Punjab-Haryana High Court
Krishan Kumar And Others vs State Of Haryana on 9 March, 2009
Author: Jora Singh
Bench: Jasbir Singh
Crl. Appeal No 909-DB of 2006. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No 909-DB of 2006.
DECIDED ON :
Krishan Kumar and others
Appellants.
VERSUS
State of Haryana
Respondent.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. R.N.Kush, Advocate, for
appellants.
Mr. S.S.Randhawa, Addl. Advocate
General, Haryana.
--
JORA SINGH,J.
Krishan Kumar, Satta alias Satyawan, Shishan alias Shashi Kumar filed this appeal against the judgment/order dated 23.10.2006/27.10.2006 rendered by Sessions Judge, Fatehabad, whereby the appellants were convicted under Sections 364 and 302 read with Section 34 Indian Penal Code and 201 Indian Penal Code and were sentenced as under:-
All the three accused-appellants were sentenced to undergo life imprisonment for having committed offence punishable under Section 302 read with Section 34 Indian Penal Code and to pay a fine of Rs.10, 000/- each. In default of Crl. Appeal No 909-DB of 2006. 2 payment of fine to further undergo simple imprisonment for three months;
All the three accused-appellants were also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5000/- each. for having committed offence punishable under Section 364 read with Section 34 Indian Penal Code. In default of payment of fine to further undergo simple imprisonment for one month.
All the three accused were further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3000/-each for having committed offence punishable under Section 201 Indian Penal Code. In default of payment of fine, the defaulter shall further undergo simple imprisonment for a period of 15 days.
All the substantive sentences, however, were ordered to run concurrently.
Prosecution story, in brief, is that Satyawan son of Shri Girdhala Ram gave complaint in writing dated 26.11.2001 to Station House Officer, Police Station Sadar Tohana to the effect that he is resident of village Nangla and posted as Branch Postmaster and his father and uncle Banwari Lal owns houses adjacent to each other. 15 days earlier Shishan alias Shashi Kumar son of Bharthu Ram and Kuldeep son of Shri Raj Kumar at about 2 A.M.(night) with bad intention had gone to the house of his cousin brother Karambir son of Banwari Lal. Kuldeep was nabbed.
Shishan had succeeded in escaping. Suraj Mal alias Kala Crl. Appeal No 909-DB of 2006. 3 brother of Karambir had given beatings to Kuldeep but no complaint was lodged. His father Girdhala Ram had lodged protest with Kuldeep, Shishan, Krishan Kumar and Satta sons of Bharthu Ram with request not to repeat such activities in future. Satta and Krishan replied Girdhala Ram is leveling allegation against Shishan to lower their reputation. In case, they got an opportunity then they would see them. On 23.11.2001 at 2 P.M. he along with his father Girdhala Ram was present in the house. Dal Singh alias Leela was also present in their house to collect spinach seeds to sow in the fields of Gurcharan Singh. Girdhala Ram had joint cultivation with him and while talking in this connection came out of the house. After some time, Krishan came and Girdhala Ram was taken away from the street. Girdhala Ram failed to return till evening. Complainant and his brother Rajinder started searching for Girdhala Ram. Rajbir son of Haria had met them near Dharamshala and on enquiry reported that at 5 P.M. he had seen Girdhala Ram while entering the house of Krishan in the company of Krishan, Satta and Shishan. Complainant and his brother had gone to the house of Krishan. Krishan on enquiry replied that Girdhala Ram came to his house but he has gone back. An effort was made to locate Girdhala Ram but he was not traceable. Number of persons from their brotherhood had assembled . Enquiry was made from Satta and Shishan. Satta and Krishan were missing from their house. Complainant suspected that Girdhala Ram was confined somewhere with Crl. Appeal No 909-DB of 2006. 4 intention to eliminate him.
On 26.11.2001 Sub Inspector Rajinder Singh received written complaint Ex.P-3 from Satyawan, after making endorsement complaint was sent to the Police Station. On the basis of which formal First Information Report was registered. On 27.11.2001 at 6 A.M. Assistant Sub Inspector Rajinder Singh along with police party had summoned respectable persons from the village through chowkidar. 15/20 persons came then party had gone to the house of Krishan. House was found locked. Lock was broken open. House was searched. Blood stains were noticed on the wall, floor and door of the residential room. Blood was lifted from the spot and was made into sealed parcel. Sealed parcel was taken into police possession vide separate memo. From the cattle shed, blood in liquid form was noticed. Blood was lifted and was made into sealed parcel. Sealed parcel was sealed with a seal bearing impression "KS". Rough site plan was prepared. Photographer was arranged to click photograph. On return to the Police Station, case property was deposited with the MHC. Again, police party headed by Rajinder Singh ASI had gone to village Nangla and received secret information that some portion in the fields of Hakam Singh appeared to be freshly dug. Tehsildar was summoned. Police party had gone to the spot in the presence of Tehsildar. Dead body was recovered from the fields of Hakam Singh. Photographs of the dead body were also got clicked. Blood stained earth was also lifted from the spot and the same was made into sealed Crl. Appeal No 909-DB of 2006. 5 parcel. Inquest report was prepared. Dead body was sent to hospital for postmortem examination. On 28.11.2001 parcel containing clothes of the deceased was also produced before the Assistant Sub Inspector Rajinder Singh.
On 30.11.2001 Satta and Krishan were produced before the police party headed by Sub Inspector Kanwar Singh by Wazir Singh Ex-Sarpanch. Accused were interrogated. Krishan suffered disclosure statement that he had kept concealed the dead body of Girdhala Ram in the fields of Hakam Singh, he can pin point the place where the dead body was buried. Sickle was also concealed in the fields of Hakam Singh and the same can be got recovered. Satta also suffered disclosure statement that he had kept concealed dead body of Girdhala Ram in the fields of Hakam Singh. Sickle and gunny bag were kept concealed in his residential house and the same can be got recovered.
In pursuance of the disclosure statement, Krishan got recovered sickle from the specified place. Place was also pointed out where dead body was buried. Sickle was made into sealed parcel and the same was taken into police possession. Satta as per his disclosure statement got recovered bicycle and bag from the specified place. Place in the fields of Hakam Singh was also pin pointed where the dead body was buried.
Shishan accused was also arrested in this case. Shishan also made disclosure statement that he can pin point the place in the fields of Hakam Singh where the dead body was buried.
Crl. Appeal No 909-DB of 2006. 6
After completion of investigation, challan was presented in Court.
As per order dated 5.3.2002 passed by Sub Divisional Judicial Magistrate, Tohana, case was committed to the Court of Session, Fatehabad for trial.
After hearing Public Prosecutor for the State and defence counsel for the accused and from the perusal of the documents on the file, learned Additional Sessions Judge, Fatehabad found that a prima facie case under Sections 364, 302, 201/34 I.P.C. was made out against the accused and they were charge sheeted accordingly, to which they pleaded not guilty and claimed trial.
In order to substantiate the charges, the
prosecution examination as many as 18 witnesses and
tendered certain documents.
PW-1 Doctor Vijay Grover had medico-legally
examined Krishan accused and found the following injuries on his person:-
1. Healed abrasion with falling scab on left side of left eye 1x 1 cm.
2. Healing abrasion 1x ¼ cm on right little finger with scab present.
PW-6 Doctor Satish Garg had conducted post mortem examination on the dead body of Girdhala Ram and found the following injuries on his person:-
1. An incised wound 15 x 3 cm on the front and left side of the neck. Cutting Crl. Appeal No 909-DB of 2006. 7 the larynx, blood vessels and muscles.
2. An incised wound 5 x 2 cm on the occipital region.
3. The skin was pealed off from the chest at three places of the size of approximately 2 to 3 x 4 cm. The face and lips were swollen.
Cause of death as per doctor was due to injury No.1. Injury was anti mortem in nature and sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was variable and between the death and post mortem was also variable.
PW-2 Mohan Lal on receipt of ruqa Ex.P3 had recorded formal First Information Report Ex.P4. Special report was also sent to Illaqa Magistrate through Constable Jagir Singh.
PW-3 Head Constable Ramesh Chander tendered his affidavit Ex.P6.
PW-4 Garish Kumar Draftsman had prepared scaled site plan Ex.P-7 with correct marginal notes.
PW-5 Constable Jagir Singh had delivered special report to the Illaqa Magistrate on 28.11.2001 at 12.5 a.m. at night.
PW-7 Ramesh Kumar had taken photographs of the dead body of Girdhala Ram. Photographs are Ex.P-18 to Ex.P- 20 and negatives are Ex.P-21 to Ex.P-23. Ramesh Kumar had also taken the photographs of blood stains on the walls and Crl. Appeal No 909-DB of 2006. 8 clothes.
PW-8 Satyawan is the complainant and stated that on 23.11.2001 his father was present in the house. Dal Singh alias Lila was also present in the house. Krishan came and his father was taken away. Girdhala Ram failed to return till evening. They had made an effort to lock Girdhala Ram. On the way, Rajbir had met them and reported that Girdhala Ram was seen while entering the house of Krishan along with Satta and Shishan. Inquiry was made from the house of Krishan. Krishan replied that Girdhala Ram came to their house and after some time went back. Accused were summoned by the Panchayat. Krishan was not available. Satta and Shishan had attended the Panchayat. They were interrogated. After that they had left the Panchayat. Application Ex.PC was given to the police. Dead body of his father Girdhala Ram was recovered from the fields of Hakam Singh in the presence of Tehsildar on 27.11.2001. He had identified the dead body.
PW-9 Wazir Singh stated that on 26.11.2001 he was summoned by the police to the house of Sarpanch then came to know that Girdhala Ram is missing. On 27.11.2001 he was summoned by the police in the fields of Hakam Singh. Dead body was recovered from the fields of Hakam Singh. On 30.11.2001, Krishan and Satta came and had made extra judicial confession that Girdhala Ram was murdered with the connivance of their third brother Shishan. Accused were produced before the police.
Crl. Appeal No 909-DB of 2006. 9
PW-10 Rajbir stated that on 23.11.2001 at about 4 P.M. accused were seen while taking away Girdhala Ram forcibly in the house of Krishan.
PW-11 Karambir stated that 15 days before the present occurrence Kuldeep and Shishan at 2 A.M. came to his house with bad intention. Kuldeep was apprehended by his brother Kala. Shishan had managed to fled away from the spot. On the next day, Panchayat was convened. Girdhala Ram had reprimanded the accused. Krishan stated that his brother Shishan is being accused falsely. They are to take revenge for their insult.
PW-12 Balwan Singh stated that at about 8 P.M. on 27.11.2001 he was returning from village Saiman. Accused were seen while going on foot. Bicycle was with Krishan. There was a gunny bag on the carrier of the bicycle. Shishan and Satta were supporting the gunny bag. After four days, police had gone to the house of Krishan. Blood was noticed on the walls and doors. Blood was lifted from the spot.
PW13 Satbir was present with the police and in his presence Krishan got recovered sickle from the specified place. Krishan had also pin pointed the place where the dead body was buried. Bicycle, gunny bag, shirt and pajama were got recovered by Satta as per his disclosure statement.
PW14 Head Constable Chhater Pal was with the police on30.11.2001 and in his presence Krishan and Satta got recovered sickle, shirt, pajama, gunny bag and bicycle as per their disclosure statement.
Crl. Appeal No 909-DB of 2006. 10
PW-15 Sub Inspector Kanwar Singh is the Investigating Officer who had effected recoveries as per their disclosure statements suffered by Satta and Krishan.
PW-16 Assistant Sub Inspector Rajender Singh had sent written complaint to the police station on 26.11.2001 to register case. On 27.11.2001 he had recovered the dead body from the fields of Hakam Singh in the presence of Tehsildar.
PW17 Sh. Vinod Sharma, Tehsildar stated that in his presence dead body of Girdhala Ram was recovered.
PW-18 Ishwar Singh had tendered his affidavit. After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations. Accused denied all the allegations and claimed to be innocent. Defence version of the accused is that they were falsely implicated .
Opportunity was given to produce defence but no defence was led.
We have heard Shri R.N.Kush, Advocate, for the appellants and Mr. S.S.Randhawa, Additional Advocate General, Haryana, for the respondents.
Learned counsel the appellants-accused argued that it is a case of blind murder. There is no direct evidence. Case is based on circumstantial evidence but chain of circumstantial evidence is not complete. As per story, Girdhala Ram was taken away by Krishan on 23.11.2001 at 2 P.M. Girdhala Ram was seen while entering the house of appellants-accused by Rajbir Singh but no report was nade on Crl. Appeal No 909-DB of 2006. 11 23.11.2001. Written complaint is dated 26.11.2001 but on the same day as per secret information dead body was recovered from the fields of Hakam Singh. After recovery of dead body, recovery of sickle, gunny bag, bicycle, shirt and pajama were shown. Dead body was not recovered as per the disclosure statement suffered by any of the appellants. After the recovery of dead body there was no idea to pin point the place of recovery. In fact, after recovery of dead body, within one hour entire story was concocted. 15 days before the present occurrence Shishan and Kuldeep had gone to the house of Karambir but Kuldeep was not arrayed as one of the accused. Karambir had grievance but he did not lodge report. Appellants-accused had no motive to murder Satyawan. In case, appellants-accused had the grievance then they should have murdered Karambir. According to Doctor who had conducted post mortem examination rigor mortis was noticed. If murder was on the night of 23.11.2001 then no question of rigor mortis because post mortem examination was conducted on 28.11.2001 at 11.15 A.M. Evidence further shows that liquid blood was also noticed in the cattle shed. If the occurrence was on 23.11.2001 then no question of liquid blood in the cattle shed. Learned defence counsel for the appellants-accused further argued that according to the complainant, Girdhala Ram was seen last time in the company of Krishan. Krishan was seen while carrying gunny bag on the bicycle. Satta and Shishan had not gone with Krishan to the house of complainant on 26.11.2001. If Girdhala Ram was Crl. Appeal No 909-DB of 2006. 12 taken forcibly inside the house of Krishan then Rajbir should have reported the matter to the complainant. There is delay in lodging the First Information Report. Recovery of dead body as per story is also doubtful. On 23.11.2001, Assistant Sub Inspector Rajinder Singh had gone to the house of Krishan but he was not present in the house. Assistant Sub Inspector Rajinder Singh had not gone to the house of Shishan or Satta to arrest them. Assistant Sub Inspector Rajinder Singh came back to the police station. Again he had gone to village Nangla then on receipt of secret information had effected recovery of dead body in the presence of Tehsildar. Tehsildar when appeared as PW17 then stated that body was in a bag at the time of recovery. Next day, his signatures were obtained by the Investigating Officer. Evidence was led that bag was recovered as per disclosure statement. If dead body on a bicycle was taken to the fields of Hakam Singh then there is no idea to bury the dead body in the fields and bring back the bag to residential house. Wajir Singh stated that Krishan and Satta had made extra judicial confession that after murder the dead body was buried in the fields of Hakam Singh. Again stated that Krishan and Satta made extra judicial confession that with the connivance of their third brother, Girdhala Ram was murdered and dead body was buried. On 27.11.2001 Wazir Singh was with the party when dead body was recovered from the fields. After recovery of dead body on 27.11.2001, Krishan and Satta were not expected to make extra judicial confession on 30.11.2001. Crl. Appeal No 909-DB of 2006. 13 All these facts were not taken into consideration to appreciate the evidence. The learned counsel, thus, requested to accept the appeal.
Mr. S.S.Randhawa, Additional Advocate General, Haryana argued that no doubt case is based on circumstantial evidence but chain is complete. Krishan had gone to the house of deceased. Deceased had gone with Krishan at 2 P.M. Again at 5 P.M. Rajbir had seen Girdhala Ram in the company of the appellants. Dead body was recovered on 27.11.2001. Before Wazir Singh, Krishan and Satta appellants-accused had made extra judicial confession. They were produced before the police. As per disclosure statements, appellants-accused got recovered sickle, bicycle, shirt, pajama. Before the present occurrence, appellants-accused had enmity because Shishan and Kuldeep had gone to the house of Karambir during night time with bad intention. Deceased had convened a Panchayat and before Panchayat appellants-accused were reprimanded. Appellants-accused had the motive to commit the crime because they felt insulted.
First submission of the learned defence counsel was that there is delay in lodging the First Information Report and delay is fatal. Submission of the learned defence counsel carries little weight. On 23.11.2001 at about 2 P.M. Dal Singh was in the house of Satyawan and Girdhala Ram. Krishan had gone to the house of Girdhala Ram. Girdhala Ram was taken away and was seen last time in the company of Krishan. At 5 P.M. Girdhala Ram was seen while entering into the house of Crl. Appeal No 909-DB of 2006. 14 Krishan. Rajbir stated that Girdhala Ram was being taken away forcibly into the house of Krishan but as per information supplied by Rajbir, report was not lodged with the police. Recovery of dead body was on 26.11.2001. Written complaint was also given on 26.11.2001. When Satyawan came to know that his father was being taken away forcibly by the accused and Girdhala Ram failed to return till evening then Satyawan was expected to report to the police. On the next day, there was a Panchayat. Inquiry was made from the appellants- accused. Appellants-accused were interrogated by the Panchayat then Satta and Shishan had left the Panchayat. Krishan was not present before the Panchayat. On 24.11.2001 when Girdhala Ram failed to return and the complainant party was suspecting that Girdhala Ram is in illegal custody of appellants-accused then report should have been lodged but no report to the police. On 25.11.2001 again no report to the police. Report was lodged on 26.11.2001 when Rajbir reported to the complainant that at 5 P.M. on 23.11.2001 Girdhala Ram was seen while entering into the house of Krishan. There is delay. Delay was not fully explained but delay itself is not sufficient for acquittal of the accused. Delay is one of the suspicious circumstance to scrutinize the evidence with care and caution.
Next submission of the learned defence counsel was that evidence qua last seen is doubtful. The evidence on the file shows that on 23.11.2001 Dal Singh was in the house of Girdhala Ram, Satyawan was also present in his house with Crl. Appeal No 909-DB of 2006. 15 his father. Krishan had gone to the house of Girdhala Ram and was taken away by Krishan. Till evening Girdhala Ram failed to return. Complainant party was in search of Girdhala Ram and on the way at 5 P.M. on 23.11.2001 Rajbir had reported to the complainant party that Girdhala Ram was seen entering the house of Krishan. No evidence on the file that all the appellants were residing jointly in the same house. Satyawan while appearing as PW stated that in his presence Girdhala Ram had gone with Krishan. In cross examination stated that Rajbir had told him that Girdhala Ram was going with Krishan only. Rajbir as PW stated that on 23.11.2007 at 4/5 P.M. Girdhala Ram was seen while taking away forcibly by the accused into the house of Krishan but Satywan stated that Rajbir told to him that Girdhala Ram was seen in the company of only Krishan. Dal Singh alias Lilla in whose presence Girdhala Ram had gone with Krishan was not examined by the prosecution. None appearance of Dal Singh is also fatal but Rajbir had no enmity with the appellants-accused. No ground to disbelieve Rajbir. Balwan Singh PW-12 stated that on 23.11.2001 at 8 P.M. Krishan was seen while carrying gunny bag on a bicycle. After four days police came and he had gone to the house of Krishan. Blood was lifted in his presence. Statement of Balwan Singh, Rajbir Singh and Satywan show that deceased was seen last time in the company of Krishan only.
Next submission of the defence counsel was that story qua recovery of dead body and different articles i.e. Crl. Appeal No 909-DB of 2006. 16 sickle, shirt,pajama is doubtful. Submission of the learned defence counsel seems to be reasonable one. On 26.11.2001 written complaint was received by Assistant Sub Inspector Rajinder Singh. After making endorsement, complaint was sent to the police station. Assistant Sub Inspector Rajinder Singh along with party had gone to village Nagla. Respectables of the village were summoned but on 26.11.2001 houses of the appellants-accused were not raided. On 27.11.2001 again, respectables from the village were summoned through Chowkidar, then police party should visit the house of Krishan but he was not present. If Krishan was not available then police party had gone to the house of Satta and Shishan. House of Krishan was found locked. Lock was broken open then blood was noticed on the wall, floor and door. Blood in liquid form was also noticed in the cattle shed. After that police party came back to the Police Station. Again Police Party had gone to village Nangla then Investigating Officer received secret information that some portion in the field of Hakam Singh seem to be freshly dug. Tehsildar was summoned then police party had gone to the field of Hakam Singh. Dead body was recovered along with the bag. Hakam Singh was not examined by the prosecution but one thing is clear that the dead body was recovered on 27.11.2001. Tehsildar Vinod Sharma stated that dead body was recovered at 4 P.M. on 27.11.2001 but on the next day, his signatures were obtained by the Investigating Officer. In case, dead body was recovered in the presence of Shri Vinod Sharma, Crl. Appeal No 909-DB of 2006. 17 Tehsildar then his signatures should have been obtained on the same day i.e. 27.11.2001. Wazir Singh was also present at the time of recovery of dead body but dead body was not recovered as per disclosure statement.
Wazir Singh stated that on 30..11.2006 Krishan and Satta came and made extra judicial confession that dead body was buried in the fields. Again stated that Krishan and Satta had made extra judicial confession that they along with their third brother had buried dead body but dead body was not recovered at the instance of any of the appellants. In cross examination, Wazir Singh stated that he cannot tell who informed the police that dead body is lying buried in the fields of Hakam Singh. Satbir stated that in his presence sickle was recovered as per disclosure statement suffered by Krishan. Krishan had also pin pointed the place where the dead body was buried. As per disclosure statement suffered by Satta, bicycle, gunny bag, shirt pajama were got recovered but in view of the statement of Tehsildar dead body was recovered with bag. So, story regarding recovery of bag as per disclosure statement suffered by Satta seems to be not correct one. No evidence on the file that shirt, pajama alleged to be recovered were of the deceased. Shirt and pajama were not found to be stained with blood. In case, dead body was being carried with a gunny bag on the bicycle then there was no idea to bury dead body alone in the fields of Hakam Singh and bring back gunny bag to the residential house. Satta was produced before the police on 30.11.2001 by Wazir Singh but Crl. Appeal No 909-DB of 2006. 18 recovery of gunny bag and bicycle was effected 2.12.2001. Shishan did not suffer disclosure statement before any witness. He had not pin pointed the place where dead body was buried. Shishan was implicated because 15 days earlier to the occurrence he along with Kuldeep who was not arrayed as one of the accused had gone to the house of Karambir, during night time with bad intention. Shishan and Satta are the real brothers of Krishan. As per evidence, they were simply helping the bag being carried on the bicycle by Krishan. Participation of Satta and Krishan to commit the crime seems to be doubtful.Blood was noticed on the wall, doors of the house of Krishan. Blood was also noticed in the cattle shed.
Last submission of the learned defence counsel was that no motive to commit the crime. In fact, complainant party had the motive to implicate the appellants-accused but contention of learned defence counsel is without any force. Motive is a double edged weapon. 15 days before the occurrence Shishan and Kuldeep had gone to the house of Karambir with bad intention. Deceased had convened Panchayat. Krishan complainant felt offended that his brother is being accused un-necessarily. Krishan had brought the deceased to his house. Dead body was taken to the fields of Hakam Singh. Krishan was seen while carrying gunny bag by Balwan Singh-PW. Balwan Singh was not inimical towards Krishan. On 27.11.2001 dead body was recovered in the presence of Tehsildar. Later on, as per disclosure statement Crl. Appeal No 909-DB of 2006. 19 suffered by Krishan sickle was recovered. Blood was also collected from the house of Krishan. So, Krishan had the motive to seek revenge.
In view of all discussed above, we are of the opinion that Satta and Shishan were falsely implicated in the present case being the brothers of Krishan.
In the sequel of the above discussion,appeal is partly allowed. Appeal qua Satta and Shishan is accepted. Appeal on behalf of Krishan is dismissed.
( JORA SINGH ) JUDGE ( JASBIR SINGH ) JUDGE Anoop