Punjab-Haryana High Court
Rajesh And Others vs State Of Haryana on 14 February, 2000
Equivalent citations: 2000CRILJ2883
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT Mehtab S. Gill, J.
1. This appeal arises out of judgment/order dated May 16, 1997 passed by the Additional Sessions Judge, Jind whereby the accused-appellants have been convicted under Sections 452, 302/34 and 201, I.P.C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each under Section 452, I.P.C.; imprisonment for life and also to pay a fine of Rs. 2,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for two years each under Section 302/34, I.P.C. and rigorous imprisonment for one year and to pay a fine of Rs. 500/- each and in default of payment of fine, to undergo further rigorous imprisonment for three months each under Section 201, I.P.C. However, all the sentences have been ordered to run concurrently. It has also been ordered that out of fine, if realized, a sum of Rs. 10,000/- shall be given to Poonam and Bhupinder P.Ws. i.e. Rs. 5,000/- each as compensation on account of death of their mother. It has also been ordered that the period of custody of the accused-appellants shall be set off under the provisions of Section 428, Cr.P.C.
2. A brief reference to the factual matrix from which this appeal has arisen is necessary for its disposal.
3. Prem Singh made statement Exhibit, PE before ASI Chander Bhan which is to the effect that he is a resident of village Khatla and a reporter of "Sorab Magzine". He has three sisters. Eldest of them, Krishna is married to Sunehra son of Ram Dia resident village Anchra Kalan, 18/19 years prior to his making statement. Sunehra was married with one Bhateri resident Butana and out of this wedlock, two daughters namely Rajpati and Murti were born. Rajpati was married with Daya Nand resident of village Rithal and out of this wedlock, a son named Rajesh was born. After that, Rajpati died. Thereafter Daya Nand, remarried Murti, younger sister of Rajpati. Daya Nand also died. Rajesh and Murti are living with Bhateri in village Anchra Kalan. His sister Krishna gave birth to a son named Bhupinder Singh and a daughter named Poonam, Sunehra also died about 10 years prior to his making statement. His sister Krishna, and her children namely Bhateri, Rajesh and Murti started living separately and their cultivation was also separate. A dispute arose between Krishna and Rajesh regarding the partition of agricultural land and an application to that effect was moved before Tehsildar, Safidon.
4. On March 20, 1994 one Rajinder came to the house of his sister Krishna. After taking meals, Krishna, Bhupinder, Poonam and Rajinder went to sleep in the house after bolting the house from inside. At about 11/11.30 p.m. at night, Rajesh, armed with a Phawara. Sumera, armed with a Lathi Murti and Suman armed with a Thappa each entered into the house of Krishna after jumping over the wall and started causing injuries to Rajinder and Krishna. Rajesh gave a Phawara blow on the head of Krishna. Sumera gave injuries to Krishna with his Lathi. Suman and Murti gave injuries to Krishna with their respective Thappas. Rajesh also gave a Phawara blow on the head of Rajinder and Sumera gave a Lathi blow on the nose of Rajinder. On receipt of injuries, Rajinder ran away from the place of occurrence and his sister succumbed to the injuries at the spot. Rajesh, Sumera, Suman and Murti put the dead body of his sister Krishna in the heap of dung cakes and set it on fire. The whole occurrence was witnessed by Bhupinder son and Poonam daughter of the deceased. Bhupinder, P.W. 4 then went to the complainant at village Khatla and narrated the whole occurrence to him and Bhim Singh Lamberdar.
5. ASI Chander Bhan sent the statement to the police station on the basis of which case F.I.R. No. 52 dated March 21, 1994 was registered at Police Station Safidon against the accused-appellants.
ASI Chander Bhan along with police party and complainant went to the spot and inspected the same. He lifted blood earth from the spot, made it into a sealed parcel and took it into possession vide recovery memo Exhibit PEE. He also prepared rough site plan Exhibit P-1 of the place of occurrence with correct marginal notes. He also lifted burnt bones and ashes of the deceased, sealed them in a parcel and took the same into possession vide recovery memo Exhibit PF.
6. On March 23, 1994, S.I. Hira Lal, P.W. 10 arrested accused Rajesh, Sumera and Murti on being produced by Zila Singh Sarpanch. On March 24, 1994, Suman accused was produced by Zila Singh, Sarpanch before ASI Chander Bhan. She was accordingly arrested.
7. On March 24, 1994 ASI Chander Bhan interrogated Rajesh, Sumera, Murti and Suman Devi accused who made their disclosure statements and got recovered the weapons of offence.
8. P.W. 1 Rajinder Kumar Khandpur medico-legally examined Rajinder alias Inder Singh on March 26, 1994 at 3.00 p.m. and found the following injuries on his person :-
1. There was a stitched wound, 2 cm. length obliquely placed on the middle of nose. The surrounded area was slightly swollen. X-ray advised.
2. There was a stitched wound 6-1/2 cm. in length C shape present over the occipit area. The area was slightly swollen.
3. There was a scabed abrasion of 3-1/2 cm x 1-1/2 cm. size irregular shape present on the right shoulder area anteriorily in the middle. The area was slightly painful. Movements of shoulder were almost normal.
9. Injury No. 1 was kept under observation for X-ray and injuries Nos. 2 and 3 were declared as simple. The probable duration of the injuries was given about 5 to 7 days.
10. P.W. 12 Dr. P. K. Paliwal examined the bones on March 30, 1994 at 3.00 p.m. and opined that the bones were of human in origin. However, he could not ascertain the age and sex from the available bones.
11. The accused-appellants in their statements recorded under Section 313, Cr.P.C. denied the incriminating material appearing against them in the prosecution evidence and took up the following stand :-
"We are innocent. We have been booked at the instance of PW Prem Singh. Actually, PWs Poonam and Bhupinder have been falsely cited as witnesses by summoning them from village Khatla from the house of their maternal uncle PW Prem Singh."
12. After the conclusion of trial, the accused-appellants were convicted and sentenced as noticed earlier.
13. We have heard Mr. Baldev Singh, Senior Advocate with Mr. Amandeep Singh Advocate for the appellants and Mr. Amol Rattan Singh, A.A.G. Haryana and carefully examined the record.
14. The occurrence, in this case, has taken place on the night intervening 20/21-3-1994 at 11.30 p.m. in village Anchra Kalan in the house of the deceased. The statement of P.W. 8 Prem Singh, brother of the deceased, was recorded by ASI Chander Bhan, P.W. 11 at bus stand Bagru Khurd at 4.00 p.m. on March 21, 1994 and the formal First Information Report came into being at Police Station Safidon at 4.45 p.m. The special report reached the Illaqa Magistrate on March 21, 1994 at 6.30 p.m. at Safidon itself. Thus, there is unexplained delay of 18 hours between the special report reaching the Illaqa Magistrate and the time of occurrence.
15. It has come in the evidence of P.W. 8 Prem Singh, propounder of the F.I.R. that his village Khatla is at a distance of 25 Kilometres from village Anchra Kalan and that police station Safidan is only 11 Kilometres from his village and falls on the way between his village and village Anchra Kalan. Prem Singh P.W. 8 reached village Anchra Kalan from his village Khatla after having learnt about the occurrence. Instead of going to the police station from his village particularly when he had already been told about the occurrence by Bhupinder, son of his deceased sister, he went to village Anchra Kalan which is at a distance of 25 Kilometres from his village. Why did he not lodge the F.I.R. before going to village Anchra Kalan ? There is no explanation. It has also come in the evidence of Prem Singh P.W. 8 that when Bhupinder reached his village Khatla, he did not move from his village for two hours and then when he came to village Anchra Kalan he again did not go to the police station and waited for two hours in Anchra Kalan. The concocted story of Prem Singh first going to village Anchra Kalan and then proceeding from there to report the matter to the police, is only a clumsy way in which the prosecution has tried to cover up the delay of 18 hours.
16. The counsel for the appellants has assailed the prosecution case qua motive. He has argued that motive is a double edged weapon. In this case, there was a dispute going on between Krishna deceased and Rajesh son of Daya Nand accused over partition of agricultural land. An application was moved before the Tehsildar, Safidon for the partition of agricultural land. Apart from the bald statement in the F.I.R. and the statements of P.W. 4 and P.W. 5, Bhupinder and Poonam respectively, there is nothing on the Court file to show that a dispute did exist between the parties. The proceedings pending before the Tehsildar, which are a matter of record, could have been summoned before the Court so as to enable the Court to draw an inference as to which party was at fault but no endeavour was made by the prosecution in this behalf. Since litigation was going on between the parties, it can also be taken that the accused could also be falsely implicated by the complainant party on account of animosity.
17. Still further, the statements of P.W. 4 Bhupinder and P.W. 5 Poonam who are son and daughter of the deceased do not inspire confidence. In the first instance, when P.W. 4 Bhupinder and P.W. 5 Poonam appeared in the Court on October 7, 1995 they supported the version put forth by P.W. 8 Prem Singh, but, later on, when they were called for cross-examination on March 10, 1997, they completely resiled from their earlier statements. Their statements in cross-examination are reproduced below :-
Cross-examination of Bhupinder recorded on March 10, 1997 :
"I am a student of class ten and is presently residing in village Anchra Kalan. On 22-3-1994, DSP Om Parkash had not recorded my statement. During those days, I was residing with my maternal uncle Prem Singh at village Khatla. I was not present in village Anchra Kalan on 20/21/22-3-94, I was not residing in village Anchra Kalan. Poonam my sister used to reside with me at the house of my uncle Prem. I do not know who had killed my mother Krishna on the night intervening 20/21 March, 1994 at village Anchra Kalan as I was not present in the house at village Anchra Kalan. I had given my earlier statement before this Court on 29-4-1995 and 7-10-1995 at the instance of my maternal uncle Prem and the Police. I had not seen occurrence, but I was introduced as a witness on behalf of the prosecution by the police at the instance of my maternal uncle Prem. (At this stage, learned P.P. requests that since this witness now shifted his stand in the cross-examination by the defence and has nullified the earlier statement, in order to find out the truth, he may be allowed to cross-examine the witness). Heard. In the interest of justice, the request is allowed. xxxxx The house of the accused adjoins our house. It is incorrect to suggest that during the pendency of the case, I have been won over by the accused and that is why I have changed my version so as to help the accused. It is incorrect to suggest that statements recorded on 29-4-1995 and 7-10-1995 contained true version.
Cross-examination of P.W. 5 Poonam recorded on March 10, 1997.
"I am a student of eighth class. On 22-3-1994, I was residing at the house of my maternal uncle Prem Singh at village Khatla, along with my brother Bhupinder Singh. On 21/21/22 March, 1994 we were not present in village Anchra Kalan. We had not seen the occurrence. The police had not recorded my statement. It is correct that my statement was recorded in this Court on 29-4-1995 and 7-10-1995 which I had given at the instance of my maternal uncle Prem Singh and the police. We were cited as eye-witnesses in the case by the police at the instance of my maternal uncle Prem Singh. I have no knowledge that my mother Krishna suffered death. (At this stage, learned P.P. requests that since this witness now shifted her stand in the cross-examination by the defence and has nullified the earlier statement, in order to find out the truth, he may be allowed to cross-examine the witness). Heard. In the interest of justice, the request is allowed.
xxxx by Sh. P. N. Indoria, APP for the State.
The house of the accused adjoins our house. It is incorrect to suggest that during the pendency of the case, I have been won over by the accused and that is why I have changed my version so as to help the accused party. It is incorrect to suggest that my statements recorded on 29-4-1995 and 7-10-1995 contained true version."
18. By way of abundant caution, we have also gone through the first statements of P.W. 4 Bhupinder and P.W. 5 Poonam. Bhupinder Singh, P.W. 4 has deposed that on the day of occurrence, he and his sister were lying on the cot. They were frightened and continued lying on the bed. He woke up in the morning and went to the house of his maternal uncle in village Khatia. This shows that either he was sleeping at the time of occurrence and did not see the same or as stated by the defence, he was not present in the house of Prem Singh, his maternal uncle. He further admitted in his cross-examination that he woke up only when the occurrence took place. He and his sister Poonam remained lying on the bed till 7.30 a.m. when he had left for the house of his maternal uncle Prem Singh at village Khatla. He further admitted that when he had left for village Khatla, Poonam was still sleeping and he made her to get up by saying that he was going to Khatla to his maternal uncle Prem Singh. P.W. 5 Poonam has stated in her cross-examination that she and Bhupinder did not see the injuries being inflicted on Rajinder and her mother as both herself and Bhupinder had covered themselves with quilts. This also further strengthens the argument of the learned defence counsel that P.W. 4 Bhupinder and P.W. 5 Poonam, alleged eye-witnesses of the occurrence, had not seen the murder of their mother taking place. Both these witnesses, in their cross-examination, recorded on March 10, 1997 resiled from their earlier statements made in the Court and feigned complete ignorance as to who had committed the murder of their mother and stated that they were not present at village Anchra Kalan on the alleged day of occurrence. They further stated that in those days, they were residing at the house of their maternal uncle Prem Singh, They also stated that they made their earlier statements dated October 7, 1995 at the instance of their maternal uncle Prem Singh and the police. They also admitted that they were introduced as witnesses at the instance of said Prem Singh and the police. In these circumstances, it is not safe to place implicit reliance on their statements for holding the accused guilty for the murder of Krishna.
19. Rajinder, who was present in the house of the deceased and injured on the nose with a Lathi blow did not step into the witness-box to support the prosecution case. He was given up as having been won over by the accused. He was an independent witness. Had there been any truth in the assertion of the prosecution that Rajinder had been won over by the accused-appellants, then he would have appeared in the defence to support the plea of the accused. It appears that no such occurrence had taken place in his presence nor did he receive any such injury in the alleged occurrence and, therefore, he did not opt to appear in the witness-box. The non-examination of Rajinder creates another dent in the truthfulness of the prosecution case.
20. The counsel for the appellants has also assailed the prosecution story on the ground that no medical evidence has been brought on record to prove that the bones recovered from the Batora were those of the deceased. When the body of the deceased was recovered, some parts of the same were intact. The prosecuting agency could have got a DNA test done, to prove that the bones were that of the deceased or some other person. There was also no identification mark on the recovered part of the body to establish that the same was that of the deceased. The evidence of Dr. P. K. Paliwal also does not advance the case of prosecution. He has only opined that the bones were of human in origin but he was not in a position to ascertain the age and sex of the available bones. No witness has been produced by the prosecution in support of its case that the accused had put her in a Batora and lit her on fire.
21. No other point has been urged.
22. In the light of above discussion, we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. Resultantly, this appeal is accepted, the conviction and sentence of the appellants are set aside and they are acquitted of the charge framed against them.
23. The appellants shall stand discharged from their bail bonds and surety bonds, if any.
24. Appeal allowed.