Punjab-Haryana High Court
Subhash & Anr vs State Of Haryana on 26 August, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
Criminal Appeal No. 270-DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 270-DB of 2009
DATE OF DECISION: 26.8.2011
***
Subhash & Anr. ..APPELLANTS
VS.
State of Haryana ..RESPONDENT
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE ARVIND KUMAR.
Present:- Mr. Hemant Bassi, Advocate
the appellants.
Mr. S.S. Randhawa, Addl. A.G. Haryana.
ARVIND KUMAR, J.
The appellants have preferred the instant appeal against the judgment and order of their conviction and sentence dated 26.2.2009 passed by learned Sessions Judge, Hisar by dint of which appellant Subhash has been held guilty under Section 302 IPC while appellant Jagat has been convicted under the same head with the aid of Section 34 IPC and they have been sentenced to undergo life imprisonment with a fine of Rs.2000/- each, in default whereof the defaulter is further required to undergo rigorous imprisonment for two years. Appellant Subhash has also been convicted and sentenced under Section 25 of Arms Act, under which he has been sentenced to undergo rigorous imprisonment for one year. The sentences awarded to appellant Subhash are ordered to run concurrently.
The case of the prosecution, in brief, is that on 6.9.2007 at about 10:30 p.m. complainant Suresh was going towards his house after closing his shop and when he reached near the house of Jagat @ Pappu, Jagat started hurling abuses to him, however, while preventing him from doing so, he walked towards his house. In the way, his brothers Tejbir and Jagbir met him and he narrated the version to them. Meanwhile, Jagat and his brother Subhash, who was carrying a spear came towards them. An exhortation was made by Jagat that these persons of Bagri Gotra be finished, upon which Subhash inflicted injuries on abdomen and back of Jagbir with the spear he carried. Consequently, Jagbir fell down in the Criminal Appeal No. 270-DB of 2009 2 street. Tejbir and Subhash raised noise due to which the assailants ran away from the spot along with weapon. After arranging the vehicle, the injured was shifted to the hospital, however, he succumbed to the injuries.
On the basis of statement(Ex.P6) made by Suresh, the present case was registered against the aforesaid persons and investigated upon. Inquest proceedings were carried out and the dead body was sent for the post-mortem examination.
On 9.9.2007 accused Subhash while in police custody suffered disclosure statement (Ex.P13) about concealing of spear and the blood stained shirt worn by him at the time of occurrence and consequently get the same recovered, which were taken into police possession vide separate memo. On completion of usual formalities of investigations, final report under Section 173 Cr.P.C. was prepared and forwarded against accused for their trial.
After commitment of the case, the trial court framed the charges under Sections 302 IPC against accused Subhash while Jagat was charge- sheeted under the same head with the aid of Section 34 IPC. That apart, for keeping in his conscious possession one spear with blade of 11", without any permit, accused Subhash was also charged under Section 25 of Arms Act, to which they pleaded not guilty and claimed trial.
During trial, the prosecution examined Dr. Sumita as PW1. She had conducted post-mortem examination on the dead body of Jagbir and found two stab wounds one vertically place 7cm x 3cm x 10 cm in depth, located on lower part of anterior chest wall extending upto abdominal wall just left of mid-line and other one of size 4cm x 2cm x 10 cm present on right side of back of chest wall obliquely placed. In her opinion the cause of death was result of injuries to vital organs i.e. heart, liver, lungs, which were sufficient to cause death in ordinary course of nature, caused within 24 hours of the postmortem. She also deposed that the possibility of the injuries on the person of Jagbir with spear Ex.P4(MO) cannot be ruled out.
PW2 Subhash Chander Draftsman prepared the scaled site plan Ex.P5 of the place of occurrence.
PW3 SI Sant Lal recorded the formal FIR(Ex.P6/2) of the case and sent the special reports to the higher officers. He also identified the signatures of Inspector Ram Kishan, who had prepared the final report of Criminal Appeal No. 270-DB of 2009 3 the case.
PW4 HC Bhana Ram and PW5 EHC Prem Chand tendered their affidavits(Ex.P7 and Ex.P8 respectively) in the evidence.
PW6 Suresh Kumar is the complainant as well as author of the FIR.
PW7 Tejbir is another eye-witness of the case.
PW8 HC Krishan Kumar is the witness to the disclosure statement made by accused Subhash as well as consequent recoveries of Spear and the shirt.
PW9 Hanuman Singh Inspector is the investigating officer of the case and deposed about the investigations carried out by him.
PW10 Dr. Yash Pal Verma initially treated the injured and later declared him dead.
The accused-appellants when examined under Section 313 Cr.P.C. pleaded false implication in the case due to party faction in the village. In defence they got examined Dr. Reena Jain, Medical Officer General Hospital, Hisar as DW1, Dr. A.L. Bajaj, Medical Officer as DW2 and Jai Dev Bishnoi, Superintendent Central Jail, Hisar as DW3.
After analyzing the evidence adduced by the prosecution, learned trial court vide the impugned judgment convicted and sentenced the accused-appellants in the manner indicated above.
We have heard learned counsel for the parties and with their assistance have also gone through the record carefully.
In the instant case the occurrence is stated to have taken place at about 10:30 p.m. in the night of 6.9.2007. The perusal of ruqa(Ex.P16) reveals that the injured Jagbir was examined by PW10 Dr. Yash Pal Verma at about 11:45 p.m. and his condition was serious. The said ruqa was sent to the police post within the premises of General Hospital, Hisar at about 12:40 a.m. PW10 Inspector Hanuman reached the general hospital where he was given another intimation (Ex.P17) at about 2:10 a.m. regarding the death of Jagbir at about 11:55 p.m. Thereafter, Inspector Hanuman tried to find out the attendant of the deceased and met Suresh, the brother of the deceased and accordingly recorded his statement, which came to be concluded at about 3:15 a.m. and sent the same to the police station, on the basis of which formal FIR was registered at about 3:35 a.m. The special Criminal Appeal No. 270-DB of 2009 4 report was delivered at the residence of Chief Judicial Magistrate at about 5:30 a.m., situated about 10 Kms from police station. All these developments are of the night intervening 6/7.9.2007. From the above sequence of events, we have no hesitation to conclude that the FIR was lodged promptly, without there being any inordinate delay. So far as the argument of delay in sending the FIR to the learned Illaqa Magistrate is concerned, it needs to emphasise that it is not as if every delay in sending the special report to the Illaqa Magistrate would necessarily lead to the interference that the FIR has not been lodged at the time stated or has been ante-timed or that the investigation is not fair and forthright. If in a case, it is found that the FIR was recorded without delay and the investigation started on that FIR, then improper and objectionable the delayed receipt of the report by the Magistrate concerned, that cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable. It has come on record that after the registration of the FIR the investigating officer i.e. Inspector Hanuman started the investigation of the case and in this backdrop it cannot be said that the delivery of the special report was delayed, to say that it has affected the case of the prosecution, especially under the circumstances when the FIR was recorded without delay and the investigation started on that FIR promptly.
The prosecution case mainly rests on the testimonies of PW.6 Suresh Kumar and PW7 Tejbir, the brothers of the deceased. Not only their presence has been doubted on account of their non-intervention and also by not taking their clothes into police possession, but their testimonies have been assailed on the ground of their relationship with the deceased. The contention is meritless. The accused Subhash was carrying a spear and in that situation, it was not expected from the witnesses to intervene as the element of self preservation is supreme in human being. Similar was the situation in Hari Singh M. Vasava Vs. State of Gujarat, 2002 Supreme Court Cases (Crl.) 654, and it was held by the Apex Court that merely because the eye witnesses failed to intervene to save the deceased cannot be made a ground to reject their testimony. The occurrence took place during the night and there presence cannot be doubted. That apart, it is not the absolute law that the evidence of relation witness is not entitled to any weight but this very circumstance would add to the value of their evidence Criminal Appeal No. 270-DB of 2009 5 because they would be interested in ensuring that the real culprit responsible for the murder be punished and not the innocent person. The prompt lodging of the FIR wherein the appellants were named as the assailants,over-rules the false implication of the appellants in the murder of Jagbir. That apart, it was not the case where any other eye witness was cited as a witness, but not examined, rather it has come out that none from the village was present at the time of occurrence and gathered there after the occurrence. It can also not be said that it was a case of mistaken identity because the complainant party as well as accused are of same village and that apart both the assailants have specifically been named in the FIR. Thus, the non-existence of electric bulb in the street makes no difference. Furthermore, there was no previous enmity between the deceased and the accused. Therefore, there was no reason for them to falsely implicate the accused with the murder of Jagbir, if they had not actually committed this murder. Merely because their clothes, which allegedly were stained with blood, were not taken into police possession, the case of the prosecution cannot be thrown on ground. Any lapse committed by the investigating officer does not entitle the accused for acquittal. Both PW6 Suresh Kumar- complainant and PW7 Tejbir, the eye-witness have supported the case of the prosecution. Both of them have deposed about the manner in which the quarrel ensued, followed by the attack opened by accused Subhash on the exhortation made by accused Jagat. The statements of both the witnesses are corroborative on material aspects and consistent, so far as involvement of the appellants in the murder of Jagbir is concerned. Both the witnesses stood firm to their stand and nothing fruitful to the case of defence could be elicited from their lengthy cross-examination, except certain contradictions, which, in our opinion, do not go to the root of the case.
Learned counsel for the appellants have also contended that the tenor and manner of deposition made by the eye-witnesses is improbable. Elaborating his arguments, he has pointed out that appellant Subhash was having disability to the extent of 70% since suffering from paralysis of right half of the body. In this regard, learned counsel for the appellants has referred to the statements of defence witnesses and has contended that it is highly improbable that a person suffering from paralysis of the right half of the body could commit the murder by using the spear that too by right hand, Criminal Appeal No. 270-DB of 2009 6 who otherwise is unable to walk without any support, as is evident from the statement of DW3 Jai Dev Superintendent, Central Jail, Hisar wherein he deposed that Subhash is using crutches in the jail for walking.
The perusal of testimony of DW1 Dr. Reena reveals that on 6.12.2006 during medical examination appellant Subhash was found permanently disabled to the extent of 50% in relation to his right side of body and weakness in the right upper and lower limb. On 5.3.2008 his disability was assessed as 70%. The occurrence is of 6.9.2007. In her cross- examination Dr. Reena admitted that the patient of 50% right side paralysis is able to walk independently without support, but cannot run. She further admitted that such patient can cause the injury by using both the hands. This shows that he was not paralytic but the said disability had occurred due to weakness in the rightly upper and lower limb only. PW6 Suresh also admits that Subhash used to ply the vehicles, including the motor cycle and his hands were quite fit to be used. The evidence of this witness is suggestive of the fact that Subhash was having only weakness of the right upper and lower limb. He is very categoric that the blows were given by Subhash by using his both hands and then went away from the place slowly. This aspect is also in consonance with the medical evidence, as referred to above, that he can cause injury by using both hands. When the statement of defence witness is read in juxtaposition with the testimony of PW6 Suresh and PW7 Tejbir, no doubt remains as to the participation of the accused Subhash in the commission of crime.
It is very obvious that when accused Subhash inflicted spear blow on the abdomen of Jagbir, the blood gushed out from his body and hence, his shirt sustained blood marks. The scientific evidence also points accusing finger on the accused. As per report of FSL the clothes belonging to the deceased as well as shirt so recovered from the accused pursuant to his disclosure statement, were found having blood stains of human origin with 'B' group. The recovery of spear and shirt has been duly proved by PW8 HC Krishan Kumar and PW9 Hanuman Singh, the investigating officer. No doubt no independent person was joined as a witness to attest the said recovery, but it is generally seen that in our rural societies, co- villagers are not interested to earn any ill-will by joining the investigations in such like cases, especially when the person accused of is of criminal Criminal Appeal No. 270-DB of 2009 7 background. As noticed above, the possibility of injuries on the person of deceased Jagbir being caused from the spear, so recovered from the possession of accused Subhash pursuant to his disclosure statement, has not been ruled out by PW1 Dr. Sumita, who conducted the post-mortem examination on the dead body. The ocular version of eye witnesses namely PW6 Sursh and PW7 Tejbir is corroborated by the medical evidence produced on record by the prosecution.
Learned counsel for the appellants has argued that no overt act has been attributed to appellant Jagat, except the alleged exhortation and hence, his participation in the alleged commission of crime is doubtful. No doubt only an exhortation has been attributed to appellant Jagat, but the perusal of testimonies of eye-witnesses it is evident that the quarrel had initially started between Jagat and Suresh, when the former started hurling abuses to the later. Suresh prevented him and walked towards his house and met his other brothers Tejbir and Jagbir in the way and narrated the incident. However, Jagat and Subhash followed him and on the provocation being made by appellant Jagat to finish off these Bagri Gotra people, to which the complainant side belongs, Subhash inflicted injuries to Jagbir. Hence, he is the root-cause of the occurrence and hence, he has rightly been convicted with the aid of Section 34 IPC.
It cannot be forgotten the legal position that the absence of evidence of motive does not weaken the prosecution case though existence of the motive may strengthen the same. In the instant case, it has been argued that no motive much less to commit a murder, has been proved on record and hence, it cannot be believed that the appellants could take such a drastic step to murder Jagbir. As noticed above, initially the quarrel had taken place between Suresh and Jagat. Jagat rushed towards his house and in the way he met his brothers Tejbir and Jagbir. It has come on record that Jagat and Subhash followed Suresh and it appears that when they found all of them standing in the street, Subhash, pursuant to an exhortation made by Jagat, opened the attack due to which Jagbir sustained injuries. Realizing the noise made by the complainant side, they went away from the spot. The variations in human nature being so vast, murders are known to have been actuated by lesser motive. Sometimes motive is clear and can be proved and sometimes the motive is shrouded in mystery and it is very Criminal Appeal No. 270-DB of 2009 8 difficult to locate the same. So long as other evidence remain convincing and not open to reasonable doubt, the conviction may well be based on this.
As a sequel to the above discussion, we find no merits in the instant appeal and the same is accordingly dismissed.
(SATISH KUMAR MITTAL) (ARVIND KUMAR)
JUDGE JUDGE
August 26,2011
Jiten