Punjab-Haryana High Court
Jaivir And Others vs State Of Haryana on 16 July, 2010
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta
Crl. Appeal No. 698-DB of 2001 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 698-DB of 2001 (O&M) Date of Decision : 16.07.2010.
Jaivir and others ...... Appellants
Versus
State of Haryana .... Respondent
CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
HON`BLE MR. JUSTICE NAWAB SINGH.
Present:- Mr. R.N.Khush, Advocate,
for the appellant Nos. 1 and 2.
Mr. Jitender Dhanda, Advocate,
for appellant No.3.
Mr. Pardeep S. Punia, Addl. AG. Haryana
for the respondent-State.
Mr. Hemant Bassi, Advocate,
for the complainant.
NAWAB SINGH J.
This appeal has been filed by the accused-
appellants against the judgment of conviction dated November 5th, 2001 and order of sentence dated November 8th, 2001 passed by learned Additional Sessions Judge, Hisar, whereby, they were convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, "IPC") and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/-
Crl. Appeal No. 698-DB of 2001 2..
each, in default of payment of fine, to undergo rigorous imprisonment for four months.
2. Firstly, the facts. On June 5th, 1998, at 3.45 PM Jai Parkash, Assistant Sub Inspector, Police Station Civil Lines, Hisar (PW-15) received a telephonic message at 3.45 PM from some unknown person that dead-body of an unknown person was lying near the railway bridge on the Hisar-Delhi Bye-pass road. He along with other Police officials reached the spot. One scooter bearing No. HR-23-3857 was also found lying on the bridge on the left side of the road leading from Hisar to Hansi apart from the dead body. Multiple injuries were found on the person of the deceased. Information, (Exhibit PS) was sent to the Police Station. On personal search of the deceased, Identity Card (Exhibit P1/A) was found in the pocket, which revealed that the dead-body was of Ram Sarup, an employee of Sessions Court, Hisar. He was resident of Village Sikarpur. Raj Kumar, Constable, was deputed to inform the family of the deceased in village Sikarpur. First Information Report (Exhibit PS/1) was recorded. Bhag Mal, father of the deceased, Ram Kumar, (PW-5) Sarpanch Gram Panchayat, Sikarpur and 8/10 other persons reached the spot and identified the body of Ram Sarup. During the inquest proceedings (Exhibit PM), statement of Bhag Mal, father of the deceased was recorded, in which he stated that he had no doubt on anybody for causing the murder of his son. Scooter was taken into possession vide seizure memorandum (Exhibit PJ). Dead body was sent for post-mortem examination to General Hospital, Hisar.
3. On June 6th, 1998, Jai Parkash (PW-15) had gone to the house of the deceased. Ram Chander (PW-9), brother of wife of the deceased met him and made the statement to the effect that on June 5th, 1998, he came to District Courts, Hisar to meet his brother-in-law - Ram Sarup. After meeting him, Ram Sarup left him on the scooter at Bus Stand, Hisar. He boarded the bus to go to Hansi. On the way, at about 3/3.30 PM, when he reached near the railway bridge on Hisar-Delhi Bye-pass road, he noticed that Jaivir, Crl. Appeal No. 698-DB of 2001 3 ..
armed with Pharsa, Kapoor Singh and Suresh armed with lathis were causing injuries to Ram Sarup on his head. He asked the driver to stop the bus, but he did not. On reaching village Mayyar, he alighted from the bus and then returned from Mayyar to Hisar in a jeep and reached the shop of Ramphal, brother of the deceased and came to know that Ram Sarup was murdered by three persons in the broad day-light and the dead-body of Ram Sarup was taken to Civil Hospital, for post-mortem examination. He reached the Civil Hospital, Hisar and noticed that dead-body of Ram Sarup was brought by Police officials. The post-mortem examination was conducted by Dr. Lalit Kumar (PW-6), Medical Officer, General Hospital, Hisar. He found following injuries on the person of the deceased :-
1. An incised wound 10 cm x 5 cm x brain deep on left tempor-parietal region. Brain was coming out. Margins of the bone were clean cut.
2. Incised wound 6 cm x 4 cm x brain deep over left fronto-parietal region. Brain was coming out and bone was clean cut.
3. Incised wound 7 cm x 3 cms. Bony deep over left temporal region. Pinna was cut.
4. Left eye brow depressed.
5. Incised wound 6 cm x 1 cm x bony deep over left frontal region. 3 cm lateral to the left eye.
6. One incised wound 2 cm x 1 cm x 1 cm over left frontal region lateral to injury No. 5.
7. Abrasion 14 cm x 4 cms on upper back of left arm and left shoulder.
4. On June 8th, 1998, accused Jaivir reached the house of Suraj Bhan (PW-10), resident of village Dhani Garan, Police Station - Barwala and made extra-judicial confession that he along with Kapoor Singh and Suresh murdered Ram Sarup and asked Crl. Appeal No. 698-DB of 2001 4 ..
Suraj Bhan to produce him before the Police. Suraj Bhan asked him to call for the other accused also and then he would produce them before the Police. On June 11th, 1998, all the accused came to the house of Suraj Bhan (PW-10) and he produced all of them in the Police Station. The accused were arrested by Shiv Dayal, Station House Officer, Police Station, Sadar, Hisar.
5. The accused were interrogated in the presence of Ajmer Singh (PW-13) and Rajbir Singh. Jaivir and Suresh made their disclosure statements, (Exhibit PQ and PR respectively). Pursuant thereto, Jaivir and Suresh got recovered Pharsa and lathi respectively from Jawar crop field of Jaivir in village Sikarpur which were taken into possession vide recovery memorandum (Exhibit PQ/1 and PR/1). Sketches of Pharsa (Exhibit PQ/2) and lathi (Exhibit PR/2) were also prepared.
After completion of investigation and other formalities, the accused-appellants were arraigned for trial.
6. The accused-appellants were charged under Section 302 read with Section 34 IPC. They pleaded not guilty and claimed to be tried.
7. Trial ensued. In order to prove its case, prosecution examined Miya Singh Head Constable (PW-1), Jagbir Singh (PW-2), Mange Ram (PW-3), Mohan Lal (PW-4), Ram Kumar (PW-5), Dr. Lalit Kumar, Medical Officer, General Hospital, Hisar (PW-6), Sunhari Devi widow of the deceased (PW-7), Udey Singh (PW-8), Ram Chander (PW-9), Suraj Bhan (PW-10), Narender Kumar (PW-11), Mohan Lal (PW-12), Ajmer Singh (PW-13), Shiv Dayal (PW-14), Jai Parkash Assistant Sub Inspector (PW-15) and Mukt Ram Head Constable (PW-16).
8. The accused-appellants were examined under Section 313 of the Code of Criminal Procedure, to explain the incriminating circumstances appearing in the prosecution evidence. They denied their complicity and pleaded innocence and did not produce any witness in their defence.
Crl. Appeal No. 698-DB of 2001 5..
9. Learned counsel for the appellants have assailed the judgment of trial Judge on the ground that Ram Chander (PW-9), eye-witness, did not witness the occurrence, rather, he is a got-up witness. Had he been a witness to the occurrence, he would have immediately informed the Police, but he did not do so for the reasons best known to him. For the first time, he made the statement to the Police on June 6th, 1998 at 7.00 AM, that is after about 28 hours of the occurrence. Otherwise too, the conduct of this witness was not that of eye-witness from any angle.
10. Against this, learned State counsel has supported the judgment of the trial Judge by submitting that prosecution has successfully proved the case against the accused by examining Ram Chander eye witness (PW-9), Suraj Bhan (PW-10) before whom Jaivir accused made extra-judicial confession and recovery of the weapons by Jaivir and Suresh and also there was a strong motive on the part of the accused-appellants to murder Ram Sarup because they had a dispute over a street and a day prior to the occurrence, they tried to attack the deceased with lethal weapons as disclosed by the deceased to his wife Sunhairi Devi (PW-7).
11. The prosecution relied upon the testimony of Ram Chander (PW-9). It is now to be seen as to whether the statement of Ram Chander is reliable, cogent and trustworthy for holding the accused-appellants guilty for the murder of Ram Sarup or not? He has given the version of the occurrence as described in paragraph 2 of this judgment. According to him, on the fateful day, he was enroute from Hisar to Hansi in the bus. It was at about 3/3.30 PM when he reached on the railway bridge on Hisar-Delhi Bye-pass road, he noticed that all the three accused armed with Pharsa and lathis were causing injuries to his brother-in-law Ram Sarup. He tried to alight from the bus but was not allowed by the driver of the bus. He alighted at Mayyar. From Mayyar, he came to Hisar in a jeep and reached the shop of Ramphal, brother of the deceased who was not found present. He learnt that dead body of Ram Sarup Crl. Appeal No. 698-DB of 2001 6 ..
had been brought to Civil Hospital, HIsar. From the shop of Ramphal, he went to Civil Hospital, Hisar, where he met his father-in- law Bhag Mal and other family members. The distances between Hisar and spot is about 5 Kms, from spot to village Mayyar, where Ram Chander alighted is 4 Kms. The village of deceased, that is, Sikarpur is also situated 4/5 Kms. away from the spot, a fact which is not in dispute. Ram Chander did not go to the spot from Mayyar nor he went to Village Sikarpur or Police post/Police Station Mayyar or Police Station, Hisar to inform about the murder of his brother in law rather, he straightway came to the shop of Ram Phal at Hisar. He did not make any statement to the Police till June 6th, 1998 at 7.00 PM and that too, when the Police reached the house of the deceased. The explanation put-forth by him during his deposition was that he informed one of the Constables present in the hospital, but he informed him that his statement would be recorded next day in the morning. He was confronted with his statement (Exhibit DA) recorded by the Police, where it was not found mentioned. The conduct of Ram Chander does not appear to be of a prudent man. He witnessed his brother-in-law being murdered by three known accused and did not name them for 28 hours, particularly when he remained present with the family members of the deceased through- out. Had he been the witness to the occurrence, his first duty would have been to inform the police and family members that the accused- appellants had murdered Ram Sarup. He even did not try to go to the spot, especially when Jai Parkash, Assistant Sub Inspector (PW-
15) has deposed that he remained on the spot upto 11.00 PM. It was also stated by him in his statement (Exhibit DA) that he learnt at the shop of Ram Phal that Ram Sarup was murdered by three persons in broad day-light, but he denied the same during his deposition before the Court when he was confronted with statement (Exhibit DA). It again suggests that he did not witness the occurrence and he is not telling truth.
12. Learned trial Judge, though has observed that Crl. Appeal No. 698-DB of 2001 7 ..
Ram Chander did not report the matter to the Police nor informed the family members of the deceased rather, reached Civil Hospital, Hisar directly at 10.30 PM but the conduct of the witness was not sufficient to dis-believe his statement. To quote, the relevant passage is:-
31 "No doubt the matter was not reported by Ram Chander to the Police post Hisar Cantt. or Police station Sadar, Hisar after returning from Mayyar and he even did not inform the family members of the deceased and reached civil hospital, Hisar directly at 10.30 p.m. but this conduct of the witness is not sufficient to dis-believe his statement in any manner regarding the fact that the occurrence was witnessed by him".
The trial Judge accepted the evidence of Ram Chander mainly on two grounds, by observing:-
"31........ As the accused persons belonged to village Sikarpur and they were seen with pharsa and lathis while causing injuries to Ram Sarup under such circumstances, it could not be safe for Ram Chander, who was a close relative of Ram Sarup, to go to village Sikarpur all alone to inform the family members of Ram Sarup. Ram Chander could very well consider it proper to inform Ram Phal, the brother of the deceased at Hisar instead of giving information to other family members at Sikarpur or to the Police. Ram Chander took about 5/5-1/2 hours in reaching Civil Hospital from Mayyar but this fact alone is not sufficient to discard his testimony."
"32.....Generally, the villagers do not dare to disturb any Police officer in the odd hours of night and they consider it proper to inform the Police Crl. Appeal No. 698-DB of 2001 8 ..
Officer regarding any incident in the morning. Therefore, it was not unnatural on the part of Ram Chander in not reporting the matter to the Police in the night that he had witnessed the occurrence, while accused persons were causing injuries to Ram Sarup."
13. The so-called eye witness never stated that he was afraid of going to Sikarpur or that he thought it would be better to inform the police in the morning than to bother the Police at odd hours. Still, the trial Court substituted the explanation for the wholly unnatural conduct of the witness by its own conjectural and contumacious approach. Here is a case where the sole eye witness is brother in law of the deceased. He claims to be travelling in a bus and passing by the spot where deceased was being attacked with lethal weapons by the accused. He does not get down to come to the help of the deceased and passes the buck by adding that the bus driver did not stop the vehicle. The bus driver was never cited or examined as a witness. No passenger of the bus was contacted by Police. It was not at all probable that this witness would pass by the spot in bus exactly when his brother in law was being attacked. It is again improbable that the bus driver would not stop to allow him to get down. After all there were many passengers in the bus and this witness could ask for help. He then did not bother to come back to the spot from Mayyar nor he went to the family of the deceased. He even did not go to Police Post Mayyar or Police Station, Hisar. The conduct is so unnatural that it inevitably leads to the conclusion that he is an introduced witness and even the introduction was after un- explained delay. All this constrains this Court to hold that he did not witness the occurrence, he is a got up witness and his testimony is wholly unreliable. Trial Court fell in serious error in placing reliance on the so-called eye-witness account, which in fact, is a falsity.
14. What now remains by way of evidence against the accused are three circumstances, namely, (i) extra-judicial Crl. Appeal No. 698-DB of 2001 9 ..
confession; (ii) recovery of weapons and (iii) motive.
15. The extra-judicial confession set-up in this case by the prosecution was made by Jaivir accused before Suraj Bhan (PW-10). This witness belongs to village Dhani Garan, Police Station Barwala. The distance between the village of the accused/deceased and village Dhani Garan is admittedly 28-30 Kms. Why the accused should go all the way travelling 30 Kms to make a confession before Suraj Bhan (PW-10)? What will the accused gain by doing so? What help, if any, could be rendered by Suraj Bhan (PW-10) to the accused? No answer to these pertinent questions, much less a satisfactory one, is coming forth from the prosecution. The extra- judicial confession, according to the prosecution case, was made before Suraj Bhan (PW-10) by Jaivir accused on June 8th, 1998. What prompted the accused to go to Suraj Bhan (PW-10) and confess his guilt, is again a question without a satisfactory answer. Per Suraj Bhan (PW-10), when Jaivir confessed his guilt on June 8th, 1998, he asked him to come with other accused also and Jaivir again had gone to his house along with other two accused on June 11th, 1998. Suraj Bhan, during this period, as stated by him in his deposition, has not informed the family members of the deceased nor to the Police, particularly, when Suraj Bhan is relation of the deceased. It was at least expected from Suraj Bhan that when he came to know that the accused-appellants had murdered his relation, he should have immediately informed the family members and the Police, but he did not and kept on waiting for the day when three accused would again come to him. Had it been so, the normal conduct of Suraj Bhan should have been to haul up Jaivir and inform the Police or the family members of the deceased. Besides, the evidence is fraught with discrepancies when the statement of Suraj Bhan (PW-10) is read in the context along with the statement of Ajmer Singh (PW-13) and Shiv Dayal, Investigator (PW-14). Suraj Bhan deposed that he along with accused came in a jeep from his village. The seat of Police Station, Sadar, Hisar falls firstly on the Crl. Appeal No. 698-DB of 2001 10 ..
way from his village to Hisar, but he did not produce the accused in the Police Station and took them to village Sikarpur, because he wanted some residents of Sikarpur to accompany him. He came to the shop of Ram Phal in Hisar, but he was not present. He took along with him Ajmer Singh (PW-13) and Ranbir. Thereafter, he produced the accused on the bridge near the turn of village Sikarpur at about 10.30 AM. After producing the accused before the Police, he left for Hisar and went again to the Police Station at 11.30 AM, where the Police obtained his signatures on some papers. On the other hand, Ajmer Singh (PW-13) has stated that he along with Ranbir was present on the turning of Village Sikarpur, when Suraj Bhan (PW-10) produced the accused before the Police. Not only that, Shiv Dayal, Investigator (PW-14) has deposed that he along with Suraj Bhan had also gone to the spot and Suraj Bhan remained present on the spot for about one hour and the entire interrogation of the accused was made in his presence, which was not the case of Suraj Bhan. All the aforesaid considerations, taken cumulatively, lead inevitably to the conclusion that the evidence regarding the extra-judicial confession has no grain of truth and is rather a made up story. Even otherwise, an extra-judicial confession is a piece of weak evidence. When the extra juridical confession is surrounded by infirmities, as observed above, it shall and does fail to conspire confidence.
16. Recoveries of Pharsa and lathi were also set-up. According to the prosecution, both the weapons were kept concealed by the accused in the fields of Jaivir in village Sikarpur. Both the weapons are such articles as are ordinarily kept by the villagers for their agricultural pursuits. Had the said articles been used in murder, criminal mind would not have kept them intact so as to present them on a platter to the Police after six days of the occurrence. Otherwise too, the Pharsa and lathi were sent to the Forensic Science Laboratory, Haryana, Madhuban and no human blood was found on them, rather it was opined that material was disintegrated. The Crl. Appeal No. 698-DB of 2001 11 ..
evidence regarding the recovery is dubious in character. In this view of the matter, the recovery of Pharsa and lathi at the instance of the accused does not appear to be natural nor can connect the accused with the crime.
17. Sunhari Devi widow of Ram Sarup (PW-7) has deposed that there was dispute between them and the accused- appellants over a street, but the matter was compromised six months prior to the occurrence. The dispute of street was not such a big dispute that the appellants bore grudge against the deceased and in order to take the revenge, they murdered him. It was a trivial issue with regard to a street, which is a normal affair in the villages. Be that as it may, the matter was compromised between the parties six months prior to the occurrence. So, the motive part does not appeal in the circumstances. The statement of Sunhari Devi (PW-7) also appears to be improbable when she deposed that a day prior to the occurrence, accused tried to attack the deceased because had it been so, Ram Sarup, who was none else but an employee of the Court, would have brought it to the notice of the Police. So, this part of the story also fails to connect the accused with the alleged commission of crime.
18. The evidence led before the trial Court by the prosecution was flimsy, shaky and not at all convincing. Prosecution failed to prove that Ram Chander had witnessed the occurrence. It also failed to establish such a chain of circumstances which could lead to the only hypothesis of guilt of the accused. Unfortunately, learned trial Judge relied on this kind of evidence and circumstances without giving a thought to the well established principle for evaluation of the circumstances and the evidence.
19. In view of the foregoing discussion, this Court is of the considered opinion that prosecution altogether failed to bring the guilt home to the accused beyond reasonable doubt. The appeal is accordingly, accepted. The impugned judgment of conviction and order of sentence passed by the learned trial Judge are set-aside Crl. Appeal No. 698-DB of 2001 12 ..
and the accused-appellants are acquitted of the charges. The bail/surety bonds shall stand discharged.
(ASHUTOSH MOHUNTA) (NAWAB SINGH)
JUDGE JUDGE
16.07.2010
som
Whether Referred to Reporter : Yes/No