Punjab-Haryana High Court
Prem Singh & Ors vs State Of Haryana on 9 February, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
Criminal Appeal No. 535-DB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 535-DB of 2001
DATE OF DECISION: 9.2.2011
***
Prem Singh & Ors.
..APPELLANTS
VS.
State of Haryana
..RESPONDENT
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. R.S. Cheema, Senior Advocate with
Ms. Sumanjit Kaur, Advocate
for the appellants.
Mr. Satbir Singh Goripuria, DAG Haryana.
ARVIND KUMAR, J.
The appellants have questioned the legality and propriety of judgment of their conviction dated 28.8.2001, rendered by the learned Additional Sessions Judge, Sonepat by virtue of which they have been held guilty under Sections 148, 302 read with Section 149, 324 IPC and under Section 449 IPC and by dint of order dated 30.8.2001 they have been sentenced to undergo rigorous imprisonment for two years with fine of Rs.1000/- each under the first head. For committing an offence under Section 302, 149 IPC they have been awarded imprisonment for life and each of them have been directed to pay a fine of Rs.5000/-. Two years; rigorous imprisonment and a fine of Rs.1000/- each has been imposed under Section 324, 149 IPC while for committing an offence under Section 449 IPC rigorous imprisonment for five years with a fine of Rs.3000/- each has been awarded. In default of payment of fine under any of the head above, the defaulter is required to undergo further rigorous imprisonment for three months, two years, three months and one year respectively. The sentences are ordered to run concurrently.
Criminal Appeal No. 535-DB of 2001 2The case of the prosecution, in nutshell, is that PW6 Ranbir Singh complainant was having four other brothers namely Kaptan Singh, Balraj, Shamsher and Sumer Singh. Kaptan Singh was residing separately from the other four brothers. On the fateful day i.e. 27.5.1998 at about 11:00 a.m. there was a fight between the buffaloes of complainant and their neighbour Chand Ram, upon which there was exchange of hot words between his brother Shamsher and Sarjo wife of Chand Ram. After this Shamsher came to the house. In the noon at about 1:30 p.m. when the complainant Ranbir Singh, his brother Sumer Singh (PW7), Shamsher Singh, Kamlesh wife of Ranbir Singh and their daughter Manju (PW10), aged about 12 years, were present in their house, in the meantime, Prem Singh son of Amar Singh having lathi, Chand Ram son of Amar Singh armed with jaili, Randhir Singh son of Chand Ram with sword, Attar Singh son of Prem Singh having a sword, Rajinder Singh son of Sube Singh with Gandasa, Sunil Kumar son of Rajinder Singh having jaili, Mahendri @ Mahender Singh son of Prem Singh armed with jaili, Vinod Kumar son of Rajinder Singh carrying Gandasa, all residents of village pinana, after sharing common intention, entered into their house. Firstly, Rajinder Singh exhorted to teach them a lesson for abusing a lady. On this, Randhir Singh son of Chand Ram straightly gave a sword blow on the left chest of Shamsher Singh. After this Prem Singh and Rajinder Singh dragged Shamsher Singh forcefully into the street. The complainant, his wife and brother Sumer Singh when tried to save Shamsher Singh, then Attar Singh son of Prem Singh gave a sword blow to Shamsher on his waist region, Prem Singh son of Amar Singh gave a lathi blow on the right shoulder, as a result of which Shamsher Singh fell down in the street in front of the house of Jai Inder son of Dayanand. While lying, Rajinder Singh son of Sube Singh gave a gandasa blow on the right leg below the knee, Vinod Kumar gave a gandasa blow on left leg below the knee, Attar Singh son of prem Singh gave a sword blow on forehead and Sunil gave a jaili blow on the left shoulder of Shamsher. Then Mahindari @ Mahender gave a jaili blow on the right thigh of Sumer, Rajinder Singh gave a gandasa blow which hit on the back side of head of Sumer, Randhir gave a sword blow on the right hand, Attar Singh gave a sword blow on the left arm and Prem Singh gave a lathi blow over the waist of Sumer Singh and then Prem Singh also gave a Criminal Appeal No. 535-DB of 2001 3 lathi blow on right elbow of complainant Ranbir Singh. Thereafter, they raised noise and all the accused ran away from the spot with their respective weapons. Shamsher Singh succumbed to the injuries at the spot.
When Ranbir Singh was going to the police station to inform the police, in the way, he met ASI Jagdish Chander (PW8), who reduced the statement (Ex.PA) of Ranbir Singh at about 4.15 p.m. and sent the same to the police station through Const. Ramesh Chander (PW1), on the basis of which FIR (Ex.PA/1) was registered. ASI Jagdish Chander reached the spot and took over the investigation of the case. He sent the dead body of Shamsher for post-mortem examination; rough site plan of the place of occurrence was prepared and blood stained earth was also lifted.
On 28.5.1998 at about 9:00 a.m. Dr. Arun Garg (PW11) conducted the post-mortem on the dead body of Shamsher. He found the following injuries on the dead body:-
1. Incised wound 2.5 x 0.5 cms, muscle deep with clotted blood on it present on the right side of forehead.
2. Incised wound 1 x 0.2 cms on the left eye brow at its lateral end with clotted blood on it.
3. Incised wound 5 x 4 cms in the epigastric region directed slightly towards the left side with lot of blood in the wound. On dissection the stab wound was going directly into the right ventricle after piercing the skin, the subcutaneous tissues, abdominal muscles and pericardium cutting the right ventricle through and through. The pericardium cavity was full of blood.
4. Incised wound 3 x 2 cms on the left side of back 4 cms below and 3 cms medial to the inferior angle of scapula, muscle deep with clotted blood was present.
5. Incised wound 4 x 1 cms over the right shin which was bone deep and had clotted blood on it.Criminal Appeal No. 535-DB of 2001 4
6. Incised wound 4 x 1 cms on the left shin which was bone deep and had clotted blood on it.
7. A reddish abrasion on the back of left shoulder 4 x 4 cms in size with infiltration of blood in it.
8. Reddish abrasion on the right shoulder with bruised area around measuring 4 x 4 cms.
9. Multiple reddish abrasions and bruises on the back of right elbow joint with infiltration of blood in subcutaneous tissues."
In his opinion the cause of death was extensive haemorrhage and shock as a result of injury to heart. All the injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature.
This witness also medically examined Sumer (PW7) and found the following injuries on his person:-
1. Incised wound 3 x 1 cms on the dorsem of the right elbow which was bleeding. X-ray right elbow was advised.
2. An incised wound 2.5 cm x 1 cm on the occipital region which was bleeding and was muscle deep. X-ray skull was advised.
3. Incised wound 1.5 x 6 cms on the dorsem of the left forearm which was bleeding and tender.
4. Incised wound 2 x 1 cm, 2 cms below the anterior superior iliac spine which was bleeding and tender.
5. Incised wound 6 x .3 cm on the left scapular region which was bleeding and tender.Criminal Appeal No. 535-DB of 2001 5
6. Multiple line abrasions on the entire back with reddish bruises at places.
7. Two reddish abrasions 1 x 1 cms on the right knee.
It has come on record that this witness on 27.5.1998 had also examined Jagmender son of Prem Singh, Prem Singh son of Umar Singh, which we will discuss in later part of the judgment.
PW3 Dr. S.K. Gusain medically examined the complainant Ranbir and found a reddish bruise on lateral aspect of right forearm.
Later, PW12 Inspector Ravinder Kumar took over the investigation of the case. On 2.6.1998 he arrested the accused, who, during interrogation, suffered their respective disclosure statements and consequent thereto also got recovered their respective weapons with which they were armed, as mentioned in the FIR and the same were taken into possession vide separate recovery memos, which were attested by PW8. Balraj son of Devak, brother of the deceased, apart from other official witnesses. The scaled site plan (Ex.PD) of the place of occurrence was got prepared from Const. Inderpal (PW5). On completion of usual formalities of investigations, final report under Section 173 Cr.P.C. was prepared by SI Parkash Chand (PW4) and forwarded against accused for his trial.
After commitment of the case, the trial court framed the charges under Sections 148, 449 and 302 read with Section 149 IPC against all the accused while accused Randhir was charged individually under Section 302 IPC. Additionally, accused Rajinder, Vinod and Randhir were charge sheeted under Section 324 IPC while appellants namely Prem, Attar Singh, Mohinder, Sunil and Chand Ram were charged for the offence under Section 324 read with Section 149 IPC.
During trial, the prosecution produced twelve witnesses, the gist of whose evidence has been given hereinabove.
The accused-appellant when examined under Section 313 Cr.P.C. pleaded false implication in the case. According to accused Prem Singh and Mahender Singh on the day of occurrence Manju daughter of Criminal Appeal No. 535-DB of 2001 6 Ranbir Singh was teased by his son i.e. accused Jagmender @ Mahinder, due to that Shamsher and Sumer, armed with swords, caught him in front of house of Ranbir. When his son cried for help, then Prem Singh rushed towards them. In the meantime Jagmender @ Mahinder snatched sword from Shamsher and caused injuries to him in the self defence. Prem Singh also claimed that he inflicted injuries. They also took the plea that about one year prior, accused Rajinder Singh had given beating to Shamsher because the latter had teased Meena, the maternal sister of Rajinder and for this reason Rajinder etc. were named in the case whereas they were not present at the spot. The remaining accused in their statements denied their presence at the time of occurrence.
In defence, the accused got examined Meena(DW1), who was allegedly teased.
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.
The first argument of learned counsel appearing for the appellant is qua delay in sending the special report to the Magistrate, which reached at 9:20 p.m. of 27.5.1998, to say that the FIR is ante-timed and fatal to the case of the prosecution. The argument does not convince us. 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. The occurrence in this case took place on 27.5.1998 at about 1:30 p.m. The matter was reported to the police by the brother of the deceased namely Ranbir Singh(PW6) and it is apparent that his statement was reduced by 4:15 p.m., which was sent to the police station situated about 20 kms from the place of occurrence, consequently, FIR(Ex.PA/1) was registered by the Criminal Appeal No. 535-DB of 2001 7 police at about 5:00 p.m. In this backdrop of the sequence of the events it cannot be said that if there is any delay in delivery of special report, the same 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, as it is evident that PW8 ASI Jagdish Chander had reached the spot and started necessary formalities.
The prosecution case mainly rests on the testimonies of PW.6 Ranbir Singh, PW7 Sumer Singh and PW10 Kumari Manju, the other eye- witness. All of them in their testimonies have unequivocally stated that while they along with Kamlesh wife of Ranbir and Shamsher(deceased) were present in their house, then all the accused entered into their house; at that time accused Prem Singh was carrying a lathi, Chand Ram, Sunil and Mahindari @ Mahinder having jailis; Randhir and Attar Singh holding swords and accused Rajinder Singh and Vinod Kumar were armed with gandasas. All of them deposed in the manner, in which the occurrence took place and Shamsher Singh, Sumer Singh and Ranbir were assaulted by the accused persons. Learned Senior counsel has pointed out that there is variation and contradictions in the statements of the aforesaid witnesses viz. accused Prem has not been attributed any injury to Shamsher while according to others Prem had inflicted injury on the right shoulder. Likewise, Manju PW has stated that accused Sunil gave an injury to Shamsher on right shoulder while according to others it was on left shoulder. Further, he has pointed out that PW Sumer has stated that Chand Ram had given jaili blows lathwise on his both legs, while the other witnesses have not. He has further contended that all the alleged eye- witnesses are the close relatives of the deceased being brother and brother's daughter and no other co-villager has been examined. We have carefully gone through the testimonies of all the eye witnesses. The role to the accused, more or less, has specifically been attributed by these witnesses and some variance in their testimonies is not such that go to the root of the case and might be due to the fact that they were examined almost a year after the occurrence. This rather is indicative of the fact that they are genuine witnesses and not tutored. Moreover, a parrot like version is not expected from a witness. The FIR which has been lodged with utmost promptness, the names of all the accused persons have been mentioned, Criminal Appeal No. 535-DB of 2001 8 giving the complete sequence in which the said occurrence had taken place in the presence of eye-witnesses. No doubt, the prosecution has not examined Kamlesh, the other eye-witness, but in our considered opinion it is the quality of the evidence which has to weigh and not the quantity. Further, the ocular version wherein the accused have been identified by their individual overt acts and not by their mere presence, is fully corroborated with the medical evidence on record, as referred to above. At the same time it can also not be forgotten that the occurrence is not disputed in this case. Moreover, 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 because they would be interested in ensuring that the real culprit responsible for the murder be punished and not the innocent person. It is generally seen that in our traditional societies the co-villagers are hasten to give evidence against other co-villagers to avoid ill-will of them. The statements of eye witnesses are corroborative on material particulars. They were subjected to cross-examinations but they stood firm to their stand. Further, the statements of the eye-witnesses corroborate the medical evidence. There is recovery of Lathi(Ex.P2) from appellant Prem Singh, jaili each from Chand Ram, Sunil and Mahindri @ Mahender (Ex.P5, Ex.P8 and Ex.P4 respectively), swords (Ex.P6 and Ex.P3) from appellant Randhir and Attar Singh and gandasa each from Rajinder Singh and Vinod Kumar (Ex.P7 and Ex.P9 respectively). The recovery of aforesaid weapons used in the commission of offence are proved by PW9 Balraj as well as PW12 Ravinder Kumar Inspector. The medical expert Dr. Arun Garg, who conducted the post-mortem on the dead body of Shamsher has admitted that the injuries on the dead body of Shamsher could be possible with the weapons like sword, lathi and gandasi etc., shown to this witness at the time of trial, which were recovered from the accused. Thus, the prompt lodging of FIR giving complete sequence in which the occurrence had taken place and the role attributed to the individual accused, corroborated with the medical evidence on record, over-rules the possibility of false implication of the accused.
The next question arises for consideration is whether all the accused formed an unlawful assembly which had the common object of committing the murder of the deceased of Shamsher? The participation of Criminal Appeal No. 535-DB of 2001 9 the accused persons in the commission of offence cannot be doubted in any manner and the accused have been identified by their individual overt acts and not by their mere presence. Merely by saying that the accused formed unlawful assembly the common intention of which was to commit murder, Section 149 IPC cannot be invoked. It has to be inferred from the facts and circumstances of the case. The post mortem report of the deceased reveals that he had as many as nine injuries and injury No.3 on the heart, in the opinion, of the Doctor was the result of death. The said injury has been attributed to appellant Randhir while opening the attack. No overt act has been attributed to the remaining appellants. After when Shamsher was dragged into the street by Prem Singh and Rajinder Singh, then also he was assaulted by the appellants. None of these accused used any deadly weapon carried by them on any vital part of the body like the head and inflicted injuries on limbs only. Moreover, the appellants belong to different families. Had their intention was to murder Shamsher, they might have done so in the house itself where the attack was opened. Further PW6 showed his ignorance as to whether all the accused forced their entry into the room or only Randhir had entered and stabbed Shamsher in the chest with a sword. All these facts show that these appellants did not share a common intention to commit the murder of Shamsher. Thus, there is no applicability of Section 149 IPC in the present case and the appellants are liability to be punished individually for the overt acts attributed to each of them.
The appellant Prem Singh and Mahendari @ Mahinder have came up with the plea of self-defence. According to them following a tease by Mahendari @ Mahinder to Manju daughter of Ranbir, Shamsher (since deceased) and Sumer armed with swords intercepted Mahendari @ Mahinder and started giving injuries and when Prem Singh, his father came to the rescue, then Shamsher and Sumer also inflicted injuries to him, but in the meanwhile Mahendari @ Mahinder snatched the sword and assaulted Shamsher, leading to his death. According to them none of the other accused were present at the spot. They also claimed that DW1 Meena, relative of appellant Rajinder was teased by Shamsher about four years back, for which the latter was thrashed and following that animosity, he along with his sons Sunil and Vinod have been named. However, the same is not sustainable. DW1 Meena, who was allegedly teased, while entering Criminal Appeal No. 535-DB of 2001 10 into the witness box failed to even name the fellow who teased her. Even it is not shown that any complaint was lodged by any of the party with regard to said occurrence. Hence, it cannot be believed that the said altercation was within Prem Singh, Mahindari @ Mahinder and Shamsher (since deceased). Appellants Prem Singh and Chand Ram are the brothers while appellant Randhir Singh is the son of Chand Ram while appellants Attar Singh and Mahindari @ Mahinder are sons of Prem Singh. They have every reason to assault Shamsher since the latter had an altercation with his mother in the morning wherein there was exchange of hot words between them.
It has come on record that Jagmender @ Mahendari @ Mahinder was also medically examined on 27.5.1998 and two incised wounds with sharp weapon, each on right side of neck and dorsem of right hand fingers were found. Injury on right hand was found simple while injury on the neck was kept under observation, but there is nothing on record to show as to whether it was declared grievous or otherwise later by the doctor and hence the same is also taken as simple one. So, far as Prem Singh is concerned, he was also examined vide MLR Ex.DB but in his case also only a simple injury with sharp edged weapon was found. Merely because some of the accused had injuries on their his person do not confer a right of private defence. It cannot also be stated as a universal rule that whenever the injuries are on the body from the side of accused person, a presumption must necessarily be raised that the accused had caused injuries in exercise of the right of self defence. Similarly, mere non-explanation of the injuries on the person of the accused, by the prosecution, may not affect the prosecution case, in all cases.
So far as offence under Section 449 IPC is concerned, the same is also not proved beyond reasonable doubt against the appellants, except appellant Randhir Singh. There is no concrete evidence that all the accused trespassed into the house of complainant with intention to commit the murder of Shamsher. PW6 Ranbir Singh complainant himself stated that he cannot say if all the accused had forced their entry into the room or only Randhir had entered and stabbed Shamsher. He admitted that the incident in the room remained not more than a minute or two and during this process no overt act has been attributed to the remaining appellants. Further, PW8 Jagdish Chander, the investigating officer admitted that he did not notice Criminal Appeal No. 535-DB of 2001 11 any blood marks or the signs of dragging. Hence, the charge under Section 449 IPC is also not sustainable against the appellants, except Randhir Singh. It is alleged by the prosecution that a blow was given to Shamsher with sword by Randhir in the house and then Shamsher was dragged into the street by Rajender Singh and Prem Singh, where the other accused assaulted him. whereas PW6 Ranbir Singh claimed that blood had not fallen on the floor, walls, grain tank lying in the room, but also on the way where Shamsher was dragged. He further admitted that no blood stains were picked up from the room where the occurrence was allegedly started. However, he improved by saying that he did notice the blood stains on the wall, The fatal injury i.e. to heart of Shamsher has been attributed to appellant Randhir Singh and hence he is liable to be convicted under Section 302 IPC. Appellant Attar Singh gave sword blows on waist region and on forehead; Vinod gave a gandasa blow on right leg; Rajinder gave a gandasa blow on the right leg; Sunil gave a jaili blow on left shoulder; Mahender gave jaili blow on the person of Shamsher Singh. Besides, appellant Rajinder gave gandasa blow on the back of head of Sumer; Randhir gave a sword blow on right arm. The same were found to be simple in nature and hence, they are liable to be convicted under Section 324 IPC. Appellant Prem Singh gave simple injuries with lathi on waist/ back of Sumer and on the right elbow of complainant Ranbir Singh and hence, he is liable to be convicted under Section 323 IPC.
Coming to their sentence, it has been contended by learned counsel for the appellants that besides facing the agony of criminal proceedings for the last about 12 years, these appellants have remained in jail for years together during pre and post trial stage. Hence, a lenient view may be taken.
For the reasons recorded above and considering the antecedents of the appellants namely Chand Ram, Attar Singh, Rajinder Singh, Sunil, Mahindari @ Mahinder, Vinod Kumar and Prem Singh, their appeal is partly allowed and their conviction and sentence under Section 302 with the aid of Section 149 IPC, 148 and 449 IPC is set aside. However, they are held guilty under Section 324 IPC and so far as appellant Prem Singh is concerned, under Section 323 IPC. Considering the agony of protracted trial Criminal Appeal No. 535-DB of 2001 12 their sentence is reduced to the period already undergone by them. However, so far as appellant Randhir Singh is concerned, he has rightly been convicted for homicide. While maintaining his conviction and sentence, as imposed by the learned trial Court, his appeal stands dismissed.
(HEMANT GUPTA) (ARVIND KUMAR)
JUDGE JUDGE
February 09,2011
Jiten