Punjab-Haryana High Court
Vinod Kumar Son vs State Of Haryana on 2 September, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-437-DB OF 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH
CRA NO.D-437-DB OF 2006
DECIDED ON: 02.09.2013
1. Vinod Kumar son
2. Smt. Sumitra Devi daughter
3. Smt. Moti Devi wife
of Ram Kumar, all residents
of village Nidana, Tehsil and
District Jind.
.................Appellants
Versus
State of Haryana ................Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present Mr. Baldev Singh, Sr. Advocate with Mr. Sudhir Sharma, Advocate for the appellants.
Mr. H.S.Sran, Additional Advocate General, Haryana for the respondent.
S.P.BANGARH,J Case of the prosecution is that on 24.04.2004, at about 02:30 / 02:45 p.m, Kuldeep Singh (deceased), brother of Ishwar Singh, complainant was coming to his house from his 'gher', being followed by his brothers Ishwar Singh and Sushil at a distance of a half killa. When Kuldeep Singh (deceased) reached near the house of Vinod Kumar (appellant no.1) in street located in village Nidana, all the appellants emerged out of their house. Moti Devi (appellant no.3) Mamta 2013.09.06 17:33 mother of appellant no.1 caught hold of Kuldeep Singh (deceased) from I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 2 his right arm, while Sumitra Devi (appellant no.2) sister of appellant no.1 and daughter of appellant no.3 caught hold of him from his left arm. Vinod Kumar (appellant no.1) said that a lesson be taught to Kuldeep Singh (deceased) for giving him beatings on earlier occasion. Thereupon, Vinod Kumar (appellant no.1), who was carrying a knife like pointed weapon gave a blow, thereof, in the abdomen of Kuldeep Singh (deceased). He, yet, gave second blow on the chest and third on the head near left ear of Kuldeep Singh (deceased), who sequelly fell down on the ground. Both Ishwar Singh and Sushil raised hue and cries. They also tried to catch hold of the appellants, but they escaped. Vinod Kumar (appellant no.1) also took away the weapon of crime with him. Both Ishwar Singh and Sushil arranged a vehicle and brought Kuldeep Singh (deceased) in an unconscious condition to Civil Hospital, Jind, where doctor declared him dead. Motive for the occurrence was that about six months ago, Vinod Kumar (appellant no.1) misbehaved with the daughter of uncle of Kuldeep Singh (deceased) and the latter had beaten the former.
The aforementioned statement Ex.PF of Ishwar Singh complainant was recorded by Azad Singh, ASI (PW10) at General Hospital, Jind, where he had reached alongwith other police officials on 24.04.2004 after receiving a telephonic call from police station Jullana about the death of Kuldeep Singh son of Deep Singh, resident of village Nidana, Tehsil and District Jind. Ruqa Ex.PL was also received in the police station regarding death of Kuldeep Singh (deceased). Statement Ex.PF was read over and explained to Ishwar Singh complainant, who signed the same in token of its correctness. Later, Azad singh, ASI Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 3 made endorsement Ex.PF/1 on the statement Ex.PF and sent the same to police station through Constable Sarwan Kumar for registration of the case. FIR Ex.PD was registered in police station Jullana. Azad Singh, ASI also prepared inquest report Ex.PJ on the corpse of Kuldeep Singh. He also moved an application Ex.PI for getting conducted autopsy on the corpse of Kuldeep Singh (deceased). He also recorded the statements of Sushil Kumar and Rajinder Singh Pws.
Rohtash Singh, SI/SHO came to hospital and took over the investigation. Autopsy on the corpse of Kuldeep Singh (deceased) was conducted on 25.04.2004. After the autopsy, medical officer handed over a sealed parcel containing clothes of deceased to Azad Singh, ASI who seized that parcel vide memo Ex.PE. On return to police station, Azad Singh, ASI deposited the parcel with MHC in the police station in an intact condition.
On 01.05.2004, Vinod Kumar (appellant no.1) surrendered himself before the Court of Illaqa Magistrate. On receipt of this information, Rohtash Singh, SI/SHO moved an application Ex.PM before the Illaqa Magistrate and obtained permission to join Vinod Kumar (appellant no.1) in investigation. During investigation, Vinod Kumar (appellant no.1) suffered disclosure statement Ex.PO to the effect that an iron kush, wherewith, he had assaulted the deceased was kept concealed by him in his room constructed in the fields and he could get the same recovered. Disclosure statement Ex.PO was attested by Constable Jagdish Chander No. 673, ASI Satbir Singh and SI/SHO Rohtash Singh. Pursuant to the disclosure statement Ex.PO, Vinod Kumar (appellant no.1) led the police party to the place of concealment Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 4 and got recovered an iron kush Ex.P4 from the room meant for storing fodder in the field. Rough sketch of this weapon Ex.PP and parcel were prepared and parcel was seized vide memo Ex.PQ that was attested by HC Jagdish Chander No. 674, ASI Satbir Singh and SI/SHO Rohtash Singh. Rough site plan of the place of recovery of the weapon Ex.PR was also prepared.
Sumitra Devi and Moti Devi (appellants nos. 2 and 3) were arrested on 30.05.2004. During interrogation, they suffered their respective disclosure statements Ex.PS and Ex.PT and they got demarcated the place of occurrence and demarcation memos Ex.PU and Ex.PV respectively were prepared, that were attested by Constable Rajbir Singh, ASI Satbir Singh and SHO Rohtahs Singh. On 06.05.2004, sealed parcel of weapon of offence Ex.P4 was produced before Dr.Ashwani Kumar to find out as to whether death of Kuldeep Singh (deceased) could be possible by that weapon. The doctor, after opening the sealed parcel and seeing the weapon gave his opinion Ex.PQ/1 that injuries on the person of the deceased could be possible by that weapon. Then, it was returned to the police after sealing it in another parcel with the seals of the doctor.
On 17.05.2005, sealed parcels were sent to Forensic Science Laboratory, Madhuban through Constable Jagdish Singh No. 772 and the laboratory vide report Ex.PG opined that there was blood on the clothes of deceased and the iron kush, but their origin and group could not be ascertained, as it was dis-integrated. During investigation, scaled site plan Ex.PC was also got prepared by the investigating officer from Dilbagh Singh, Draftsman.
Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 5 After completion of investigation, Station House Officer of police station Jullana instituted police report in terms of Section 173 of the Code of Criminal Procedure ('Cr.P.C' for short) to the effect that it appears that the appellants nos. 1 to 3 have committed an offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) readwih Section 34 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were supplied to the appellants nos. 1 to 3 and the case was committed to the Court of Session, where charge under Section 302 IPC readwith Section 34 IPC was framed against the appellants nos.1 to 3, who pleaded not guilty, thereto, and claimed trial.
At the trial, prosecution examined as many as twelve witnesses, who deposed as under:-
PW1 Ranbir Singh, MHC No. 632 tendered in evidence his affidavit Ex.PA to the following effect:-
1.That on 24.04.2004, he was posted as MHC in police station Jullana and the key of the malkhana remained in his custody;
2. That on 25.04.2004, ASI Azad Singh, police station Jullana deposited with him one parcel of clothes of Kuldeep Singh (deceased) with the seal of doctor and one sealed parcel of some iron kush on 01.05.2004;
3. That on 17.05.2004, he had taken out from the malkhana parcel of above noted case i.e one parcel of clothes of Kuldeep Singh (deceased) with the seal of doctor and one sealed parcel of iron kush and handed over the same to C Mamta Jagdish Kumar No. 772 vide RC No. 56 on 17.05.2004 for 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 6 depositing with the Director, FSL, Madhuban;
4. That Jagdish Kumar, Constable No.772 deposited the parcels of above noted case with Director FSL Madhuban on the same day and on return handed over the receipt to him and
5. That, so far as, the two parcels of the above noted case remained in his custody, neither he nor anybody else tampered, therewith.
PW2 Jagdish Kumar, Constable No. 772 also tendered in evidence his affidavit Ex.PB to the following effect:-
1. That on 17.05.2004, he was posted in police station, Jullana on general duty;
2. That on 17.05.2004 MHC Ranbir Singh, P.S.Jullana had taken out a parcel containing clothes and an another parcel containing iron kush from the malkhana, police station Jullana and handed those to him with seals intact alongwith sample seal vide RC No.56 for depositing in the FSL Madhuban;
3. That on 17.05.2004, he deposited the above said sealed parcels with FSL Madhuban and on return handed over the receipt to MHC Ranbir Singh and
4. That, so far as, the parcels remained in his custody, neither he nor anybody else was allowed to tamper with the same.
PW3 Dilbagh Singh, Constable No. 851 deposed that on 20.05.2004, he visited the place of occurrence and prepared its scaled site plan Ex.PC bearing his signatures on the demarcation provided by Ishwar Singh son of Deep Singh, resident of village Nidana with correct marginal notes.
PW4 Ashok Kumar, Constable No. 817 deposed that on 24.04.2004, Bharat Singh, ASI handed over to him a copy of FIR Mamta 2013.09.06 17:33 Ex.PD as special report which he delivered to the Illaqa Magistrate I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 7 without any loss of time.
PW5 Ram Mehar, Constable No. 218 deposed that on 25.04.2004, he was posted at police station Jullana and on that day, he accompanied Azad Singh, ASI for getting conducted autopsy on the corpse of Kuldeep Singh (deceased) at Civil Hospital, Jind. After the autopsy, the medical officer handed over to him a parcel containing clothes of deceased which he entrusted to Azad Singh, ASI, who seized that parcel vide memo Ex.PE, which bears his signatures.
PW6 Ishwar Singh son of Deep Singh deposed that he had two brothers namely Kuldeep Singh and Sushil and they all the three are married and living jointly with their mother Daya Kaur. He deposed that his father had died about 13 years ago and on 24.04.2004 at about 02:30 / 02:45 p.m, they all three brothers were on way back to their house from 'gher' and Kuldeep Singh (deceased) was ahead of them by half a killa. When Kuldeep Singh (deceased) reached near the house of Vinod Kumar (appellant no.1) in the street, Moti Devi and Sumitra Devi (appellants nos.2 & 3) suddenly caught hold of Kuldeep Singh (deceased). Moti Devi (appellant no.3) caught hold of him from his right arm, while Sumitra Devi (appellant no.2) caught hold of the deceased from left arm. Vinod Kumar (appellant no.1) then came out of the house and raised a lalkara to teach Kuldeep Singh (deceased) a lesson for having given him the beatings, who was carrying a pointed weapon and he gave injuries to Kuldeep Singh (deceased) with that weapon on his abdomen, chest and near the left ear. He further deposed that after receiving the injuries, Kuldeep Singh fell down and all the three appellants fled away. After arranging the vehicle, they brought Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 8 the injured to General Hospital, Jind, where, Kuldeep Singh was declared brought dead. He further deposed that police came to the hospital and recorded his statement Ex.PF that bears his signatures. He further deposed that at about six months ago, Vinod Kumar (appellant no.1) had misbehaved with their cousin and on that occasion, he (Vinod Kumar,appellant no.1) had been beaten by Kuldeep Singh (deceased).
PW7 Sushil, brother of deceased, also deposed likewise and corroborated the testimony of PW6.
PW8 Dr .Ashwani Kumar, Medical Officer deposed that on 25.04.2004, he alongwith Dr.Devender Bindlish, Medical Officer, General Hospital, Jind conducted autopsy on the corpse of Kuldeep Singh (deceased) son of Deep Chand, resident of village Nidana, District Jind. The body was brought by Azad Singh, ASI of police post Gatoli, District Jind and was identified by Sushil son of Deep Chand, resident of village Nidana and Rajinder son of Dhup Singh, resident of Nidana and found the observations on the corpse that the length of the body was 5 feet 11 inches, there was no mark of ligature over the neck. The corpse was poorly built and nourished wearing grey green shirt and brown trousers with eyes half open and nostril contained food particles. There were various split areas over the shirt (1 to 6 only) which were duly marked and signed and sealed alongwith a sample seal. Rigor mortis was present in all the four limbs including neck. Six seals were affixed on the bag.
PW8 further deposed that following injuries were observed on the corpse of the deceased:-
1. There was obliquely placed lacerated wound on temple 1 cm Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 9 above left ear measuring 1 cm x .5 cm x muscle deep, on dissection, there was big haematoma measuring 2 cms x 3 cms underlying this injury;
2. There was a depressed abrasion (impression abrasion) in the middle of the frontal region measuring 0.5 cm x diameter;
3. There was another imprint abrasion lying vertically about 2 cms lateral and on the left side of injury no.2 measuring 0.75 cms x 0.25 cm;
4. Another similar abrasion measuring 0.5 cm x 0.25 cm about 0.5 cm lateral to injury no.3;
5. 2 impression abrasion present on the left clavicular area lying transversely about 0.5 cm below left clavicle which were 1 cm apart and measured 1.2 cms x 0.5 cm and 0.5 cm x 0.25 cm;
6. There were two penetrating wound present on the right side of the chest 5 cms medial to right nipple measuring 0.5 cm in diameter.
On dissection, the injury could go up to lung tearing with split in a lungs measuring 1 cm x 0.75 cm x 0.5 cm;
7. Another 4 cms above and lateral to the right nipple penetrating wound 0.5 cm in diameter going upto muscle;
8. 1 cm lateral to the umbilicus there is a penetrating wound measuring 2 cms x 0.3 cm in dimension as it contained clotted blood. The dissection revealed depth upto Aorta. Piercing and splitting it measuring 0.75 cm in diameter. On opening the abdomen, the abdominal cavity was full of blood and haetomas about 3.5 liter of blood alongwith several clots of blood were removed.Oesophagus contained food particles with nasopharynx Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 10 stuff with some material;
On dissection, stomach contained about 100 ml of grey white semi solid material. Similar material present in the nasopharynx and oesophagus. The small intestines were stained with blood and contained chyme which oozed at two places where there were splits. Large intestine contained small amount of faecal matters and gases. Liver, spleen, kidneys, bladder, organs of generation were found to be healthy but appeared pale.
Brain was found to be healthy. On examination of thorax, the frontal chest injuries described earlier. Larynx and trachea contained food particles.
On dissection of thorax, revealed split as described earlier and contained small amount of blood in the thoracic cavity. Left lung was found to be healthy and heart chambers were found to be empty otherwise healthy. Large vessels were found to be healthy except abdominal Aorta showing a split measuring 0.75 cm and
9. There was an abrasion measuring 3 cms x 0.1 cm on right calf region lying transversely.
PW8 further deposed that in their opinion the cause of death in this case was shock and haemorrhage, as a result of massive trauma to the vital organs i.e Aorta and lungs. The injuries were sufficient to cause death in ordinary course of circumstances and injuries were ante-mortem in nature. The probable time between injuries and death was stated to be within a short while. (variable minutes to). The probable time between injuries and death was stated to be within a short while and between death and autopsy within 4 to 24 hours. Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 11 PW8 further deposed that they handed over corpse of the deceased duly stitched after conducting autopsy, police papers duly initiated by him, autopsy report, trousers, shirt and black thread around waist and sample seal to the police. PW8 also deposed that Ex.PH is the photocopy of the autopsy report. He brought the original which bore his signatures and that of Dr.Devender Kumar. Ex.PH/1 and Ex.PH/2 are the pictorial diagrams showing the seats of the injuries. PW8 further deposed that he conducted autopsy on the police request Ex.PI and he also initialled the inquest report Ex.PJ. A sealed parcel bearing the seal of FSL was opened. Trousers Ex.P1, shirt Ex.P2 and black thread (tagri in local parlance) Ex.P3 contained in the parcel were shown to PW8, who deposed that he had handed over those to the police, post autopsy. On application Ex.PK, PW8 gave opinion Ex.PK/1 to the effect that sealed parcel was brought by Satbir Singh, ASI, that was opened by him and iron phali was taken out. He deposed that injuries mentioned in the autopsy report pertaining to Kuldeep Singh (deceased) could be possible with this weapon (phali), that was re-sealed by him into a parcel and that parcel was handed over to the police. During the deposition of PW8, iron phali Ex.P4 was taken out of the sealed parcel and was shown to PW8 who deposed that it is the same that was shown to him at the time when he gave opinion about this.
PW9 Bharat Singh, ASI deposed that on 24.04.2004, he recorded formal FIR Ex.PD on the receipt of statement of Ishwar Singh son of Deep Chand Ex.PF, whereon, Azad Singh, ASI made his endorsement Ex.PF/1. He further deposed that he had sent the copy of the FIR as special report to the Illaqa Magistrate through Ashok Kumar, Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 12 Constable.
PW10 Azad Singh, ASI conducted investigation of this case and deposed on the lines of investigation, that has been reproduced in the earlier parts of this judgment.
PW11 Rohtash Singh, SI also partly conducted investigation of this case and deposed on the lines of investigation, that, too has been reproduced in the earlier parts of this judgment.
PW12 Satbir Singh, ASI also deposed that on 01.05.2004, he joined Rohtash Singh, SI/SHO in connection with investigation of this case. Vinod Kumar (appellant no.1) was joined in investigation on the order of the Magistrate who, during interrogation suffered disclosure statement Ex.PO to the effect that he has kept concealed a kush Ex.P4 (weapon made of iron) in a kotha located in his field and could get the same recovered and pursuant to his disclosure statement Vinod Kumar (appellant no.1) got recovered an iron kush from the disclosed place, whose sketch Ex.PP was prepared and it was sealed into a parcel with the seal bearing impression 'SS' and that parcel was seized vide memo Ex.PQ. He also deposed that on 30.05.2004, Moti Devi and Sumitra Devi (appellants nos.3 and 2) pin pointed the place of occurrence, pursuant to their disclosure statements Ex.PS and Ex.PT respectively and memos of demarcation Ex.PU and Ex.PV respectively were prepared.
Thereafter, the evidence of the prosecution was closed. After the closure of prosecution evidence, appellants nos. 1 to 3 were examined under Section 313 Cr.P.C, wherein, they denied the allegations of prosecution, pleaded innocence and false implication in Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 13 the case.
However, Sumitra Devi (appellant no.2) gave her own version that she has been married in village Kakrod for the last 12/13 years and on the alleged date of occurrence, she was living at her matrimonial home in village Kakrod. She has no connection with the affairs of the family of her parents.
Appellants were called upon to enter in defence, but they closed the same without examining any witness in defence.
After hearing both the sides, as also, after perusal of the evidence and documents on record, learned trial Court vide impugned judgment convicted the appellants for commission of offence punishable under Section 302 IPC readwith Section 34 IPC and vide impugned order of sentence, sentenced them (appellants nos. 1 to 3) to undergo rigorous imprisonment for life each, besides, pay of fine of `20,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of three years each for commission of offence punishable under Section 302 IPC readwith Section 34 IPC. It was also ordered that in case of realization of amount of fine, 80%, thereof, shall be given to the legal representatives of deceased in equal shares.
Aggrieved against the impugned judgment and order of sentence, appellants nos. 1 to 3, who were accused before the learned trial Court, have come up in this appeal with prayer for acceptance, thereof, and for their acquittal of the offence punishable under Section 302 IPC readwith Section 34 IPC.
Learned senior counsel for the appellants nos. 1 to 3 Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 14 contended that there was an in-ordinate and unexplained delay in lodging the FIR, as also, there was in-ordinate delay in delivering the special report to the learned Illaqa Magistrate. Learned senior counsel also contended that the learned trial Court wrongly placed reliance upon the testimonies of PW6 and PW7, who are, not only highly interested being close relatives of Kuldeep Singh (deceased), but are also materially discrepant and sharply conflicting.
Learned senior counsel also contended that ocular evidence of Ishwar Singh PW6 and Sushil PW7 stands totally falsified by the medical evidence of Dr.Ashwani Kumar (PW8) as according to the alleged eye witnesses, only three injuries were given to the deceased, but as per the medical evidence, he received nine injuries. Learned senior counsel, thus, contended that this serious infirmity in the prosecution case has been over looked by the learned trial Court.
Learned senior counsel also contended that both the alleged eye witnesses made vital improvements from their statements that were allegedly made by them during investigation in their statements during their deposition. Therefore, they have rendered themselves unreliable. He also contended that the prosecution failed to prove any motive and this serious infirmity in the prosecution case has been over looked by the learned trial Court. He also contended that it was a sudden fight and there was no exchange of hot words between both the parties and, therefore, there was no question of any common intention and the conviction of the appellants nos. 2 and 3 with the aid of Section 34 IPC, on the face of it, is illegal. He also contended that the conduct of both the alleged eye witnesses Ishwar Singh PW6 and Sushil Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 15 PW7 is unnatural and improbable and, therefore, learned trial Court wrongly placed reliance upon their evidence. He also contended that so far as appellant no.3 Moti Devi is concerned, her right hand had been amputated from the wrist, therefore, she is a physically handicapped person, incapable of catching hold another person muchless the deceased. He also contended that regarding deformity of appellant no.3, medical certificate issued by Orthopedic Surgeon (Annexure A1) has been attached with the appeal. So, learned senior counsel contended that the benefit of doubt may be accorded to the appellants and they may be acquitted of the offence punishable under Section 302 IPC readwith Section 34 IPC by setting aside the impugned judgment and order of sentence dated 18.05.2006.
On the other hand, learned Additional Advocate General, Haryana contended that there is no illegality or infirmity in the impugned judgment and order of sentence that may be upheld and affirmed, as the learned trial Court rightly placed reliance upon the evidence of PW6 and PW7 that was corroborated by the medical evidence of PW8.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties,as also, we have perused the evidence and documents placed on record of the learned trial Court.
PW6 and PW7 are the eye witnesses of this occurrence. According to them, they were half a killa behind the deceased and all the three were going to their house from their 'gher'. They witnessed the occurrence from a distance of half a killa. Incident Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 16 had taken place in front of the house of appellants. From a distance of half a killa, PW6 and PW7 could not see the actual number of injuries being inflicted by Vinod Kumar (appellant no.1) upon the deceased. They could notice only three injuries. Their testimonies cannot be discarded simply on the ground that they could not explain the remaining six injuries on the person of the deceased. The explanation given on behalf of the prosecution is cogent and it is held that the deceased was half a killa ahead of PW6 and PW7 when the occurrence took place and from this distance, PW6 and PW7 could not record the exact number of injuries.
Simply that PW6 and PW7 could not explain all the nine injuries on the deceased, case of the prosecution cannot be held to be doubtful. Their presence could be held doubtful only if they had been very much near the place of occurrence and then they could not explain the exact number of injuries being suffered by the deceased at the hands of the assailants.
The incident had taken place in front of the house of the appellants. It is not their case that someone else killed the deceased. It was within the special knowledge of appellants as to who caused him injuries. It is also not their case that someone else than them caused the injuries. It is no doubt true that it is for the prosecution to prove as to who killed the deceased, but since the incident took place in front of the house of the appellants, the accusing finger rightly went towards them and it was for them to explain as to how Kuldeep Singh turned into corpse right in front of their house.
If PW6 and PW7 had not been following the Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 17 deceased, in that event, the accusing finger could go towards all the three appellants, but in the case in hand, the accusing finger goes only towards Vinod Kumar (appellant no.1), who at the time of occurrence was armed with iron phali and he caused injuries, therewith, on the deceased. Lacerated wounds would have been caused from the reverse side of the weapon and the abrasions would have occurred on the body of the deceased when he would have been writhing in pain on the ground.
Only Vinod Kumar (appellant no.1) was armed with lethal weapon supra and he alone committed the murder of the deceased. The participation of his mother Moti Devi (appellant no.3) is doubtful, as according to PW6, her right hand had been chopped off near the wrist. It is highly improbable to hold that she could catch hold right arm of the deceased with one hand. Because of her physical disability, as also, her health, she was incapable of catching hold the right arm of the deceased, who could easily shove her.
Even, there is a tendency on the part of the aggrieved party to rope in even innocent members of the opposite party. In such circumstances, court has to sift the evidence with care and caution and convict only those persons against whom prosecution witnesses can be safely relied upon without raising any element of doubt, in view of Gurbachan Singh and another v State of Punjab 1990(1) RCR (Criminal) 457, passed by this Court by placing reliance upon Raghbir Singh versus State of U.P, AIR 1971 Supreme Court 2156, passed by the Hon'ble Supreme Court of India.
Hon'ble Supreme Court of India in Raghbir Singh's Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 18 case (supra) also held that in cases where there is enmity between two factions, there is tendency on the part of the aggrieved victim to give an exaggerated version and to rope in even innocent members of the opposite faction in a criminal case. Therefore, the Court has in all such cases to sift the evidence with care and convict only those persons against whom the prosecution witnesses can be safely relied upon without raising any element of doubt.
Moti Devi (appellant no.3) has not been ascribed any injury. She is not ascribed any lalkara. Only catching hold of right arm of the deceased has been ascribed to her, that has been ruled out due to her physical disability because of her right hand being amputated from the wrist. When Moti Devi (appellant no.3) did not raise any lalkara and did not goad her son Vinod Kumar (appellant no.1) to commit the murder of Kuldeep Singh (deceased) and when her catching hold of right arm of the deceased has been ruled out, she cannot be held to be guilty of commission of murder of Kuldeep Singh (deceased) with the aid of Section 34 IPC. She could be convicted and sentenced with the aid of Section 34 IPC for commission of murder of Kuldeep Singh (deceased), if she had caught hold the deceased or if she had raised a lalkara or if she had been carrying any weapon or with that weapon she had caused injuries to Kuldeep Singh (deceased).
There is inflated version of the incident in this case. Since, the occurrence had taken place in front of the house of the appellants, both the ladies of the house i.e Sumitra Devi and Moti Devi (appellants nos. 2 and 3) were roped in. In such cases, where the incident occurred in front of the house, there is tendency of roping all the Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 19 family members living in the house that has exactly happened in this case.
Similar is the case of Sumitra Devi (appellant no.2). It is her version that she is married and resides at her in-laws village Kakroda for the last 12/13 years. Even, PW6 admitted this that she had been married for the last about 15 years and after this incident, she usually resided in village Kakroda. So, in this view of the matter, her presence at her natal house is doubtful. Her case is on parity with her mother Moti Devi (appellant no.3). She was not carrying any weapon at the time of occurrence. She also did not goad her brother Vinod Kumar (appellant no.1) to commit the murder of Kuldeep Singh (deceased). She being a female could not catch hold left hand of the deceased and if she had done so, the deceased would have shoved her.
So, her catching hold of the left arm of the deceased is ruled out. Apart from that, PW6 and PW7 spotted the occurrence from half a killa and from this distance, they probably could not see them properly or they have inflated the version by implicating all the family members since the occurrence had taken place in front of their house. The participation of Sumitra Devi (appellant no.2) in the incident could be accepted only if she had been carrying any weapon or she had caused injuries to the deceased with weapon. When catching hold of arm of the deceased is ruled out, it is arduous to hold that she (appellant no.2) facilitated Vinod Kumar (appellant no.1) to commit the murder of Kuldeep Singh (deceased).
So, it is held that the learned trial Court wrongly concluded that appellants nos. 2 and 3 by catching hold the left and right Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 20 arms respectively of the deceased facilitated Vinod Kumar (appellant no.1) to cause injuries to the deceased. The case against appellants nos. 2 and 3 is utterly doubtful and benefit of doubt should have been accorded to them by the learned trial Court in view of what has been discussed, herein, before.
We concur with the contention of the learned senior counsel for the appellants nos. 1 to 3 that appellants nos. 2 and 3 could not be convicted and sentenced for commission of murder of Kuldeep Singh (deceased) vide impugned judgment and order of sentence with the aid of Section 34 IPC.
However, we do not concur with the contention raised by the learned senior counsel for the appellants that PW6 and PW7 are the brothers of the deceased and, therefore, their evidence be repelled. Merely, because the eye witnesses i.e PW6 and PW7 are the brothers of the deceased, their evidence cannot per-se be discarded. When there is allegation of interestedness, the same has to be established. Mere stating that being relatives of the deceased, they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible in view of Bur Singh and another v. State of Punjab 2008(4) RCR (Criminal) 834 , passed by the Hon'ble Supreme Court of India.
Though, PW6 and PW7 witnessed the incident from a distance of half a killa, they could identify the assailant very easily. Both in candid words deposed that it was Vinod Kumar (appellant no.1) who caused injuries with iron phali, which is a sharp pointed weapon. Its sketch Ex.P4 has also been seen. It contained blood, but due to being Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 21 dis-integrated, opinion, thereof, could not be given by the Forensic Science Laboratory, as can be seen from its report Ex.PG. No motive can be ascribed to PW6 and PW7 to depose falsely against Vinod Kumar (appellant no.1) in front of whose house the deceased turned into corpse.
Deceased was taken to hospital in an ambulance and information vide memo Ex.PL was given to police regarding arrival of the deceased in General Hospital, Jind. As per this memo, deceased was brought by Rajinder Singh son of Dhup Singh, resident of village Nidana. Merely that the names of PW6 and PW7 do not figure, therein, cannot make their presence doubtful at the time of occurrence, especially, when their evidence during cross examination could not be shattered. It appears that after the incident PW6 and PW7 were in utter pain and they may be crying in pain after seeing the death of their brother and Rajinder Singh son of Dhup Singh, resident of village Nidana took command of the situation and removed the deceased to General Hospital, Jind. Moreover, on this memo Ex.PL, whereby, police was informed by the Medical Officer of General Hospital, Jind about the death of Kuldeep Singh (deceased), names of all the persons who accompanied the deceased could not be incorporated. So, the contention of the learned senior counsel for the appellants in this regard being devoid of merit, is repelled.
Learned counsel for the appellants then contended that appellants nos. 2 and 3 for not having been found accomplices of Vinod Kumar (appellant no.1), the entire testimonies of PW6 and PW7 are required to be repelled.
Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 22 We do not find any merit in this contention raised by the learned senior counsel and repel the same as the maxim "Falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in India nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. Even if major portion of the evidence is found to be deficient, residue is sufficient to prove guilt of an accused, as held by the Hon'ble Supreme Court of India in Dalbir Singh v. State of Haryana 2008(3) RCR (Criminal) 353.
So, in view of the aforementioned judgment of the Hon'ble Supreme Court of India, the entire testimonies of PW6 and PW7 can not be repelled. Apart from that, the allegations against appellants nos. 2 and 3 of catching hold of the deceased by them has been ruled out. No other act was ascribed to them and even, their presence at the spot if accepted by relying upon the testimonies of PW6 and PW7 does not constitute their culpability.
It was also contended by the learned senior counsel that deceased was not wearing any vest and underwear. Regarding this contention, suffice it to say that normally in villages, people may not be wearing vest and underwear. PW7 has only tried to go into unnecessary detail that was not required. PW6 is categoric that Kuldeep Singh (deceased) was not wearing vest and underwear. Therefore, non recovery of vest and underwear is inconsequential to the case of the prosecution. Delay in lodging the FIR is not inordinate. Even otherwise, prompt lodging of FIR is not an unmistakable guarantee of its truthfulness and neither its delay always fatal. Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 23 It was held by the Hon'ble Supreme Court of India in Bhajan Singh @ Harbhajan Singh v. State of Haryana with Joga Singh v. State of Haryana and Nishabar Singh and another vs. State of Haryana 2011(7) SCC 421 held that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. Delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. It was also held that delay in dispatch of FIR to Magistrate by itself is not a circumstance which can throw out the prosecution's case in its entirely, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence. It was also held that every such delay is not fatal unless prejudice to the accused is shown.
It was also held in the judgment supra that the expression 'forthwith' mentioned in Section 157 Cr.P.C does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused persons after due deliberations. It was held that the object and purpose of sending FIR to Magistrate is that the FIR be not anti-timed or anti- dated and Section 159 Cr.P.C empowers the Magistrate to hold the Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 24 investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction.
It was also held by the Hon'ble Supreme Court of India in the aforementioned judgment that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the Court to reject the evidence in its entirety. Undue importance should not be attached to omission, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness, as the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.
According to the prosecution, occurrence in this case took place at about 02:30 p.m. Kuldeep Singh (deceased) reached in General Hospital at 03:20 p.m and then ruqa was sent by the doctor to the police. Police reached at the hospital and recorded the statement of PW6 Ishwar Singh, complainant at 06:30 p.m. FIR Ex.PD was recorded by 08:40 p.m and special report reached Illaqa Magistrate at 10:30 p.m. There is no fabrication of the version in this case. Police reached the hospital and recorded the statement. No motive can be ascribed to the police to fabricate the version. Otherwise also, the commission of murder by Vinod Kumar (appellant no.1) in this case cannot be ruled out. He had a definite motive to kill the deceased, as he misbehaved with the cousin of the deceased and was beaten by him. This insult Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 25 could not be swallowed by the appellant and avenge that insult, he made a mind to commit the murder of the deceased in front of his house when deceased was passing through. As already held, the incident was spotted by PW6 and PW7 from a distance of half a killa.
Vinod Kumar (appellant no.1) has not given any version in his statement under Section 313 Cr.P.C that he has been implicated falsely in this case. When the incident had taken place in front of his house, it was for him to explain as to how Kuldeep Singh (deceased) turned into corpse right in front of his house.
The ocular evidence of PW6 and PW7 cannot be held to be contradictory to each others. Some injuries could not be noticed by PW6 and PW7. They witnessed the occurrence from a distance of half a killa and the benefit of this variation between the ocular evidence and the medical evidence regarding number of injuries on the person of deceased cannot be accorded to the appellant no.1.
Phali Ex.P4 was used in this incident for commission of murder of the deceased, that was recovered pursuant to the disclosure statement Ex.PO of the appellants. So, this recovery also corroborates the ocular evidence of PW6 and PW7. Even, medical evidence of PW8 is corroborated by this weapon Ex.P4, as the same was shown to PW8, who opined that injuries on the person of the deceased could be possible with this weapon.
Prosecution made attempt to take opinion from the Forensic Science Laboratory, Madhuban regarding presence of human blood on this weapon Ex.P4, but this material was found disintegrated. Even, material was disintegrated on shirt, pant and tagri (waist thread) Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 26 of the deceased. So, in absence of such report of the Forensic Science Laboratory, Madhuban about the presence of human blood on the objects supra, prosecution case cannot be held to be doubtful especially when PW6 and PW7 candidly deposed that weapon Ex.P4 was used in this occurrence by the appellant no.1 for causing injuries to the deceased, who succumbed, thereto, as also, especially when PW8 candidly deposed that weapon Ex.P4 could be used for causing injuries on the deceased.
So, in these circumstances, we are of the view that the impugned judgment and order of sentence qua Sumitra Devi and Moti Devi (appellants nos. 2 and 3) suffer from illegality and infirmity and are, therefore, are set aside qua them and instant appeal on their behalf is allowed and they are acquitted of the offence punishable under Section 302 IPC readwith Section 34 IPC. Their personal bonds and surety bonds are discharged.
However, there is no merit in the appeal that has been filed by Vinod Kumar (appellant no.1) and the same is, hereby, dismissed; impugned judgment and order of sentence qua him are, hereby,upheld and affirmed.
Before parting with this judgment, we are of this view that after the order of conviction, it is mandatory duty of the Court to consider the question of award of compensation to the victim of offence under Section 357 Cr.P.C in view of Ankush Shivaji Gaikwad v. State of Maharashtra 2013(2) RCR (Criminal) 1036. Although, it is the discretion of the Court to award or not to award compensation.
In the case in hand, learned trial Court passed no Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 27 order regarding compensation to the victim under Section 357 Cr.P.C. Learned counsel for Vinod Kumar (appellant no.1) contended that the latter is a poor person and, therefore, compensation in terms of Section 357 Cr.P.C may not be imposed upon him.
On the contrary, learned State counsel contended that in view of the judgment of the Hon'ble Supreme Court of India supra compensation to the victim of this case may be awarded.
The trial Court in this case did not grant compensation to the legal representatives of the deceased. Therefore, this question is liable to be adjudicated. In Section 357 sub section (1)(c) Cr.P.C it has been enshrined as under:-
c) When, any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such a offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855) entitled to recover damages from the person sentenced for the loss resulting to them from such death.
Kuldeep Singh is a deceased in this case. We have held that he was murdered by Vinod Kumar (appellant no.1), herein. In view of the provisions of Section 357(1)(c) Cr.P.C, he must compensate the legal representatives of the deceased, who was 27 years of age at the time of commission of his murder by Vinod Kumar (appellant no.1). As per record, he was not trained in any profession. He was also not holding any diploma or degree in any vocation. Therefore, he was not skilled or semi skilled in any vocation. He, thus, can only be categorized as a manual labourer, whose monthly income at the time of commission of his murder could not transcend `2,400/- / `2,500/-. Out of this amount, Mamta 2013.09.06 17:33 he would have kept 1/3rd for his own personal expenses and contributed I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 28 remaining 2/3rd for the maintenance and support of his legal representatives to whom, he was under obligation to maintain and support.
So, due to the commission of murder of Kuldeep Singh (deceased) by appellant no.1, his legal representatives suffered monthly loss of dependency to the tune of `1,500/- and annually to the tune of `18,000/-.
Since, the deceased was 27 years of age at the time of commission of his murder, as already observed, appropriate multiplier shall be of 14. By applying the multiplier of 14, compensation payable to the legal representatives of the deceased would come to `2,52,000/-. To make it a round figure, compensation to the tune of `2,50,000/- is awarded to the legal representatives of Kuldeep Singh (deceased), which shall be shared by them equally.
So, Vinod Kumar (appellant no.1) is directed to pay `2,50,000/- as compensation to the legal representatives of the deceased and he shall deposit this amount in the Court of learned Chief Judicial Magistrate, Jind within a period of six months from today and in the event of default, thereof, he (Vinod Kumar,appellant no.1) shall be liable to pay interest @ 8% p.m from today onwards till the realization of entire amount of compensation.
In case, the amount of compensation is not deposited within a period of six months, in that event, learned Chief Judicial Magistrate, Jind shall take necessary steps for realization of the amount of compensation supra from the movable or immovable property or both of Vinod Kumar (appellant no.1) as arrears of land revenue. He can Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh CRA NO.D-437-DB OF 2006 29 also take the help of the Collector of the District for realization of this amount from Vinod Kumar (appellant no.1). Fine to the tune of `20,000/- be also deposited by Vinod Kumar (appellant no.1) in the Court of learned Chief Judicial Magistrate, Jind and that shall also be disbursed to the legal representatives of Kuldeep Singh (deceased) in equal shares.
(S.P.BANGARH) (S.S.SARON)
JUDGE JUDGE
02.09.2013
mamta
1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or? Yes
3. Whether the judgment should be reported in the digest? Yes Mamta 2013.09.06 17:33 I attest to the accuracy of this order Chandigarh