Punjab-Haryana High Court
Jaibir And Another vs State Of Haryana on 13 January, 2010
Author: Jaswant Singh
Bench: Hemant Gupta, Jaswant Singh
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Criminal Appeal No.504-DB of 2001
Date of decision: January 13,2010.
Jaibir and another
.......Appellants
v
State of Haryana.
.........Respondent
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE JASWANT SINGH
Present:- Mr.Vinod Ghai,Advocate for the appellants.
Mr.S.S.Patter, Senior Deputy Advocate General,Haryana
for the respondent State.
Jaswant Singh,J.
This appeal has been filed by the convicts-appellants against the judgment and order dated 31.8.2001 and 3.9.2001 respectively passed by the Additional Sessions Judge, Bhiwani, convicting the appellants under Section 302 read with Section 34 IPC and sentencing them to undergo life imprisonment and to pay a fine of Rs.1000/- each for the commission of murder of Kartar Singh.
2. The facts, in brief are that on 9.12.1994 at 6.50 AM, Jogender Singh complainant (PW6) made statement Ex.PH before Sub Inspector Chander Bhan (PW 10) at Adampur Bus Stand. It was stated by Jogender Singh (PW6) that he was resident of Village Badal and employed in Army. According to Jogender Singh he alongwith his elder brother Randhir Singh, who was an agriculturist by profession Criminal Appeal No.504-DB of 2001 -2- were residing together. Both of them were married. They had one married sister too . On the previous day i.e. on 8.12.1994, at about 10.30/11 PM, he alongwith his father Kartar Singh(deceased) and one Jai Pal son of Phool Chand (PW7) were going to their house from their plot. Deceased Kartar Singh was ahead of Jogender Singh (PW6) and Jaipal (PW7). When they reached a plot parallel to the house of one Subh Ram, accused Jaibir, Satyavir, Shamsher and Mani Ram, all sons of Desh Ram and resident of Village Badal came there. Accused Jaibir and Shamsher were armed with kulharis while accused Satyavir and Mani Ram were empty handed. Accused Jaibir raised a lalkara to his brothers that it was proper time to teach a lesson to Kartar Singh for causing murder of Desh Ram, father of all the four accused. On this, accused Satyavir and Mani Ram caught hold of deceased Kartar Singh whereas accused Jaibir gave a kulhari blow on the neck of Kartar Singh, upon which latter fell down. Thereafter accused Jaibir and Shamsher gave several kulhari blows on the neck and gudhi (head) of deceased as a result of which he died on the spot. It was alleged by complainant Jogender Singh (PW6) that out of fear, he and Jaipal (PW7) slipped from the spot and hid themselves in the house of Jai Pal. According to complainant Jogender Singh accused had done all this to take revenge of murder of their father Desh Ram who was killed by Kartar Singh. In the end Jogender Singh requested for action to be taken in the matter. The said statement (Ex.PH) of complainant Jogender Singh (PW6) was read over to him and he signed the same. Criminal Appeal No.504-DB of 2001 -3-
3. After recording police proceedings (Ex.PH/1) SI Chander Bhan (PW 10) sent a ruqqa from Adam Pur Chowki to the police station Sadar Dadri for registration of a case, upon which formal FIR Ex.PH/2 was recorded. The special report was received by JMIC Dadri at 9 a.m. On 9.12.1994. Thereafter, SI Chander Bhan (PW10) alongwith complainant Jogender Singh (PW6) went to the spot. The place of occurrence was got photographed and inquest proceedings (Ex.PE/2) were completed by SI Chander Bhan (PW/10) in the presence of Sher Singh and Rajesh PWs. He also lifted blood stained earth from the spot and after converting it into a sealed parcel took the same into police possession vide recovery memo Ex.PR. He also despatched the dead body for post mortem examination and recorded statement of all the PWs including that of Jai Pal (PW7) under Section 161 Cr.P.C. Though he requisitioned the dog squad and Scene of Crime Van from Hissar but the same did not reach the spot till 11.30 a.m. Later on one DSP also reached the spot who verified the investigation. In the meantime SI Chander Bhan joined other persons of the village. He also prepared rough site plan Ex.DA with correct marginal notes. One parcel containing the clothes of the deceased produced before him by Constable Suresh Kumar No.968, PW was taken into possession vide memo Ex.PS/I and statement of said constable Suresh Kumar was recorded. On reaching Police Station SI Chander Bhan deposited all the sealed parcels with the MHC in intact condition.
Criminal Appeal No.504-DB of 2001 -4-
4. On 17.12.1994 on getting information from PWs Sukhbir and Pardeep that accused Jaibir was present at his house, SI Chander Bhan (PW 10) arrested and interrogated him, upon which accused Jaibir made disclosure statement Ex.PN that he had kept concealed one kulhari and a kurta and a pazama in the kotha of his residential house, adjacent to the gali and that he could get the same recovered. The said disclosure statement Ex.PN was signed by accused Jaibir and thereafter he led the police party to the said place of concealment from where kulhari Ex.P8 was got recovered. After making sketch of the kulhari (Ex.PN/2) the same was taken into possession alongwith kurta and pajama (Ex.P14 and P15 respectively) vide recovery memo (Ex.PN/1). Rough site plan (Ex.PN/3) of the place of recovery was also prepared and statements of all the PWs under Section 161 Cr.P.C. was recorded. On his return to police station SI Chander Bhan (PW10) deposited all the parcels in a sealed condition with MHC and accused Jaibir was lodged in police lock up. Accused Satbir and Mani Ram were arrested by SI Chander Bhan (PW10) on 22.12.1994 whereas accused Shamsher was arrested by him on 3.1.1995 on an information from PWs Chatru and Chand Ram. Upon his arrest and interrogation accused Shamsher made a disclosure statement (Ex.PK) that he had kept concealed one kulhari in a bukhari in the kotha of his residential house. Subsequently he led the police party to the place of concealment and got recovered one kulhari Ex.P7 which was sealed into a parcel and taken into possession vide recovery memo Ex.PJ after making a sketch Criminal Appeal No.504-DB of 2001 -5- of the same (Ex.PL). He also prepared rough site plan (Ex.PN/1) of the place of recovery. The sealed parcel was deposited with the MHC and accused Shamsher was lodged in the lock up of the police station. On 5.1.1995 SI Chander Bhan (PW10) moved an application Ex.PF to the doctor with regard to the weapons of offence and the injuries suffered by the deceased. The doctor gave his opinion Ex.PF/1. After completion of the investigation challan was submitted in the court. The learned Sessions Judge, Bhiwani charged all the four accused under Section 302 read with Section 34 IPC, to which charges the accused pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined ten witnesses. Thereafter, statements of accused under Section 313 Cr.P.C., were recorded, in which they denied prosecution allegations against them and stated that they were innocent and had been falsely involved in this case due to previous enmity. The prosecution witnesses had deposed against them being close relations of the deceased. Accused Jaibir and Shamsher stated that no recovery of any kind had taken place from them and they had been arrested from their house and illegally detained in the police station. The recoveries were planted by the Thanedar in connivance with the police party. It was further stated by them that on the day of the occurrence all of them were not present in village Badal but had gone to Village Gopi on connection with Bhaat ceremony. In their defence, they tendered documents Ex.DA and DB and closed their defence evidence on 27.8.2001. Criminal Appeal No.504-DB of 2001 -6-
6. The learned Additional Sessions Judge, after hearing both sides and evaluating the evidence, acquitted co-accused Satyavir and Mani Ram of the charges levelled against them by giving them benefit of doubt, however, accused-appellants Jaibir and Shamsher were held guilty for the commission of offence under Section 302 read with Section 34 IPC and accordingly convicted and sentenced them, as stated above.
7. Learned counsel for the accused-appellants has argued that the prosecution case which is based on ocular version of two eyewitnesses namely Jogender Singh complainant (PW6) and Jai Pal (PW7) is a result of complete fabrication. He contends that presence of both the eye witnesses at the time and place of occurrence is unbelievable in view of their unnatural conduct during and after the occurrence. Learned counsel submitted that it was a case of blind murder which has been falsely converted into a case of eye witness account as even after the alleged recording of FIR based on eye witness account "Dog Squad" and "Scene of Crime Van" had been summoned at the spot for investigation. He further contends that qua the recoveries of the alleged weapons of offence i.e. kulharis and the blood stained clothes of the accused Jaibir, even the closely related witness associated by the police namely Sukhbir (PW9) and likewise for the similar recovery qua accused Shamsher, Chatru Ram (PW8) have not supported the case of the prosecution and were declared hostile. Thus, he contended that the accused appellants deserve benefit Criminal Appeal No.504-DB of 2001 -7- of doubt.
8. On the other hand, learned counsel for the respondent State has submitted that the ocular version of the prosecution fully supported by the cogent, reliable and consistent evidence of the eye witnesses Jogender Singh (PW6) and Jai Pal (PW7) has rightly been accepted by the learned trial Court to record a finding of conviction and no case for interference is made out.
9. We have heard learned counsel for the parties and perused the evidence on record. After giving our thoughtful consideration, we are of the view that the contentions raised on behalf of appellants are worthy of acceptance.
10. It is not disputed that the prosecution has primarily based its case on the testimony of complainant Jogender Singh (PW6) corroborated by the testimony of Jai Pal (PW7). PW6 Jogender Singh son of deceased Kartar Singh has deposed that on 8.12.1994 at about 10.30 PM he alongwith PW 7 Jai Pal (son of his Tau) and his father Kartar Singh (since deceased) were coming from their plot to their house. His father was ten steps ahead of them, when all the four accused (brothers) namely Jaibir, Satyavir, Shamsher and Mani Ram came from the front side. Accused Jaibir and Satyavir were armed with kulharis and the other two accused were empty handed. Accused Jaibir gave a lalkara that Kartar Singh be taught a lesson for murder of his (Jaibir's) father. At this, accused Shamsher and Mani Ram caught hold of deceased Kartar Singh and accused Jaibir and Satyavir gave kulhari Criminal Appeal No.504-DB of 2001 -8- blows on the left side of the neck of Kartar Singh. They (PW6 Jogender Singh and PW7 Jai Pal) ran away after seeing the incident by another passage to the house of his uncle Phool Chand (Tau). His father Kartar Singh fell down on the ground and he was bleeding. He further deposed that in the morning at the day break he met the Thanedar at the Adampur Chowk and gave his statement Ex.PH/2 to the police. PW6 Jogender Singh in his cross examination has admitted that he is serving in the Army since 1991 and there are around 500-600 houses in Village Badal. He also admitted that there is a police post in Village Adampur Dadri which is at a distance of 8-9 kilometers on Mohindergarh-Narnaul road which is a busy road whereas police station Dadri Sadar is located at Mohindergarh-Dadri road and is about 20 kilometers from Village Badal which is also a busy road. He has also admitted that there are tokas, tractors, motorcycles, scooters, tempos, jeeps and cars in their village numbering 50 to 60. He has also admitted that the house of his uncle Phool Singh (father of his cousin Jai Pal PW7) is on the northern side of the place of occurrence, in the middle of the village and there are 2-3 streets which fall in between. He also admitted that there are 10 to 15 male members of their family, being the descendants of his grand father Ram Dyal and his brother Bhuru, who are residing in Village Badal. He has also stated that the house of Sarpanch and Ex-Sarpanch and his relations were at a distance of 150 to 250 yards in the gullies from the house of Jai Pal (PW7) where they had hidden themselves after the occurrence till the morning. Criminal Appeal No.504-DB of 2001 -9- He also admitted that neither he nor his cousin Jai Pal (PW7) made any effort to save their father nor raised any raula nor chased the accused when they ran away. The relevant extract of his cross examination is reproduced hereunder:-
" Neither myself nor Jaipal PW made any effort to save my father Kartar Singh deceased. We had also not raised any raula. We had also not called any neighbour to help us, at that time. We had not chased the accused, when they ran away from the spot after the occurrence. My father Kartar Singh deceased fell down at the spot, after sustaining injuries. The accused ran away from the spot, after my father had fallen on the ground. After the accused ran away from the spot, we had not come near my father Kartar Singh deceased, to see if he was still alive or dead. In fact, we also ran away from the spot. After running away from the spot, we took shelter in the house of Jaipal PW and we remained there for the whole night. During our stay at the house of Jaipal throughout the night, neither I nor Jaipal told about the occurrence to any Lumberdar, to any Panch or Sarpanch or any Chowkidar or any person in the village. I also did not tell about this occurrence, neither to my Tau or Criminal Appeal No.504-DB of 2001 -10- uncles or cousin brother or brothers or any person, in our family. Jaipal might have told anyone, I do not know. In fact, Jaipal PW had left the house at dead of night to inform villagers about the occurrence, while I stayed in the house of Jaipal, out of fear. I had left for the house at about 3 or 4 AM for going to the police station. By that time, Jaipal PW had not returned to his house."
Eye witness account of Jai Pal (PW7) is more or less on the same lines as that of complainant Jogender Singh (PW6). In the cross examination he admitted that he himself and Jogender Singh (PW6) had not physically intervened to save Kartar Singh and they went to their house after the occurrence out of fear. He further admitted that Kuldip, his nephew used to drive a toka of one Surta and he himself used to drive tractor of Rajbir son of Parbhu in those days. He further admitted that Kartar Singh deceased, his father Phool Chand, his cousin Randhir (brother of Jogender Singh and other son of deceased Kartar Singh) and their uncle Chatru (a descendant from other grand father) were convicted for the murder of Desh Ram, father of the accused persons and they were imprisoned for life. Further, in his cross examination it was stated by him that " first of all, I and Jogender came to my house. From there, in the early morning at 4 or 4.30 AM Jogender had gone to lodge the report with the police. However, I did not accompany him and I stayed at my house and did Criminal Appeal No.504-DB of 2001 -11- not go anywhere."
11. From examination of testimony of these two eye witnesses namely Jogender Singh PW6 and Jai Pal PW7, it emerges that their conduct is most unnatural and thus does not inspire confidence. It cannot be believed that a 21 year young son, a serving Armed personnel, alongwith his 25 year old cousin would do nothing to intervene during and after the occurrence and would rather meekly run away from the spot with their tails between their legs to comfortably hide themselves in their house. It has come in the evidence that out of four only two of the accused were armed with kulharis. Lalkara was raised by accused Jaibir only qua deceased Kartar Singh. It has also come in evidence that after inflicting injuries in a span of few minutes the accused ran away. It, therefore, cannot be countenanced as to what constituted the basis of fear after the accused had fled away from the spot, so as to totally immobilise both the eye witnesses from taking any action during the entire night before reporting the matter to the police in the morning. It was stated by complainant Jogender Singh PW6 that his father fell down and was bleeding and yet throughout the night neither they checked whether Kartar Singh was dead or was capable of being saved. They did not inform any of their family members of the tragedy. No doubt, it is well settled that different people react differently in identical situations, however, in our opinion, the conduct of Jogender Singh (PW6) and Jai Pal (PW7) son and nephew respectively of the deceased Kartar Singh, during and after the Criminal Appeal No.504-DB of 2001 -12- occurrence raises a serious doubt about the presence of these two alleged eye witnesses at the time of occurrence, thus rendering prosecution case doubtful.
12. Further, it was stated by Investigating Officer, SI Chander Bhan (PW10) that a "Dog Squad" had been summoned for investigation. This version has also been admitted by PW6 Jogender Singh. Therefore, inspite of eye witness account of complainant naming the accused appellants, available in the morning, the circumstance of summoning "Dog Squad" further goes to make the prosecution version highly doubtful.
13. The witnesses to the recoveries of weapons of offence (kulharis) and clothes of both the accused Jaibir and Shamsher were Chatru and his son Sukhbir, who are none else than relations of complainant party. In fact, Chatru alongwith deceased Kartar Singh and Phool Chand was convicted for the murder of Desh Ram, father of the accused persons. The factum of Chatru and his son Sukhbir not supporting the prosecution version further weakens the case of the prosecution. No doubt, motive could be attributed to the accused but at the same time it cannot be lost sight of that it is a double edged weapon and hence on the same premise the false implication of the accused cannot be ruled out.
14. In view of the aforesaid discussion, in our considered opinion, the story as put forth by Jogender Singh PW6 and Jai Pal PW7, is highly unreliable and doubtful as their eye witness account Criminal Appeal No.504-DB of 2001 -13- stood shattered, as held hereinabove, and cannot be made the basis of upholding the finding of conviction recorded by the trial Court against the appellants and, therefore impels us to give the benefit of doubt to the appellants as the prosecution has failed to prove the guilt of the convict-appellants beyond reasonable doubt.
15. For the reasons recorded above, the appeal filed by the appellants is allowed and they are acquitted of the charges framed against them.
(HEMANT GUPTA) (JASWANT SINGH)
JUDGE JUDGE
January 13,2010.
joshi