Punjab-Haryana High Court
State Of Haryana vs Ram Phal And Ors. on 10 September, 2007
Author: Nirmal Yadav
Bench: Jasbir Singh, Nirmal Yadav
JUDGMENT Nirmal Yadav, J.
1. The State of Haryana has challenged the judgment dated 29.09.1997 passed by the learned Sessions Judge, Jind, acquitting the respondents of the charge framed against them under Section 302 read with Section 34 of Indian Penal Code.
2. The facts, in brief, are that on 14.02.1994, ASI Ram Chander received a V.T. Message regarding admission of Bani Singh, resident of Village Kharak Ramji in Civil Hospital, Jind in injured condition. He collected Medico Legal Report from Police Station City Jind and reached Civil Hospital. He sought opinion from doctor whether Bani Singh was fit to make statement or not. Bani Singh was declared fit to make statement at 4.00 P.M, therefore, his statement EX PN/2 was recorded by the Investigating Officer. According to Bani Singh, on 12.02.1994 he had gone to Pillukhera for brining fertilizer. Since fertilizer was not available on that day, he had to stay there for night. On the next day, he left for his village at 4.00 P.M. When he was passing in front of the house of accused Ram Phal, Ram Phal came out of his house and gave a blow on his head with an iron pipe. Accused Krishan came from the opposite street and caused a lathi blow on his right leg. Sometime thereafter, accused Balram also came and gave a jaili blow on his right knee. Accused Ashok Kumar son of Ram Phal came from the back side of Bani Singh and gave a jaili below, which hit on the thumb and index finger of his right hand. Bani Singh fell down. On hearing the noise, Krishan Jat and Rajinder, residents of Aasan came there and rescued Bani Singh from the accused. Bani Singh is also alleged to have given slaps and fist blows to Ram Phal and Balram in his self defence. The motive for causing injury was that the accused did not like Bani Singh having to cultivate the land of Krishna wife of Banwari. Bani Singh was got admitted in the Hospital by Ram Phal accused. Initially, no case was registered and only a report in the daily diary of the police was recorded on 14.02.1994. On receiving the message with regard to death of Bani Singh, on the basis of DDR No. 26 dated 14.02.1994, EX.PO/1, first information report, EX PO was registered. The post mortem of the deceased was got conducted. During investigation, gun, EX P12 was recovered from the possession of Ram Phal. On completion of the inquiry, challan was presented and accused were charged for an offence under Section 302 read with Section 34 of Indian Penal Code, to which, they pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined as many as 13 witnesses. PW1 Dr. M.L. Kochar, Medical Officer, Civil Hospital, Jind along with two other Doctors, namely, Dr. G.D. Gupta and Dr. V.P. Kakkar, conducted the post-mortem examination on the dead and as per report EX PC, found the following injuries:
1. Wound 5 cm x 2 cm x bone deep with irregular margins placed on right side of occipital region. Pus discharge was present.
2. Wound 5.2 x 2 cm x bone deep placed on left parietal region. 10 cm above the root of pinna. Margins were echymosed.
On dissection of injuries No. 1 and 2 discharge and haemotoma around the injuries was present. On opening the skull vault, there was dark coloured haemota (app. 100 cc) present in subdural space on occipital region. Underlying brain tissue, membrane, contused. On opening the brain matter, there was fracture on the base of skull in the posterior cranial fossa, corresponding to fracture menages, brain contused.
3. Scab 8 cm x 4 cm on both buttocks. On removing the scab granule tissue was present.
4. Margins of anal orifice echymosed edematous brained. Infiltration of blood in sub mucosa was present.
5. Multiple scabs 7 in number size 1 cm x cm on left knee. On dissection infiltration of blood dark in colour was found underneath. On further exploration, it revealed pellets three of them recovered.
6. Multiple scabs ten in number 1 cm x cm on left knee. On dissection infiltration of blood dark in colour was found underneath. On further exploration it revealed that there were pellets and four of them were recovered. On further dissection it revealed haemotoma in knee joint with fracture of neck of fabula with mild haemotoma in surrounding tissue. ( Seven pellets recovered and sealed in glass vial bearing one seal).
7. A dressed infected wound on middle of right leg. On removing the dressing the wound was 3 cm x 1 cm x cm, vertically placed. Margins were edimatous. Surrounding skin was discoloured and discharge was present. Underlying bones were healthy.
8. A infected wound was present on the dorsum of left terminal phalanx of left index finger. Underlying bone was healthy.
4. All the vital organs were found healthy. Cause of death in our opinion was due to head injuries which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature.
5. Duration between injuries and death was within three to ten days and that between death and post mortem was within 6 to 36 hours. PW2 Rajinder, PW3 Satpal are the eye witnesses. PW 10, Dr. V.K. Satija, had medico legally examined Bani Singh (deceased) on 14.02.1994 at 12.30.A.M. and found the following injuries on his person:
1. Lacerated wound 4 cm x 1 cm x skin deep over the occipital bone of the skull.
2. There was reddish contusion 4 cm x 2 cm over the right leg in the middle. It was tender.
3. There was reddish contusion 5 cm x 2 cm over the right knee. It was tender.
4. There was lacerated wound 2 cm x 1 cm x skin deep between the right thumb and index finger. The injuries No. 2 and 3 were advised X-ray; whereas injuries No. 1 and 4 were found simple.
5. The probable duration was within 24 hours and the weapon used was blunt.
6. PW11 ASI Babu Ram, PW12 SI Harish Kumar and PW13 ASI Ram Chander, investigated the case. Krishan, who is alleged to have witnessed the occurrence, was given up having been won over.
7. When examined under Section 313 Cr.P.C., the accused denied all the incriminating evidence against them and pleaded their false implication. Ram Phal accused stated that on 13.02.1994, at night time, he, along with his brother Balram, was sitting at his house, when Bani Singh came there under the influence of liquor. He abused and also gave slaps and fist blows to them. They advised him (Bani Singh) not to behave in that manner, but he got infuriated and caught-hold of the neck of Ram Phal. Then, Ram Phal and his brother Balram gave fist blows and slaps to him. In the meanwhile, a.12 bore pistol fell down from the 'dab' of Bani Singh in the scuffle. During search, two live cartridges were also found in his pocket. On hearing the noise, Santosh wife of Ram Phal and Krishan son of Hari Chand Jhinwar also reached the spot. Bani Singh stated that he had spared the accused on that day, but he will kill them whenever, he got the proper opportunity. Thereafter, Ram Phal got admitted Bani Singh in a Civil Hospital, Jind. Ram Phal had also received minor injuries in the scuffle. He got the first information report registered against Bani Singh and also produced the pistol and cartridges, belonging to Bani Singh before the police. He further stated that in the year 1985, Bani Singh had come to his field and fired gun shots aiming at him and his brother Balram. He had also assaulted Kamlesh wife of Balram. In that regard, a case was registered against him, in which, Bani Singh was convicted and sentenced for four years. He was having a grudge and enmity against the accused persons on that account. In defence, they tendered into certified copies of judgments, EX DB and EX DC, a copy of report under Section 173 Cr.P.C. relating to FIR No. 140 dated 10.5.86 under Sections 302/456 IPC PS Sadar Jind, EX DD and a copy of FIR No. 28 dated 14.2.1994 under Sections 452, 323, 506 IPC and 25 of the Arms Act, PS Sadar, Jind, EX DE.
8. The trial Court, after having considered the entire evidence on record, came to a conclusion that the prosecution case is full of embellishment and does not inspire confidence. Resultantly, all the accused were acquitted of the charge framed against them.
9. We have heard learned Counsel for the parties and have gone through the material on record.
10. Learned State counsel submitted that the prosecution case is fully established from the dying declaration made by deceased Bani Singh, which is fully supported by the testimony of both the eye witnesses PW2 Rajinder and PW3 Sat Pal and further corroborated by the medical evidence. He further urged that the trial Court has disbelieved the dying declaration on the basis of mere surmises and conjecture and some of the lapses on the part of the Investigating Officer. It is argued that the entire prosecution case cannot be thrown out on the basis of some negligence or dereliction on the part of the Investigating Officer.
11. On the other hand, learned Counsel for the respondents argued that the prosecution case is full of embellishment and there is no independent evidence on record. It is submitted that as per the statement of Bani Singh (Deceased) EX PAA, Krishan Jat and Rajinder are the two persons, who had witnessed the occurrence. Krishan Jat has not been produced by the prosecution, while Rajinder is highly biased against both the accused Ram Phal and Balram, as both of them were prosecution witnesses in a case registered against his father Dhajja Ram, grand-father Bhal Singh and uncles Udey Singh and Gaje Singh, who were convicted and sentenced under Section 302 IPC. As such, this witness had his own axe to grind against the accused persons. It is further pointed out that the statement of Bani Singh, EX PAA cannot be termed as dying declaration, as the alleged occurrence took place on 13.02.1994 and Bani Singh expired on 20.02.1994. Further his statement was not got recorded by any Magistrate. The presence of other eye witness i.e PW3 Sat Pal is also not proved on record. In the statement, EX PAA, Bani Singh did not mention about his presence. Statement EX PAA made by Bani Singh (deceased) is not corroborated even by the testimony of PW2 Rajinder, nor it is supported by medical evidence. According to Bani Singh, he had been caused injuries by Ram Phal with an iron pipe, while Krishan accused caused him injury with a lathi, Balram and Ashok Kumar caused injuries with jailies. However, as per PW1 Dr. M L Kochar, on further dissection of injuries No. 5 and 6, seven pellets were recovered. But, there is not even an iota of evidence that any fire arm injury was caused to the deceased in the present occurrence.
12. From the evidence on record, we fully agree with the conclusion having been arrived at by the trial Court that the testimony of both the eye witnesses PW2 Rajinder and PW3 Sat Pal do not inspire confidence. Presence of PW3 Sat Pal at the time of occurrence, is not at all proved. Whereas, PW2 Rajinder is an interested and biased witness, as he was nursing a grudge against both Ram Phal and his brother Balram. The medical evidence totally belies the ocular testimony as well as the statement of Bani Singh (deceased). On other hand, the defence evidence appears to be probable. In defence certified copy of Judgment dated 12.01.1992 EX DB has been placed on record, vide which Bani Singh was convicted and sentenced under Sections 307/354 IPC, which was registered on the complaint made by Kamlesh wife of Balram accused. Ram Phal and Balram had appeared as prosecution witnesses against him in the above mentioned case. On this account, Bani Singh must be nursing a grudge against them. In this case, Ram Phal accused had got the first information registered prior in time and had also admitted Bani Singh in the Hospital. In his statement recorded under Section 313 Cr.P.C., Ram Phal stated that Bani Singh trespassed into their house on 13.02.1994 in a drunken condition. He abused and gave slaps and fist blows to him (Ram Phal) and his brother Balram. When Bani Singh was asked to desist, he caught-hold of Ram Phal by his neck and thereupon, Bani Singh was given beatings by Ram Phal and his brother Balram. A pistol of 12 bore fell down from the dab of Bani Singh and two live cartridges were also found in his pocket. Ram Phal handed over the above said articles to the police and lodged a report against him. In fact, Bani Singh, himself, has not mentioned any thing as to how he received fire arm injuries, as seven pellets were recovered on probing injuries No. 5 and 6. Therefore, there can be every possibility that the deceased might have fallen some where under the influence of liquor or he might have received fire arm injuries, besides other injuries in some other incident.
13. Further, prosecution story with regard to recovery of weapons of offence from the possession of the accused has also not been proved, as neither of the two attesting witnesses of recovery memos, namely, Balbir and Suraj, have been produced by the prosecution.
14. In the present case, learned State Counsel has failed to indicate any material infirmity or misreading of facts by the trial Court, which may necessitate interference by us in the judgment of acquittal.
15. The Apex Court in Allarakha K. Mansuri v. State of Gujarat 2002 (1) RCR (Criminal) 748, held that where, in a case two views are possible, the one which favours the accused, has to be adopted by the Court.
16. In view of the above discussion, we find no merit in the present appeal and the same is dismissed, accordingly.