Punjab-Haryana High Court
Arjun Bahadur vs State Of Haryana on 1 February, 2012
Bench: Jasbir Singh, Sabina
CRIMINAL APPEAL NO. 864-DB OF 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: February 01, 2012
Parties Name
Arjun Bahadur
...APPELLANT.
VERSUS
State of Haryana
...RESPONDENT
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Ms. Aditi, Adv., and Ms. Anju Arora,
Advocate, for the appellant.
Mr. G.S.Chahal, Addl. A.G., Haryana;
Jasbir Singh, J.
JUDGMENT
In FIR No. 554 dated December 3, 2005, it was an allegation against the appellant and his co-accused Man Bahadur and Lal Bahadur that they, in the intervening night of 2nd and 3rd December, 2005, had committed lurking house trespass in house No. 156, Sector 6, Panchkula. In the process, they murdered Algu Ram, a watchman of the house.
During investigation, Lal Bahadur could not be arrested and was declared a proclaimed offender.
Investigation was concluded against the other two accused. After trial, vide judgment dated July 19, 2008,, accused - appellant Man CRIMINAL APPEAL NO. 864-DB OF 2008 -2- Bahadur was found not guilty and acquitted whereas qua Arjun Bahadur , appellant, it was stated that the prosecution has proved its case beyond a reasonable doubt and accordingly he was convicted for commission of offences under Sections 302, 458, 397, 342, 460, 506/34 IPC. Vide order dated July 21, 2008, the appellant accused, besides other lesser punishments, was sentenced to undergo R.I. for life each and to pay a fine of Rs. 5,000/- each under sections 302/460/34 IPC. Hence this appeal.
The process of law was set in motion on a statement Ex. PB/3 made by Sunder Lal Gupta (PW14) at 11.30 AM on December 3, 2005. His statement was recorded by S.I. Ramesh Chander (PW17). FIR Ex. PB/1 was recorded in Police Station Sector 5 Panchkula at 11.45 AM on December 3, 2005. The trial Judge has noticed the following facts regarding case of the prosecution:
"That accused Lal Bahadur (since declared proclaimed offender) and his brother-in-law (Sala) Arjun, in the night intervening 2.12.2005 and 3.12.2005, after sunset and before sunrise, in the area of Police Station Sector 5 Panchkula, having made preparation for causing hurt, criminally trespassed into the dwelling house of one Raj Kumar Khattar bearing No. 156, Sector 6, Panchkula, forcibly obtained the keys from one Sunder Lal Gupta i.e. the complainant, a domestic servant of the said house at the dagger point, wrongfully restrained the complainant at the dagger point, committed robbery in respect of the household articles lying in the said house and in the process murdered one Algu Ram, another domestic servant of CRIMINAL APPEAL NO. 864-DB OF 2008 -3- the said house by way of silting his throat with the dagger. It was further alleged that the accused Man Bahadur, on 10.12.2005 had dishonestly retained in his possession the Cycle Marka Anron knowing or having reasons to believe the same to be the stolen property.
Out of the accused aforesaid, the accused Lal Bahadur had joined the service with the owner of the house about 1- ½ months ago. In the previous evening, the accused Lal Bahadur after having taken his meals had gone to his brother i.e. the accused Man Bahadur who had been living in the same sector 6, Panchkula. Prior to the incident, the complainant Sunder Lal Gupta had been sleeping in the drawing room inside the house where the said Algu Ram had been sleeping in a verandah type porch of the said house. At the time of incident at about 1.30/
2.00 a.m., the complainant Sunder Lal Gupta heard some noise relating to talking of someone. When the complainant Sunder Lal Gupta came out, he saw that the accused Lal Bahadur Thapa and his brother-in-law Arjun were standing in the verandah type porch with daggers in their hands. The complainant knew the said Arjun who used to visit the accused Lal Bahadur Thapa. The said Algu Ram at that time was not on his cot. Both the aforesaid accused forcibly obtained the keys of the house from the complainant at dagger point. Out of the aforesaid accused, the accused Arjun wrongfully restrained the complainant at dagger point while the accused Lal Bahadur CRIMINAL APPEAL NO. 864-DB OF 2008 -4- Thapa went inside the house and started committing robbery after unlocking the room. After about an hour, the accused Lal Bahadur Thapa came out having two bags in his hands and thereafter both the accused ran away with the said bags. While decamping, the accused also threatened the complainant to kill if he narrated the incident to anybody. Thereafter, the complainant went inside the house and found that the blood sneared corpse of said Algu Ram was lying on the floor of his room. The complainant got bewildered but since the owner of the house namely Raj Kumar Khattar had gone out of station, so, he reported the matter to his relative namely Palka Monga resident of Kothi No. 48, Sector 6, Panchkula."
After recording statement of Sunder Lal (PW14), the Investigating Officer - SI Ramesh Chander (PW17) prepared a rough site plan Ex. PT of the place of occurrence with correct marginal notes. He also prepared inquest report Ex. PH on the dead body and sent it for post-mortem examination, which was conducted by Dr. Usha Kumari (PW7) on December 3, 2005, at 4.45 PM. In the meantime, Investigating Officer took into his possession a steel knife from the back side room, which was found lying on a table, it was taken into possession against a recovery memo. Blood was lifted from the room with cotton swabs and it was put in a plastic container against a recovery memo. One more knife which was lying in front of the house was also recovered and taken in possession against recovery memo Ex. PL.
Accused Man Bahadur was arrested on December 3, 2005, CRIMINAL APPEAL NO. 864-DB OF 2008 -5- from House No. 288, Sector 6, Panchkula. Appellant - accused Arjun was arrested on December 6, 2005. The appellant suffered a disclosure statement Ex. PQ. In pursuance thereto, he got recovered one imported liquor bottle, which was taken into possession against recovery memo Ex. PR/1. Accused Man Bahadur after making a disclosure statement got recovered one cycle from house No. 288, Sector 6, Panchkula.
On completion of investigation, final report was put in Court for trial. The case was sent to the court of competent jurisdiction for adjudication. Copies of the documents were supplied to the accused as per provisions of Section 207 Cr.P.C. They were charge-sheeted for commission of offences under Sections 302, 458, 397, 342, 412, 460, 506/34 IPC on October 15, 2007. They pleaded not guilty and claimed trial. The prosecution produced 17 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, pleaded innocence and false implication. Accused Man Bahadur also led evidence in defence to say that on December 3, 2005, at 8.15 AM, he was picked up from house No. 288, Sector 6, Panchkula, after intimating his employer (owner of that house). It was denied that a cycle was got recovered at his instance. Appellant - accused Arjun Bahadur took up a stand that in fact he was not arrested from ManiMajra, rather he was arrested from Pandit Ji Dhaba, Subhash Nagar, New Delhi. Kapil Khanna, Advocate, appeared as DW1 authenticating the version projected by Man Bahadur accused.
CRIMINAL APPEAL NO. 864-DB OF 2008 -6-
On analysis of evidence on record, the trial Judge acquitted Man Bahadur of the charges framed against him, whereas the appellant - accused was convicted and sentenced vide judgment and order dated July 19, 2008, and July 21, 2008, respectively, as found mentioned in earlier part of this order.
Counsel for the appellant has vehemently contended that the trial Judge has committed an error in convicting and awarding sentence to the appellant - accused. Delay in lodging the FIR has not been explained. Occurrence is alleged to have taken place in the intervening night of 2nd and 3rd December, 2005. However, statement of Sunder Lal Gupta (PW4) was recorded at 11.30 AM on December 3, 2005. The above witness has failed to disclose reason for huge delay in making the statement. It is further stated that the prosecution has failed to show any motive on the part of the appellant to commit the crime. Despite Finger Print Expert being called to the place of occurrence, finger prints were not traced from the articles, which were available at the scene of crime. By stating that the alleged recoveries of the articles etc. are false, a prayer was made that the appeal be allowed and the appellant - accused be acquitted of the charges framed against him.
Prayer made has vehemently been opposed by the State counsel, who by making reference to the statement of PW14 Sunder Lal Gupta, an eye witness, argued that this witness has given clear picture of the circumstances in which offence was committed. The witness was under
threat. It was night, may be on account of fear, the witness failed to come out of the house and report the matter to the neighbours or anybody else. At CRIMINAL APPEAL NO. 864-DB OF 2008 -7- the very first instance, in the morning, PW14 came out of the house and went to Palika Monga (PW11) and told her about the above occurrence. PW11 on telephone intimated the owner of the house Shri Raj Kumar Khattar, who was away to Delhi. PW8 reached Panchkula at about 1.30 PM on December 3, 2005. On search of his house, it was discovered that cash amount of Rs. 15,000/-, one cycle, one bottle of Vodka liquor and a few coins of foreign currency were missing. He supplied a list Ex. PF regarding above missing articles to the Investigating Officer.
This Court feels that the above explanation given for delay, which has occurred in between the time of occurrence and when the matter was reported to the police, inspires confidence. Conduct of Sunder Lal Gupta (PW14) is of an ordinary individual. On account of threat, it appears, he failed to come out of the house during night. In the morning, he escaped from the house and reported the matter to Palika Monga (PW11). Thereafter, process of investigation was started by the Investigating Officer
- SI Ramesh Chander (PW17).
So far as argument of counsel for the appellant that there was no motive with the appellant to commit the crime, the State counsel has argued that house breaking, to take away the valuable articles, was the motive, which was achieved when cash amount of Rs. 15,000/- and other articles were stolen from the house after breaking open lock of the bed room. PW14 Sunder Lal Gupta has also stated very clearly that keys of the house were taken by the accused under threat from him and then the appellant - accused went inside the house and after about one hour, he came out with two bags. Sequence of events narrated by PW14, an eye witness, CRIMINAL APPEAL NO. 864-DB OF 2008 -8- establishes beyond doubt that the appellant entered the house with a view to take away the valuable articles.
A vivid eye witness account of the mode of crime has been given by PW14, an old servant of the house. House owner Raj Kumar Khattar (PW8) was not available and had gone to Delhi with his family. Lal Bahadur (proclaimed offender) was also a servant in the house. Appellant - accused Arjun Bahadur is related to above Lal Bahadur. Both joined hands in taking benefit of the absence of the owner to commit the crime. PW14 had stated that both were armed with knives and under threat they had taken away keys of the house from him. After committing the crime, when the accused went away, this witness saw dead body of Algu Ram with silted throat. Despite lengthy cross-examination, the defence has failed to shatter testimony of the witness.
The mode and manner of investigation has been brought on record by SI Ramesh Chander (PW17), who on receipt of intimation on December 3, 2005, went to the place of occurrence, prepared inquest proceedings on the dead body and sent it for post-mortem examination. He also took into his possession two knives, blood, which was removed with the help of swabs, etc. Post-mortem on the dead body was conducted by Dr. Usha Kumari (PW7) on December 3, 2005, at 4.45 PM. This witness gave the following opinion regarding injury to the deceased:
"Deep incised wound present on anterior of neck measuring 13 cm x 4 cm x upto cervical vertebrae. The edges of wound were sharp. Ecchymosis was present in the under lying tissue. All the CRIMINAL APPEAL NO. 864-DB OF 2008 -9- large vessels (carotid, jugular) were cut Thyroid cartilage seen. Incision was at the level of thyroid cartilage. Epiglottis was seen. Base of the wound - spin (cervical) felt, muscles of sub mental region and sub mandibular region were seen as torn. Sternociedomastold muscle of right side was cut."
Cause of death was declared as haemorrhage and shock and asphyxia because of above injury , which was sufficient to cause death in ordinary course. Injuries were found ante mortem in nature. This witness has categorically stated that injuries to the deceased could be caused by knives Ex. P3 and Ex. P4.
Process of recovery from the spot has been authenticated by Shyam Lal son of the deceased (PW9) . Appellant - accused was arrested on December 6, 2005. On interrogation, he made a disclosure statement Ex. PQ. In pursuance to the above statement, appellant - accused on December 9, 2005, got recovered one empty liquor bottle, which was taken in possession against recovery memo Ex. PR/1. A cycle was recovered on a disclosure statement made by Man Bahadur, co-accused. The recovery of liquor bottle and Rs. 1000/- from the appellant - accused was witnessed by H.C. Kapil Kumar (PW12). The Investigating Officer and other witnesses stood test of cross-examination during trial. As per report of the Forensic Science Laboratory, human blood was detected on both the knives which were recovered from the place of occurrence.
In view of above facts and evidence on record, no case is made CRIMINAL APPEAL NO. 864-DB OF 2008 -10- out to interfere at the instance of the appellant. Appeal stands dismissed.
( Jasbir Singh ) Judge ( Sabina) Judge February 01, 2012 DKC