Punjab-Haryana High Court
Om Prakash Alias Parkash And Ors. vs State Of Haryana on 26 April, 1994
Equivalent citations: 1994CRILJ3351
JUDGMENT A.S. Nehra, J.
1. This appeal is directed against the judgment dated 28-8-1993 passed by the Additional Sessions Judge, Panipat, by which the appellants were convicted and sentenced as under:-
Each of the appellants namely, Under Section To under imprisonment for life Om Prakash, Ramesh, and Satbir. 302/34, I.P.C and to pay a fine of Rs. 500/-
and, in default of payment of fine, to undergo further rigorous imprisonment for six months.
Each of the appellants, namely
Satbir and Ramesh Under Section To undergo rigorous imprisonment
25/27 Arms Act for two years.
Om Prakash appellant Under Section To undergo rigorous imprisonment
27 Arms Act for two years.
2. All the substantive sentences of imprisonment of each of the appellants were directed to run concurrently. However, Smt. Mamo and Suresh, co-accused of the appellants, were given the benefit of doubt and acquitted of the charges by the Additional Sessions Judge, Panipat.
3. Briefly stated, the prosecution story is asunder:-
Dhulla (since deceased) was the resident of village Nara. He had three sons, namely, Om Prakash accused, Dharam Pal (since deceased) and PW 17 Inder, Satbir, Ramesh and Suresh, accused, are the sons of Om Prakash accused while Smt. Mamo is the wife of Orn Prakash accused. Dhulla was owner of 16-17 Millas of land situated in village Nara. About 5-6 years prior to the present occurrence, he had transferred one Killa of land to each of his three sons. About 8-9. months prior to the occurrence, Dhulla had transferred three Killas of land each to Inder and Dharam Pal by Court decree dated 20-5-1989 (copy Exhibit PE) passed in Civil Suit No. 324 of 1989 titled as Inder v. Dhulla but he did not give any land to his elder son Om Prakash accused. On account of it, the relations between Om Prakash accused and his father Dhulla became strained. Om Parkash filed a civil suit on 19-10-1989 for declaration and for setting aside the judgment and decree dated 20-5-1989, as is clear from the copy of the plaint (Exhibit PJ). Inder and Dharam Pal, sons of Dhulla, and Dhulla son of Masania, were the defendants in that case. Om Parkash alias Parkash son of Dhulla had also filed application, whose photo copy is Exhibit PQ dated 16-10-1989, against his father Dhulla in the Court of Assistant Collector 2nd Grade, Panipat, for correction of Khasra Girdawari for the period Kharif 1983 till the filing of the application, of land measuing 19 kanals 13 marlas situate in village Nara. Dhulla son of Masania had also filed a suit against his son Om Prakash accused and three sons of Om Prakash accused for permanent injunction for restraining them from interfering with his possession over the land, as is clear from the copy of order dated 15-6-1990 (Exhibit PH). That suit was instituted on 5-6-1990. Dharam Pal (since deceased), father of Jasmer Singh PW 16 had obeen living with his family in the fields about 8-10 years prior to the occurrence, at a distance of 2-3 Killas from the place of first occurrence. However, Dhulla lived with his son Inder. Maha Singh PW 18 is the son of Beer Singh who was brother of Dhulla. On the day of occurrence, Dhulla was sitting in the ghair (courtyard) of Raghbir, brother of PW 18 Maha Singh. Raghbir Singh had also got constructed a baithak in that ghair, On 29-8-1990 at about 11.00/11.30 a.m., Dharam Pal was returning to his house, situated in the fields, on cycle from the bus stand of village Matlauda. Earlier at 9.00 a.m. he had left his house on cycle for going to Matlauda Mandi. PW 16 Jasmer Singh and PW 18 Maha Singh were returning from the field of Dharam Pal. When Dharam Pal reached near the chari field of Om Prakash accused, then Mamo accused told the other accused in a louder voice that Dharam Pal was coming. Upon it, Om Prakash, Suresh, Ramesh and Satbir, accused, emerged from chari field and caught hold of the handle of cycle of Dharam Pal. At that time, Satbir accused was armed with double barrel gun, Om Prakash accused was having a bag containing cartridges; Ramesh accused was armed with gandasa while Suresh accused was armed with a jaili. However, Smt. Mamo accused was empty-handed. Om Parkash accused told Dharam Pal that he would be taught a lesson for helping Dhulla, Thereupon, Ramesh accused exhorted his brother Satbir accused to fire upon Dharam Pal. Consequently, Satbir accused fired three shots at Dharam Pal. One shot hit Dharam Pal on his right flank and the other two shots hit him on the back. Upon receipt of firearm injuries, Dharam Pal fell down and died at the spot. Out of fear, PW 16 Jasmer Singh (son of Dharam Pal) and PW 18 Maha Singh (son of Beer Singh) concealed themselves in the chari field and witnessed the occurrence from a distance of 5'-6'. Upon coming to know that Dharam Pal had died, his son Jasmer Singh PW 16 went to his house to inform the other members of the family and returned to the spot after 10-15 minutes. Dhulla along with his son Inder P W 17 was sitting on a cot in the ghair of the house of his brother's son Raghbir. The said ghair of Raghbir is at a distance of 7-8 Killas from the place of first occurrence. Maha Singh PW 18 came running in the ghair and told Inder Singh by taking him to one side that Dharam Pal had been murdered as Satbir accused had shot him dead and that, with him, there were four other accused, namely, Om Prakash, Suresh, Ramesh and Smt. Mamo. In the meantime, all the accused reached there. Ramesh accused was armed with a double barrel gun; Satbir accused was armed with gandasa; Suresh accused was armed with jaili; and Om Prakash accused was having a bag containing cartridges and Smt. Mamo accused was empty-handed. Smt. Mamo accused exhorted Ramesh accused to file at Dhulla. Upon it, Ramesh accused fired two shots aiming at Dhulla, which hit him, first, above the right thigh near the abdomen and, second, on the left wrist. At that time, Dhulla was sitting on a cot. On receipt of gun-shot, he fell down on the ground. Out of fear, PW 17 Inder and PW 18 Maha Singh ran away from the ghair after jumping over the wall. PW 19 Raj Singh Sub-Inspector was present at the bus stand of Matlauda on 29-8-1990 at about 12.30 p.m. PW 18 Maha Singh met him there and made statement Exhibit PG/1 which was read over to him after writing and he had thumb-marked it after admitting the same to be correct. PW 19 Raj Singh Sub-Inspector made endorsement Exhibit PG/ 2 upon it and, on the basis of that statement, formal FIR Exhibit PG was recorded by Sub-Inspector Himat Singh whose signatures he identified.
4. Thereafter, PW 19 Raj Singh Sub-Inspector along with PW 18 Maha Singh and PW 3 Mehar Singh Photographer reached the spot in village Nara where the dead body of Dharam Pal was lying. PW 3 Mehar Singh took photographs (Exhibits PC/1 to 9) of both the places of occurrence, whose negatives are Exhibit PC/10 to 18. Ajmer Singh PW was also with the police party at that time. PW 19 Raj Singh Sub-Inspector inspected the spot and prepared inquest report Exhibit PD/2 regarding the dead body of Dharam Pal. Sube Singh son of Ram Dia also came there and he was joined in the investigation of the case. PW 19 Raj Singh took bloodstained earth from the spot, which was made into a sealed parcel and the seal, after use, was handed over to Sube Singh and the sealed parcel was taken into possession, vide recovery memo Exhibit PV. Two cartridges (one empty and the other missed), Exhibits P-15 and P-16, were taken into possession from the spot by making into a sealed parcel, vide recovery memo Exhibit PU. One empty bag Exhibit P-13 (Katta) and one bushirt Exhibit P-14 were made into a sealed parcel which were taken into possession, along with the cycle Exhibit P-12 and Pulli, vide memo Exhibit PT attested by the witnesses. PW 19 prepared rough site-plan Ex. PAA. Meanwhile, PW 21 Hardeep Singh, Assistant Sub-Inspector, along with other- police officials joined him and he (PW 21) was deputed to prepare inquest report of Dhulla deceased at the baithak of Raghbir Singh. Mehar Singh Photographer and Maha Singh complainant were also sent with him. The dead body of Dharam Pal was lifted, put in a tractor-trolley and taken to the spot where the second murder had taken place. PW 19 Raj Singh Sub-Inspector correctly recorded the statements of Jasmer Singh and Sube Singh, witnesses. PW 21 Hardeep Singh, Assistant Sub-Inspector, along with Maha Singh and P W 3 Mehar Singh Photographer went to the spot and found Inder Singh PW sitting near the dead body of Dhulla. He inspected the spot and the place of occurrence Was photographed. At 4.00/5.00 p.m., he prepared inquest report Exhibit PR/6 with respect to the dead body of Dhulla. PW 12 Raj Singh Sub-Inspector along with other police officials, also reached there. PW 21 Hardeep Singh, Assistant Sub-Inspector, handed over the inquest report and other papers regarding the dead body of Dhulla to him. PW 19 Raj Singh Sub-Inspector lifted bloodstained earth from the second place of occurrence and made it into a sealed parcel Exhibit P-20 which was taken into possession, vide memo Exhibit PBB attested by the witnesses. The seal, after use, was handed over to Sube Singh Five cartridges, i.e., two empty cartridges (Exhibits P-21 and P-22), one missed cartridge and the other two live cartridges, were lifted from the spot and were taken into possession after making them into a sealed parcel, vide memo Exhibit PCC. The ropes (Exhibit P-23) of the cot, which were bloodstained, were cut from the cot, made into a sealed parcel and taken into possession, vide memo Exhibit PDD, along with the cot (Exhibit P-24). Sube Singh and Ram Sarup. witnesses, attested all the memos. PW 19 recorded their statements under Section 161 of the Code of Criminal Procedure. He prepared roughsite plan (Exhibit PEE) of the place where the dead body of Dhulla was lying. A pair of shoes, which were lying near the dead body, were sent along with the dead body. The dead body of Dhulla was also put in the same tractor-trolly in which the dead body of Dharam Pal was lying, and both the dead bodies were sent to Civil Hospital, Panipat, for post-mortem examination.
5. PW 4 Dr. Mahes Parkash, on 30-8-1990 at about 10.00 a.m., conducted autopsy oon the dead body of Dharam Pal son of Dhulla, which was identified by Maha Singh and Jasmer Singh, and found the following injuries on it:-
1. Lacerated wound 8 cms x 4 cms in size, on the forehead, 1 1/2" above the right eyebrow. The piece of the skin with hair was missing. Irregular in shape, bone deep and margins were black. There were three circular holes (lacerated wounds) near the left margin. One pellet was removed. Clotted blood was present. The size of the hole was 2 to 3 millimeters and circular in shape.
2. Lacerated wound 7 cms x 8 cms in size, on the right arm medially, 7 cms above the right elbow. Irregular in shape, margins inverted and black anteriorly. The wound started from the anterior part and becoming deep posteriorly. Muscles were badly lacerated. Pellets were present in the wound. Clotted blood was present.
3. There was a lacerated wound 6 cms x 3 cms in size, on the anterior surface in the middle of the right fore-arm. Irregular in shape, more deep medially and margins inverted laterally. Clotted blood was present. On flexion, injuries Nos. 2 and 3 were at the same level.
4. There was lacerated wound on the right side of the chest, 6 cms below and 4.5 cms lateral to the right nipple, oval in shape (anterior-posteriorly). Margins were inverted, blackish anteriorly, superficial anteriorly, becoming deep posteriorly and going backward posteriorly and medially. (On probing).
5. On probing, the wound was going backward and medially and communicating with a lacerated wound (injury No. 5.3 cms and 3 cms. in size, on the back (right) 12 cms posterior to injury No. 4. Margins were everted. No tattooing or blackish colouration was present around the wound. There was a thin tag of skin, present in the middle of the wound, upward and downward. There were multiple pellets present around the wound sub-cutaneously, which were removed after Cutting the skin. (This injury is marked as injury No. 5 for further reference).
On exploration : There were fractures of 7th, 8th 9th and 10th ribs below injury No. 4. Parts of 8th and 9th ribs were missing and present in the lungs. There was blood in the pleural cavity. The lower part of the right lung was badly lacerated and pellets were present in the lungs. On injury No. 5, the corresponding two ribs were fractured, clotted blood was present and multiple pellets around the inner part of the chest around the wound were present.
Injuries Nos. 4 and 2 were at the same level after adduction of arm.
6. There was a lacerated wound on the back, 13 cms below the base of the neck, 3 cms lateral on left side, situated between the medial border of a scapula and spinal cord, oval in shape, margins black around, going upward and medially. Margins were inverted.
On exploration : There were fractures of the first, second, 3rd, 4th and 5th ribs posteriorly. Clotted blood was present in the pleural cavity. The upper part of the left lung was badly lacerated and multiple pellets were present with a plastic wad present in the lungs and piece of broken ribs were embedded. The body of the first, 2nd, 3rd and 4th thoracic vertabrae were fractured in multiple pieces with transaction of the spinnal cord. Multiple pellets were present at the fractured spinal vertebra site.
There was blood present in the trachea.
6. According to the doctor, the cause of death was shock and haemorrhage resulting from injuries to the vital organs, i.e., lung and spinal cord. He further opined that all the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. He further opined that duration between injuries and death was within few minutes and between death and post-mortem examination was between 4 and 48 hours. He proved Exhibit PD carbon copy of the post-mortem report and Exhibit PD/1 diagram showing the seats of injuries. He further opined that the possibility of these injuries having been caused by fire-arm could not be ruled out.
7. PW-15 Dr. Ved Parkash Gupta on 30-8-1990 at 9.05 a.m. conducted autopsy on the dead body of Dhulla son of Masania, resident of village Nara and found the following injuries on it:-
1. There was a lacerated wound, 12 cms x 7 cms, over the antro-lateral and posterio-lateral part of left lower fore-arm, wrist, base of thumb and palm. Margins were contused. There was greyish shining of the wound-margin over the palm. Deeper tissues were badly lacerated. There was fracture of carpal bones. Bones involved were scaphoid, lunate, trapozoid and trapezium. Base of the first meta-carpal was missing. Clotted blood was present. Two pellets were removed from the wound and preserved. There were signing of hairs and blackening of wound margins.
2. Through a wound over the right lower abdomen, small intestine and omentum were coming out. These structures were pushed inside the abdominal cavity and the wound was examined. It was 8.5 cms x 6 cms in size, oval in shape, slightly oblique, transversely placed, and margins contused, inverted and lacerated. There was scorching and tattooing. Clotted blood was present. It was placed 5.5 cms on the right lateral side and 2 cms up from the right pubic tubercle. The pellets struck to the posterior illiac crest of the right side causing comminuted fracture of bone and were spread. The pellets were spread in the right side of the abdominal cavity, involving small intestine, caecum, mesentry, external illiac vessels, anterior part of the lower pole of right kidney, posterior part of inferior surface of lever. They were embedded in para para vertebral gutter. Clotted blood was present. Faecal matter was present. There was extensive hemoperitoneum present. Four pellets were removed and were preserved. A circular disc (card-wad) like structure was found embedded in the small intestine, which was removed and preserved.
3. There were multiple (25 in number) punctured lacerated wounds with contused and inverted margins, varying from 2 to 3 milli-metres in diameter over the upper l/3rd of the right thigh. They were spread over entero-lateral anterior and antero-medial part of upper l/3rd of thigh. Clotted blood was present. They were embedded in the subcutaneous tissues. Two pellets were removed and preserved.
4. An oblique abrasion 2.5 cms x 0.3, over the right upper abdomen. The lower end of the wound was 15 cms below the right nipple and then it went upward, inward and towards the left side. Clotted blood was present.
5. An oblique abrasion 2 cms x 0.2 cm, over the right side of abdomen, parallel to injury Nos. 4 and 5 cms below it (injury No. 4). Clotted blood was present.
6. An oblique abrasion 2 cms x 0.3 cm over the right side of abdomen, parallel to injury No. 5 and it was 8 cms below it (injury No. 5), Clotted blood was present.
7. An oblique abrasion 2.5 cms x 0.3 cm over the left side of abdomen, parallel to injury No. 5. It was 3.5 cms above and 1 cm on the left side of umbilicus. Clotted blood was present.
8. An abrasion 2.5 cms x 2 cms. over the anterior abdominal wall. Clotted blood was present. It was 7 cms below the xiphisternum.
9. There were multiple (6 in number) punctured lacerated wounds 2 to 3 millimeters in diameter with inverted margins. Spread over the anterior abdominal wall, extending from the umbilicus to the lower costal margins. Margins were contused. Clotted blood was present. They were embedded in the anterior abdominal wall.
10. There were five lacerated punctured wounds varying in size from 2 to 3 millimetres in diameter over the volar aspect of right elbow and right upper fore-arm. They were spread over an area of 14 cms x 8 cms. The margins were inverted and contused. Clotted blood was present. They were embedded in the muscles.
11. Six lacerated punctured wounds over the posterior aspect of right fore-arm in the middle l/3rd with contused and inverted margins. They were muscle deep and clotted blood was present.
12. A lacerated wound, circular, 2 millimetres in diameter, over the left side of chest with inverted and contused margins, 3 cms medial to the left nipple and then it went downwards, inwards and towards the right side through the 5th inter-costal space and embedded in the posterior aspect of anterior-chest wall and clotted blood was present.
13. A circular lacerated wound 2 millimetres in diameter, over the mid-axillary line at the 10th inter-costal space. Margins were contused and inverted. Clotted blood was present. It was downwards inwards towards the right side, piercing the skin, subcutaneous tissues, pleural cavity, left lung diaphragm and embedded in the spleen through convex postero-lateral surface. Left hemothorax was present. There was extensive hemo-peritoneum was present. Pellet was removed and preserved.
8. The doctor opined that the cause of death was the shock and haemorrhage resulting from the injuries to the visceral organs and that the injuries were ante-mortem in nature. He further stated that the duration between injuries and death was within few minutes and between death and post-mortem examination was between 12 hours and 36 hours. He proved Exhibit PR/1 to 4 carbon copy of post-mortem report and Exhibit PR/5 diagram showing the seats of injuries.
9. PW-7 Assistant Sub-Inspector Himat Singh handed over special report to PW-11 Mohinder Singh Constable at about 2.50 p.m. for its onwards transmission to the Ilaqa Magistrate as well as to the office of the Superintendent of Police. Consequently, PW-11 Mohinder Singh Constable went to Panipat, via Safidon and reached there at 5.30 p.m. and delivered the copy of the FIR at the residence of Magistrate at 7.45 p.m.
10. PW 20 Shish Ram Sub-Inspector Station House Officer, Police Station, Urlana, reached the spot at 5-10 p.m. on 29-8-1990. Raj Singh Sub Inspector and other police officials met him there and Raj Singh Sub Inspector briefed him about the facts of the case and then he visited both the places of occunence. Pirthi Singh, Deputy Superintendent of Police, also reached there. He instructed Raj Singh Sub Inspector to deposit the case property with the Moharri Malkhana and he himself went in search of the accused. On 30-8-1990, Ram Kumar Constable produced before him four sealed parcels which were taken into possession, vide memo Exhibit PFF and he recorded the statement of Ram Kumar Constable. He had also produced post-mortem reports along with sealed packets and the same were deposited with the Moharrir Malkhana. On 4-9-1990, he recorded the statements of Nahar Singh Moharrir Head Constable and Dhoop Singh Constable.
11. On 5-9-1990 PW 20 Shish Ram Inspector, along with Hardeep Singh Assistant Sub Inspector, Ranjit Singh Head Constable and two constables, was present at the bus stand of Patheri. He received secret information that all the five accused were present at the bus stand of Chhichhrana, and could be apprehended. Accordingly, he reached the bus stand of Chhichhrana, and secured all the five accused. Om Prakash accused was carrying double barrel gun in his right hand along with 17 cartridges, Exhibits P26 to P42 of .12 bore, in a plastic bag Exhibit P25 and the licence of the gun, . Exhibit PF, in the name of Om Prakash was also in the bag. The double barrel gun Exhibit P 43 was made into sealed parcel and was taken into possession along with cartridges and bag, vide memo Exhibit PGG attested by Hardeep Singh Assistant Sub Inspector. Rough site plan (Exhibit PHH) of the place of recovery was also prepared and, on return to the police station, he confined the accused to lock up. On 6-9-1990, PW 20 Shish Ram Sub Inspector took out Satbir, Ramesh and Suresh, accused, out of the lockup and interrogated them. On interrogation, Suresh accused made disclosure statement that he had kept concealed one jaili and could get the same recovered. His disclosure statement Exhibit PJJ was recorded, which was signed by him and attested by Hardeep Singh Assistant Sub Inspector and Ranjit Singh Head Constable. Thereafter, Ramesh accused was interrogated and, on interrogation, he made disclosure statement that he had kept concealed gandasa which he could get re covered. His disclosure statement Exhibit PKK was signed by him which was attested by Hardeep Singh Assistant Sub Inspector and Ranjit Singh Head Constable. Thereafter Satbir Singh accused was interrogated and he made disclosure statement regarding two empty cartridges, which was reduced into writing and that statement Exhibit PLL was signed by Satbir accused and attested by Hardeep Singh Assistant Sub Inspector and Ranjit Singh Head Constable. On 8-9-1990 at about 8.30 a.m. PW 21 Hardeep Singh Assistant Sub Inspector took all the three accused out side the police station. On the way, Sat Narain and Inder, witnesses were joined. First of all, Ramesh accused got recovered gandasa Exhibit P17 from the bushes in the area of village Daryapur from near the poll of railway line and the same was made into a sealed parcel which was taken into possession, vide memo Exhibit PX attested by the witnesses. Rough site plan (Exhibit PX/ 1) of the place of recovery of gandasa was prepared. Thereafter, Suresh accused led the police party and got recovered jaili Exhibit P 18 from the Arhar fields in the area of village Ahar. It was made into a sealed parcel and was taken into possesison, vide memo Exhibit PY attested by Sat Narain and Inder PWs. Rough site plan (Exhibit PY/1) of the place of recovery of jaili was prepared. However, no recovery was effected in pursuance of the disclosure statement made by Satbir accused. PW 1 Hawa Singh, Halqa Patwari, prepared site plan Exhibit PA with the help of akshajra on 8-10-1990 of the first place of occurrence. PW 2 Balak Ram prepared scaled site plan Exhibit PB on 29-9-1990 of the second place of occurrence.
12. In order to prove the allegations against the accused the prosecution examined PW 1 Hawa Singh, PW 2 Balak Ram Draftsman, PW 3 Mehar Singh. PW 4 Dr. Mahesh Parkash PW 5 Roshan Lal, PW 6 Lal Chand, PW 7 Himat Singh Assistant Sub Inspector, PW 8 Ishwar Chand, PW 9 Constable Ram Kumar, PW 10 Constable Dhoop Ram, PW 11 Constable Mohinder Singh PW 12 Head Constable Nahar Singh, PW 13 Subhash Chander, PW 14 Sub Inspector Partap Singh, PW 15 Dr. Ved Parkash Gupta, PW 16 Jasmer Singh, PW 17. Inder, PW 18 Maha Singh, PW 19 Raj Singh Sub Inspector, PW-20 Sub Inspector Shish Ram and PW-21 Assistant Sub Inspector Hardeep Singh.
13. After the close of the prosecution evidence on 6-5-1993, statements of the accused under Section 313 of the Code of Criminal Procedure were recorded, wherein they denied the allegations of the prosecution and pleaded false implication.
14. The place of first occurrence with respect to the murder of Dharam Pal son of Dhulla is Assandh Road near the chari field (Jawar crop) of Om Prakash accused. The first occurrence took place on 29-8-1990 at about 11.00/11.30 a.m. The place of second occurrence with respect to the murder of Dhulla son of Massania is situated in the ghair (court yard) and Raghbir who is the brother of PW 18 Maha Singh and is the son of the brother of Dhulla deceased. The second occurrence took place at about 11.30 a.m. to 12.00 noon. There is a difference of half an hour between the two occurrences. The distance between the places of the two occurrences is about 6-7 killas. The ocular account with respect to the first occurrence consists of PW 16 Jasmer Singh son of Dharam Pal deceased and PW 18 Maha Singh while that of second occurrence consists of P W 17 Inder Singh and PW 18 Maha Singh.
15. Dhulla deceased was the owner of about 16-17 killas of land situated in village Nara. He had three sons, namely, Om Prakash, Dharam Pal and Inder. About 5-6 years ago, he had transferred one killa of land each to his three sons. Relations between Om Parkash accused and Dhulla deceased were strained. About 8-9 months prior to occurrence Dhulla had transferred three Killas of land to his two sons, namely, Inder and Dharam Pal, vide Court judgment dated 20-5-1989, copy of which is Exhibit PE. Dhulla had made a statement on 20-5-1989 admitting the claim of his sons Dharam Pal and Inder, copy of which is Exhibit PE/1. Dhulla had not. transferred any land to Om Parkash accused and, as such, Om Parkash accused had felt annoyed. Aggrieved by the said judgment, Om Parkash had filed a suit on 19-10-1989 for declaration and for setting aside the judgment dated 20-5-1989 against his two brothers, namely, Inder and Dharam Pal, along with his father Dhulla and the said case was still pending. Attested copy of application Exhibit PQ also shows that Om Prakash accused had filed an application against his father Dhulla for correction of Khasra Girdawari in respect of land measuring 19 Kanals 13 Marias situated in village Nara, Tehsil Panipat. copy of the order Exhibit PH dated 15-6-1990 further shows that Dhulla had filed a suit on 5-6-1990 for permanent injunction against his son Om Parkash accused and three sons of Om Parkash accused for restraining them from interfering with his possession over the land. Therefore, all these documents clearly point out that the relations between Om Parkash accused and Dhulla deceased and his other sons were strained on account of the transfer of land by Dhulla in favour of his two sons, namely, Dharam Pal and Inder, by ignoring his eldest son Om Parkash accused. It is true that the whole family including Om Parkash accused had filed a suit about the johar land against Gram Panchayat and the same was pending. However, PW 16 Jasmer Singh had categorically stated that the said suit was filed many years ago when the relations between Dhulla and Om Parkash* were good. He further stated that Om Parkash accused used to give them threats but physically no quarrel had taken place.
16. The learned counsel for the appellants had contended that according to the prosecution version, the murder of Dharam Pal took place at about 11.00 a.m./ 11.30 a.m., while the murder of Dhulla took place at about 11.30 a.m./ 12.00 noon and these timings have been contradicted by PW 4 Dr. Mahesh Parkash who conducted autopsy on the dead body of Dharam Pal and by PW 15 Dr. Ved Parkash Gupta who conducted autopsy on the dead body of Dhulla. The leaf tied counsel for the appellants has further contended that, in fact, these are blind murders Which had taken place during the intervening night 6f 28/29-8-1990 and hot in the day time of 29-8-1990 as alleged by the prosecution and, as such, the timings of the murders have been changed to concoct a false story in order to implicate the accused. In our opinion, the contention of the learned counsel for the appellants is not tenable. PW 4 Dr. Mahesh Parkash conducted autopsy on the dead body of Dharam Pal on 30-8-1990 at (about 10 a.m. He stated that the duration between death and post mortem examination was between 4 and 48 hours. This shows that the death of Dharam Pal could have also occurred on 29-8-1990 at about 11.00 a.m./ 11.30 a.m. The doctor did not state that the death had occurred 48 hours prior to the post mortem examination. PW 15 Dr. Ved Parkash Gupta, who conducted autopsy on the dead body of Dhulla on 30-8-1990 at about 9.05 a.m., has stated that probable duration between death and post mortem examination was 12 to 36 hours. He has not stated that the death occurred 36 hours prior to the post mortem examination. According to his evidence, the death of Dhulla could have also occurred on 29-8-1990 at about 11.00 a.m./ 12 noon and, as such, the medical evidence is not contrary to the ocular account regarding the deaths of Dharam Pal and Dhulla. PW 16 Jasmer Singh stated that on 29-8-1990 he along with Maha Singh PW was returning from his field to the village and when they reached near jawar (chari) field of Om Parkash, then he saw his father coming from the bus stand side on cycle that Smt. Mamo accused was standing near the jawar field; that his father reached near the jawar field, then Smt. Mamo accused told other accused in a loud vice that Dharam was coming; that upon it, Om Parkash, Suresh, Ramesh and Satbir, accused, emerged from the jawar field and caught hold of the handle of the cycle of his father that Satbir accused was armed with a double barrel gun, Om Parkash was having a bag containing cartridges; Ramesh accused was armed with a gandasa, Suresh accused was armed with a jaili, and Smt. Mamo was empty handed; that Om Parkash told Dharam Pal that he would be taught a lesson for helping his grandfather; that thereupon Ramesh Accused exhorted Satbir accused to fire upon Dharam Pal and, accordingly, Satbir accused fired three shots at Dharam Pal; that the first shot hit on the right flank of Dharam Pal and, on receiving first shot, his father (Dharam Pal) had walked a little distance by bending and then two shots hit Dharam Pal on his back and Dharam Pal fell down and died at the spot; that he (PW 16), concealed himself in the jawar field and thereafter the accused ran towards the village; and that, after murdering his father, Satbir Accused handed over the double barrel gun to Ramesh accused and Ramesh accused handed over gandasa to Satbir accused. PW 17 Inder, who is an eye witness of the second occurrence, stated that, on the day of occurrence, he along with his father Dhulla was sitting in the bara of Raghbir on a cot; that Raghbir was the son of his uncle; that Maha Singh came there and told them that Dharam Pal had been murdered, as Satbir accused had given him gun shot injuries; that Maha Singh had told him that there were four other accused, namely, Ramesh, Suresh, Om .Parkash and Smt. Mamo; that Maha Singh took him to one side from the cot; that the accused came there; that Ramesh accused was armed with double barrel gun; that Satbir accused was armed with a gandasa; that Suresh accused was armed with a jaili; that Om Parkash accused was having a bag containing cartridges, that Mamo was empty handed; that Mamo accused exhorted Ramesh accused to fire shots on Dhulla; that, thereupon Ramesh accused fired two gun shots aiming at Dhulla, which hit him first above the right thigh near the abdomen and the second on the wrist; that, upon receiving these two shots, his father Dhulla fell down and died; that he and Maha Singh ran away towards the north and that, after half an hour of the occurrence, he returned. PW 18 Maha Singh stated that Dhulla was his uncle; that about 29 months ago at about 11.0.0 am./ 12 noon he was returning from his field; that Jasmer Singh PW was also coming from the side of his field; that he was going on the Assandh Road; that Dharam Pal had come on cycle from the side of the bus adda; that all the accused, present in the Court, had come there and they quarrelled; that he was away at. a distance of 4-5 killas from them; that Om Parkash accused was carrying a leather bag, that one accused was having a jaili and the other accused was having a gandasa; that the accused had emerged from the chari field; that, on seeing them quarrelling; he stopped there and then; that three shots were fired but he did not know who had fired those shots; that those shots hit Dharam Pal and Dharam Pal died at the spot, that, after the occurrence, the accused ran away; that he went towards the court-yard of Raghbir, where Inder PW and Dhulla deceased were present and sitting on a cot; that he informed Inder PW that Dhram Pal had been murdered that he made Inder PW to get up from the cot and took Inder PW to one side at a distance of 4-5 paces; that on enquiry from Inder PW, he told them that he did not know who had shot him (Dharam Pal) dead. Thereafter, he saw Smt. Mamo coming in the street. On seeing her, he got perplexed and jumped over the boundary wall and ran away. PW 18 Maha Singh was declared hostile. In the cross-examination, PW 18 stated that he made statement Exhibit PG/1 to the police at the bus stand of Matlauda. PW 18 admitted that, in his statement, he described as to how both the occurrences had taken place but he stated that about the first occurrence he had made the statement to the police at the instance of Jasmer and about the second occurrence he had made the statement at the instance of Inder Singh PW who had told him about the second occurrence. PW 18 admitted that he had told the police that all the five accused reached there; that Ramesh accused fired two shots at Dhulla; that he and Inder PW jumped over the wall in order to save their lives and that the accused, after committing the murder of Dhulla, ran towards the field along with their respective weapons but stated that, he had stated so at the instance of Inder PW. It has-been held in Raja Ram v. State of U.P., 1978 Cri LJ 196 : (1978 All LJ 51), that the statement of hostile witness could be accepted to the limited extent at least to fix the place of occurrence as well as to prove the presence of PWs. In Bhagwan Singh v. State of Haryana, , it has been held that the evidence of a hostile witness remains admissible in the trial and there is no legal bar to base conviction upon his testimony, if corroborated by other reliable evidence. PW 18 Maha Singh deposed about the presence of Jasmer Singh PW 16 at the time of the first occurrence and about the presence of Inder PW 17 at the time of the second incident. He has further stated that the first occurrence took place at Assandh Road near Jawar field of Om Parkash and the second occurrence took place in Ghair (Court-yard) of Raghbir. Certainly, his evidence to this extent can be relied upon.
17. The learned counsel for the appellants has contended that PW 16 Jasmer Singh is the son of Dharam Pal deceased while PW 17 Inder is the son of Dhulla deceased and, as such, they were interested to depose in favour of the prosecution; that they were mere chance witnesses and have no occasion to be present at the spot; that if they had been present at the spot, then they must have tried to intervene physically and that the very fact that they kept mum shows that they were not present at the spot and the occurrence had not taken place in their presence.
18. After hearing the learned counsel for the parties we find no force in the contention of the learned counsel for the appellants because no standard reaction can be expected from the eye witnesses. The presence of PWs 16 and 17 cannot be doubted simply because they did not intervene physically. Otherwise also, there was no time to intervene physically because, in the first occurrence, the accused emerged all of a sudden from chari field and they caught hold of the handle of the cycle of Dharam Pal and then Ramesh accused exhorted Satbir accused to fire shots from double barrel gun and Satbir accused fired three shots which hit Dharam Pal and Dharam Pal died at the spot. Jasmer Singh PW 16 got frightened and he hid himself in the jawar field from where he witnessed the occurrence. Similarly no time was given to PW 17 Inder to think over the matter and to intervene. After entering the court yard of Raghbir, Ramesh accused fired shots hitting Dhulla who fell down from the cot and Inder PW became frightened and he along with Maha Singh jumped over the northen wall of the court yard of Raghbir and went in the court yard of Tara and hid themsleves behind the wall. PWs 16 and 17, who are also closely related to the deceased, have no reason to falsely implicate the accused and let the real culprits go scot free. Naturally, they are-interested in seeking that the real culprits of their close relations be brought to book. Therefore, there is no force in the contention raised by the learned counsel for the appellants and the same is rejected.
19. The learned counsel for the appellants next contended that the second occurrence about the murder of Dhulla took place in the ghair (court-yard) of Raghbir situate in the middle of the village but no independent witness had been produced, nor the owner of the ghair was produced and that, as such, the prosecution story was doubtful. We find no force in this contention. The second occurrence did not take place in the house but it took place in the ghair of Raghbir, where no person resided and that ghair (court yard) is used only for tethering cattle. Thus the owner of the ghair was not present there and, as such, there was no use to produce him. There is also no evidence that any person had come at the spot before the occurrence or at the time of the occurrence.
20. So, we hold that the presence of PW 16 Jasmer Singh and PW 17 Inder at the respective places of occurrence is most natural; that there is nothing to disbelieve their sworn testimony and that their evidence is reliable.
21. The medical evidence of PW 4 Dr. Mahesh Parkash, who conducted autopsy on the dead body of Dharam Pal, has corroborated the version of PW 16 Jasmer Singh. According to the doctor also, three shots had been fired; the deceased had suffered six injuries and injuries Nos. 2 to 5 could be caused by one shot. Therefore, according to the doctor, the first injury was caused by one shot and injuries Nos. 2 to 5 were caused by another shot and injury No. 6, was caused by third shot. He had further stated that most probably, injury No. 1 was caused by standing in front of Dharam Pal. He further stated that injury No. 6 could not be caused while standing that it could be caused in a sitting posture or while the deceased was lying on the ground and that injuries Nos. 2 to 5 could be caused on the right hand side while the deceased was holding his right hand inflexed elbow and adducted at the shoulder. Therefore, according to him, injury No. 1 was caused from the front side, injuries Nos. 2 to 5 were caused while standing from the right side of Dharam Pal deceased who was in a sitting or lying posture and injury No. 6 was caused from the back side. However, PW 16 Jasmwer Singh stated that Satbir accused had fired three shots at his father, out of which one had hit on his right flank and the other two shots hit him on the back; that, in fact, on receiving the first shot, his father had walked a little by bending and then the two shots were fired on his back and that, thereafter, he fell down on the ground. In view of this statement, apparently, there is a contradiction because, according to the doctor, only one shot was fired from the back while, according to PW 16 Jasmwer Singh, two shots were fired from the back. Jasmwer Singh had witnessed the occurrence at a distance of 30 to 32 feet by concealing himself in the jawar field and, in such a situation, there could be human error as to whether one shot was fired at the back or two shots were fired at the back. Moreover, one shot was fired by standing on the right side of the deceased while he was in a bending position and PW Jasmwer Singh might have mistaken this shot to have been fired from the back. So, in such circumstances, there is no contradiction in his evidence when compared with medical evidence.
22. As far as the second occurrence is concerned, PW 17 Inder had stated that Ramesh accused had fired two shots aiming at his father, which hit him above his right thigh near the abdomen and the left wrist. PW 15 Dr. Ved Parkash Gupta had found 13 injuries on the person of Dhulla deceased, out of which injuries Nos. 1 and 2 were the main injuries while he had stated that there were 4-5 abrasions on the abdomen which could be caused in case pellets passed by touching abdomen but he was unable to describe the number of shots fired at Dhulla. So, injuries Nos. 1 and 2 are the main injuries while the other injuries are injuries caused by spread of pellets due to two shots fired upon Dhulla. He had further opined that the death of Dhulla was the cumulative effect of all the injuries caused to him and those injuries were sufficient in the ordinary course of nature to cause death.
23. Mr. R.S. Ghai, Senior Advocate, learned counsel for the appellants, has further contended that Om Prakash appellant was empty handed and, according to the prosecution case, he was holding a leather bag containing cartridges. The prosecution has not led any evidence to the effect that Om Prakash appellant exhorted his son Satbir to fire a shot at Dharam Pal. There is also no evidence to the effect that Om Parkash appellant supplied any cartridge to Satbir for the purpose of firing a shot at Dharam Pal. According to the prosecution, Ramesh appellant had exhorted Satbir in a loud voice saying that as to what Satbir was looking for and that he should fire a shot at Dharam Pal and kill him. Satbir accused fired three shots at Dharam Pal. Ramesh and Satbir appellants, exchanged their respective weapons and, according to the prosecution case, all the appellants reached the court yard of Raghbir, where Dhulla and his son Inder were sitting on a cot. Ramesh appellant fired two shots at Dhulla with his gun immediately after reaching the court yard of Raghbir. Om Parkash appellant also did not exhort Ramesh appellant to fire shots at Dhulla in the court yard of Raghbir. It is a matter of common knowledge that, in this part of the country, people falsely implicate all the adult members of the family of the accused. Om Parkash appellant is also the head of the family and he did not participate in the occurrence. Therefore, as a matter of abundant caution, Om Parkash appellant is given the benefit of doubt, the appeal qua him is allowed his convictions and sentences are set aside and he is acquitted of the charges.
24. In view of the above discussion, the appeal qua Satbir and Ramesh, appellants, is dismissed.
25. The appeal is partly allowed, as indicated above.