. 486-DB OF 2004 15 members of the complainant side had committed the murder of Yudhvir son of Bugan Singh at the asking of Sudhir son of the Sarpanch of village Bamla. He further argued that motive becomes immaterial when the prosecution case is based upon an eye witness account. On the strength of above submissions, he has prayed for dismissal of the appeal.
We have heard learned counsel for the parties and with their able assistance gone through the material available on record.
1. Smt. Rekha (PW4) and Smt. Sudha (PW5) were categoric in their depositions that electricity lights was on in the house at the time of the alleged occurrence. The above fact is mentioned in the statement (Ex.DA) of Smt. Sudha recorded by the police under Section 161, Cr.P.C. It is not in dispute that the prosecution witnesses and the appellants are residents of the same village. In such an eventuality, there was no difficulty for Smt. Rekha (PW4) and Smt. Sudha (PW5) who had received injuries in the occurrence, to identify the assailants. Even otherwise, if the appellants were able to identify their targets in the light available at the time of incident then there should not be any difficulty for the prosecution witnesses to identify the assailants in the same light. A reference can be made to Nathuni Yadav and others V. State of Bihar and another, 1998 SCC (Criminal) 992 wherein it is held by Hon'ble Apex Court that :-
" if the light then available, though meager, was enough for the assailants why should it be said that the same light was not CRA NO. 486-DB OF 2004 16 enough for the injured who would certainly have pointedly focused their eyes on the face of the intruders standing in front of them."
We are, therefore, of the considered view that Smt. Rekha (PW4) and Smt. Sudha (PW5) had no difficulty in identifying the assailants.
The submission by learned counsel for the appellants with regard to the delay in reporting the matter to the police does not find favour with us, as the occurrence had taken place at 01.30 A.M. on the intervening night of 25/26.05.2001. Four persons were seriously injured, in the attacks while Bani Singh had succumbed to his injuries at the spot. Priority of the prosecution witnesses was to arrange for the medical aid for the injured and lookafter the dead body of Bani Singh. Rishikesh and Smt. Phula were immediately shifted to General Hospital at Bhiwani while Smt. Rekha and Smt. Sudha remained at the house near the dead body. The place of occurrence is about ten kilometers from Police Station Sadar Bhiwani. The police reached at the spot at about 9.00 A.M. and recorded the statement of Smt. Rekha(PW4). The FIR was registered at 10.10 A.M. and the special report was delivered to the learned Area Magistrate at about 11.30 A.M. The next submission of the learned counsel for the appellants that all the injured persons were not examined during the course of trial and hence no reliance could be placed on the depositions of Smt. Rekha (PW4) and Smt. Sudha (PW5), has no CRA NO. 486-DB OF 2004 17 bearing. It is a settled proposition of law that it is the quality and not the quantity of the evidence that matters. The deposition of Smt. Rekha (PW4) and Smt. Sudha (PW5), who had received injuries in the same incident, cannot be brushed aside merely on the ground that other injured were not produced during course of the trial. The presence of Smt. Rekha (PW4) and Smt. Sudha (PW5) inside the house, where the occurrence had taken place, was natural and cannot be doubted in any manner. Smt. Rekha (PW4) and Smt. Sudha (PW5) have fully supported the prosecution version and in such a scenario, non-examination of the other two injured, namely, Rishikesh and Smt. Phula, would not effect the case of the prosecution or cause any prejudice to the defence of the appellants.
So far as the blood stained earth is concerned, it has specifically been deposed by Sub Inspector Balwan Singh (PW18) that he took into possession blood stained earth, one piece of wood, one pair of Chappal, one khol of cartridge and one SIKKA having two pieces from the place of occurrence. In that eventuality, non mentioning of the said spot in the rough site plan (Ex.PHH) would not diminish the prosecution case.
So far as the arguments raised by appellants with regard to contradictions, improvements, confabulations and exaggerations in the statement of prosecution witnesses are concerned, much importance cannot be attached since these contradictions are minor in nature and do not go to the root of the case. It is by now settled that minor contradictions are bound to occur in the inter se statements of truthful witnesses, particularly when they appear CRA NO. 486-DB OF 2004 18 before the court after long efflux of time. The minor contradictions in the statements of the witnesses show that they were not tutored before their entry into the witness box. Learned counsel for the appellants had pointed out that in the FIR (Ex.PR), Smt. Rekha (PW4) has stated that Satbir Singh (appellant) gave a gandasa blow on the neck of Bani Singh. Smt.Sudha (PW5) has also deposed that Satbir Singh (appellant) gave a gandasa blow on the neck of Bani Singh. It was also pointed out that in the FIR (Ex.PR) it was mentioned that Balwan (appellant) gave a gandasa blow to Smt. Phula but in her evidence before the court Smt. Rekha (PW4) has deposed that Balwan gave a gandasa blow to Smt. Phula on her right hand while Smt.Sudha (PW5) has deposed that Balwan inflicted a gandasa blow on the left arm of Smt. Phula. It was further submitted that in the FIR the part attributed to Ravinder alias Dhillu (appellant) was with regard to infliction of gandasa blow on the central part of little finger of right hand of Bani Singh but while deposing before the court, Smt. Rekha (PW4) has stated that Ravinder alias Dhillu gave blow on the little finger of the right hand of Bani Singh (deceased), the same was the deposition of Smt. Sudha (PW5). It was further submitted that in the FIR(Ex.PR), a gandasa blow was attributed to Dharambir (appellant) which landed on the palm of right hand of Bani Singh after he fell down but in substantive evidence Smt. Rekha (PW4) deposed that he gave blow on the wrist of right hand of Bani Singh. The same was the deposition of Smt. Sudha (PW5). In the FIR it was mentioned that Naresh (appellant) fired a shot from a pistol but while making statement before the court Smt. Rekha (PW4) CRA NO. 486-DB OF 2004 19 deposed that Naresh fired shots at Rishikesh and caused injury to him. Smt. Sudha (PW5) also stated the same fact. It was also brought to our notice that in the FIR (Ex.PR) the name of Subhash (appellant) was conspicuously missing and hence there was no question of his participation in the crime but when Smt. Rekha appeared as PW4 then she stated that Subhash caught hold of Bani Singh and, thereafter, other appellants caused injuries to him. Smt. Sudha (PW5) but the witnesses deposed that Subhash caught hold of Bani Singh while Satish alias Shakti (appellant) inflicted injuries to him. In the FIR it was mentioned that Satish alias Shakti (appellant) inflicted gandasa blow on the neck of Smt. Sudha (PW5) deposed that blow on the neck of Bani Singh was caused after Subhash (appellant) nabbed Bani Singh. It was also brought to our notice that in addition to the two blows on the back of Smt. Rekha (PW4) no other role was assigned to Ram Mehar (appellant) in the FIR but in the substantive evidence Smt. Rekha (PW4) and Smt. Sudha (PW5) though deposed about the two blows on the back of Smt. Rekha (PW4) but further deposed regarding the one gandasa blow on the head of Smt.Sudha (PW5). Some contradictions were also pointed out with regard to the role assigned to Naseeb, Sudhir and Raj Kumar but there is no reason to discuss these contradictions since they are not before us in these appeals and even otherwise the contradictions pointed out qua them would not have any bearing on the case of the appellants.
We have minutely considered the contradictions pointed out to us with regard to the appellants. In our considered view, the CRA NO. 486-DB OF 2004 20 so called contradictions / variations in the statements of prosecution witnesses are bound to occur when witnesses appear before the court after a long lapse of time. The occurrence had taken place on 26.05.2001 while the statements of Smt. Rekha (PW4) and Smt. Sudha (PW5) were recorded on 18.10.2003 i.e. about 2-1/2 years after the occurrence. Both the witnesses are rustic women and it is not expected that they would depose exactly what had stated before the police. The variations in their statements do not go to the root of the case. In fact, such variations make us believe that Smt. Rekha (PW4) and Smt. Sudha (PW5) were not tutored before they appeared for their depositions. The argument by the learned counsel for the appellants that the statements of Smt. Rekha (PW4) and Smt. Sudha (PW5) are in direct conflict with the medical evidence, does not find favour with us. This substratum of the prosecution version remains undisturbed. The nature and number of injuries on the person of Bani Singh (deceased), Smt. Phula, Smt. Sudha, Smt. Rekha and Rishikesh would clearly show that different types of weapons have been used for causing these injuries.
The appellants armed with deadly weapons entered into the house of the aggrieved party at the mid night by scaling the boundary wall, clearly shows that their common object was to kill Bani Singh and to cause injuries to the other persons. A reference can be made to Ram Chandern and others V. State of Kerla, 2011 (4) RCR (Criminal) 480, wherein the Hon'ble Apex Court held that, " once it is established that unlawful assembly has common object, it is not necessary that all the persons forming such CRA NO. 486-DB OF 2004 21 assembly must be shown being committed some overt act."
In such an eventuality coupled with specific roles assigned to all the appellants except Subhash (appellant), it can be said that they had formed an unlawful assembly and the common object of such an assembly was to commit the murder of Bani Singh and inflict injuries on the person of Smt. Phula, Smt. Sudha, Smt. Rekha and Rishikesh.
So far as the motive is concerned, it is now settled that it pales into in-significance when there is an eye witness account. In this case, injured persons have appeared as witnesses who can be termed as stamped witnesses. Their presence at the spot cannot be doubted. In such a scenario, motive even if not proved would not effect the prosecution case. However, in the present case, the motive on the part of appellants has been proved since they nurtured a grudge against the aggrieved party on account of murder of Yudhvir son of Bugan Singh, belonging to their party and one of the members of the family of the aggrieved party was involved in the said murder of Yudhvir. The deposition of Gugan Singh (DW2) would further establish the stand of the prosecution in that regard. Therefore, the submission of the learned counsel for the appellants in this regard merits rejection.
So far as Subhash (appellant) is concerned, his name was not disclosed in the FIR (Ex.PR). No doubt, his name appeared for the first time, in the statement of Smt. Sudha, recorded under CRA NO. 486-DB OF 2004 22 Section 161, Cr.P.C. but no specific role was assigned to him. Even in the substantive evidence, the only role attributed to him was to catch hold of Bani Singh. As a matter of abundant caution, we extend the benefit of doubt to Subhash (appellant) and acquit him of the charges levelled against him.
In view of the above, we allow the appeal of Subhash son of Ranbir and dismiss the appeals of rest of the appellants.
(NARESH KUMAR SANGHI) (RAJIVE BHALLA)
JUDGE JUDGE
Mamta/Anoop
January 27, 2012