Punjab-Haryana High Court
Hanif Kalandar vs State Of Haryana on 21 February, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-695-DB of 2008
Date of decision : 21.02.2013
Hanif Kalandar
.... Appellant
VERSUS
State of Haryana
.... Respondent
CORAM : HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Dr.Deepa Singh, Advocate, for the appellant.
Mr.Kshitij Sharma, Asstt. Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J Appellant Hanif Kalandar has preferred the present appeal against the judgment of conviction dated 05.09.2008 and order of sentence dated 08.09.2008, passed by the Addl. Sessions Judge, Yamuna Nagar at Jagadhri, vide which he has been held guilty for the offence punishable under Section 302 IPC and accordingly convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.6,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
Brief facts of the prosecution case are that on 07.10.2007, on receiving a telephone call from Police Station City Jagadhri about the death of Shano, Sub Inspector Ashok Kumar, SHO, Police Station Sadar, Jagadhri, alongwith other police officials, Criminal Appeal No.D-695-DB of 2008 [2] after collecting medical ruqa and Medico Legal Report of Shano, reached Civil Hospital, Jagadhri where Lado wife of Nazir got recorded her statement to him on 08.10.2007 which was completed at 12:30 a.m. In her statement, she stated that Shano was her sister, who about 15/16 years ago had gone of her own will with Hanif Kalandar and had married with him. They have two sons and two daughters. About 6-7 days ago, Shano alongwith her husband and children had come to meet them (complainant) at their house. Hanif Kalandar used to do the work of magician and was habitual of drinking. Shano always told Hanif Kalandar not to drink wine. On 07.10.2007, Hanif Kalandar, after drinking liquor, came to complainant's hut, on which Shano asked him why you have consumed liquor and the verbal altercation took place between them. At about 9/9:30 p.m., while fighting, Hanif Kalandar took a knife, which was placed in the hut, and hit complainant's sister Shano, who, to save herself, raised her right arm and the knife hit her right arm. Hanif Kalandar again attacked on Shano with the knife which again hit her right arm. After that Hanif Kalandar attacked on Shano's neck with the said 'Dagger' (knife), on which complainant tried to save her sister and shouted and then he left her hut alongwith the said dagger. The complainant stated that the whole incident was happened in the presence of witnesses i.e. Ayub Khan, son of her sister Shano, Salindera wife of Nazim Khan, sister-in-law of complainant and Poli wife of Nasir Nath. Complainant also stated that her husband had Criminal Appeal No.D-695-DB of 2008 [3] gone to Solan (Himachal Pradesh) to take his medicines. Then the complainant alongwith her nephew Jania arranged one three-wheeler and took Shano to Civil Hospital, Jagadhri for treatment and got her admitted there. After sometime, she died. After recording the statement of complainant Lado, ruqa was sent to the police station on the basis of which FIR was registered. Thereafter, Sub Inspector Ashok Kumar, Investigating Officer, conducted the proceedings under Section 174 Cr.P.C. Dead body was sent for postmortem examination. Thereafter, at about 7:00 a.m., the spot was inspected and rough site plan Ex.PT was prepared. One blanket, dari and mat (chatai), which were stained with blood, were taken into police possession after preparing separate sealed parcels. Blood stained earth was also taken into police possession after preparing sealed parcel. Accused was arrested on 08.10.2007. On interrogation, accused suffered disclosure statement regarding concealing of knife and then in pursuance of his disclosure statement, he got recovered the same which was taken into police possession after preparing its sketch and sealed parcel. Site plan regarding the place of recovery was also prepared. Statements of witnesses were recorded. After completion of investigation, challan against the accused was presented before the Court.
On presentation of challan, copies of challan and other documents were supplied to accused under Section 207 Cr.P.C. Finding a prima facie case against the accused, he was charge- Criminal Appeal No.D-695-DB of 2008 [4] sheeted for the offence under Section 302 IPC to which he pleaded not guilty and claimed trial.
The prosecution, in support of its case, examined PW1 Inspector Jai Ram, who mainly deposed regarding preparing of challan in this case. PW2 Dr.Vijay Dahiya, medico legally examined Shano on 07.10.2007 at 10:20 a.m. and found the following injuries on her person:-
1. There was incised wound ½ inch x 1 /¼ inch x 1 / ½ inch deep on interior surface of neck just right side of thyroid cartilage muscles were cut and exposed.
2. There was incised wound ½ x 1" x ½" deep on lower end of right arm.
3. There was incised wound ½ x ¾ x ½" deep on anterior surface upper end of right forearm.
The weapon was also shown to the doctor and the doctor stated that the possibility of injuries on the person of Shano with this weapon cannot be ruled out. In cross-examination, the doctor stated that he conducted the medico legal examination of Hanif on 08.10.2007 at 6:30 p.m., who was brought by ASI Satpal Singh, and found the following injuries on his person:-
1. There was incised wound ½ x ¾ x ½ cm deep on lateral surface of lower end of right leg.
2. There was swelling and tenderness in left parietal region of scalp.
Criminal Appeal No.D-695-DB of 2008 [5]
3. There was swelling and tenderness of posterior surface of left elbow.
4. There was swelling and tenderness of anterior surface of middle of right thigh.
5. There was swelling and tenderness in lateral side of lower right chest.
The doctor stated that the weapon used for injury No.1 was sharp and for injuries No.2 to 4 was blunt. In cross-examination by the Public Prosecutor, the doctor stated that possibility of injury No.1 on the person of Hanif, being self inflicted, cannot be ruled out. PW3 Dr.Vineet Gupta alongwith Dr.Vijay Kumar Dahiya conducted the postmortem examination on the dead body of Shano on 08.10.2007 and found the following injuries on her person:-
1. The neck was found bandaged on removing which an incised wound of size 1.5 cm x 3.5 cm x 3.5 cm deep on the anterior surface of neck just lateral to the thyroid cartilage towards right of mid-line, obliquely placed was present. On its dissection, underlying muscles were found severed, the trachea was found severed, the size of the rant was 1 cm in length and the trachea was contained dark red blood with clots.
2. An incised wound 2.5 cm long, 1.5 cm wide, 1.5 cm deep were present on the anterior surface of right arm which was found bandaged. The wound was obliquely Criminal Appeal No.D-695-DB of 2008 [6] placed.
3. An incised wound of size 2 cm long x 1.5 cm wide x 1.5 cm deep on the anterior surface of upper end of right forearm/arm, was present, obliquely placed.
4. A stab wound of length 3 cm x 1.5 cm on the left side of upper chest just below and lateral to the breast, obliquely placed in the inter costal space was present.
On dissection, the underlying muscle were found severed and the pleura was ruptured and the lung bore a tear of size 1.5 cm x 1 cm and was found collapsed. In the opinion of the doctors, the cause of death in this case was injuries to trachea and lung leading on to respiratory failure and shock. All the injuries were ante-mortem in nature and sufficient to cause death under normal course of events. The interval between injuries and death could be within hours and between death and postmortem within 24 hours. The doctor, in cross-examination, also stated that the possibility of the injuries on the person of Shano (deceased) having been caused by the dagger Ex.P1 and any kind of other similar weapon, cannot be ruled out. PW4 Head Constable Suresh Kumar and PW5 Head Constable Daya Nand are the formal witnesses, who tendered into evidence their affidavits Ex.PF and Ex.PG respectively. PW6 ASI Ramesh Chand mainly deposed regarding recording of FIR Ex.PJ on receiving ruqa Ex.PH. PW7 Constable Mulakh Raj mainly deposed regarding preparing of scaled Criminal Appeal No.D-695-DB of 2008 [7] site plan Ex.PK. PW8 Head Constable Rattan Singh mainly deposed regarding delivery of special report to Ilaqa Magistrate. PW9 ASI Phool Kumar mainly deposed regarding getting conducted the postmortem examination on the dead body of Shano. He also deposed regarding receiving one parcel, containing clothes of deceased, from the doctor, which was taken into police possession vide memo Ex.PL. PW10 Lado is the complainant, who mainly deposed as per prosecution version. PW11 Sailindro, wife of Nazim, is the eye-witness of the occurrence. She also deposed as per prosecution version. PW12 Ilam Nath mainly deposed regarding the arrest of accused, regarding suffering of disclosure statement by the accused and also regarding recovery of dagger Ex.P1 in pursuance of disclosure statement. PW13 Sub Inspector Ashok Kumar is the Investigating Officer. He mainly deposed regarding the investigation of the case.
At the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of the evidence and pleaded himself as innocent. He also took the plea that he has been falsely implicated in this case by the police at the instance of complainant and Nazir, husband of Lado because Nazir tried to commit rape upon his wife Shano and when she did not oblige and threatened to tell about this to him, she was murdered by Nazir and when he came there, he was also mercilessly beaten and Criminal Appeal No.D-695-DB of 2008 [8] tied with a rope by Nazir and lateron handed over to the police.
The accused did not lead any evidence in defence. The trial Court, after appreciation of evidence, convicted and sentenced the appellant-accused, as stated above.
At the time of arguments, learned counsel for the appellant contended that the appellant is innocent and has been falsely implicated in the present case. She contended that the defence version is more probable and reasonable doubt exists in the prosecution version. Learned counsel for the appellant further contended that the injuries on the person of appellant Hanif Kalandar, which are proved by PW2 Dr.Vijay Dahiya, further support and corroborate the defence version and these injuries have not been explained by the prosecution. Learned counsel for the appellant contended that the fight took place suddenly, therefore, case falls under Section 304 Part II IPC and not under Section 302 IPC. She further contended that appeal should be accepted accordingly.
On the other hand, learned Asstt. Advocate General, Haryana contended that the case of the prosecution has been duly proved by the eye-witnesses. The statements of PWs have been duly supported by medical evidence and investigation of the case. Further, recovery of knife from the accused also supports and corroborates the prosecution version. As per Forensic Science Laboratory report, the knife was stained with human blood which also supports and corroborates the prosecution version. Therefore, Criminal Appeal No.D-695-DB of 2008 [9] learned Asstt. Advocate General, Haryana, contended that there is no merit in the appeal and the same should be dismissed.
We have heard learned counsel for the appellant and learned Asstt. Advocate General, Haryana and with their assistance, we have gone through the evidence on record minutely and carefully.
From the record, we find no merit in the contentions of learned counsel for the appellant-accused. There is nothing on the record to show that accused is innocent and has been falsely implicated. There is nothing on the record why the witnesses especially police officials will depose falsely against him. There is no enmity or motive of police officials to depose falsely against the accused. There is also nothing on the record how the police is under the influence of complainant party, who are poor persons and living in huts and why they (police officials) will falsely implicate the accused. The defence version that husband of Lado tried to commit rape upon Shano (deceased) and murdered her is not proved from any evidence. There is no evidence on the record nor there is anything in the statements of witnesses which may support the defence version. The mere suggestions to the PWs and the statement of accused under Section 313 Cr.P.C., will not prove the defence version. No defence witness has been examined in the present case to prove this version. Therefore, in no way, defence version can be held as probable nor it creates any reasonable doubt in the prosecution version. The occurrence took place on 07.10.2007 at about 9/9:30 Criminal Appeal No.D-695-DB of 2008 [10] p.m. and the accused was arrested in the evening of 08.10.2007 and he was medico legally examined at 6:30 p.m. on the same day i.e. after about 21 hours from the occurrence. As per the statement of Dr.Vijay Dahiya (PW2), Injury No.1, which is an incised wound, on the person of accused Hanif Kalandar, can be self suffered. The other injuries are only swelling etc. and are inflicted with blunt weapon. The police arrested the accused and then got him medically examined and the doctor found those injuries on his person. It is nowhere the case of the accused that injuries were given to him by Shano (deceased) in self defence etc. Therefore, these simple injuries, on the person of accused no way create doubt in the prosecution version. PW10 complainant Lado and PW11 Sailindro are the eye-witnesses and their presence at the place of occurrence is natural. Both these PWs have consistently deposed regarding the prosecution version. There are no material contradictions nor material improvements in their statements. There is no enmity or motive of these eye witnesses to depose falsely against the accused. The perusal of the cross-examination of these PWs also shows nothing which may make their statements unreliable. These PWs are truthful, trustworthy and reliable witnesses. Their statements have been duly supported by medical evidence and the investigation of the case. The recovery of knife Ex.P1 by the accused in pursuance of his disclosure statement, further supports and corroborates the prosecution version. PW2 Dr.Vijay Dahiya and Criminal Appeal No.D-695-DB of 2008 [11] PW3 Dr.Vineet Gupta have deposed that injuries on the person of Shano (deceased) are possible with this weapon. Knife (Ex.P1) was also shown to PW10 complainant Lado and PW11 Sailindro, eye- witnesses and they identified the same. Further, the Forensic Science Laboratory report stating that the knife was stained with human blood, also supports and corroborates the prosecution version. There is nothing on the record how human blood came on the knife. Further from the evidence on record, it cannot be held that accused had not acted in cruel and unusual manner without the offender having taken undue advantage. Accused gave three blows with knife. Hence, the case does not fall under Section 304 Part II IPC also. Therefore, this contention of learned counsel for the appellant has also no merit.
Therefore, from the evidence on record, we find that the prosecution has duly proved its case by leading cogent evidence. As such, the judgment of conviction and order of sentence passed against the appellant are upheld.
Therefore, from the aforesaid discussion, we do not find any merit in the appeal and the same is dismissed.
(JASBIR SINGH) (INDERJIT SINGH)
JUDGE JUDGE
21.01.2013
mamta