Punjab-Haryana High Court
Rohtash And Others vs State Of Haryana on 20 November, 2008
Author: S.S. Saron
Bench: S.S. Saron
In the High Court of Punjab and Haryana at Chandigarh
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Criminal Appeal No.635-DB of 2006
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Date of decision:20.11.2008
Rohtash and others
......Appellants
Versus
State of Haryana
.......Respondents
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CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MRS. JUSTICE SABINA
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Present: Mr. Vinod Ghai, Advocate for the appellants.
Mr. H.S. Sran, Additional,Advocate General, Haryana,
for the State.
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S.S. SARON, J.
This appeal has been filed by Rohtash Singh, Harsarup Singh, Paramjit Singh, Pushkar sons of Balbir Singh residents of village Aklimpur, Dharambir Sharma son of late Pyare Lal resident of village Baslambi, and Ram Kumar son of late Harpal Singh resident of village Aklimpur, District Gurgaon (hereinafter referred to as the first set of accused) against the judgment and order dated 28/30.8.2006 passed by the learned Sessions Judge, Gurgaon, whereby the said appellants have been held guilty and convicted for the offences under Sections 148, 201/149 and 302/149 of the Indian Penal Code (IPC for short). In respect of the offences under Section 302/ 149 IPC they have been sentenced to undergo imprisonment for life;
Cr. A. No.635-DB of 2006 [2] besides pay a fine of Rs.5,000/-each and in default of payment of fine to undergo imprisonment for six months each. In respect of the offences under Section 201/149 IPC, the said appellants have been sentenced to undergo rigorous imprisonment for three years each; besides pay a fine of Rs.2,000/- each and in default of payment of fine to undergo rigorous imprisonment for two months each. As regards offence under Section 148 IPC, the said appellants have been sentenced to undergo rigorous imprisonment for one year each; besides pay a fine of Rs.5,000/- each and in default of payment of fine to undergo imprisonment for one month each. All the substantive sentences that were imposed have been ordered to run concurrently.
The FIR (Ex.PK/2) has been registered on 5.11.2000 on the statement of the informant Chhote Lal son of Girwar Singh (who appeared as PW-1 and then again appeared as PW-9). It is stated by Chhote Lal informant that he is a resident of village Akleempur. Earlier on 22.10.1989, Paramjit (appellant No.3) son of Balbir Singh-brother of the informant had lodged a FIR regarding murder of Ram Kishan son of Harpal against Kishan Sarup (deceased in the present case), Satya Parkash (PW-10) and Rakesh sons of the complainant Chhote Lal. In the said case Kishan Sarup (deceased in the present case) was sentenced to life imprisonment, who after undergoing life imprisonment had returned home on 16.2.2000. In the said case Ram Kishan son of Harpal, who was a cousin of the informant, Chhote Lal, had been murdered. Kishan Sarup after completing and undergoing his imprisonment for the murder of Ram Kishan had joined service in a private company at Gurgaon. He used to return home daily at 5.30 p.m. after his duty was over. There was civil litigation regarding a passage, which was Cr. A. No.635-DB of 2006 [3] decided in favour of the complainant in 1996. For compliance of the order the case was pending in the Court of C.J.M. As and when Ram Kumar (appellant No.6) came to the Court on the dates fixed for hearing, he used to hold out threats for taking revenge and he held out threats to murder Kishan Sarup (deceased in the present case), who had returned home after undergoing his sentence. All these persons lived in Delhi and Balbir Singh (brother of Chhote Lal-complainant and father of the appellants No.1 to 4) used to pass on all the information to his sons (appellants No. 1 to 4) and to Dharambir Sharma (appellant No.5), who is father-in-law of Ram Kishan (deceased in the earlier case) and Ram Kumar (appellant No.6) son of Harpal. Ram Kishan (deceased in the earlier case) and Ram Kumar (appellant No.6) are brothers (both being the sons of Harpal Singh). On 2.11.2000 when Kishan Sarup (deceased in the present case) was coming home after duty then a Sumo vehicle had hit him from its side. The vehicle was being driven by Ram Kumar (appellant No.6). Kishan Sarup (deceased in the present case) had swerved his vehicle on the un-metalled (kacha) side of the road and he was saved. On 4.11.2000 i.e. on the day of the incident, at about 7.00 p.m. Kishan Sarup (deceased in the present case) met the informant, Chhote Lal, at Badshahpur Scooter stand. He came from Shehatpur, Faridabad. Kishan Sarup (deceased) and informant Chhote Lal were returning home on the motorcycle of Kishan Sarup. When they reached on the Akleempur Teekli Road near the Poultry Farm, they found that a vehicle was standing on the path way. The said vehicle chased the Hero Honda motorcycle No.HR-26-G-4310 of Kishan Sarup and by overtaking their vehicle they hit the side of the motorcycle and made it to Cr. A. No.635-DB of 2006 [4] fall in the bushes in the Sarkandas. In the meantime from the said vehicle that had overtaken the motorcycle, Ram Kumar (appellant No.6), Dharambir Singh (appellant No.5), Pushkar (appellant No.4), Paramjit Singh (appellant No.3), Har Sarup (appellant No.2) and Rohtash (appellant No.1) came out and immediately attacked Kishan Sarup (deceased) with knife, iron sariyas (iron bar) and rods in a crude manner as they were quite ready for the same. The informant, Chhote Lal, raised an alarm of 'Bachao Bachao' but none came at the spot. Paramjit Singh (appellant No.3) asserted that in case he raised any alarm he would meet the same fate and on account of fear he could not save his son. In his presence his son was seriously injured with a knife by the above said persons and he was dragged in the vehicle. Blood and pieces of flesh were lying at the spot and after pushing informant Chhote Lal in the bushes of the Sarkandas, all the assailants fled from the spot. In the meantime his sons Suresh and Rakesh were coming home on their vehicle from Gurgaon while the informant was standing on the way. Then he narrated all the facts to his sons. These facts were then narrated to the police at the police post Badshahpur, who in turn gave a wireless message and told the complainant and his sons to search for Kishan Sarup. The police was also searching for him but they could not know anything about the son of the informant till the time the report was lodged. The informant had apprehension that his son had been murdered and his body had been thrown somewhere. He requested that legal action be taken. The statement made by informant Chhote Lal was attested by Satender Kumar ASI. The police proceedings were conducted.
The statement of informant Chhote Lal disclosed the Cr. A. No.635-DB of 2006 [5] commission of a case for the offences under Sections 148/149, 302 and 201 IPC. The writing was sent through Constable Mahipal to the Police Station for registration of the case. The number of the FIR was asked to be intimated. Besides, the higher officers and crime team were asked to be informed through special report. A photographer was also asked to be deputed to come to the spot. Satender Kumar ASI, in-charge police post Badshahpur (PW-11), along with the complainant proceeded to the scene of occurrence from the Bus Stand Badshahpur. On receipt of the writing from ASI Satender Kumar, in-charge Police Post Badshahpur, through Constable Mahipal, FIR was recorded by Budhram ASI, at Police Station Sadar Gurgaon and the investigation was entrusted to ASI Satender Kumar (PW-
11). Satender Kumar ASI (PW-11) conducted investigation in the case. At the spot he summoned photographer Mahesh. Besides Sub inspector Balwan Singh of the crime team also reached at the spot. The place of occurrence was photographed by Mahesh Photographer, besides inspected by SI Balwan Singh, who gave his report to ASI Satender Kumar (PW-11). At the spot motorcycle bearing registration No.HR 26-C 4310 was found. Its head light glass was broken. It was taken in possession along with broken pieces of glass vide recovery memo Ex.PT/1. Rough site plan Ex.PU was prepared. A piece of flesh from point 'B' of the site plan was also taken in possession vide recovery memo Ex.PL. Besides, an empty shall was found lying at point indicated as 'C' in the site plan Ex.PU. It was taken in possession vide recovery memo Ex.PV. Blood stained earth was lifted from place of occurrence. The same was also taken in possession vide recovery memo Ex.PW. A scooter mat was lying at point 'F'. It was taken in possession vide Cr. A. No.635-DB of 2006 [6] recovery memo Ex.PX. The statement of Chhote Lal informant, in whose presence all the incriminating articles were taken in possession, was recorded. In the meantime, SI/SHO Babu Lal (PW-13) reached the spot and took over the investigation of the case. From that day SI Babu Lal (PW-13) conducted the investigation. Two moulds of the tyre marks were prepared by SI Babu Lal (PW-13) and the same were taken in possession vide recovery memo Ex.PR, which was attested by Satender Singh ASI (PW-11) and Chhote Lal informant. Blood stained earth was also found near the place where the dead body was found burning. It was lifted and converted into a parcel and same was taken in possession vide recovery memo Ex.PS, which was attested by Satender Kumar ASI and informant Chhote Lal. Babu Lal Inspector (PW-13) carried out the investigation in the case. He was informed that a dead body was burning at the Uhlawas Pahar. He took Chhote Lal complainant, his son Sudesh besides official members of the parties and reached Uhlawas Pahar. He arranged water, which was poured on the burning dead body for cooling it. The dead body was inspected. It was found that it had been set on fire with the help of tyres. He got the place photographed. One lead of the bullet, a pant piece, a belt buckle, a copper ring bearing inscription 'KS' were recovered from the dead body. These were taken in possession in pursuance of recovery memos Ex.PM to Ex.PP. Burnt tyres (only the Taar portion) were taken in possession vide recovery memo Ex.PT. Earth upon which kerosene oil had been poured was also taken in possession from that place. Inquest proceedings (Ex.PD) were completed. A vehicle was arranged and the dead body was sent for postmortem examination. The statements of witnesses were recorded under Cr. A. No.635-DB of 2006 [7] Section 161 of the Code of Criminal Procedure (Cr.P.C. for short). Thereafter, he tried to collect "Bhautik Sakshya". He found marks at a distance of about half a kilometer from the place where the dead body was burning. He lifted moulds from there which were taken in possession vide recovery memo Ex.PR. The moulds Ex.P-67 and Ex.P-68 were the same which had been lifted from the spot and which were of tyre marks. Blood stained earth was also lifted from the spot, which was taken in possession vide memo Ex.PS. The dead body was sent for the purpose of getting postmortem examination conducted, which was conducted on 6.11.2000 by Dr. S.K. Sharma (PW-2), SMO, ESI Hospital No.3, Faridabad. The dead body had been submitted in two parts. One sealed with cloth parcel bearing lable, "in relation to FIR No.644 dated 5.11.2000" and bore five seals. In view of the decomposition nothing could be inferred except what expelled out of the skull. The second part was a gunny bag which contained a charred body of an adult. The dead body was X-rayed. Postmortem, X-rays of the dead body revealed fractures of skull, facial skeleton, clavicles and bones of extremities. There was no bullet or pellet visible in the x-rays. The dead body was profoundly mutilated by fire. It displayed a variety of fourth degree burns. The entire body that consisted of charred skeleton remains of lower half of face, neck stumps of extremities, chest and abdomen and a portion of lower extremities attached had a cooked appearance. There was no evidence of putrefaction. Heat was present. There were burnt bone fragments consisting of calvarium, lower ends of both femur up to supracondylar areas, portion of radious (R) and both bones of (L) upper Cr. A. No.635-DB of 2006 [8] extremity. Burnt bones of extremities as well as pieces of vault of debris was found to contain pieces of bones of extremities consequent upon curved fracture. Blood and bone marrow was expressed out and was found as roasted deposit on the surface. Pieces of parietal bones frontal and few too small to be identified showed that fracture line was not involving suture of skull. In the area of head and face, what was identifiable was both the jaws. Amongst the charred remained in the area, the upper jaw had 11 teeth. Even third molar was present. Lower jaw was fractured and the condyler portion on the left was damaged badly by flame. Death was because of approximation of both the jaws, oropharynx and the area slightly below was relatively preserved and unburnt. There was no evidence of inhalation of soot. The soft tissues around the neck, chest and abdomen were hardened (cooked) by the heat. The architecture of the organs was relatively preserved. The chest cavity was exposed. Both on the right as well as on the left side in the area below both the Axillae. There were postmortem splits in rest of the area and it was not possible to distinguish that from ante-mortem cuts and slashes. Viscera had appearance of being hardened by heat. Fracture of the extremities and amputation due to excessive heat was visible at middle of right arm and just below left shoulder joint. Burnt head of humerous was visible on right side. Genitals were burnt and there was burnt remnant of penis. Amputated burnt left left lay separate from the body. There were fissures, cracks in the charred outer of the limb, soles and toes were identifiable, fat and pale while tissue was visible through the splits. There was evidence of heat shrinkage of the muscles in the amputated limbs. Bone ends in the disarticulated both knees and shoulders were burnt.
Cr. A. No.635-DB of 2006 [9] Right foot was lying separate as charred. Calcanium in it.
In the medical opinion that was recorded the dead body showed extensive fourth degree burns. Burns were postmortem. Because of heat fractures and damage due to excessive heat, dead body was profoundly mutilated. Death in this case was due to cranio-cerebral damage consequent upon fire arm ammunition, fired from some fire arm at close range. The possibility of sharp edged weapon or blunt force impact injuries could not be excluded in this case.
After investigation in the case had been completed, the police submitted charge report (challan) in the Court of Illaqa Magistrate/ Additional Chief Judicial Magistrate, Gurgaon on 12.2.2001. The learned Magistrate vide her order dated 1.3.2001 keeping in view the offence under Section 302 IPC which was exclusively triable by the Court of Sessions committed the said case to the Session Court for trial. All the records were directed to be produced before learned Sessions Judge, Gurgaon. The police had filed the challan against accused Jagdish @ Jaggi, Dharambir, Satender and Sudesh (hereinafter referred to as the second set of accused) (non-appellants). They were charged for the offence under Sections 302 and 201 IPC. After the statement of the complainant, the present appellants (the first set of accused) were summoned in terms of Section 319 Cr.P.C. The appellants (the first set of accused) were charged in terms of the amended charge sheet on 8.1.2004. It was inter alia alleged that on 4.11.2000 at about 7.00 p.m., near Aklimpur turning in the area of Police Station Sadar Gurgaon, the appellants (first set of accused) were members of an unlawful assembly and committed an offence of rioting. At that time they were armed Cr. A. No.635-DB of 2006 [10] with deadly weapons i.e. knives, iron rods and thereby committed an offence punishable under Section 148 IPC. Secondly they all being members of an unlawful assembly in prosecution of the common object of the said assembly committed murder of Kishan Sarup by intentionally causing his death and thereby committed an offence punishable under Section 302 read with Section 149 IPC. Thirdly, they being members of an unlawful assembly and in prosecution of the common object of the said assembly knowing or having reason to believe that murder of aforesaid Kishan Sarup had been committed, which was punishable with death or life imprisonment did cause the dead body of Kishan Sarup to be burnt with tyres in the hilly area of Uhlawas and, thus, caused evidence of murder to disappear with the intention of screening all of them from legal punishment and thereby committed an offence punishable under Section 201 read with Section 149 IPC.
The prosecution in order to prove its case examined Chhote Lal (PW-9) whose initial statement was earlier recorded as PW-1. Besides, statements of as many as 14 witnesses were recorded. Documents in support of the prosecution case were tendered in evidence. The statements of the accused (first set of accused) in terms of Section 313 Cr.P.C. were recorded. In defence the appellants examined Vijay Kumar Wadhera (DW-
1), HC Virender Singh (DW-2) and ASI Prem Singh (DW-3) and closed their defence evidence.
The learned trial Court after considering the evidence and material on record has convicted the appellants in the manner as mentioned above. The appellants aggrieved against the order of their conviction and Cr. A. No.635-DB of 2006 [11] sentence have assailed the same by way of the present appeal.
Mr. Vinod Ghai, Advocate, learned counsel for the appellants has contended that Chhote Lal-complainant was not present at the time of occurrence and he has been introduced later and the entire prosecution case fabricated against the appellants. It is further submitted that the non- involvement of the appellants is also evident from the fact that there is considerable delay in lodging the FIR. The incident had occurred at 7.00 p.m. on 4.11.2000. However, the FIR was lodged by Chhote Lal- complainant on 5.11.2000 at 8.00 a.m. This according to the learned counsel gave sufficient time to the prosecution to deliberate and implicate the appellants. In fact, there was a motive for the complainant to involve and implicate the appellants as Kishan Sarup (deceased) son of the complainant had been involved in the murder of Ram Kishan brother of Ram Kumar (appellant No.6) and he had been released from jail after completing his sentence of imprisonment. It is submitted that Chhote Lal was not present at the time of the occurrence; besides, he in an interested witness. Therefore, it is unsafe to rely on his testimony. In the incident that occurred the police had challaned Jaggi @ Jagdish son of Dungar, Dharambir son of Chandan (who died during trial), Satender @ Galhar son of Chandan (the second set of accused). A reference has been made to the report of the Forensic Laboratory, Madhuban, Karnal (Ex.PJ) to contend that the bullet fired from the pistol of Dharambir ( from amongst the second set of accused) had been recovered from the place near the dead body, which is shown as mark 'C' in the site plan (Ex.PU). It is submitted that in fact Dharambir son of Chandan ( from amongst the second set of accused) was Cr. A. No.635-DB of 2006 [12] murdered in the Court Complex at Gurgaon and during the incarceration of Kishan Sarup (deceased) and Dharambir (from amongst the second set of accused) they had their differences. It is on this account that Kishan Sarup (deceased) was murdered by the second set of accused. Dharambir was arrested on 25.12.2000 and a pistol (Ex.P-56) was recovered in pursuance of recovery memo (Ex.PGG). Besides, pass book account No.SB-405 in the name of Kishan Sarup (deceased) in which there was a balance of Rs.16,142/- was recovered. It is submitted that the conviction of the appellants is based on the sole testimony of Chhote Lal-complainant (PW-1 and PW-9) and in a case where there are two sets of accused, one on the basis of eye witness account and other on the basis of supplementary statement (Ex.PU) then the conviction is not liable to be sustained only on the basis of the evidence of a sole eye witness and that too of all the family members of the accused including Dharambir Sharma-father-in-law of Ram Kishan (deceased in the earlier case). It is also submitted that in fact the appellants cannot be said to have any grouse after Kishan Sarup (deceased) had been sentenced in the earlier case and they did not even participate in the trial of civil suit relating to the passage and therefore, the allegation that Ram Kumar (appellant No.6) son of Harpal had threatened them is clearly misconceived as the civil suit was decreed ex-parte. The motive as regards the civil suit being there, therefore, according to the learned counsel had become stale.
In response, learned State counsel has submitted that the prosecution has proved its case against the appellants in all material aspects. It is submitted that the evidence as has been produced on record Cr. A. No.635-DB of 2006 [13] clearly show the involvement and guilt of the appellants. It is submitted that the Investigating Agency had themselves tried to spoil the prosecution case against the appellants by recording the supplementary statement (Ex.PU) so as to involve the second set of accused and help the appellants. Therefore, it is submitted that the evidence as has been produced on record is liable to be considered and taken into account and the conviction and sentence recorded by the learned trial Court being well reasoned is liable to be maintained and upheld.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the record of the case. In order to appreciate the contentions as raised, the relationship amongst the complainant and the appellants may be noticed with the help of the following pedigree table as given by the learned counsel for the appellants:-
Kesho Ram ____________________________I______________________ I I Girwar Harpal __________I______________________________ ____________I__________ I I I I Balbir Singh Chhote Lal Ram Kishan Ram Kumar I (complainant) (deceased (appellant I (PW-1 and 9) in the earlier No.6) I I case of 22.10.89 I___________________________________ I I I I I I Pushkar Rohtash Paramjit Har Sarup I (A.No.4) (A.No.1) (A.No.3) (A.No.2) I complainant I in the earlier I FIR of 23.10.89 I I I I I I I I Suresh Kishan Sarup Satya Parkash Rakesh Sunil Ram Karan (deceased (PW-10) in the present case) Cr. A. No.635-DB of 2006 [14] Appellants No. 1 to 4 are the sons of Balbir Singh, who is the brother of the complainant Chhote Lal. Dharambir Sharma (appellant No.5) is the father-in-law of Ram Kishan, who was the deceased in the earlier incident of 22.10.1989. Ram Kumar (appellant No.6) is the son of Harpal, who is the father's brother of Chhote Lal-complainant. The deceased Kishan Sarup in the present case is the son of Chhote Lal-complainant.
Satya Parkash (PW-10), Suresh and Rakesh are also the sons of Chhote Lal- complainant. However, Suresh and Rakesh, though examined by the police, were given up as witnesses during the trial. Therefore, it may be noticed that the appellants and the complainant side (Chhote-Lal) are closely related. In the earlier incident of 22.10.1989, Kishan Sarup (deceased in the present case), Satya Parkash (PW-10) and Rakesh sons of Chhote Lal- complainant were convicted by the trial Court and sentenced to undergo imprisonment for life on 7.8.1991. This Court in appeal modified the sentence of Rakesh to that under Section 323 IPC and the sentence already imposed was ordered to be undergone. Satya Parkash (PW-10) son of Chhote Lal-complainant was acquitted. However, Kishan Sarup (deceased) was convicted and sentenced to imprisonment for life and he was released after completing his sentence on 16.2.2000. The motive for the appellants in the present case is two fold. One is that Kishan Sarup (deceased) had been released after undergoing imprisonment for life on 16.2.2000 and second is regarding the civil suit for a passage. During deposition of Chhote Lal as PW-9, it is accepted that the accused (appellants) had been putting in appearance in the civil matter up to 24.6.1994 and, thereafter remained absent in the said case and even their learned counsel did not Cr. A. No.635-DB of 2006 [15] appear in the civil suit. The suit was accordingly decreed ex parte sometime in 1996. During the period from 1996 to 1999 the accused (appellants) did not meet Chhote Lal - complainant. The FIR (Ex.PK/2) in the present case has been registered on the basis of written application (Ex.PK) of Chhote Lal-complainant. As has already noticed that earlier Paramjit (appellant No.3) son of Balbir Singh-brother of complainant Chhote Lal had lodged the FIR regarding the murder of Ram Kishan against the three sons of Chhote Lal, namely, Kishan Sarup (deceased in the present case), Satya Parkash (PW-10) and Rakesh. Kishan Sarup (deceased) was sentenced to imprisonment for life and he had returned home on 16.2.2000 after completing his life imprisonment. Ram Kishan son of Harpal who was the father's brother's son of complainant-Chhote Lal had been murdered. Kishan Sarup (deceased) had joined service in a private company in Gurgaon after his release and he used to return home daily after finishing his duty at 5.30 p.m. There was also a dispute regarding passage, which was decided in favour of the complainant in 1996. Ram Kumar (appellant No.6) who is the brother of Ram Kishan (deceased in the earlier case), whenever he came for the Court hearings, it is alleged used to threaten to take revenge and also used to threaten to murder Kishan Sarup (deceased). This information was being passed on by Balbir Singh (brother of complainant Chhote Lal) to his sons ( appellants No.1 to 4) and also to Dharambir Sharma (appellant No.5), who is father-in-law of Ram Kishan (deceased in the earlier case).
On 2.11.2000, Kishan Sarup (deceased) was returning home after his duty. Then one Sumo vehicle had hit him from its side. It was Cr. A. No.635-DB of 2006 [16] being driven by Ram Kumar (appellant No.6). Kishan Sarup (deceased) had saved himself by taking his vehicle on the un-metalled (kacha) side of the road. On the day of the incident i.e. on 4.11.2000 at about 7.00 p.m. Kishan Sarup (deceased) had met the complainant-Chhote Lal at Badshahpur scooter stand. He had come from Shehatpur, Faridabad. Kishan Sarup (deceased) and the complainant Chhote Lal on the motor cycle of Kishan Sarup were coming home. When they reached on Akleempur Teekli Road near the Poultry Farm, they found that a vehicle was standing on the path. The said vehicle chased the Hero Honda motorcycle No.HR-26-G-4310. While overtaking the motorcycle of the complainant and Kishan Sarup, they had hit it and made it fall in the bushes of Sarkanda. In the meantime from the said vehicle that was chasing the motorcycle, Ram Kumar (appellant No.6), Dharambir Sharma (appellant No.5), Puskhar (appellant No.4), Paramjit Singh (appellant No.3), Har Sarup (appellant No.2) and Rohtash (appellant No.1) came out. Soon after coming out from the vehicle they attacked Kishan Sarup (deceased) immediately with the help of knife and iron sariya (rod) in a crude manner as they were quite ready for the same. The complainant Chhote Lal, raised an alarm of 'Bachao Bachao' (save save) but none came at the spot. Paramjit Singh (appellant No.3) declared that in case he (complainant) would raise any alarm he would meet the same fate. Due to fear the complainant could not save his son (Kishan Sarup) and in his presence his son was seriously injured with knives by the above said persons and he was dragged in the vehicle. Blood and flesh of the body were lying at the spot. The appellants, after pushing the complainant Chhote Lal in the bushes, fled from the spot. In the meantime, Cr. A. No.635-DB of 2006 [17] Suresh and Rakesh, sons of the complainant-Chhote Lal, who were coming home on their vehicle from Gurgaon met him. The complainant narrated all the facts to his sons and these facts were then narrated to the police at the police post Badshahpur. Police gave a wireless message and told the complainant and his sons to search for Kishan Sarup (deceased). The police was also searching for him but they could not know anything about Kishan Sarup (deceased) till the time the report was lodged at 8.30 a.m. on 5.11.2000 vide DDR No.5. The complainant had full doubt that his son had been murdered and his body thrown somewhere. The complaint of Chhote Lal was attested by ASI Satender Kumar, In-charge Police Post Badshahpur (PW-11).
On the same day itself Chhote Lal-complainant made a supplementary statement (Ex.PU). It is stated that the complainant and HC Prem Singh of Police Post Badshahpur had remained associated with the investigation being conducted by ASI Satender Kumar (PW-11), In-charge Police Post Badshahpur. The application (Ex.PK), which the complainant had earlier submitted was based on enmity. Now he had satisfied himself from his sons and they informed him (complainant) that in the white Car No.HR 26J-2873, Dharambir son of Chandan, Sudesh son of Chander, Jaggi @ Jagdish son of Dungar Singh, Satender @ Galhar son of Chander Pal residents of Uhlawas (second set of accused) were sitting. The said car was being driven at a very fast speed and in a rash manner. In the back of the car one person had been placed. The complainant then told them that the second set of accused had taken Kishan Sarup (deceased) in the said car by putting him it it. All these persons (second set of accused) after murdering Cr. A. No.635-DB of 2006 [18] his son Kishan Sarup would dispose of his dead body. Satender Kumar ASI (PW-11), it is stated by the complainant Chhote Lal, had visited the place of occurrence on the road leading from Badshahpur to Teekli from where motorcycle No.HR 26G-4310, the glass of headlight of which is broken and broken pieces of the said glass had been taken in possession by converting them into a sealed parcel duly sealed with the seal of KC. Besides, from the spot one empty cartridge on the bottom of which was written KF 7.65 and a piece of flesh and blood stained earth were taken in possession and sealed into parcel with the seal of KC. The motorcycle was also taken in possession separately. On these memos, the complainant Chhote Lal and HC Prem Singh had signed. He identified the half burnt body of his son Kishan Sarup in the Uhlawas Hillock. He had got his statement recorded which he had heard and found it correct.
Satender Kumar ASI (PW-11) had conducted the investigation. Chhote Lal-complainant had appeared before him and presented the application (Ex.PK) on which he made his endorsement (EX.PK/1) and forwarded the same to the Police Station through Constable Mahipal for recording the formal FIR (Ex.PK/2), which was recorded by ASI Budh Ram. At the spot Photographer Mahesh was summoned. Besides, Sub Inspector Balwan Singh of the Crime Branch came at the spot, who inspected the place of occurrence. SI Balwan Singh gave his report to Satender Kumar ASI (PW-11). Motorcycle No. HR-26G-4310 with its headlight glass broken was found at the spot. It was taken in possession along with the broken pieces of glass vide recovery memo Ex.PT/1. A rough site plan (Ex.SC) (wrongly again marked as 'PU') with correct Cr. A. No.635-DB of 2006 [19] marginal notes was prepared. The place from where motorcycle had been recovered was shown at point-A. A piece of flesh was taken in possession from point-B vide recovery memo Ex.PL. An empty cartridge was found lying at point indicated as C in the site plan. It was taken in possession vide recovery memo Ex.PV. Blood stained earth was lifted from point Mark-D and it was taken in possession vide recovery memo Ex.PW. A scooter mat was lying at point-F, which was also taken in possession vide recovery memo Ex.PX. Statements of Chhote Lal and HC Prem Chand in whose presence the aforesaid articles were taken in possession were recorded. In the meantime Babu Lal SI/SHO (PW-13) came at the spot and took over the investigation. Satender Kumar ASI (PW-11), thereafter, joined the investigation in the case, which was conducted by SI Babu Lal (PW-13). Two moulds of the tyre marks were prepared by SI Babu Lal (PW-13) and these were taken in possession vide recovery memo Ex.PR. It was attested by Chhote Lal-complainant and Satender Kumar ASI (PW-11). Blood stained earth was also found near the place where the dead body was found burning, which was lifted and converted into a parcel. The same was taken in possession vide recovery memo Ex.PS. It was attested by Satender Kumar ASI (PW-11) and Chhote Lal-complainant. Satender Kumar ASI (PW-11) again joined investigation in the case that was being conducted by SI Babu Lal (PW-13) on 19.11.2000. In the presence of Satender Kumar ASI (PW-11) accused Satender @ Galhar and Jaggi @ Jagdish (from amongst the second set of accused) were interrogated by SI Babu Lal (PW-13). Satender @ Galhar during interrogation disclosed that he had kept concealed in the `pahar' (hills), the weapon that he used. He offered to get Cr. A. No.635-DB of 2006 [20] the same recovered. His disclosure statement (Ex. PY) was recorded in this regard, which was signed by him and was attested by Satender Kumar ASI (PW-11) and HC Prem Chand. He further disclosed that he had destroyed a mobile instrument. Satender @ Galhar then led the police party to the pahar rasta (path to the Hillock) and got recovered a country made pistol. It was loaded with an empty cartridge. Satender Kumar ASI (PW-11) attested the sketch Ex.PX of the pistol, which had been prepared by SI Babu Lal (PW-13). It was taken in possession vide recovery memo Ex.PZ/1. A country made pistol (Ex.P-56) was also taken in possession. Thereafter, a shirt belonging to Satender @ Galhar (amongst the second set of accused) was recovered from his house, which was also sealed into a parcel and taken in possession. Satender @ Galhar also got recovered a burnt mobile, which was taken in possession vide recovery memo Ex.PAA. The burnt mobile telephone instrument Ex.P60 was taken out therefrom. On 20.11.2000 accused Jaggi @ Jagdish (amongst the second set of accused) was interrogated in the presence of Satender Kumar ASI (PW-11). He disclosed that he had kept the car at his in-laws house in Aaya Nagar. His disclosure statement (Ex.PBB) in this regard was recorded. The accused led the police party to Aaya Nagar from where he led them to his own house at Gurgaon from where the vehicle was got recovered, which was taken in possession vide recovery memo Ex.PBB/1. A pant(Ex.P-61) belonging to the accused Jaggi @ Jagdish was recovered from the boot of his car. Besides, a shirt (Ex.P-62) was also recovered.
SI Babu Lal (PW-13), who conducted the investigation, has deposed regarding the investigation that he had carried out. He reached Cr. A. No.635-DB of 2006 [21] village Akleempur on the Badshahpur road where ASI Satender Kumar (PW-11) and HC Prem Chand met him at the spot. They presented the case file to him. He perused the file and inspected the spot. From there he (Babu Lal SI -PW-13) came to Badshahpur along with Satender Kumar (PW-11) and HC Prem Chand. There Muni Lal met him and his statement under Section 161 Cr.P.C. was recorded. Thereafter, he came across Dharambir, Ex-Sarpanch, Uhlawas, who informed him that a dead body was burning in the Uhlawas `pahar' (hill). Babu Lal SI (PW-13) took Chhote Lal complainant with him and as also Sudesh and official members of the parties and reached Uhlawas `pahar'. He arranged water, which was poured on the burning dead body for cooling it. He inspected the dead body and it was found that it had been set on fire with the help of tyres. He got the place photographed. One lead of the bullet, a pant piece, a belt buckle and a copper ring bearing inscription 'KS' were recovered from the dead body. These were taken in possession in pursuance of recovery memo Ex.PM to PP. Burnt tyres (only the Taar portion) were taken in possession vide recovery memo Ex.PT. Earth upon which kerosene oil was poured was also taken in possession from that place. Inquest proceedings (Ex.PD) were completed. A vehicle was arranged and the dead body was sent for postmortem examination. He recorded the statements of witnesses under Section 161 Cr.P.C. Thereafter, he tried to collect "Bhautik Sakshya". He found tyre marks at a distance of about half a kilometer from the place where the dead body was burning. He lifted moulds from there which were taken in possession vide recovery memo Ex.PR. The moulds Ex.P-67 and Ex.P-68 were the same which had been lifted from the spot and were of tyre Cr. A. No.635-DB of 2006 [22] marks. Blood stained earth was also lifted from the spot, which was taken in possession vide memo Ex.PS. The dead body was sent for the purpose of getting postmortem examination conducted, which was conducted on 6.11.2000 by Dr. S.K. Sharma (PW-2), SMO, ESI Hospital No.3, Faridabad. On 17.11.2000, Babu Lal ASI (PW-13) arrested Jaggi @ Jagdish and Satender @ Galhar (from amongst the second set of accused). They were produced in the Court on 18.11.2000. On the basis of disclosure statement (Ex.PY) of Satender @ Galhar a country made pistol and one cartridge was recovered on 19.11.2000 from the Uhlawas pahar. The rough sketch (Ex.PZ) of the pistol (Ex.P56) was prepared. The rough site plan (Ex.PHH) of the place from where accused Satender @ Galhar got the recovery effected was prepared. Accused Satender @ Galhar also got the recovery of one burnt mobile Ex.P.60 in pursuance of his disclosure statement, which was taken in possession vide recovery memo (Ex.PAA). A rough site plan Ex.PII was prepared. Satender @ Galhar also got recovered the blood stained clothes which includes shirt (Ex.P-62) and rough site plans of this place Ex.PJJ and Ex.PKK were prepared. On 20.11.2000, Jaggi @ Jagdish again made a disclosure statement Ex.PBB in pursuance of which the car used in the occurrence was recovered from his house. He also got recovered blood stained clothes from his house. The car was taken in possession vide recovery memo Ex.PBB/1. A pant (Ex.P-61) was got recovered on the basis of disclosure statement of Sudesh son of Chander (from amongst the second set of accused). On 21.12.2000 he got recovered one steel tiffin box (Ex.P-63) on which the words ' Kishan Sarup' in Hindu were written. He also got recovered one spring actuated knife (Ex.P-64). The rough sketch Cr. A. No.635-DB of 2006 [23] Ex.PDD of the knife was prepared and the tiffin and knife were taken in possession vide recovery memo EX.PCC.
On 25.12.2000, Dharambir son of Chandan (from amongst the second set of accused) was arrested. He has since died during the trial. On his interrogation on 27.12.2000, he made a disclosure statement Ex.PEE. In pursuance thereof he got recovered a pistol Ex.P-53 along with four cartridges. Ex.P-54 was one of those four cartridges. Rough sketch Ex PFF is of that pistol, which was taken in possession vide recovery memo Ex.PGG, was prepared. A pass-book Ex.P-66 was also got recovered by Dharambir son of Chandan (from amongst the second set of accused). The site plan of the same was not available on the file. Thereafter, Dharambir had got the demarcation (Nishandehi) of the spot. On 31.1.2001, Babu Lal SI (PW-13) got the recovered pistols tested from the Armourer. On 7.2.2001, he recorded the statements under Section 161 Cr.P.C. of the MHC and other witnesses of recovery. Investigation in this case was also conducted by Sanjeev Kumar SI (PW-12). He joined the investigation which was being conducted by Babu Lal SI (PW-13) on 21.12.2000. A thaila (bag), one tiffin (Ex.P-63) and one knife (Ex.P-64) were recovered from the possession of the accused. The recovered articles were taken in possession vide recovery memo Ex.PCC. Rough sketch Ex.PDD of the knife had been prepared. On 27.12.2000 Dharambir son of Chandan resident of Uhlawas was interrogated. He made a disclosure statement (Ex.PAA) regarding concealing a knife under the 'Chara' (fodder) in front of the fodder cutting machine. Thereafter, they reached village Uhlawas and a pistol and a pass book, which was lying under the `Chara' were recovered Cr. A. No.635-DB of 2006 [24] from the house of the accused. It is the pistol Ex.P-65, which was recovered at that point of time. Its rough sketch Ex.P-FF was prepared and it was taken in possession vide recovery memo Ex.PGG. The pass-book (Ex.P-66) recovered was in the name of Kishan Sarup (deceased). Randhir Singh Inspector, who filed the charge report (challan) in terms of Section 173 Cr.P.C. was given up as unnecessary. It may, however, be noticed that in the charge report (challan) that is filed by Inspector Randhir Singh, it is recorded that the investigation in the case was conducted primarily by ASI Satender Kumar (PW-11). Later on SI Babu Lal and thereafter Randhir Singh Inspector/SHO, Police Station Sadar Gurgaon conducted the investigation in the case. Ram Kumar (appellant No.6), Dharambir (appellant No.5), Pushkar (appellant No.4), Paramjit (appellant No.3), Har Sarup (appellant No.2) and Rohtash (appellant No.1) were joined in the investigation but all of them were found innocent during the course of investigation. The statements of all the eye witnesses and the complainant were recorded and the accused namely Satender @ Galhar son of Chanderpal, Jaggi @ Jagdish son of Dungar residents of Ulhawas (second set of accused) were arrested on 17.11.2000. During the investigation, a mobile phone of Kishan Sarup (deceased) (in a burnt condition) and the weapon of offence i.e. a country made pistol of .314 bore was recovered from accused Satender @ Galhar. The Maruti car No.HR-26J-2873 used in the said incident was also recovered from the accused Jaggi @ Jagdish. Sudesh son of Chander (from amongst the second set of accused) was arrested on 21.12.2000. The tiffin box of the deceased having three boxes, besides a spring actuated knife was recovered as per his disclosure Cr. A. No.635-DB of 2006 [25] statement. The accused Dharambir son of Chandan (from amongst the second set of accused) was arrested on 25.12.2000. A pistol and cartridge used in the said murder and the pass book of the deceased Kishan Sarup having a balance of Rs.16,142/- were recovered in terms of his disclosure statement. The accused were confined in judicial custody. The evidence produced and the recoveries effected from the spot were sent to the FSL from time to time. One of the accused namely Jaggi @ Jagdish was yet to join investigation. No investigation was pending in the case and the challan had been prepared against the accused (second set of accused).
In the afore-noticed facts and circumstances and from the investigation that was carried out by the police, it may be noticed that it is the second set of accused that were challaned by the police for having committed the murder of Kishan Sarup. The appellants were found innocent during investigation and were not arrested.
Shri H.S. Sran, learned Additional Advocate General, Haryana, has submitted that this was done deliberately by the police to help the appellants.
Mr. Vinod Ghai, learned counsel for the appellants, has, however, submitted that in fact, it is the complainant side, which is in league the police. He has submitted that Chhote Lal, complainant is a retired Inspector of Police. Besides, his sons Suresh and Sunil Kumar are in the Haryana police. Kishan Sarup (deceased) was in the Delhi Police. Satya Parkash (PW-10) was an agriculturist and Rakesh is a driver in a private company. Moreover, Ram Karan was in the Army. Therefore, according to the learned counsel for the appellants the police in case it had to help in the Cr. A. No.635-DB of 2006 [26] investigation would have helped the complainant side.
Be that as it may, it may be noticed that challan in the case has been filed against the second set of accused and the appellants were found innocent. Therefore, it is to be seen in the facts and circumstances whether the appellants were involved in the crime or whether they were implicated and the investigation in the case is tainted as has been contended by the learned counsel for the State.
Chhote Lal while appearing as PW-9 deposed that on 4.11.2000 i.e. the date of incident at about 7.00 p.m. he was at the scooter stand Badshahpur to catch a vehicle for his village. At that time Kishan Sarup came from Gurgaon side on his motorcycle and they started for their village on that motorcycle. They had covered a distance of about 1 km. and were near the poultry farm when they noticed that a vehicle was stationed near it and its engine was in a running condition. The said vehicle started chasing Chhote Lal (PW-9) and Kishan Sarup (deceased). It kept on pushing Chhote Lal and Kishan Sarup to the left side of the road and ultimately the motorcycle was pushed into the road side bushes. Then it came to a halt and six persons Rohtash (appellant No.1), Harsarup (appellant No.2), Paramjit (appellant No.3), Pushkar (appellant No.4) sons of Balbir Singh, Ram Kumar (appellant No.6) son of Harpal, Dharambir (appellant No.5) father- in-law of Ram Kishan (deceased in the earlier case) came out of that vehicle. All of them were armed with knives, iron bars and iron rods. They suddenly and indiscriminately opened an attack on Kishan Sarup (deceased). The complainant raised `raula' of `bachao bachao' but none came to the spot on hearing the `raula' raised by him. Paramjit Singh Cr. A. No.635-DB of 2006 [27] (appellant No.3) declared that in case he (Chhote Lal-complainant) raised the `raula' then he would be similarly dealt with. Out of fear the complainant did not go near his son while the assailants were injuring to him. Then those persons put the son of the complainant in their vehicle and pushed the complainant in the bushes and went away with his son towards Police-Post Badshahpur. Blood and pieces of flesh were lying at the place where the son of the complainant was injured. After some time, Suresh and Rakesh came from Gurgaon side on their own vehicle and they stopped on seeing the complainant and he narrated the occurrence to them. Thereafter, they all went to the Police-Post Badshahpur where the complainant verbally narrated the occurrence to the In-charge of the Police-Post. In the further examination-in-chief it is stated by Chhote Lal (PW-9) that he did not ever blame Dharambir son of Chandan, Suresh son of Chander, Jaggi alias Jagdish son of Dunger and Satender alias Galhar son of Chander Pal (second set of accused) as the persons responsible for the murder of his son. At the said stage learned Public Prosecutor made a request for leave of the Court to cross-examine the witness as he was suppressing the truth particulars qua the identity of some of the accused which he had mentioned in the supplementary statement. The request was allowed and Chhote Lal (PW-9) was cross-examined. The supplementary statement (Ex.PU) (portion A to A of Ex.PU was read over to him). He denied having made such statement to the Police. The complainant-Chhote Lal was then cross- examined by the defence counsel for the accused Rohtas, Paramjeet, Pushkar and Harsarup. It is stated by Chhote Lal (PW-9) in his cross- examination that his sons Suresh and Rakesh were not examined by the Cr. A. No.635-DB of 2006 [28] Police. They were with him only throughout. It was within his knowledge that they were not examined by the Police. Besides, he did not make any supplementary statement to the Police on 5.11.2000. In cross-examination it is further stated that Ram Kumar (appellant No.6) had a knife and Paramjit (appellant No.3) also had a knife. Rohtash (appellant No.1) and Harsarup (appellant No.2) were carrying iron rod each. He did not indicate the weapons that were carried by the accused in his application (Ex.PK) which he presented before the Police. He denied the suggestion that he had falsely named Rohtash, Harsarup, Paramjit, Pushkar, Ram Kumar and Dharambir (appellants) on account of enmity. It is further stated that the aforesaid four accused otherwise reside at Delhi but they keep on visiting the village. He denied that Pushkar (appellant No.4) was a parking attendant in Hotel Le Meridien for the last about 16 years. It was incorrect to suggest that Pushkar (appellant No.4) was on duty on 4.11.2000 from 1.30 p.m. to 9.30 p.m. He further denied the suggestion that accused Paramjit Singh (appellant No.3) was admitted in Ram Manohar Lohiya Hospital on 4.11.2000 from 5.30 p.m. or that he was discharged from the hospital only on the following day. It was admitted as correct that Harsarup (appellant No.2) was a Police official at Delhi. However, it was incorrect to suggest that he was on duty from 10.00 a.m. to 8.00 p.m. on 4.11.2000. Rohtash (appellant No.1) is a Sub Inspector in Delhi Police and is otherwise resident of Village Mandwali. Thereafter, he was cross-examined on behalf of accused Ram Kumar and Dharambir. It is admitted that in the civil suit in which subsequent execution was filed the accused had been putting in appearance upto 24.6.1994 and remained absent thereafter. Their counsel Cr. A. No.635-DB of 2006 [29] did not appear thereafter. The suit was accordingly decreed ex parte in his favour.
The other witness examined in the case is Satya Parkash (PW-
10) who is the son of Chhote Lal-complainant (PW-9). It is stated by him that he joined the investigation of this case on 4.11.2000. It was stated that he was at his house at 9.00 p.m. on 4.11.2000. There were `jhunds' on the left side of the road if one proceeds from Badshahpur to Aklimpur Teekli. The motorcycle was lying in the `Jhunds' in a tilted condition. ASI Satender Singh, his father and his two brothers (Suresh and Rakesh) were also there and were inspecting the spot. On the following day i.e. 5.11.2000 at about 6.30 a.m. they were in the process of looking for Kishan Sarup when two Biharis informed them that a dead body was burning in the `Pahar' (hills). Satya Parkash (PW-10) accompanied by his father Chhote Lal (PW-9), two brothers (Suresh and Rakesh) and relations at that time went to the place where the dead body was burning. They went there along with the Police and extinguished the fire. The spot was got photographed. One live cartridge was found lying by the side of the pyre. One ring bearing inscription KS, which Kishan Sarup was wearing was recovered from the ashes. One belt buckle belonging to Kishan Sarup was also recovered from the ashes and so also was a burnt piece of pant. He had seen the articles, which were the same that had been taken in possession. He was also cross- examined. It is stated by him in his cross-examination that one lead of bullet was also recovered from the ashes, which was taken in possession vide recovery (Ex.PM). The lead of bullet was recovered from near the rear right side of abdomen. He could not say whether live cartridge and lead of Cr. A. No.635-DB of 2006 [30] bullet were taken in possession vide a common recovery memo.
The Public Prosecutor on 27.4.2004 made a statement giving up Suresh and Rakesh sons of Chhote Lal-complainant as unnecessary witnesses.
Satender Kumar, SI (PW-11) was examined in which he deposed about the investigation that he conducted. He picked up empty shell lying at point -`C' as indicted in the site plan. It was taken in possession vide recovery memo (Ex.PV). Besides, blood stained earth was taken in possession. In cross-examination, it is stated that he had gone to the place where the dead body was burning on receipt of information from Dharambir, Sarpanch. In cross-examination, it is stated that he had correctly recorded Ex.PU i.e. the supplementary statement of Chhote Lal (PW-9). He did not record the statement of Suresh son of Chhote Lal under Section 161 Cr.P.C. It is stated by Satender Kumar, SI (PW-11) that the first set of assailants were falsely accused by the complainant on account of previous enmity and they were found innocent including Dharambir son of Pyare Lal. It also transpired in the investigation that another set of accused including Dharambir son of Chandan, Sudesh son of Chander, Jaggi alias Jagdish son of Dungar Singh and Satender son of Chander Pal (second set of accused) were involved in the occurrence and they were already known to Suresh son of Chhote Lal. An objection was raised regarding the admissibility of the said statement. The learned trial Court left the point to be decided at the time of arguments. In cross-examination it is stated by Satender Kumar SI (PW-11) that Jaggi (second set of accused) had made a disclosure statement twice; one on 18.11.2000 and the other on 20.11.2000. None from the Cr. A. No.635-DB of 2006 [31] complainant or his family side were present at the time of recording those disclosure statements.
Sanjeev Kumar, SI/SHO, Police Station Bilaspur (PW-12) was examined. On 21.12.2000, he was posted as ASI at Police Station Sadar, Gurgaon. On that day he joined the investigation in the present case which was conducted by SI Babu Lal. He proved the recoveries of knife (Ex.P.64), one Tiffin (Ex.P.63). The recovered articles were taken in possession vide memo (Ex.PCC). The rough sketch (Ex.PDD) of the knife was prepared. He proved the disclosure statement (Ex.PEE) of Dharambir son of Chandan resident of Uhlawas (second set of accused). The pistol (Ex.P.65) was recovered on the disclosure statement of Dharambir son of Chandan. Its rough sketch is at Ex.PFF was prepared. Passbook (Ex.P.66) was recovered which was in the name of Kishan Sarup (deceased).
The post-mortem examination of the dead body of Kishan Sarup, was conducted by Dr. S.K. Sharma (PW-2), SMO, ESI Hospital No.3, Faridabad, who has deposed that post-mortem examination was done in the background of the information given by the police that the dead body was removed from burning in an outdoor pyre, where tyres were being used to burn the body and amongst the other items recovered from the ashes a bullet was also recovered. The dead body was submitted in two parts. One sealed with cloth parcel bearing a label in relation to FIR No.644 dated 5.11.2000 bearing five seals. On opening it, it was found to contain a plastic packet of composed soft tissues. On examination it was found to be a portion of the brain. In view of the decomposition nothing could be inferred except that it was expelled out of the skull. The second part was a gunny Cr. A. No.635-DB of 2006 [32] bag enclosing charred body of an adult. The dead body was X-rayed. Post- mortem, X-rays of the dead body revealed fractures of skull, facial skeleton, clavicles and bones of extremities. There was no bullet or pellet visible in those x-rays. The dead body was profoundly mutilated by fire. It displayed a variety of fourth degree burns. The entire body that consisted of charred skeleton remains of lower half of face, neck, stumps of extremities, chest and abdomen and a portion of lower extremities attached had a cooked appearance. There was no evident of putrefaction. Heat, stiffing was present. There were burnt bone fragments consisting of calvarium, lower ends of both femur up to supracondylar areas, portion of radious (R) and both bones of (L) upper extremity. Burnt bones of extremities as well as pieces of vault of debris was found to contain pieces of bones of extremities consequent upon curved fracture. Blood and bone marrow was expressed out and was found as roasted deposit on the surface. Pieces of parietal bones, frontal and few too small to be identified showed that fracture line was not involving suture of skull. In the area of head and face, what was identifiable was both the jaws. Amongst the charred remains in the area, the upper jaw had 11 teeth. Even third molar was present. Lower jaw was fractured and the condyler portion on the left was damaged badly by flame. This had all the teeth. Teeth were sooty black. Because of approximation of both the jaws, oropharynx and the area slightly below was relatively preserved and unburnt. There was no evidence of inhalation of soot. The soft tissues around the neck, chest and abdomen were hardened (cooked) by the heat. The architecture of the organs was relatively preserved. The chest cavity was exposed. Both on the right as well as on the left side in the area Cr. A. No.635-DB of 2006 [33] below both the Axillae. There were post-mortem splits in rest of the area and it was not possible to distinguish that from ante-mortem cuts and slashes. Abdominal viscera had appearance of being hardened by heat. Fracture of the extremities and amputation due to excessive heat was visible at middle of right arm and just below left shoulder joint. Burnt head of humerous was visible on right side. Genitals were burnt and there was burnt remnant of penis. Amputated burnt left leg lay separate from the body. There were fissures, cracks in the charred outer of the limb, soles and toes were identifiable, fat and pale while tissue was visible through the splits. There was evidence of heat shrinkage of the muscles in the amputated limbs. Bone ends in the disarticulated both knees and shoulders were burnt. Right foot was lying separate as charred. Calcanium in it.
Opinion was given that the dead body showed extensive fourth degree burns. Burns were postmortem. Because of heat fractures and damage due to excessive heat dead body was profoundly mutilated. Death in this case was due to cranio-cerebral damage consequent upon fire arm ammunition, fired from some fire arm at close range. The possibility of sharp edged weapon or blunt force impact injuries could not be excluded in this case. The post mortem report that has been placed on record is Ex.PC.
The contention of the learned counsel for the appellants is that Chhote Lal was not present at the time of occurrence and he has been introduced later. In support of the said contention it is contended that there is delay in lodging the FIR ( Ex.PK/2) of almost 13 hours. The incident is of 4.11.2000 at 7.00 p.m. However, the FIR was recorded at 8.30 a.m. on 5.11.2000. According to HC Jai Chand (PW-5) he delivered the special Cr. A. No.635-DB of 2006 [34] report to the Illaqa Magistrate at about 9.30 a.m. on 5.11.2000 at his house. It had been handed over to him 15 minutes earlier before it was handed over to the Illaqa Magistrate. The delay indeed has, therefore, occurred in the lodging of the FIR. Though prompt lodging of a FIR is not an unmistakable guarantee for its truthful version and neither is delay always fatal. However, it may be noticed that in the present case the FIR has been registered on the basis of application (Ex.PK). The application (Ex.PK) is dated 4.11.2000 and the letter '4' has been changed to '5'. Therefore, the contention of the learned counsel for the appellants that the changing of the date from 4.11.2000 to 5.11.2000 would show that the application (Ex.PK) had been prepared a day earlier and it is, thereafter, that it was recorded on the next day by changing the date. The learned trial Court (in para 38) has observed that a bare look at the complaint (Ex.PK) would indicate that the date mentioned thereunder is 4.11.2000 and thereafter, it has been corrected to 5.11.2000, which correction does not appear to be in natural course. It is further observed that just putting lines below and on top of the letter '4' is indicative that it was not a natural correction but was made thereafter. Had Ex.PK been handed over to SI Satender Kumar (PW-11) on 5.11.2000 as stated by him, there was no reason for him to ask Chhote Lal (PW-9) as to why the date 4.11.2000 had been put in place of 5.11.2000. It was also noticed by the learned trial Court that the document Ex.PK further mentions that a wireless message was also flashed by the In-charge Police Post Badshahpur. ASI Satender Kumar (PW-11) though gave the version that Ex.PK was handed over to him on 5.11.2000, while he was present at the bus stand Badshahpur. However, he was silent as to how the wireless Cr. A. No.635-DB of 2006 [35] message was flashed, when the complainant first visited the police post which was recorded in the document Ex.PK. Even in the FIR (Ex.PK/2) the said fact had been incorporated by reproducing the complaint in the FIR and also that wireless message had been flashed. Had the wireless message not been flashed, there was no compulsion for ASI Satender Kumar (PW-11) to mention it and he could have scored off this fact. It was also noticed that the Investigating Agency had not brought documents on the file about having not flashed any wireless message on 4.11.2000 and between 7.00 p.m. to 8.00 p.m. when the complainant Chhote Lal (PW-9) is stated to have visited the Police Post Badshahpur along with his sons. Thus, this clearly indicates that the complaint was received by the Police Post Badshahpur on 4.11.2000 itself and immediately after the occurrence. The statement of the complainant that he handed over the complaint to the In-charge Police Post Badshahpur on 4.11.2000 finds corroboration from the statements of Satya Parkash (PW-10), who stated that on receipt of information at 9.00 p.m., he reached the spot and found his father was accompanied by the police when the motorcycle was taken in possession. It was, thus, held that the delay in lodging the FIR was not on the part of the complainant but on the part of the Investigating Agency for the reasons best known to them, which have not been explained by the Investigating Agency or the prosecution. However, the learned trial Court has not given any finding as regards the person, who made the change on the application Ex.PK from 4.11.2000 to 5.11.2000. It is not the case of any one that the prosecution had changed the date from 4.11.2000 to 5.11.2000.
Chhote Lal-complainant has been a police official and in case Cr. A. No.635-DB of 2006 [36] he was to name the appellants as the culprits he would have lodged the report promptly to ensure that the appellants are properly nailed. It may also be noticed that no injury has been received or suffered by Chhote Lal (PW-
9). Had the appellants indeed been causing injuries to Kishan Sarup (deceased) in the presence of Chhote Lal (PW-9), then it was quite unlikely that they would spare him. Chhote Lal (PW-9) has not received any injury; besides, there is nothing to show that he had tried to intervene to help his son Kishan Sarup (deceased) who was being inflicted injuries and too in a crude manner. In case Chhote Lal (PW-9) was present at the time of occurrence and had seen the same, he would have immediately lodged the FIR and not delayed it as the accused were known to him. It may also be noticed that there is no help given by Chhote Lal (PW-9) while the injuries were being caused to Kishan Sarup (deceased). No blood smeared clothes of Chhote Lal (PW-9) were recovered to show that he was indeed present at the time of the incident and tried to help his son Kishan Sarup (deceased). Therefore, in this background we are of the view that the presence of Chhote Lal (PW-9) at the time of occurrence was doubtful. Earlier also there had been a dispute in the family, inasmuch as, Ram Kishan, who is the father's brother's son of Chhote Lal was murdered on 23.10.1989. For the murder of Ram Kishan; Kishan Sarup (deceased) in the present case, Satya Prakash (PW-10) and Rakesh sons of Chhote Lal were convicted and sentenced and sentenced to imprisonment for life by the trial Court on 7.8.1991. This Court vide order dated 13.7.1993 modified the conviction of Rakesh to that under Section 323 IPC and the sentence reduced to that already undergone. Satya Prakash (PW-10) was acquitted by this Court and Cr. A. No.635-DB of 2006 [37] Kishan Sarup (deceased) in the present case was sentenced to imprisonment for life. Therefore, it is the sons of Chhote Lal, who were involved in the earlier case and as such he had motive to involve them.
As is well known motive is a double edged weapon and it operates both ways i.e. a crime can be committed on the basis of a motive besides it can also be used to falsely implicate an accused who otherwise may not be involved in the crime. Therefore, this gives reasons for the prosecution witnesses to depose falsely against the accused.
Chhote Lal-informant also made a supplementary statement (Ex.PU) in which he stated that the earlier application i.e. the application (Ex.PK) on the basis of which FIR was registered had been submitted to the Investigating Officer based on account of enmity. Now he (Chhote Lal- complainant) had satisfied himself from his sons. They had told him that in the white Maruti car No.HR-26J-2873 Dharambir son of Chandan, Sudesh son of Chander, Jaggi alias Jagdish son of Dungar Singh and Galhar alias Satender son of Chander Pal, caste Gujjar, residents of Uhlawas were sitting and the said car was being driven rashly and at a high speed. At the back, there was one person in the car. The informant-Chhote Lal then told his sons that the said persons had taken Kishan Sarup in the car by putting him in it. These persons (second set of accused) after murdering the son of the informant Chhote Lal would dispose of his body. The Police had reached the place of occurrence on the road leading from Badshahpur to Teekli near Village Teekli from where motorcycle No.HR-26G-4310, a broken headlight glass and broken piece of glass were taken in possession. Besides, one empty cartridge, a piece of flesh and blood stained earth were taken in Cr. A. No.635-DB of 2006 [38] possession. The motorcycle was also taken in possession. On all the memos, the complainant-Chhote Lal and HC Prem Singh had signed. The complainant had identified the half burnt body of his son Kishan Sarup at the Uhlawas hillock. The said statement (Ex.PU) was made by Chhote Lal- complainant on 5.11.2000 itself.
A perusal of the facts and circumstances shows that the dead body was in a badly de-composed state. If, this is so, it is evident that the death of Kishan Sarup had been caused in a brutal manner. Therefore, it is not understandable that if Chhote Lal-complainant (PW-9) was indeed present, the assailants would leave him as a witness so as to depose against them.
From the above evidence and material on record the circumstances which are quite evident and discernible are that Chhote Lal (PW-9) was not present at the time of occurrence. Besides, in case he had indeed witnessed the occurrence he would have also received some injuries while attempting to rescue his son Kishan Sarup (deceased). There was a motive for the complainant-Chhote Lal to involve and implicate the appellants, inasmuch as, his sons were accused in the murder of Ram Kishan son of his father's brother's son i.e. first cousin of Chhote Lal.
In the case that has been tried no recoveries are shown to have been effected from the appellants. The recovery of country made pistol in pursuance of memo (Ex.PZ/1) was made in pursuance of disclosure statement of Satender alias Galhar son of Chander Pal (second set of accused). It was a country made pistol. From the burning fire where the dead body was found burning a lead of bullet was found which was taken in Cr. A. No.635-DB of 2006 [39] possession vide recovery memo Ex.PM. In terms of the FSL report (Ex.PJ) amongst the various recoveries made there was one 7.65 mm fire pistol cartridge case and 7.65 fired jacketed bullet marked as C/1 and BC/1 by the examiner. Besides, one 7.65 pistol without butt and with Sr. No.160112 and 7.65 m. cartridges stated to have been recovered from accused Dharambir (second set of accused). This pistol was marked as W/1 by the examiner. The country made pistol chambered for .315 cartridges marked as W/2 by the examiner was also there. In terms of the result conducted in the laboratory, it was stated as follows:-
"1. 7.65 mm pistol W/1 and country-made pistol W/2 are firearm as defined in Arms Act 54 of 1959. Their firing mechanism were found in working order.
2. 7.65 mm cartridge case marked C/1 and bullet BC/1 have been fired from pistol W/1 and not from any other firearm even of the same make and bore/calibre, because every firearm has got its own individual characteristic marks."
The pistol W/1 was recovered from Dharambir from the second set of accused and the bullet that was found near the dead body was fired from the said pistol. The disclosure statement (Ex.DA) of Dharambir son of Chandan (second set of accused) is on record in which it is stated that the pistol that he used in committing the murder of Kishan Sarup was kept by him with cartridges in a room in the house of his in-laws besides passbook of the bank of Kishan Sarup has also been concealed by him at the house of his sister at Khanpur at Delhi. In pursuance of the said disclosure statement (Ex.DA) the pistol and the passbook have been recovered. Though in the Cr. A. No.635-DB of 2006 [40] post-mortem report it is mentioned that no bullet was found, however, it may be noticed that bullet was lying and was recovered from the place where the body was being cremated in the pyre. Besides, Chhote Lal (PW-
9) in his deposition has stated that accused Ram Kumar (appellant No.6) and Rohtash (appellant No.1) had a knife each. Besides, Rohtash (appellant No.1) and Harsarup (appellant No.2) were carrying iron rods. Dharambir (appellant No.5) and Pushkar (appellant No.4) were carrying an iron rod each. However, no recoveries of the said weapons that the appellants are stated to have been carrying has been effected. Rather, the disclosure statement (Ex.PG) of Sudesh son of Chander (second set of accused) was recorded in which it is stated that he (Sudesh), Dharambir son of Chandan, Jagdish alias Jaggi son of Dungar Singh, Satender alias Galhar Singh son of Chander Pal residents of Uhlawas after conspiring together and after boarding a Maruti car No.HR-26G-2873 went to the road leading from Badshahpur to Akleempur Teekli. After going little ahead from Nurpur turning in front of the poultry farm when Kishan Sarup (deceased) was going towards Village Akleempur they after passing his motorcycle from the left side, Satender alias Galhar Singh hit a bullet from his country made pistol and Dharambir also fired from a pistol on him. Sudesh further stated that he gave Kishan Sarup (deceased) injuries with his knife and after putting his dead body in the same car they went to Village Behrampur via Village Kedarpur. From Village Behrampur, Jagdish alias Jaggi son of Badle, resident of Village Behrampur gave them tyres and diesel which was taken on a scooter No.HR-26H-7945 belonging to Jaggi. These were taken to Uhlawas hillock. The scooter was being driven by Jaggi resident of Cr. A. No.635-DB of 2006 [41] Behrampur while Sudesh and Jagdish alias Jaggi were riding pillion along with tyres and diesel. They reached Uhlawas hillock and the dead body of Kishan Sarup was put on the hillock at Uhlawas and with the help of tyres and diesel Sudesh, Dharambir, Jagdish and Satender alias Galhar and Jaggi son of Badle cremated the dead body of Kishan Sarup. Before that on search of dead body one mobile phone, one HMT watch, bank passbook of Kishan Sarup and his other papers, one tiffin which were on his motorcycle at the time of his murder and had fallen down were lifted by him (Sudesh) from the said site and the said tiffin is with him which belonged to Kishan Sarup. Watch of the deceased was with Jagdish and mobile phone was with Satender alias Galhar and the passbook with Dharambir along with other papers and the pistol with which Dharambir had fired at Kishan Sarup. The Maruti car which was used in committing crime belonged to Jaggi alias Jagdish. Sudesh had concealed the knife and tiffin in his Village Uhlawas at his house about which he knew and none else knew about it. He could get the same recovered. Therefore, the entire articles that were used in the occurrence or were recovered i.e. pistol, knife, tiffin box of the deceased, the passbook of the deceased and the scooter had been recovered from the second set of accused and not from the appellants. This indeed is a circumstance from which it can be safely inferred that the appellants were not involved in the occurrence and the case against them cannot be said to be established.
The other circumstance which would also show the prosecution case to be doubtful is the certificate (Ex.DAA) of Hotel Le Meridien which is to the effect that Pushkar (appellant No.4) was working with Hotel since Cr. A. No.635-DB of 2006 [42] 2.5.1994 and he was on duty on 4.11.2000 from 1.09 p.m. to 9.44 p.m. (computerized attendance sheet (Ex.DBB) was enclosed). Store room register, Part-I of 4.11.2000 relating to Day Reserve Staff from 8.00 a.m. to 7.00 p.m. shows that Dharambir Singh (appellant No.5) was present in the store room. Ex.DDD is DD No.5 dated 5.11.2000 recorded at Indira Gandhi International Airport Line, New Delhi.
In the circumstances, the contention of the learned counsel for the State that the Police record is tainted with a view to help the appellants even if it is to be accepted, it evidently does not establish the guilt of the accused beyond shadow of reasonable doubt. This is more so for the reason that Chhote Lal (PW-9) had the motive to falsely implicate the appellants as his own sons were involved in the earlier murder of Ram Kishan his first cousin. Besides, Shri Vinod Ghai, Advocate, learned counsel for the appellants has submitted that Dharambir son of Chander (from the second set of accused) was murdered in the Court complex at Gurgaon during the imprisonment of Kishan Sarup (deceased). During imprisonment of Kishan Sarup (deceased) and Dharambir they had been differences on account of which Kishan Sarup (deceased) was murdered by the second set of accused. The Police indeed did investigate the case against the second set of accused and challan was also filed against them, however, during the course of trial the appellants were summoned and charges were framed against them after the statement of Chhote Lal was recorded as PW-1. It may be noticed that except for the statement of Chhote Lal (PW-9) there is no other evidence on record to directly show the involvement of the appellants. No recovery has been effected from them and neither is there any circumstantial evidence.
Cr. A. No.635-DB of 2006 [43] The testimony of Chhote Lal (PW-9) is that of an interested witness besides his presence at the time of occurrence is not shown to have been proved.
In the circumstances, the appeal is liable to be allowed. Accordingly, the appeal is allowed and the judgment and the order of the learned trial Court convicting and sentencing the appellants is set aside.
(S.S. Saron) Judge November 20, 2008. (Sabina) Judge *anita/hsp* NOTE: Whether to be referred to the Reporter or not:Yes