Punjab-Haryana High Court
Cra No.853-Db Of 2002 vs State Of Haryana on 21 December, 2011
Author: S.S. Saron
Bench: S.S. Saron, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CRA No.853-DB of 2002
Date of decision: 21.12.2011
Anil and Others
.... Appellants
Versus
State of Haryana
.... Respondent
2. CRA No.883-DB of 2002
Rohtash
..... Appellant
Versus
State of Haryana
.... Respondent
CORAM : HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr. Vinod Ghai, Advocate for the appellants in
CRA No.853-DB of 2002.
Mr. Ravi Kant Sharma, Advocate for the appellant in
CRA No.883-DB of 2002.
Mr. H.S. Deol, Addl. A.G., Haryana.
***
S.S. SARON, J.
This order will dispose of CRA No.853-DB of 2002 and CRA No.883-DB of 2002 as they arise out of the same judgment and CRA No.853-DB of 2002 & [2] CRA No.883-DB of 2002 order dated 24/26.10.2002 passed by the learned Additional Sessions Judge (Fast Track) Court, Sonepat. CRA No.883-DB of 2002 has in fact been filed only by Rohtash son of Surja but he alongwith others has also filed CRA No.853-DB of 2002 in which he (Rohtash) is appellant No.4. Therefore, CRA No.883-DB of 2002 is surplusage.
The appellants have been convicted by the learned trial Court for the commission of an offence punishable under Section 302 read with Section 34 Indian Penal Code ("IPC" - for short). They have been sentenced to undergo imprisonment for life; besides, pay a fine of Rs.2000/- each.
Learned counsel for the appellants and the State have submitted that Anil Kumar (appellant No.1) has died. A photocopy of his death certificate issued by Municipal Corporation of Delhi, Government of National Capital Territory of Delhi has also been filed. In terms of the same, Anil Kumar (appellant No.1) son of Sultan Singh has died on 9.8.2005. No legal heir of his filed an application for pursuing the appeal on his behalf.
The FIR (Ex.PC/2) in the case has been registered on the basis of the statement (Ex.PC) made by the complainant Manphool (PW3) son of Sheokaran resident of village Salimsar Majra before ASI Rajiv Kumar (PW12) at the canal bridge in the area of village Mehlana on 15.5.2000. It is alleged by the complainant (PW3) in his statement (Ex.PC) that he is a resident of village Salimsar Majra. On 14.5.2000 he as usual was sleeping in the enclosed (Bagar) of his (Gher) (outhouse). Pat Ram (PW4) son of Bujan alias Mool Chand resident of Salimsar Majra came at the 'Gher' of the complainant CRA No.853-DB of 2002 & [3] CRA No.883-DB of 2002 (PW3) at about 12 midnight and went towards the fields with a water bottle to convenience himself. He also had a torch with him. A loud voice coming from the side of the water course near the road was heard by Manphool (PW3). The voice was to the effect that; "Anil, Rohtash, Maleh, Durga brothers do not kill me. I am your black cow and what wrong have I done to you, please let me go." This was followed by cries of "bachao-bachao". On hearing these cries, Manphool, complainant (PW3) went towards the water course on the road with a torch and a stick in his hand. In the meantime Pat Ram (PW4) also reached there. When they flashed the torch light, they saw Anil son of Sultan, Chand @ Malha son of Dhan Singh, Durga son of Suraj Bhan and Rohtash son of Surja residents of village Salimsar Majra (appellants) beating a man and dragging him; besides, were taking him towards the water course by lifting him. They dumped the man with his facing downwards towards the earth on the ground. When Manphool (PW3) and Pat Ram (PW4) asked them as to why they were killing him, all the four above said persons boarded a red colour Mahindra tractor which was parked ahead of the culvert on the road with a trailer attached to it and sped away towards the village. Before this another young person had fled away from the road when he noticed Manphool (PW3) and Pat Ram (PW4) coming and they could not recognize him. When they i.e. Manphool (PW3) and Pat Ram (PW4) noticed the man lying in the mud in the torch light they could not recognize him because his face was covered with clothes and mud. They sat down near the dead body of that man for CRA No.853-DB of 2002 & [4] CRA No.883-DB of 2002 keeping a guard. When they closely observed the dead body, they realized that it was the dead boy of Surender alias Chinda resident of village Salimsar Majra who had succumbed to the injuries that were inflicted on his body and head. The reason for nursing a grouse was that four days earlier a quarrel had taken place between Rohtash and Surender alias Chinda (deceased). Rohtash had told Surender alias Chinda (deceased) that either he should repay the amount of Rs.60,000/- of his sister failing which he would kill him. Due to the said reason, Rohtash had committed murder of Surender alias Chinda with the help of his companions after due deliberations. Manphool, complainant (PW3) could not go to the Police Station to inform about the incident due to night time. In the morning, he was going to the police station to lodge a report that Rajiv Kumar, ASI met him at Mehlana Bridge where his statement (Ex.PC) was recorded. Action was asked to be taken. Manphool (PW3) had left Pat Ram (PW4) to guard the dead body. The statement was read over to Manphool (PW3) and was admitted by him to be correct. The police proceedings were recorded by ASI Rajiv Kumar (PW12) to the effect that on 15.5.2000 he along with UGC Sukhbir and Constable Vijander was present at Mehlana Bridge on the Mehlana road in connection with patrolling that Manphool (PW3) son of Sheo Karan came there and got his statement (Ex.PC) recorded which was read over to him word by word. He put his left thumb impression below his statement admitting the same to be correct. From the said statement, offences punishable under Sections 148, 149 and 302 IPC CRA No.853-DB of 2002 & [5] CRA No.883-DB of 2002 it appeared had been committed. The writing was then sent to the Police Station through Constable Vijander for registering a case (FIR). The number of the FIR was asked to be intimated; besides, special reports were asked to be sent to the Ilaqa Magistrate and the concerned police officers. The SHO was also asked to be informed through VT message. Rajiv Kumar ASI along with UGC Sukhbir and the complainant Manphool (PW3) then proceeded to the place of occurrence. On receiving the writing (Ex.PC), case FIR No.112 dated 15.5.2000 (Ex.PC/2) was registered at Police Station Sadar Sonepat.
ASI Rajiv Kumar (PW12) reached the spot along with the complainant Manphool (PW3) and witnesses were joined in the investigations. A rough site plan (Ex.PN) of the place of occurrence was prepared. Inquest report (Ex.PE/2) was also prepared. The dead body was sent with an application (Ex.PE/1) for the purpose of conducting postmortem examination. The statements of witnesses were recorded. Photographs (Ex.P-2 to Ex.P-11) of the place of occurrence, which show the dead body of Surender alias Chinda, were taken by Om Parkash, Photographer (PW-9). Blood-stained earth, was taken in possession vide memo Ex.PA. Oil of the tractor lying on the ground was also taken in possession vide memo Ex.PB. ASI Rajiv Kumar (PW12) then came to the Civil Hospital and Constable Vijander met him there and handed over to him the post- mortem report and viscera which were taken in possession vide memo Ex.PJ. A parcel of the clothes was also taken in possession vide memo Ex.PN. After completion of the investigation, police report CRA No.853-DB of 2002 & [6] CRA No.883-DB of 2002 (challan) in terms of Section 173 of the Code of Criminal Procedure ("CrPC" - for short) was prepared by SI/SHO Mahabir Singh, Police Station Sadar Panipat. The signatures of Mahabir Singh, SI/SHO were identified by Rajiv Kumar ASI (PW12) as he had worked with him. The learned Additional Chief Judicial Magistrate, Sonepat before whom the police report (challan) was filed in view of the offence under Section 302/34 IPC being alleged which could exclusively be tried by the Court of Session, committed the case vide order dated 16.8.2000 to the said Court for trial.
The learned Additional Sessions Judge, Sonepat in terms of charges framed on 21.9.2000 charge-sheeted the appellants Anil son of Sultan Singh, Chand Singh alias Malha son of Dhan Singh, Durga alias Durga Nand son of Suraj Bhan and Rohtash son of Surja all residents of Salimsar Majra, District Sonepat on the allegations that on 14.5.2000 at about 12.00 p.m. (mid night) in the area of village Salimgarh Majra in furtherance of their common intention committed the murder of Surender alias Chinda and they all thereby committed an offence punishable under Section 302/34 IPC. The appellants pleaded not guilty to the charge and claimed trial. The prosecution in order to establish its case examined 12 witnesses; besides, tendered documents in evidence including seizure memo, address information and postmortem report. The statements of the appellants in terms of Section 313 CrPC were recorded and the substance of evidence appearing against them was put to them. All the appellants stated that they were innocent and had been falsely implicated in the case. No CRA No.853-DB of 2002 & [7] CRA No.883-DB of 2002 evidence was led in defence. The learned Additional Sessions Judge, Sonepat vide order dated 24.10.2002 held that the prosecution had proved the charge under Section 302 read with Section 34 IPC framed against the appellants and all of them were accordingly held guilty and convicted for the said offence. By a separate order passed on 26.10.2002, the appellants were sentenced to imprisonment for life; besides, to pay an amount of Rs.2000/- as fine. Aggrieved against the same, the appellants have filed the present appeal.
Mr. Vinod Ghai, Advocate for the appellants in CRA No.853-DB of 2002 and Mr. Ravi Kant Sharma, Advocate for Rohtash-appellant No.4 in Crl. Appeal No.853-DB of 2002 and who is also appellant in CRA No.883-DB of 2002 have contended that the prosecution has failed to establish its case against the appellants. It is submitted that the presence of Manphool, complainant (PW3) and Pat Ram (PW4) at the time of the incident is highly improbable; besides, they would not sit for the whole night without realizing or recognizing that the dead body was that of Surender alias Chinda who is none else than their own nephew. It is submitted that it is unlikely that the complainant Manphool (PW3) and Pat Ram (PW4) would not recognize the dead body to be that of their nephew for the whole night. It is submitted that it is also unlikely that Surender alias Chinda (deceased) who is said to have shouted out the names of the appellants and yet the complainant Manphool (PW3) and Pat Ram (PW4) did not recognize his voice. It is further submitted that except for appellant Rohtash, no weapon has been recovered from the other CRA No.853-DB of 2002 & [8] CRA No.883-DB of 2002 appellants. Even otherwise, Om Parkash, an independent witness who was present at the time of recovery has not been examined. Besides, it is submitted that the motive for the appellants to cause murder of Surender alias Chinda (deceased) is not established and it is merely alleged that Surender alias Chinda (deceased) was asked to pay back Rs.60,000/- to the sister of Rohtash (appellant in CRA No.883-DB of 2002). However, the sister of Rohtash (appellant) was not examined to ascertain this fact. Therefore, the prosecution case, it is submitted, is highly doubtful and the appellants are liable to be acquitted.
In response, Sh. H.S. Deol, Addl. A.G., Haryana learned counsel for the State has submitted that the prosecution has established its case against the appellants in all material aspects and there is no reason whatsoever to discard the prosecution case and set aside the judgment and order of the learned trial Court, which has by recording cogent and convincing reasons found the prosecution case to be established against the appellants. The contentions as raised by the learned counsel for the appellants it is submitted are not tenable. Therefore, the appeal, it is submitted, is liable to be dismissed.
We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records of the case. In order to appreciate the case, the following pedigree table of the complainant Manphool (PW3), the deceased Surender alias Chinda and the prosecution witness Pat Ram (PW-4), Narain Dutt (PW-2) and CRA No.853-DB of 2002 & [9] CRA No.883-DB of 2002 Krishan (PW-1) insofar as it is relevant for the purpose of the present appeal may be noticed:-
Sheo Karan Bujan @ Mool Chand Kalu
Manphool Daya Ram Pat Ram (PW4)
(complainant-
PW3)
Krishan (PW1) Surender @ Narain Dutt (PW2)
Chinda
(Deceased)
A perusal of the above shows that Sheo Karan and
Bujan alias Mool Chand are brothers. The deceased in the case is Surender alias Chinda son of Daya Ram son of Sheo Karan. Manphool, complainant (PW3) is the brother of Daya Ram and Krishan (PW1) is the son of Manphool, complainant (PW3). The other witnesses are Pat Ram (PW4) and his son Narain Dutt (PW2). Pat Ram (PW4) is the son of Mool Chand alias Bujan who is the brother of Sheo Karan. Narain Dutt (PW2) is the son of Pat Ram (PW4). Therefore, Surender alias Chinda (deceased) is the nephew of Manphool, complainant (PW3) and Pat Ram (PW4) and is the cousin brother of Krishan (PW1) and Narain Dutt (PW2). The complainant Manphool (PW3) in his deposition in Court has reiterated the version as given by him in his statement (Ex.PC) before the Police on the CRA No.853-DB of 2002 & [10] CRA No.883-DB of 2002 basis of which FIR (Ex.PC/2) was registered. According to Manphool Singh, complainant (PW3) on 14.5.2000 he was at night sleeping in his 'Gher' (outhouse) and at about 12 o'clock in the night, Pat Ram (PW4) came to him and stated that he had an upset stomach. He asked for a bottle of water. After taking the bottle of water from Manphool complainant (PW3), he went to ease himself in the fields. After sometime, a noise was heard that Bhai Anil, Bhai Durga, Bhai Rohtash and Bhai Malhe alias Chand Singh of do not kill me, what loss had he caused to you and that he was their black cow. Manphool (PW3) went to the road with a torch and a stick in hands. In the meantime, Pat Ram (PW4) also came there from the other side after easing himself. Pat Ram (PW4) asked as to whom they were killing as he had also heard a noise. He asked Manphool, complainant (PW3) to go and see as to whom they were killing. When they i.e. Manphool (PW3) and Pat Ram (PW4) proceeded towards the side from which the noise was coming, they found one person was being dragged after he had been given a beating. He was being beaten and being dragged by Anil, Malhe alias Chand Singh, Durga and Rohtash (appellants) who were present in the Court. When they i.e. Manphool (PW3) and Pat Ram (PW4) were at a distance of about 15 paces, that person stopped speaking. They threw that boy in the mud. They i.e. Manphool (PW3) and Pat Ram (PW4) asked the accused as to who was he and why were they beating him, but the accused ran away. They saw all the accused in the torch light and in the moonlit light. Anil accused boarded the tractor and the other accused boarded the CRA No.853-DB of 2002 & [11] CRA No.883-DB of 2002 trolley which was standing there and went towards the village. Manphool (PW3) and Pat Ram (PW4) went to that person. As per their assessment, he had died. The face of that person was smeared with mud and so they could not identify him. Besides, they were scared that they may not be suspected to be involved in the case and that the dead body may not be taken away so they sat there. When it was sun rise time and there was some light, they again decided to see the face of that person and at about 4.30 or 5.00 a.m. They put some water on the face of that person and found that the deceased was Surender alias Chinda. Thereafter, Manphool (PW3) left Pat Ram (PW4) at the spot and decided that he himself would go to the police to lodge a report. He started from the place of incident on foot. He thought that some vehicle would be available at village Bhatgaon. After sometime a three-wheeler/scooter came there. He boarded that scooter and started for Sonepat. He saw one ASI, one Head Constable and one Constable at the bridge of the canal at village Mehlana and he asked the scooter driver to stop there. It was around 7.30 or 7.45 a.m. that Manphool (PW3) lodged the report (Ex.PC) with the police at that place. After admitting his statement to be correct, he thumb marked the same. It is stated that the deceased was having injuries all over the body, but the major injuries were on his head. Besides, his hand was also fractured. Surender alias Chinda was murdered by the accused because around 5-7 days before the occurrence there was a dispute between Rohtash and Surender. Rohtash had asked Surender to pay Rs.60,000/- of his sister, CRA No.853-DB of 2002 & [12] CRA No.883-DB of 2002 otherwise he would be killed. It is further stated that on 19.5.2000, Manphool (PW3) and Om Parkash came to the Police Station Sadar Sonepat and Rohtash accused was in the Police Station at that time. He admitted his guilt and told them about the incident. This part of the statement regarding admission of the guilt was objected to by the defence counsel during recording of the statement. He also stated that he had concealed a rod in the south western corner of his room wherein fodder was stored and that none else was having knowledge of the same. He could get the rod recovered. The statement (Ex.PD) of Rohtash was reduced into writing which was thumb marked by Manphool (PW3) and signed by Om Parkash, an independent witness who has not been examined. Thereafter they went to the place as disclosed by Rohtash and he took out a rod from the place pointed out by him. The rod was stained with blood. Sketch (Ex.PD/1) of the rod was prepared and the rod (Ex.P1) was put in a parcel that had been prepared and taken in possession vide memo Ex.PD/2. The seal after use was handed over to Manphool (PW3). The accused, it is stated, are not related to each other and they are only friends. Manphool (PW3) was cross-examined at considerable length. It is stated by him that he served with the police department for about 31 years and he retired as a Constable. His eye-sight is proper and he does not use spectacles. His outhouse (Gher) is outside the village locality. The distance between his outhouse (Gher) and the village is around two acres (measurement of distance in acres). From his outhouse (Gher), Pat Ram (PW4) went towards the southern side to ease himself. The CRA No.853-DB of 2002 & [13] CRA No.883-DB of 2002 distance between his outhouse (Gher) and place of occurrence was around 30-35 paces. Manphool (PW3) himself and Pat Ram (PW4) came to the road at almost the same time. Pat Ram (PW4), it is stated, took about 10-15 minutes to ease himself after going from his (Manphool's) outhouse (Gher). They did not try to wash the face of the dead body during the night. It is stated that they saw the dead body after going near it, but its face was downward and they did not try to remove the same and that is why they did not feel any smell at that time. When they washed the face in the morning at that time even there was no smell of alcohol. The police reached the spot at about 9.30 a.m. and during night till his departure to lodge a report with the police, they did not tell anyone about the incident. Nobody accompanied him when he proceeded to inform the police. As far as he knew the accused Rohtash had 4-5 sisters but he did not know their names. He did not know where they were married. He was not present when a dispute had occurred between Rohtash and Surender alias Chinda (deceased) regarding the money. Surender alias Chinda (deceased) had told him about the same. It is accepted as correct that Surender (deceased) was his real nephew. It is also accepted as correct that before they sprinkled water on the face of the deceased, they did not know as to who he was. It is stated that he (Manphool - PW3) told the police when his statement (Ex.PC) was recorded that they washed the face of the dead body a little bit by sprinkling water and identified the same when there was some light. This portion is omitted in the statement (Ex.PC) where it is not so recorded. It is also CRA No.853-DB of 2002 & [14] CRA No.883-DB of 2002 stated that he told the police when his statement (Ex.PC) was recorded that Pat Ram (PW4) told him that he was suffering from loose motion. The fact that Pat Ram (PW4) was suffering from loose motion or the demand of water was made by him is not mentioned in the statement (Ex.PC) of Manphool (PW-3). It is further stated that he told the police that the deceased was calling each and every accused by referring him as 'Bhai' or that he attached 'Bhai' before the word (name) of every accused. In the statement (Ex.PC) the word 'Bhai' is not mentioned. It is also stated that he told the police that Pat Ram (PW4) also stated as to whom they were killing and that he had also heard that noise. In the statement (Ex.PC) this aspect is not recorded. Manphool (PW3) told the police that Pat Ram (PW4) asked that they should go and see as to whom they (accused) were killing. This aspect is not so recorded in Ex.PC. It is also stated that he told the police when they were at a distance of about 10-15 paces that the deceased stopped speaking. This part is omitted in the statement (Ex.PC) wherein it is not so recorded. It is further stated that he in his statement (Ex.PC) stated that they saw the accused in the light of the moon and the torch. In the statement (Ex.PC) this aspect is not so recorded that they saw the accused in the moon light. It is stated that he had shown the torch to the police but the police did not take the torch in its possession. He also told the police that the accused Anil had boarded the tractor and the other accused boarded the trolley. It is not so recorded in the statement (Ex.PC) that the accused had boarded the vehicle. It is also stated that he told the police that they CRA No.853-DB of 2002 & [15] CRA No.883-DB of 2002 tried to see whether that person had died or not. This aspect is not recorded in the statement (Ex.PC). It is further stated by Manphool (PW3) that in his statement (Ex.PC) he told the police that they suspected that the dead body may not be removed and they may not be involved in the case. This aspect is not so recorded in the statement (Ex.PC). It is further stated that he told the police that he went up to village Bhatgaon on foot and thereafter boarded a three- wheeler. This part is omitted in the statement (Ex.PC) wherein it is not so recorded. He also told the police that hand of that person was fractured at that time. This part is omitted in the statement (Ex.PC) wherein it is not so recorded. It is also stated that he told the police that they asked the accused as to why they were killing that person. This portion is omitted in the statement (Ex.PC) regarding as to whom they were killing. It is further stated that he told the police that Pat Ram (PW4) came from the southern side. This part is omitted in the statement (Ex.PC) wherein it is not so recorded.
Pat Ram (PW4) in his statement deposed on the same lines as Manphool (PW3). It is stated that on 14.5.2000 he was sleeping in his outhouse (Gher). He had a stomach problem so he took a torch and went to ease himself. He went to Manphool (PW3) and took a bottle of water from him. Then he went to the fields after crossing the metalled road. After 5-10 minutes he heard a noise saying Bhai Anil, Bhai Durga, Bhai Rohtash and Bhai Malhe alias Chand Singh " do not kill me, what loss had I caused to you and that he was their black cow". On hearing the noise, Manphool (PW3) also CRA No.853-DB of 2002 & [16] CRA No.883-DB of 2002 came there from his outhouse (Gher). He was having a 'baint' (a small bamboo stick) and a torch with him. It is again stated that the deceased also named accused Rohtash. They discussed amongst themselves as to who were these people killing. They proceeded towards that place where the accused were killing the person. By that time, the person who was injured stopped speaking. The accused Anil, Rohtash, Maleh and Durga (appellants) were dragging that person and beating him. When they reached at a distance of 10 paces, they put the person in the mud and ran way from the spot. They asked them why they were killing him. They threw him in the mud. They saw the accused in the light of the torch. The accused Anil boarded the tractor along with three accused who boarded the trolley which was standing near the road. The person who had died was Surender and also called Chinda. They came to know about his death when it was sun rise time. They sat by the side of the dead body. Manphool (PW3) then asked him to remain at the spot and he (Manphool-PW3) went to inform the police. He was having two houses and the distance from his outhouse (Gher) where he was sleeping from his house was about two acres. The public started coming to the spot. The police reached the spot at about 9.00 a.m. The police did not take anything from the spot in his presence. Pat Ram (PW4) was cross-examined at length. It is stated that he told the police that they talked with each other as to whom the accused were killing. This aspect is omitted in his statement (Ex.DA) wherein it is not so recorded. Pat Ram (PW4) is 77 years old. The distance CRA No.853-DB of 2002 & [17] CRA No.883-DB of 2002 between his outhouse (Gher) and that of Manphool (PW3) is around 3 acres. It is accepted as correct that father of Manphool and his father were real brothers. It is stated that he told the police that Surender alias Chinda (deceased) was calling each of the accused by saying 'Bhai' 'Bhai'. This aspect is omitted in the statement (Ex.DA) wherein it is not so recorded. In response to a court question it is stated that except the accused he saw one more person running at that place which was at a distance from the accused and he went towards the fields. He did not know who he was. Pat Ram (PW-4) in his further cross-examination stated that he went to ease himself after crossing the road. This, however, is omitted in his statement (Ex.DA). It is also stated that he told the Police that Surender (deceased) was calling each of the accused by saying 'Bhai'. This is omitted in the statement (Ex.DA). He on his own stated that he by mistake had stated Om Parkash. It is further stated by Pat Ram (PW-
4) that he told the police that when he reached near Surender (deceased), he stopped speaking. This, however, is omitted in his statement (Ex.DA). He also told the police that they i.e. Manphool (PW-3) and Pat Ram (PW-4) were at a distance of about 10 paces from the accused and they threw the dead body and had run away from the spot. This is also omitted in his statement (Ex.DA). It is also stated by Pat Ram (PW-4) that he told the police that accused Anil boarded the tractor and the other accused boarded the trolley. This is omitted in the statement (Ex.DA) wherein it is not so specifically stated. He also told the police when there was some light CRA No.853-DB of 2002 & [18] CRA No.883-DB of 2002 and the sun was about to rise then he came to know that the dead body was that of Surender. The word 'morning' was not mentioned in statement (Ex.DA). It is also stated that he told the police that Manphool (PW-3) was directed to sit at the spot and he was going to the police to lodge a report. This is omitted in his statement (Ex.DA) wherein it is not so specifically stated. It is stated that he did not state before the police that Manphool (PW-3) asked him to sit at the spot and he was going to inform the police. He was confronted with portion A to A of his statement (Ex.DA), wherein it was so recorded.
It is admitted as corrected that Krishan (PW-1) is the son of Manphool (PW-3). Krishan (PW-1) reached the spot at about 8.00 am. Krishan (PW-1) son of the complainant Manphool (PW-3) stated that after postmortem examination, he identified the dead body of his brother Surender son of Daya Ram. He also identified the dead body at the spot. In cross, it is stated as correct that his father Manphool complainant (PW-3) and Daya Ram father of Surender (deceased) are real brothers. They were three brothers and his other two brothers were serving with the Delhi Police. It is accepted as correct that Daya Ram father of Surender alias Chinda (deceased) was also murdered. He identified the dead body of Surender (deceased) on the basis of the name tattooed on his left hand and also the chopped of right index finger of right hand.
Narain Dutt (PW-2) is the son of Pat Ram (PW-4). On 14.05.2000, Narain Dutt (PW-2) had gone to Sonepat for his personal work. At about 3.45 pm when he was returning from the side of Geeta CRA No.853-DB of 2002 & [19] CRA No.883-DB of 2002 Bhawan, he saw a tractor coming which was being driven by Anil accused who was present in the Court during his deposition. Accused Rohtash, Durga Chand alias Malhi were sitting on the said tractor. Surender alias Chinda (deceased) was also with them. Thereafter, he went away to his house. On 15.05.2000, after hearing that the dead body of Surender alias Chinda had been thrown near the bridge after murdering him, he also went there. Many people from the village were also there. The police took the sample of a vial from the road. It was sealed in a small steel Pint which was converted into parcel and sealed with seal RK. Seal was entrusted to Kishan Chand son of Jag Ram. The vial was thrown on the road. Blood stained earth was also taken in possession from the side of the road. It is stated that the name of his grand-father was Bujan. They were three brothers. Name of the other brothers are Sheo Karan and Kalu.
Dr. Alankrita (PW-5) was a member of the Board of doctors with Dr. V. K. Gupta and they conducted postmortem examination of Surender alias Chinda (deceased) aged 27/28 years. He was identified by Kulbir Singh and Krishan Kumar (PW-1) residents of Salimsar Majra on 15.05.2000. The following injuries were noticed on the dead body:-
" 1. 6 X 2 bone deep lacerated wound over left side of temporo parietal of the skull. Clotted blood was present.
On exploration-fracture of underlying temporo parietal bone on further exploration there was subdural extradural haemotoma with laceration of brain.
2. Multiple reddish brown contusions above frontal region of skull left maxilla, left eye swollen.CRA No.853-DB of 2002 & [20]
CRA No.883-DB of 2002 On exploration there was haemotoma form in sudural extradural region.
3. Multiple reddish brown contusions over lower back in lumbar region.
4. Multiple reddish brown contusion on left hip upper part of left thigh and left liac region.
5. Reddish brown contusion on back of left elbow joint.
6. Multiple contusions on upper part of left chest and adjoining lower neck.
7. Multiple contusion reddish over both knee joints.
8. Diffuse swelling of scrotum. On exploration right testis congested."
In the opinion of the doctors, the cause of death was due to shock and hemorrhage as a result of multiple injuries described above. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. The probable duration between injuries and death was within few hours and between death and postmortem was within 24 hours. It was stated that the possibility of causing the injuries with the rod (Ex.P1) cannot be ruled out as mentioned in the opinion (Ex.PF/1). In cross, it is stated that the body was identified by the above said two witnesses i.e. Kulbir Singh and Krishan Chand (PW-1) prior to the autopsy. It is also stated that the face was clearly visible but there were injuries on the face as mentioned in the postmortem report. The doctor (PW-5) could not say whether the body was smeared with mud because it was not mentioned in the postmortem report and he did not remember the said fact orally. Sometimes they mention such fact in the postmortem report and sometimes it is not mentioned. It is also stated that had the CRA No.853-DB of 2002 & [21] CRA No.883-DB of 2002 body not been identifiable because of mud, this fact would have been mentioned in postmortem report. There was no smell of alcohol from the contents of the stomach because had it been so, this fact would have been mentioned in postmortem report. The time in between injuries and death, it is stated could be one hour or more and could not be less than one hour. The possibility of the injuries on the dead body from one weapon could not be ruled out. The doctor (PW-5) was re-examined-in-chief because the parcel containing the clothes could not be put to him. The clothes of the dead body were taken out. It is stated by Dr. Alankrita (PW-5) that Ex.P2 is the shirt and Ex.P3 is Paijama/trouser. In further cross-examination, it is stated that the clothes were stained with blood and little bit with mud.
Inspector Ramdhan (PW-6) stated that on 19.05.2000, he arrested accused Rohtash. Rohtash made a disclosure statement (Ex.PD) that he had concealed a rod in his house in the room for keeping fodder and he could get the same recovered. The accused Rohtash then led the police party to the room as mentioned by him and he took out the rod (Ex.P1). A sketch of the rod (Ex.PD/1) was prepared. The rod was sealed with the seal of RD and was taken in possession vide memo (Ex.PD/2). A rough site plan (Ex.PD/3) of the place of recovery was prepared. The case property was deposited with MHC.
Inspector Ram Kumar (PW-7) was posted at CIA Staff, Sonepat. On 16.05.2000 and he went to Police Station, Sadar, Sonepat in connection with the investigation of the present case. CRA No.853-DB of 2002 & [22] CRA No.883-DB of 2002 Surender and Rakesh met him there and they produced accused Chand and Durga before him. After interrogation, they were put in the lock up. On 17.05.2000, they were taken out from the lock up and interrogated separately. On the basis of the disclosure statement of Anil Kumar (Ex.PG), he got recovered the tractor and trolley from his 'gher' (outhouse). It was taken in possession vide memo (Ex.PG/1). It was a Mahindra tractor with registration No.HR-10A-2820. Anil accused also led the police party to the place of occurrence and memo Ex.PG/2 was prepared to that effect. Thereafter, Durga Dass was interrogated. His disclosure statement was recorded and he pointed out the place of occurrence and memo (Ex.PG/2) in this regard was prepared. Thereafter, the disclosure statement of accused Chand was recorded and he also pointed out the place of occurrence and memo (Ex.PG/2) was prepared to that effect. In cross it is stated by Raj Kumar, Inspector CIA Staff, Sonepat (PW-7) that he did not join any independent witness during interrogation. To a Court question, it is stated that he prepared rough site plan of the place of recovery, which is Ex.PG/3. The investigation of the case remained with Raj Kumar (PW-7) till 17.05.2000. He denied the suggestion that the accused did not give any disclosure statement and that they did not point out any place of occurrence and that he prepared the memo on his own. He also denied the suggestion that Anil did not get the tractor or trolley recovered as stated by him (Raj Kumar PW-7).
Kuldeep Singh MHC (PW-8) tendered his affidavit (Ex.PH) in evidence. In the affidavit (Ex.PH) it is deposed by CRA No.853-DB of 2002 & [23] CRA No.883-DB of 2002 Kuldeep Singh (PW-8) that he was MHC of Police Station, Sadar, Panipat. On 15.05.2000 and on that day ASI Rajiv Kumar (PW-12) had deposited one parcel sealed with seal RK containing blood stained earth, a parcel containing oil mixed with earth, a parcel containing clothes of deceased Surender, a parcel of viscera duly sealed with seal of doctor along with sample seal and an envelope duly sealed with seal of doctor in the Malkhana with him. On 19.05.2000 Ram Dhan Inspector CIA, Sonepat (PW-6) deposited a parcel of an iron rod duly sealed with seal RD along with sample seal in the 'malkhana.' All the above parcels were sent to FSL, Madhuban through UGC Sukbhir Singh (PW-10) on 23.05.2000 for examination. He (PW-10) had deposited the case property with FSL Madhuban on that date and handed over the receipt to MHC Kuldeep Singh (PW-8). In cross it is stated by Kuldeep Singh (PW-8) that he had sworn his affidavit (Ex.PH) on the day he was deposing i.e. 30.05.2001.
Statement of Om Parkash, Photographer (PW-9) was recorded. He proved the photographs Ex.P3 to Ex.P11 which were taken by him at the request of the police. In cross-examination, it is stated that he went to the spot in the morning at about 7/7.30 am, but he did not remember the date. Many public persons were present there at that time. Police was also present at the spot. The dead body was lying in the water and not on the other side of the road. He could not tell the distance of the residential locality of village from that place.
CRA No.853-DB of 2002 & [24]CRA No.883-DB of 2002 UGC Sukhbir Singh (PW-10) stated that on 15.05.2000, he was posted as UGC at Police Station, Sadar, Sonepat and on that day Constable Vijender Singh handed over the parcels containing clothes, viscera and envelope to ASI Rajiv Kumar (PW-12) which were taken in possession vide memo (Ex.PJ). Affidavit (Ex.PK) it is stated be read as his statement. In the affidavit (Ex.PK) it is stated by UGC Sukhbir Singh (PW-10) that on 23.05.2000 MHC Kuldeep Singh (PW-8) gave him a parcel containing blood stained earth duly sealed with seal RK, a parcel containing earth mixed with oil, a parcel containing clothes of Surender alias Chinda (deceased) and a parcel containing viscera along with an envelope duly sealed with the seal of doctor vide R.C. No.275 dated 23.05.2000 for depositing with the FSL Madhuban. The case property, it is stated, was deposited in the FSL on that very day and its receipt was handed over to MHC Kuldeep Singh (PW-8).
Balwan Singh Patwari (Ex. PW-11) went to the spot on 01.06.2000 and prepared the site plan (Ex.PL) as per 'Aksh Sajra'. In reply to a Court question it is stated that the name of the witness at whose instance he prepared the site plan (Ex.PL) was Manphool (PW-3) but the name of the police officer at whose instance he prepared the site plan (Ex.PL), he did not know.
Rajiv Kumar (PW-12) was posted as ASI at police station, Sadar, Sonepat on 15.05.2000 and he had investigated the present case. He was cross-examined on behalf of the accused. It is stated by Rajiv Kumar (PW-12) in his cross-examination that CRA No.853-DB of 2002 & [25] CRA No.883-DB of 2002 Manphool (PW-3) met him at about 7.15 am and he was on foot. He was all alone. Before Manphool (PW-3) came to him he was present at Mehlana Bridge for the last 15 minutes. He (Rajiv Kumar PW-12) was also on foot. Rajiv Kumar (PW-12) reached the spot at about 9.00 am. About 10-15 persons were present there at that time. He recorded the statement of PW Krishan and Kulbir at the spot. Manphool (PW-3) and Pat Ram (PW-4) also did not show or produce any torch before him at that time nor was the same taken in possession by him. He could not say whether it was a moonlit or a dark night. It is stated that dog squad was also called at the spot and it is accepted as correct that the dog squad is called in blind murder cases. The dog it is stated did not go towards the house of any of the accused.
The FSL Report (Ex.PO) was tendered in evidence.
According to FSL report (Ex.PO), Laboratory Examination was carried out to detect the presence of blood on the exhibits. Blood thus detected was subjected to serological tests to determine its species of origin and group. Based upon these examinations the results obtained were given a below:-
1. Blood was detected in exhibit-2 (Blood stained earth).
2. Exhibit-3a (Shirt); exhibit-3b (Pyjama) and exhibit-5 (Rod) were stained with bloodstains.
The result of the serological analysis of blood was attached. As per serological examination, the material had disintegrated in respect of blood stained earth. However, on shirt, CRA No.853-DB of 2002 & [26] CRA No.883-DB of 2002 pyjama and rod human blood was detected. The blood group in respect of the said articles i.e. shirt, pyjama and rod was mentioned as 'inconclusive'. In terms of the Laboratory Examination Report (Ex.PO/1) of FSL Laboratory; Exhibit-2 contains some loose earth approximately 15 gms stated to be kerosene taken from spot. Besides, part of the stomach and small intestine (Ex.4a); parts of liver, spleen and kidney (Ex.4b), Blood approximately 10 ml (Ex.4c) and Saline preservative approximately 20 ml. (Ex.4d) were checked. Residence of kerosene was detected in Exhibit-2. No common poison including ethyl alcohol could be detected in Exhibits 4a, 4b, 4c and 4d.
In respect of the seizure memo of iron rod (Ex.PD/2), Om Parkash son of Jag Ram is an independent witness to the recovery. The other witness is Manphool (PW-3). The accused- Rohtash (appellant) while in police custody made a disclosure statement in pursuance of which after reaching his village Salimsar Majra, he got recovered an iron rod from the 'Tura' (fodder) room constructed towards South-West side of his residential house. The iron rod was taken in police possession. On being measured the length of the rod was 31 inches and its thickness was 2.2 inches. On the one end of the rod, blood stains were appearing. After making a separate sketch of the rod, its parcel was prepared. Om Parkash son of Jag Ram, the independent witness of the seizure memo (Ex.PD/2) of the rod was given up by the learned public prosecutor and he was not examined.
CRA No.853-DB of 2002 & [27]CRA No.883-DB of 2002 The facts and circumstances of the case, the evidence and material on record evidently show that the complainant's side is closely related inter se. Manphool (PW-3) is the complainant and Pat Ram (PW-4) is his father's brother's son. Surender alias Chinda (deceased) is the son of Daya Ram who is the brother of Manphool (PW-3). Therefore, the deceased is the brother's son of Manphool (complainant) (PW-3). Narain Dutt (PW-2) is the son of Pat Ram (PW-4) and Krishan (PW-1) is the son of Manphool (complainant) (PW-3). The facts and circumstances of the case indeed show that the presence of Manphool (PW-3) and Pat Ram (PW-4) at the time and place of occurrence is highly doubtful. Pat Ram (PW-4) is stated to have an upset stomach and had gone to the house of Manphool (complainant)(PW-3) at about 12.00 am (mid night). He asked for a water bottle and after taking the water bottle he went to ease himself. In the meantime, a noise was heard by Manphool (PW-3) and the names of the assailants were being taken. Manphool (complainant) (PW-3) then went to the place from where the noise was coming and Pat Ram (PW-4) also reached there. They saw the accused beating up a person but they could not identify him. They asked the accused as to why they were beating the person, the accused, however, ran away on their Mahindra Tractor. Then Manphool (PW-3) and Pat Ram (PW-4) went near the person who was being beaten and found him dead. They could not identify him till the morning. In the morning, when the sun was rising, then they washed the face of the dead person and identified him to be Surender alias Chinda, who in fact is none CRA No.853-DB of 2002 & [28] CRA No.883-DB of 2002 other than the nephew of Manphool (PW-3) and also that of Pat Ram (PW-4). For the entire night when the dead body of Surender alias Chinda was with them, it is quite unlikely that they i.e. Manphool (PW-3) and Pat Ram (PW-4) could not identify the person said to be being beaten or the dead body of the person, as the case may be, specially when it has come on record that it was a moonlit night; besides, both of them were carrying torches.
It may also be noticed that it has also come in the evidence of Dr. Alankrita (PW-5) that the probable duration between injuries and death was within few hours. In cross-examination, it is further clarified by the doctor (PW-5) that the time between injuries and death can be one hour or more but cannot be less than one hour. Therefore, in case Manphool (PW-3) and Pat Ram (PW-4) had reached near the injured (Surender alias Chinda) at the time of occurrence and immediately after he was beaten, then they would have tried to save him as he was alive at that time. The doctor (PW-
5) has stated clearly that the time between injuries and death cannot be less than one hour. Therefore, it is not a case where due to the injuries that were caused to Surender alias Chinda he had died immediately.
The presence of Manphool (PW-3) and Pat Ram (PW-4) at the time of occurrence is also doubtful as none of them identified the dead body when it was taken to the hospital. Dr. Alankrita (PW-
5) states that Kulbir Singh and Krishan (PW-1) residents of Salimsar Majra had identified the dead body. In cross-examination, it is stated CRA No.853-DB of 2002 & [29] CRA No.883-DB of 2002 that the body was identified by the above said two witnesses prior to its autopsy. In the post mortem report (Ex.PE) it is mentioned that the dead body was identified by Kulbir Singh and Krishan Chand (PW-
1). The said Kulbir Singh has not been examined by the prosecution. Krishan (PW-1) is the son of Manphool (PW-3). It is deposed by him that after the post mortem examination, he identified the dead body of Surender alias Chinda and he also identified the dead body at the spot. However, it has not been explained as to how they i.e. Kulbir Singh and Krishan (PW-1) came to identify the dead body, when Manphool (PW-3) and Pat Ram (PW-4) were with the dead body for the entire night; besides, it was Manphool (PW-3) who proceeded to the police station to lodge a report, Pat Ram (PW-4) was left behind to keep a guard of the dead body. Therefore, the presence of Kulbir Singh and Krishan (PW-1) who identified the dead body at the time of post mortem examination is not explained. In the application (Ex.PE/1) given by Rajiv Kumar ASI (PW-12) for conducting the post mortem examination, it is stated that the death of Surender alias Chinda son of Daya Ram is stated have been caused due to receiving injuries on the head and other parts of the body (testicles etc.) and due to dumping him in the mud with his face downwards. After conducting the post mortem examination, the result of the same was asked to be informed. The dead body it is stated was being sent to the dead house through Constable Vijender and the heirs. In the inquest report (Ex.PE/2), the dead body is identified by Kulbir Singh son of Megh Raj and Krishan Chander (PW-1) son of Manphool (PW-3). CRA No.853-DB of 2002 & [30] CRA No.883-DB of 2002 Kulbir Singh son of Megh Raj who identified the dead body, as already noticed, has not been examined.
The case of the prosecution that the dead body could not be identified at night as its face was smeared with mud is also quite improbable. In case the face of the dead body could have been washed by Manphool (PW-3) and Pat Ram (PW-4) in the morning, they could have very well washed it at night also as they had torches, besides, it is stated that the person who was being injured was calling out the name of the accused. The deceased is Surender alias Chinda to whom injuries it is stated were being caused and he is none other than the nephew of Manphool (PW-3) and Pat Ram (PW-4). As such they would have easily recognized the voice of their own nephew who is of the same village.
The photographs which have been taken by Om Parkash, Photographer (PW-9) show that the face of Surender alias Chinda (deceased) is clear. It is not shown from the photographs that there was any mud on the face of Surender alias Chinda which would make the face unrecognizable. In fact even Dr. Alankrita (PW-5) in his cross-examination has stated that the face of the deceased was clearly visible but there were injuries on the face as mentioned in the post mortem report. He could not say whether the body was smeared with mud because it was not mentioned in the postmortem report and he (PW-5) did not remember the said fact orally. Had the dead body not been identifiable because of mud, the said fact would have been mentioned in the post mortem report.
CRA No.853-DB of 2002 & [31]CRA No.883-DB of 2002 The motive of the incident is also quite unclear.
According to the complainant Manphool (PW-3), Rohtash (appellant) had asked Surender alias Chinda (deceased) that either he should repay the amount of Rs. 60,000/- of his sister, failing which he would kill him. However, the motive has not been explained as to at what point of time Rs.60,000/- was taken by Surender alias Chinda (deceased) from the sister of Rohtash (appellant). There is no other evidence to show that a sum of Rs.60,000/- had indeed been taken by Surender alias Chinda (deceased) from the sister of Rohtash. The sister of Rohtash who is said to have given a loan of Rs.60,000/- to Surender alias Chinda has not been examined and neither has any material been brought on record to show that she had advanced a loan of Rs.60,000/- to Surender alias Chinda (deceased) or even that she had the necessary resources to make an advance of the said loan. Therefore, the motive for the commission of the murder of Surender alias Chinda is not established.
There are other discrepancies also in the case. The torches which Manphool (PW-3) and Pat Ram (PW-4) were stated to be carrying at the time of the incident were not handed over to the police. Rajiv Kumar ASI (PW-12) also states that he did not receive any torch from Manphool (PW-3) and Pat Ram (PW-4). The torches which they were carrying were liable to be taken in possession by the police.
All the prosecution witnesses are closely related and there is no independent corroboration of the prosecution evidence that CRA No.853-DB of 2002 & [32] CRA No.883-DB of 2002 has been lead. Om Parkash, the recovery witness has not been examined. The accused other than Rohtash are not shown to be in any manner connected with Rohtash or with the case. No recovery of weapon had been made from them yet they have been arrayed as accused. No injuries are attributed to them and there is no motive whatsoever against them. They are merely said to be friends. However, nothing has been brought on record as to how they were friends and as to how; they have been involved in the present case.
Rajiv Kumar (PW-12) was posted as ASI at police station, Sadar, Sonepat on 15.05.2000 and he had investigated the present case. It his cross examination he has stated that the dog squad was also called at the spot and it is accepted as correct that the dog squad is called in blind murder cases. The dog it is stated did not go towards the house of any of the accused. Therefore, had the witnesses Manphool (PW-3) and Pat Ram (PW-4) been with the deceased Surender alias Chinda, in that case it would not have been treated as a blind murder by calling the dog squad.
The learned trial Court has not recorded cogent and convincing reasons for convicting and sentencing the appellants and there has been misreading of evidence by the learned trial Court.
In the facts and circumstances, the benefit of doubt is liable to be given to the appellants as the prosecution has not established its case against the appellants beyond shadow of reasonable doubt.
Accordingly, the appeals are allowed and the judgment and order of the learned trial Court are set aside and the appellants other CRA No.853-DB of 2002 & [33] CRA No.883-DB of 2002 than Anil are acquitted of the offences attributed to them. The appeal of Anil (appellant) shall stand abated in terms of Section 394 Cr.P.C.
(S.S. SARON) JUDGE (JORA SINGH) JUDGE 21.12.2011 amit