Punjab-Haryana High Court
Rajpal Alias Raju And Others vs State Of Haryana on 21 December, 2011
Author: S.S. Saron
Bench: S.S.Saron, Rameshwar Singh Malik
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.913-DB of 2002
Date of decision: 21.12.2011
Rajpal alias Raju and others .....Appellants
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE S.S.SARON.
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK.
Present: Mr. R. N. Kush, Advocate for the appellants.
Mr. H. S. Sran, Addl. AG, Haryana, for the State.
S.S. SARON, J.
The present appeal has been filed by the appellants- Rajpal @ Raju (appellant No.1) son of Banwari, Balwan (appellant No.2) son of Moman and Vijay (appellant No.3) son of Jagdish against judgment of conviction dated 14.11.2002 and order of sentence dated 16.11.2002 passed by the learned Additional Sessions Judge (Ad hoc), Hisar whereby the appellants have been held guilty for the offence punishable under Section 302 read with Section 34 Indian Penal Code ('IPC'-for short) for causing the death of Tek Chand Sarpanch in furtherance of their common intention and by actual participation. Besides, Rajpal @ Raju (appellant No.1) has also been held guilty for possession of a knife of a size beyond the Crl. Appeal No.913-DB of 2002 -2- permissible limit. Accordingly, he has also been convicted for the offence punishable under Section 25 of the Arms Act, 1959. The accused Banwari son of Mam Chand and Jagdish son of Banwari were acquitted by the learned Additional Sessions Judge (Ad hoc), Hissar as it appeared that they had been falsely implicated in the case. By a separate order, the learned Additional Sessions Judge, Hisar sentenced the appellants to imprisonment for life for the offence under Section 302 read with Section 34 IPC; besides pay a fine of Rs.500/- and in default of payment of fine the defaulting appellant was ordered to undergo further rigorous imprisonment of six months. Rajpal @ Raju (appellant No.1) was also convicted to rigorous imprisonment for one year for the offence punishable under Section 25 of the Arms Act. The sentences, however, were ordered to run concurrently with the sentence of imprisonment for life.
The FIR (Ex.P-14) in the case has been registered on the statement (Ex.P-12) of Chander Bhan son of Sant Lal resident of village Sahu (complainant) who is the brother of the deceased Tek Chand. It is alleged by the complainant-Chander Bhan that his elder brother Tek Chand (deceased) was Sarpanch of village Sahu. He was a worker of the Congress Party. For the last about 15 days, Banwari (since acquitted) son of Mam Chand, Rajpal @ Raju (appellant No.1), Jagdish (since acquitted) both sons of Banwari were threatening Tek Chand (deceased) brother of the complainant that they would finish him before the elections. The said persons were from the Lok Dal Party. On the date of the incident i.e. 21.02.2000 at about 9.00 pm, the complainant-Chander Bhan, Dalbir Crl. Appeal No.913-DB of 2002 -3- (PW-9) and Bhoria son of Maman Ram reisdents of village Sahu were coming back after serving meals to the staff (election staff) in the school and were going back to their respective houses. When they reached near the house of Mulkhi Ram; Tek Chand (deceased) brother of the complainant-Chander Bhan was seen coming from the opposite side. Vijay (appellant No.3) suddenly came from behind and caught hold of the left hand of Tek Chand (deceased). Balwan (appellant No.2) caught hold of him from his right hand. Banwari and Jagdish (since acquitted) together raised a 'lalkara' that Tek Chand (deceased) should be taught a lesson of 'Sarpanchi,' so that he does not become Sarpanch in the coming election. Rajpal @ Raju (appellant No.1) gave 2-3 blows with a knife to the brother of the complainant namely Tek Chand (deceased) in his chest. They raised an alarm and the accused left him (Tek Chand) and ran away. Tek Chand fell on the ground and became unconscious. The complainant-Chander Bhan, Dalbir (PW-9) and Bhoria Ram saw the said occurrence with their eyes. Then they arranged for a conveyance. Tek Chand elder brother of the complainant died after a little while. Leaving Dalbir (PW-9) and Bhoria Ram near the dead body, the complainant was going to the police station for lodging a report that the police party met him near Bharian School and he got his statement recorded. Banwari (since acquitted), Rajpal @ Raju (appellant No.1), Balwan (appellant No.2), Jagdish (since acquitted) and Vijay (appellant No.3) with their common intention had killed the brother of the complainant namely Tek Chand. Legal action was asked to be taken against them. The statement of the complainant Crl. Appeal No.913-DB of 2002 -4- was recorded and finding it to be correct, he (complainant) put his left thumb impression on the same which was attested by Jai Singh, SI/SHO, Police Station, Uklana (PW-11). The police proceedings were recorded by Jai Singh, SI/SHO, Police Station, Uklana (PW-11) to the effect that he along with Jagdeep Singh ASI, Ram Avtar Constable, Surender Constable in an official jeep, with the driver Ved Parkash were present near Bharian School in connection with chekcing, when the complainant-Chander Bhan met him and got his statement recorded. The statement after it was recorded was read over to the complainant word by word and he was made to understand it. On hearing the statement, he (complainant) admitted the same to be correct and put his thumb impression below it, which was attested by Jai Singh, SI/SHO, Police Station, Uklana (PW-11). From the statement that was made an offence punishable under Sections 148, 149 and 302 IPC was found to have have been committed. The writing was sent to the police station for registration of a case (FIR) through Constable Ram Avtar. Its number was asked to be intimated after registration. Jai Singh, SI/SHO, Police Station, Uklana (PW-11) along with his companions proceeded to the place of the incident for investigation. The complainant-Chander Bhan (PW-
8) was taken along with him. Special report was asked to be sent to the higher officials. The time and date of recording the statement is mentioned at 1.35 am on 22.02.2000 near Bharian School. On receipt of the above writing, a case (FIR) for the offences aforesaid was registered at the police station. Copy of the police file along with the original writing was sent to Jai Singh, SI/SHO, Police Station, Crl. Appeal No.913-DB of 2002 -5- Uklana (PW-11) through the constable who had brought it. Copies of the FIR were prepared which were being sent to the Illaqa Magistrate and the higher officers through Constable Kailash Chand No.182. Jai Singh, SI/SHO, Police Station, Uklana (PW-11) carried out investigation in the case. He went to the spot where the incident had occurred at about 2.00 am on 22.02.2000. Dalbir (PW-9) and Bhoria were present there. A rough site plan (Ex.P-29) of the place of incident was prepared at the spot. The blood stained earth was lifted from the spot and secured in a sealed parcel with monogram of JSY. The same was taken in possession vide memo Ex.P-25. A photographer was called and the spot was got photographed. The photographs Ex.P-18 to Ex.P-20 of the dead body were taken. Inquest report (Ex.P-4) was prepared. An application (Ex.P-3) was moved before the Medical Officer for conducting postmortem examination on the dead body of Tek Chand. The dead body of Tek Chand was sent to the Civil Hospital, Hisar to conduct autopsy. The dead body was sent through Constable Ram Avtar and Surender Singh. After postmortem examination, Constable Ram Avtar produced before Jai Singh, SI/SHO, Police Station, Uklana (PW-11) a sealed parcel containing the clothes of the deceased, which was taken in possession vide memo Ex. P-30. The same was attested by Ram Avtar Constable. On 22.02.2000, Jai Singh, SI/SHO, Police Station, Uklana (PW-11) along with other police officials went to the house of Banwari. Banwari and Jagdish (since acquitted) met him there and they were arrested in this case. On return to the police station, Jai Singh, SI/SHO, Police Station, Uklana (PW-11) deposited Crl. Appeal No.913-DB of 2002 -6- the parcel referred to above with the MHC of the police station. On 26.02.2000, Jai Singh, SI/SHO, Police Station, Uklana (PW-11) along with other police officials went to village Sahu. He joined Lakhmi Chand (PW-10) in the investigation. On receipt of secret information about the presence of Rajpal @ Raju (appellant No.1) at his house, he went there. Rajpal @ Raju (appellant No.1) was arrested and during interrogation he made a disclosure statement (Ex.P-26), which was reduced into writing. The disclosure statement was to the effect that he had concealed a knife beneath a 'Takhat' (wooden platform) in a room of his house and the same could be got recovered. The disclosure statement was attested by the witness and Rajpal @ Raju (appellant No.1) thumb marked the same. In pursuance of the disclosure statement (Ex.P-26), Rajpal @ Raju (appellant No.1) led the police party and got recovered the knife (Ex.P-5) and its sketch (Ex.P-27) was prepared. The knife was put in a sealed parcel and taken in possession vide memo Ex.P-28. The memos were attested by the witnesses. A rough site plan (Ex.P-31) of the place of recovery was prepared. The sealed parcel and the knife were deposited with the MHC. On 06.03.2000, Balwan (appellant No.2) was arrested. The statements of formal witnesses were recorded and the police report in terms of Section 173 of the Code of Criminal Procedure ('Cr.P.C'-for short) was prepared on completition of the investigation on 02.05.2000. Thereafter, Vijay accused (appellant No.3) surrender before the Court on 15.06.2000 from where he was arrested by Ram Kumar, ASI. Supplementary police report (challan) qua the accused Vijay (appellant No.3) was Crl. Appeal No.913-DB of 2002 -7- prepared by Kailash Chand, Sub Inspector on 30.06.2000.
The learned Judicial Magistrate Ist Class, Hisar before whom the police report (challan) was filed in view of the offence punishable under Section 302 IPC being observed to be made out, which was exclusively triable by the Court of Session committed the case to the Court of learned Sessions Judge, Hisar vide order dated 12.08.2000.
The learned Additional Sessions Judge, Hisar on 07.09.2000, charge-sheeted the appellants as also Banwari and Jagdish (since acquitted) that they on 21.02.2000 in the area of village Sahu were members of an unlawful assembly and in prosecution of the common object of such assembly to cause the murder of Tek Chand committed the offence of rioting and at that time they were armed with deadly weapons i.e. knife and thereby committed an offence punishable under Section 148 IPC; besides on the same date, time and place, Rajpal @ Raju (appellant No.1) in prosecution of the common object of aforesaid assembly committed murder by intentionally causing the death of Tek Chand and thereby Rajpal @ Raju (appellant No.1) committed an offence punishable under Section 302 IPC while Banwari and Jagdish (since acquitted), Balwan (appellant No.2) and Vijay (appellant No.3) committed an offence punishable under Section 302 read with Section 149 IPC. It was directed that they all be tried by the said Court. A separate charge for the offence punishable under Section 25 of the Arms Act, 1959 was framed against Rajpal @ Raju (appellant No.1) for having in his conscious possession a knife without any permit or licence and Crl. Appeal No.913-DB of 2002 -8- thereby committed an offence punishable under Section 25 of the Arms Act, 1959. Rajpal alias Raju (appellant No.1) was directed to be tried by the said Court.
The prosecution in order to prove its case, examined as many as 12 witnesses; besides tendered documents in evidence including the FSL report (Ex.P-33). The statements of all the accused in terms of Section 313 Cr.P.C were recorded, Rajpal @ Raju (appellant No.1) stated that he was innocent and had been falsely invovled in this case due to party faction in the village. To similar effect are the statements of Balwan (appellant No.2) and Vijay (apellant No.3). The learned Trial Court after considering the evidence and material on record, convicted the appellants Rajpal @ Raju (appellant No.1), Balwan (appellant No.2) and Vijay (appellant No.3) for the offence punishable under Section 302 read with Section 34 IPC for intentionally causing the death of Tek Chand Sarpanch. Rajpal @ Raju (appellant No.1) was also held guilty for the offence under Section 25 of the Arms Act, 1959. Banwari and Jagdish were acquitted as it appeared that they had been falsely implicated in the case. The appellants were sentenced to undergo imprisonment for life for the offence under Section 302 read with Section 34 IPC; besides, they were ordered to pay a fine of Rs.5000/- each and in default of payment of fine to undergo rigorous imprisonment for six months. Rajpal @ Raju (appellant No.1) was also convicted under Section 25 of the Arms Act, 1959 and sentenced to undergo rigorous imprisonment for one year. Aggrieved against the judgment of conviction dated 14.11.2002 and order of sentence dated Crl. Appeal No.913-DB of 2002 -9- 16.11.2002, the appellants have filed the present appeal.
Learned counsel for the appellants has contended that the appellants have been falsely implicated in the case. It is submitted that the appellants have been implicated due to party faction in the village. The incident had occurred on 21.02.2000 at about 09.00 pm whereas the FIR was recorded on 22.02.2000 at about 1.55 am on the next morning. The said report reached the Illaqa Magistrate at 08.45 am which is 45 kilometers from the place of occurrence. It is submitted that the police party headed by Jai Singh, SI/SHO, Police Station, Uklana (PW-11) was already in the vicinity of the village and they had a vehicle with them, therefore, there was no reason for delay in lodging the FIR. Despite that the FIR has been registered after a considerable delay, which shows that the FIR has lodged with due deliberations and the appellants have been falsely implicated. It is submitted that the accused were doing labour work, while Tek Chand (deceased) was a Sarpanch of the village. Thus, there could possibly be no political rivalary between the appellants and the deceased Tek Chand. Merely by stating that there was political rivalary between them, a motive is sought to be introduced so as to implicate them. It is submitted that there was no light during night hours at the time of occurrence and none of the eye witnesses have stated that they saw the incident under any light. Jai Singh, SI/SHO, Police Station, Uklana (PW-11) has conducted the investigation in a biased manner; otherwise there is no case at all. It is submitted that the eye witnesses are not reliable witnesses and their presence at the spot when their brother was killed is not Crl. Appeal No.913-DB of 2002
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established. Had they been there at the spot at the time of incident, they would have made efforts to save Tek Chand, who is brother of the complainant Chander Bhan (PW-8). However, no blood on the clothes of any eye witness was found. The injury on the back of the head and fracture on the right arm of Tek Chand (deceased), it is submitted are not explained. The death, it is submitted occurred due to excessive bleeding which could not be possible within a few minutes. The fact that if the witnesses were there, the injured could have been shifted at least to a local medical practioner or to a house. The circumstances show that the dead body was found in the morning. In any case, it is submitted that the appellants Balwan (appellant No.2) and Vijay (appellant No.3) are not liable for the offence as the injuries on the back and fracture of right arm show that the victim was not caught hold by anybody at the time of the incident. The absence of blood on the knife in the FSL report Ex.P- 33, it is submitted shows that the knife was planted simply to complete the chain of circumstances.
In response, learned counsel for the State submits that the prosecution has established and proved its case against the appellants beyond shadow of reasonable doubt. It is submitted that the eye witness account of the prosecution witnesses which is corroborated by the medical evidence and attending facts and circumstances goes to establish the guilt of the appellants beyond shadow of reasonable doubt. Therefore, they have rightly been convicted and sentenced by the learned trial Court. The contentions as raised by learned counsel for the appellants, it is submitted, are Crl. Appeal No.913-DB of 2002
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not tenable and do not in any manner dislodge the prosecution case.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the record of the case.
Chander Bhan (PW-8) who lodged the FIR, in his deposition in the Court reiterated the facts as given in the FIR. It is stated Tek Chand (deceased) was his brother. He was Sarpanch of Gram Panchayat, Village Sahu and he belonged to the Congress Party. Fifteen days earlier to the incident which occurred on 21.02.2000, Banwari (since acquitted) son of Mam Chand; Rajpal @ Raju (appellant No.1) and Jagdish (since acquitted) sons of Banwari had threatened Tek Chand (deceased), brother of the complainant, that they would finish him before the elections. The said accused persons, it is stated, belonged to the Lok Dal Party. On 21.02.2000, complainant-Chander Bhan (PW-8), Dalbir (PW-9) and Bhoria were going to the village after serving dinner to the election staff in the school building of the village as the General Elections of Vidhan Sabha were to take place on the next day i.e. on 22.02.2000. On the way to their house when they reached in the front of the house of Mulki Ram, they noticed that Tek Chand brother of Chander Bhan (complainant) (PW-8) was coming from the opposite direction. In the meanwhile, Banwari and Jagdish (since acquitted) raised a 'lalkara' by saying that Tek Chand (deceased) should be taught a lesson regarding his 'Sarpanchship', so that he would not be able to contest the next elections of the Gram Panchayat. It is alleged by Chander Bhan (complainant) (PW-8) that thereafter Vijay (appellant No.3) and Crl. Appeal No.913-DB of 2002
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Balwan (appellant No.2) caught hold of Tek Chand (deceased) by his hands while Rajpal @ Raju (appellant No.1) gave two blows with his knife on the chest of Tek Chand (deceased) as a result of which, he succumbed to his injuries. The accused then fled away with their weapon i.e. knife. Dalbir (PW-9) and Bhoria were deputed to guard the dead body while Chander Bhan (complainant) (PW-8) proceeded to inform the police party. The police met Chander Bhan (complainant) (PW-8) near Bharian School and he got his statement (Ex.P-12) recorded, which he thumb marked. The said statement was read over to Chander Bhan (PW8). In cross-examination, it is stated by Chander Bhan (PW8) that election of the Gram Panchayat of village Sahu had taken place six years prior to the occurrence. At that time, Dharam his uncle in the family contested elections against Tek Chand (deceased). None of the family members of the accused ever contested the elections against Tek Chand. Prior to the present term of Gram Panchayat, Banwari became a member of the Panchayat earlier to that. Between the accused and the deceased, it is stated, that there was no dispute of any kind except the election of Gram Panchayat. He did not know as to when the election of the Gram Panchayat was to be held after the incident. Banwari accused and anyone out of the other accused or any of their family, it is stated, never contested elections of the Block Samiti, Sarpanch etc. However, they had been participating actively in the election being workers of the Lok Dal Party. All the accused were labourers by profession.
Dalbir (PW-9) supported the stand as taken by Chander Crl. Appeal No.913-DB of 2002
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Bhan (PW-8). He deposed on the same lines as had been deposed by Chander Bhan (PW-8). In cross-examination, it is stated that they did not give any first aid to Tek Chand (deceased); besides, there was no opportunity to call for the medical officer because Tek Chand (deceased) died instantaneously. Complainant-Chander Bhan (PW-
8), it is stated, had left the spot to inform the police after about 45 minutes or so. He reached the spot at 2.30 am. Many other persons from the village had collected there by then.
The eye-witness account of the prosecution which has been adduced by way of the examination of complainant-Chander Bhan (PW-8) and Dalbir (PW-9) is quite consistent and it is primarily stated that Rajpal @ Raju (appellant No.1) had inflicted two-three knife blows on the person of Tek Chand (deceased) while the other two appellants i.e. Balwan (appellant No.2) and Vijay (appellant No.3) had caught hold of his hands. Both the eye witnesses had seen the occurrence. The eye witness account of complainant-Chander Bhan (PW-8) and Dalbir (PW-9) is corroborated by the medical examination. Dr. Gopal Bhardwaj, Medical Officer, General Hospital, Hisar (PW-1) along with Dr. M. L. Kamra and Dr. Suresh Kumar, both Medical Officers conducted the postmortem examination on the dead body of Tek Chand (deceased) son of Sant Lal aged 40 years. The following injuries were noticed:-
1. "Incised spindle shaped wound on mid sternum with well defined clean cut margin 3cm. X 1 cm. It was 23 cm from right acromian and 8 cm from right nip-
ple. On dissection sub coetaneous tissues showed Crl. Appeal No.913-DB of 2002
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hematoma with fracture of sternum. Further dissec- tion revealed clotted blood with clots on right pleural cavity with rupture of right lung and vessels.
2. An incised wound spindle shaped with clean cut margins measuring 3.cm x 1 cm lying 4 cm below right nipple. On dissection subcutaneous tissues showed hematoma with fracture of 5th and 6th ribs in cartilaginous portion. Further dissection revealed blood with clots in right pleural cavity and lungs and pleura were ruptured. Direction of injury No.1 was down and laterally and direction of injury No.2 was medially in same plane.
3. Incised wound 4 cm x 2 cm on right occipital area 3"
behind right pinna with clotted blood and hematoma and subcutaneous tissue.
4. Incised wound 3 cm x 1 cm. on occipital region 6 cm medial and posterior to the injury No.3 with clot- ted blood and hematoma.
5. There was deformity on the right arm with fracture of right humerus. Hematoma was seen.
Left pleura was healthy and pale. Larynx and tracheas, left lung were healthy and pale. Heart was pale and healthy with left chamber was empty. Right chamber was partly full. Abdominal was healthy. Peritoneum was healthy and pale. All the other organs were also healthy except the described earlier.
Crl. Appeal No.913-DB of 2002
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Cause of the death, in our opinion, in this case was hemorrhage and shock due to the described in- juries. All injuries were ante mortem in nature and were sufficient to cause death in ordinary course of nature." It is stated by Dr. Gopal Bhardwaj (PW-1) that injuries No.1 and 2 on the person of Tek Chand (deceased) could be caused by a knife (Ex.P-5). Injuries No.3 and 4 on the person of the deceased, it is stated, could be caused on account of a fall on some sharp edged object because such injuries are incised wounds, whereas injury No.5 had been caused by a blunt weapon and the same is possible on account of fall on some object with blunt margins. The garments of Tek Chand (deceased) i.e. shirt (Ex.P-6), jacket (Ex.P-7), sweater (woolen) (Ex.P-8), baniyan (vest) (Ex.P-9), underwear (Ex.P-10) and Pajama (Ex.P-11) were proved on record. Dr. Gopal Bhardwaj (PW-1) in cross examination, states that the examination of dead body did not suggest that the deceased was attended by a medical person or a physician before his death. Tek Chand (deceased) must have died within six hours of the time of receiving injuries. Meaning thereby that the time which had elapsed between the injuries and the death was less than six hours. It is stated that it was a case of profused bleeding. Rigor mortis, it is stated, starts after an interval of 2 to 3 hours depending upon the temperature and surrounding atmosphere and it lasts for 36 hours. It starts vaning after 24 hours. It is stated that it is correct that when they describe a wound as a stab wound, it means that the depth is normally greater than in case of an incised wound. It is stated as Crl. Appeal No.913-DB of 2002
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incorrect that the knife (Ex.P-5) cannot cause an injury of the shape of spindle.
The FSL report (Ex.P-33) shows that the clothes and metallic knife/churri (approx. 57 cms) were subject matter of laboratory examination. Blood was detected on the blood stained earth. However, the material on the blood stained earth had disintegrated. Human blood was found on the pyjama, banian, shirt, jacket, sweater and underwear. However, blood could not be detected on the knife/churri.
The contention of the learned counsel for the appellants that delay in lodging the FIR has not been explained is not of much consequence. The incident had occurred at 9.00 pm on 21.02.2000 while the FIR was lodged on the next morning at 1.55 am on 22.02.2000. The special report reached the Illaqa Magistrate at 08.45 am on 22.02.2000. It may be noticed that it has come in the cross-examination of Dalbir (PW-9) that Chander Bhan (PW-8) left the spot to inform the police after 45 minutes or so. Thereafter, Chander Bhan (PW-8) met the police near Bharian School where he made his statement (Ex.P-12). Some time must have been consumed by the police in ascertaining as to what were the acutal facts and circumstances; besides, time must have been consumed in writing the statement of the complainant Chander Bhan (PW-8). In Ram Jag v. State of U.P., AIR 1974 SC 606 it was held by the Hon'ble Supreme Court that even a long delay in lodging a FIR can be condoned, if the witnesses have no motive for implicating the accused. On the other hand, prompt filing of the report is not an Crl. Appeal No.913-DB of 2002
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unmistakable guarantee of the truthfulness of the version of the prosecution. Besides, the witnesses cannot be called upon to explain every hour's delay in filing information and a common sense view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Therefore, prompt lodging of a FIR is not an unmistakable guarantee of a truthful version nor is delay always fatal. In the present case, the eye witnesses account is consistent with regard to the manner by which the injuries were caused. The same is corroborated by the medical evidence in which the injuries have been described. The fact that the special report reached the Illaqa Magistrate at 08.45. am on 22.02.2000 which is at a distance of 45 kilometers is quite natural as no one is likely to go at night to deliver the special report to the Illaqa Magistrate and must have gone in the morning. In the circumstances, the delay in lodging the FIR is not such which would go to show that there has been scope for manipulating the prosecution evidence. In any case the same has also been duly explained. Therefore, the contention of the learned counsel for the appellant that there has been delay in lodging the FIR, which goes to show the falsity of the prosecution case is devoid of any merit.
The presence of the eye witnesses Chander Bhan (PW-
8) and Dalbir (PW-9) at the time of the incident is quite natural as they had gone to the school to serve meals to election duty staff which was there for conducting polling for the Vidhan Sabha elections, the polling of which was to take place on the next date of Crl. Appeal No.913-DB of 2002
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the incident.
The mere fact that the accused are labourers while the deceased Tek Chand was Sarpanch of the village and there was no enmity of any sort between them and, therefore, the motive of political rivalary is not made out, is devoid of any merit. In cross- examination, Chander Bhan (PW-8) has accepted that the election of the Gram Panchayat had taken place six years prior to the occurrence. At that time Dharma his uncle in the family, contested election against Tek Chand (deceased). None of the family members of the accused ever contested the election against Tek Chand (deceased). Prior to the present term of the Gram Panchayat, Banwari had become member of the Panchayat. The accused and the deceased it is stated did not have any dispute except regarding the election of the Gram Panchayat. It is submitted that Banwari accused and anyone from out of the other accused or their family members never contested the elections of Block Samiti, Sarpanch etc. However, it is submitted that they have been participating actively in the elections. The accused it is alleged used to participate in the elections being workers of Lok Dal Party. Therefore, it is quite evident that the appellants had enmity against Chander Bhan (PW-8) and his brother Tek Chand (deceased) who was the Sarpanch of Gram Panchayat of village Sahu. It has come in evidence that the accused actively participated in the elections being workers of the Lok Dal Party. On the night of occurrence, the complainant Chander Bhan (PW-8) along with Dalbir (PW-9) had returned after serving meals to the polling staff in the school as on the following day i.e. Crl. Appeal No.913-DB of 2002
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22.02.2000 there was polling for the Vidhan Sabha elections. Therefore, at such time, the fact that workers of the Congress Party and the Lok Dal Party would clash during the election process, could not be ruled out and there was an assault on Tek Chand (deceased), which was witnessed by Chander Bhan (PW-8) and Dalbir (PW-9). At the time of incident, it has been alleged that the accused were saying that Tek Chand (deceased) should be taught a lesson of 'Sarpanchi,' so that he may not become Sarpanch in the coming election. Thus, there was a motive for the appellants to commit the murder of deceased who was a Sarpanch of the village on the eve of elections for supporting one particular party in the Vidhan Sabha Elections. Besides, the motive is always in the mind of the accused and even otherwise, it is a double edged weapon, for the commission of the crime and also for false implication of the accused. Even otherwise, the family of the victim would be quite reluctant in a case where a murder has been committed of their near and dear one, to implicate false persons rather their endeavour would be that the actual culprits are brought to book and convicted.
The contention that there was no light and that in the winter there was no source of light and the PWs in the Court did not make any deposition regarding source of light is inconsequential. The eye witnesses Chander Bhan (PW-11) and Dalbir (PW-9) have identified the accused while they were on their way back to their respective houses after serving meals to the polling staff in the school. They in front of the house of Mulki Ram had noticed Tek Chand (deceased) coming from the opposite side. In the meanwhile, Crl. Appeal No.913-DB of 2002
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there was an assault on him. Therefore, when there is consistent evidence on record with regard to the identity of the accused, the mere fact that the source of light has not been mentioned in respect of the incident that was witnessed, is inconsequential.
The contention of the appellants that the presence of the eye witnesses is doubtful in view of their conduct at the spot when their brother Tek Chand was being killed, they did not intervene to help Tek Chand (deceased) as there was no blood on the clothes of the eye witnesses may be considered. In this regard, it may be noticed that the eye witnesses in the case namely Chander Bhan (PW-8) had seen that Tek Chand (deceased) was being assaulted. It has been alleged that Vijay (appellant No.3) and Balwan (appellant No.2) had caught hold of Tek Chand (deceased) by his hands while Rajpal @ Raju (appellant No.1) gave two-three blows with his knife on the chest of Tek Chand (deceased) as a result of which Tek Chand (deceased) succumbed to his injuries. Dalbir (PW-9) has also stated that Vijay (appellant No.3) and Balwan (appellant No.2) caught hold of Tek Chand (deceased) by his arms and Rajpal @ Raju (appellant No.1) gave two-three blows with his knife on the chest of Tek Chand (deceased) and he fell down. Accused fled away while Tek Chand (deceased) died at the spot. The incident had occurred suddenly and there was no occasion for Chander Bhan (PW-8) and Dalbir (PW-9) to intervene. Chander Bhan (PW-8) in his cross- examination has stated that they were at a distance of 20 paces from the house of Lakhmi son of Mulki Ram when they noticed Tek Chand (deceased) coming from the opposite direction. Tek Chand was Crl. Appeal No.913-DB of 2002
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seen coming in the street. It is stated that another street located in the village is at a distance of 15 paces from the street wherein Tek Chand (deceased) was seen coming. Both streets converge on the main street. Street which goes from East to West meets in the street from North to South. The accused appeared from the same street and Chander Bhan (PW-8) noticed the accused causing injuries to his brother Tek Chand. Therefore, the eye witnesses Chander Bhan (PW-8) and Dalbir (PW-9) who were at a distance when the incident had occurred could not intervene to help Tek Chand, but they had nevertheless seen the occurrence. Besides, the eye witness Chander Bhan (PW-8) is none other than the brother of the deceased and his endeavour would be and he would want that the real and actual culprits responsible for the murder of Tek Chand (deceased) are tried and are convicted rather than innocent persons being falsely implicated. Moreso, when there was no enimity or any other motive to implicate them. Therefore, the contention of the learned counsel for the appellants that the conduct of the eye witnesses at the time of incident was unusual is not tenable. The fact that no blood was found on the clothes of the eye witnesses Chander Bhan (PW-8) and Dalbir (PW-9), is also inconsequential. The assailants had committed the murder of Tek Chand (deceased) and had run away. The eye witnesses had seen Tek Chand (deceased) coming from their opposite direction and had seen the occurrence. Even otherwise, in case there was some blood on the clothes of Tek Chand (deceased), the same may not have been taken in possession by the Investigating Officer Jai Singh SI/SHO Crl. Appeal No.913-DB of 2002
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(PW-11). Therefore, in case there is any infirmity in the investigation of the case, the prosecution case would not in any manner be affected. The appellants in fact have not put to Jai Singh SI/SHO (PW-11) or even to Chander Bhan (PW-8) and Dalbir (PW-9) in their respective cross-examinations as to whether the clothes of the eye- witnesses were stained with blood when they had gone to help Tek Chand (deceased) after he was injured. Even otherwise, as already noticed, the eye witnesses were at a considerable distance from the place of incident, therefore, the fact that there was no blood on the clothes of eye witnesses, is of no consequence.
It is submitted by learned counsel for the appellants that the death occurred due to excessive bleeding which could not be within minutes and thus, had there been anyone with the deceased, the injured could have been shifted at least to the local medical practioner or to his home. It is, therefore, submitted that the circumstances show that the dead body was found in the morning and there was no eye witness present at the scene. Dr. Gopal Bhardwaj (PW-1), who conducted the postmortem examination on the dead body of Tek Chand (deceased) has given the cause of death as hemorrhage and shock due to the injuries that have been described. In cross-examination, it is stated that the deceased must have died within six hours of the time of receiving the injuries, meaning thereby, the time which elapsed between the injuries and death was less than six hours. It is, however, stated that it was a case of profuse bleeding. As has already been noticed that Tek Chand (deceased) had received as many as five injuries on his Crl. Appeal No.913-DB of 2002
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person and injuries No.3 and 4 were on the occipital region; besides, injuries No.1 and 2 were spindle shape wounds with clean cut margins. Injury No.1 was 23 cms from right acromian and 8 cms from right nipple while injury No.2 was 4 cms below right nipple. Therefore, it may be noticed that the injuries were quite grave and Tek Chand (deceased) after receiving them had fallen on the ground. In cross-examination it was put to Chander Bhan (PW-8) regarding the location of the school building and the distance of Tek Chand's (deceased) house from the school building, besides, the location of the house of Chander Bhan (PW-8). It is stated by Chander Bhan (PW-8) that school building of the village is located at a distance of one acre from the 'abadi' of the village. The school building is on the eastern side of the village 'abadi.' Tek Chand's (deceased) house is at a distance of one acre from the school building and his house is situated on the western side of the village 'abadi.' The house of Dalbir (PW-9) and Bhoria are also located near his house. It was put to Chander Bhan (PW-8) as to why there was no medical treatment. It was stated that there was no Government Hospital in the village. However, there was one medical practioner, but they did not call the medical officer as Tek Chand had died at the spot. So, the question of calling medical officer or taking Tek Chand (deceased) to the hospital, did not arise. It may be noticed that though the death of Tek Chand may have occurred within six hours of receiving the injuries, but Chander Bhan (PW-8) and Dalbir (PW-9) had taken Tek Chand (deceased) to be dead. Even Dalbir (PW-9) had stated that they did not give any first aid to Tek Chand (deceased) and there Crl. Appeal No.913-DB of 2002
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was no opportunity to call for a medical officer because Tek Chand had died instantaneously.
The contention that the circumstances show that the dead body was found in the morning, is clearly bereft of any material on record. The FIR was registered on 22.02.2000 when the information had been received at 1.35 am at night. The inquest proceedings (Ex.P-4) were carried out during the night of 21/22.02.2000. It has come in evidence that Jai Singh, SI/SHO, Police Station, Uklana (PW-11) reached at the spot during the night. The body had reached the hospital during the intervening night of 21/22.02.2000. As such, it cannot be said that the dead body of Tek Chand was found in the morning and then all proceedings were ante timed.
The other contention is that no blood stains was found on the knife (Ex.P-5). The recovery of knife is proved from the deposition of Lakhmi Chand (PW-10) who has proved the disclosure statement (Ex.P-26) of Rajpal @ Raju (appellant No.1). In his statement, it is stated that he was associated by the police on 26.02.2000 on which date Rajpal @ Raju (appellant No.1) was arrested. In terms of the disclosure statement (Ex.P-26), it has been stated by Rajpal @ Raju (appellant No.1) that he had concealed the knife (Ex.P-5) used by him in the commission of crime in the room of his residential house. In pursuance of the disclosure statement (Ex.P-26), the knife (Ex.P-5) was recovered. The sketch of the knife (Ex.P-27) was prepared. Rajpal @ Raju (appellant No.1) got the knife recovered, which was taken in possession by the police vide Crl. Appeal No.913-DB of 2002
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recovery memo (Ex.P-28). In terms of the FSL report (Ex.P-33), indeed no blood was found on the knife (Ex.P-5) that was used by Rajpal @ Raju (appellant No.1) in the crime. The learned trial Court observed that the incident had occurred in the night of 21.02.2000 at about 9.00 pm, whereas the knife was got recovered by accused Rajpal @ Raju on 26.02.2000, therefore, there were five days with the accused to remove the blood stains from the knife and perhaps, he cleaned the knife to the full extent in an effort to remove the connection between the crime and the knife. The said reasoning of the learned trial Court is quite sound. Even otherwise merely because there are no blood stains on the knife, is not a ground to discard the prosecution case particularly when the FSL reports are used primarily for corroboration of a fact and these do not in any manner dislodge the prosecution case.
Learned counsel for the appellants has contended that injuries on the back and fracture on the right arm of Tek Chand (deceased) has, in any case, not been explained. This shows that the victim was not caught hold of by anybody at the time of occurence. Dr. Gopal Bhardwaj (PW-1) has stated that injuries No.1 and 2 on the dead body of Tek Chand (deceased) could be caused with the knife (Ex.P-5). Injuries No.3 and 4 which are incised wound on the right occipital 3 cm behind right pinna and on the occipital region 6 cm medial and posterior to injury No.3 and could be caused on account of fall on some sharp edged object because such injuries are incised wounds. Injury No.5 which is deformity on the right arm with fracture of right humerus had been caused by a blunt weapon Crl. Appeal No.913-DB of 2002
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and the same is possible on account of fall on some object with blunt margins. Chander Bhan (PW-8) has stated that Balwan and Vijay (appellants No.2 and 3) had caught hold of Tek Chand (deceased) while Rajpal @ Raju (appellant No.1) gave two-three blows with his knife on the chest of Tek Chand (deceased). Dalbir (PW-9) has also stated that Vijay and Balwan (appellants No.2 and 3) caught hold of Tek Chand (deceased) by his hand and Rajpal @ Raju (appellant No.1) gave two-three knife blows on the chest of Tek Chand (deceased) and he fell down. Therefore, two-three injuries are attributed to Rajpal @ Raju (appellant No.1) with a knife on the person of Tek Chand (deceased) and injuries No.3 to 5 are not attributed to anyone. Injuries No.3 and 4 as already noticed are on the occipital region while injury No.5 is on the right arm with fracture of right humerus. These indeed have not been attributed to anybody. In the statement recorded in terms of Section 313 Cr.P.C it was put to Rajpal @ Raju (appellant No.1) that as per opinion of Dr. Gopal Bhardwaj (PW-1), injuries No.1 and 2 on the dead body of Tek Chand could be caused by knife Ex.P-5. To similar effect, the substance of evidence regarding opinion of Dr. Gopal Bhardwaj (PW-
1) with respect to injury No.1 was caused by knife (Ex.P-5) was put to Vijay and Balwan (appellants No.2 and 3). The other injuries i.e. injuries No.3 to 5 are, therefore, indeed not attributed to anybody. Two of the accused in the present case namely Banwari and Jagdish were acquitted by the learned Trial Court as it appeared that they had been falsely implicated in the case. A 'lalkara' was attributed to both the said accused Banwari and Jagdish. It is quite likely for the Crl. Appeal No.913-DB of 2002
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persons in the village to name the persons from the side of the accused so as to inflate the number of accused persons. The allegations against Vijay and Balwan (appellants No.2 and 3) are that they caught hold of Tek Chand (deceased). However, in case Tek Chand (deceased) was indeed caught hold of by his arms, the possibility of his having a fracture on the right humerus and two injuries on the occipital region would not be there as the said appellants Vijay and Balwan (appellants No.2 and 3) would not have let Tek Chand (deceased) fall as they were catching hold of him. In the FIR (Ex.P-14), it is stated by Chander Bhan (PW-8) that on the date of occurrence i.e. 21.02.2000 at about 09.00 pm, he (PW-8) and Dalbir (PW-9) besides Bhoria were coming back after serving meals to the staff in the school and were going back to their respective houses and when they reached near the house of Mulkhi Ram; Tek Chand (deceased) brother of the complainant-Chander Bhan (PW-8) was seen coming from the opposite side. Vijay (appellant No.3) suddenly came from behind and caught hold of the left hand of Tek Chand (deceased). Balwan (appellant No.2) caught hold of him from his right hand. Banwari and Jagdish (since acquitted) together raised a 'lalkara' that Tek Chand (deceased) should be taught a lesson of 'Sarpanchi,' so that he may not become Sarpanch in the coming election. Rajpal @ Raju (appellant No.1) gave two-three blows with a knife to the brother of the complainant namely Tek Chand (deceased) in his chest. The fact that the presence of Banwari and Jagdish has been found to be doubtful would also entitle Balwan and Vijay (appellants No.2 and 3) to be Crl. Appeal No.913-DB of 2002
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given the benefit of doubt. Indeed no injuries have been attributed to them on the person of Tek Chand (deceased) in the incident that had occurred on 21.2.2000. There are two-three injuries which are alleged to have been inflicted by Rajpal @ Raju (appellant No.1) on the person of Tek Chand (deceased) and he fell on the ground and sufferred injuries on the occipital region as also the right arm. Had Balwan (appellant No.2) indeed caught hold of the right hand of Tek Chand (deceased) then there would be no injury on his right arm. Besides, had Vijay (appellant No.3) also been catching hold of Tek Chand (deceased) as alleged by the prosecution, then there would have been no injury on the occipital region of Tek Chand (deceased). Therefore, for the reasons recorded for holding that Banwari and Jagdish were not present at the time of incident and had been falsely implicated, it also creates a reasonable doubt that Balwan and Vijay (appellants No.2 and 3) were also not present at the time of incident. However, that would not mean that the prosecution case in its entirety is not established from the deposition of Chander Bhan (PW-
8) and Dalbir (PW-9) as the principle of "falsus-in-uno, falsus-in- omnibus" (false in one thing, false in everything) is not applicable in the country. Besides, it is neither a sound rule of law nor a law of practice. Therefore, the statements of Chander Bhan (PW-8) and Dalbir (PW-9) can be accepted as regards infliction of injuries on the chest of Tek Chand (deceased) which resulted his death. The injuries on the head and the right arm which were caused on the person of Tek Chand have not been attributed to anyone including Balwan and Vijay (appellants No.2 and 3). Therefore, in the Crl. Appeal No.913-DB of 2002
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circumstances, the benefit of doubt is liable to be given to Balwan and Vijay (appellants No.2 and 3). However, the conviction and sentence of Rajpal @ Raju (appellant No.1) for the offence under Section 302 IPC and Section 25 of the Arms Act, 1959 is liable to be upheld. The role of inflicting the injuries with the knife is attributed to him; besides, the knife was also recovered from him.
Consequently, the appeal is partly allowed and the judgment of conviction dated 14.11.2002 and order of sentence dated 16.11.2002 qua Balwan and Vijay (appellants No.2 and 3), are set aside and the appeal qua them is allowed. However, the appeal qua Rajpal @ Raju (appellant No.1) is dismissed and his conviction and sentence for the offences under Section 302 IPC and Section 25 of the Arms Act, 1959 is upheld.
(S.S. Saron) Judge (Rameshwar Singh Malik) Judge 21.12.2011.
A.kaundal