Punjab-Haryana High Court
Criminal Appeal No.327-Db Of 2006 vs State Of Haryana on 25 November, 2008
Author: S.S.Saron
Bench: S.S.Saron, Sabina
In the High Court of Punjab and Haryana at Chandigarh
1. Criminal Appeal No.327-DB of 2006
Date of decision: 25.11.2008
Inder
......Appellant
Versus
State of Haryana
.......Respondent
2. Criminal Appeal No.464-DB of 2006
Montu
......Appellant
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR.JUSTICE S.S.SARON
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Aman Chaudhary, Advocate for
appellant Inder (in CRA No.327-DB of 2006)
Ms. Anju Arora, Advocate for
appellant Montu (in CRA No.464-DB of 2006).
Mr. H.S. Sran, Addl.A.G.Haryana.
****
S.S.SARON, J.
This order will dispose of Criminal Appeal No.327- DB of 2006 filed by Inder son of Mai Chand and Criminal Appeal No.464-DB of 2006 filed by Montu son of Bhagwan against the CRA Nos.327-DB & 464-DB of 2006 [2] judgment and order dated 29.11.2005, whereby the respective appellants have been held guilty and convicted for the offence punishable under Section 302 read with Section 34 Indian Penal Code ('IPC' - for short) as also the order dated 30.11.2005 whereby both the respective appellants have been sentenced to undergo imprisonment for life; besides, to pay a fine of Rs.5,000/- each and in default of payment of fine, the convict defaulting has been ordered to undergo further rigorous imprisonment for one year each.
The FIR (Ex. PU) in the case has been registered on 17.11.2002 on the statement (Ex. PA) of Heera - complainant (PW-1) who is the brother of Ram Niwas (deceased) and is also the brother of Inder (appellant in CRA No.327-DB of 2006). It is alleged by Heera - complainant (PW-1) in his statement (Ex. PA) on the basis of which FIR (Ex.PU) has been registered that he is a resident of Shamshan Road, Kishanpura, Police Station Chandni Bagh, District Panipat and he runs a shoe shop at the said place. They are three brothers. The eldest is Inder (appellant) and Ram Niwas (deceased) was younger than him. The complainant Heera (PW1) is the youngest of all. Inder (appellant) was living separate from them for the last eight years at Kabari Road, Panipat. The complainant Heera and Ram Niwas (deceased) were staying with their parents. His parents had six killas (acres) of land. Inder (appellant) had separated from his parents eight years earlier to the lodging of the FIR (Ex.PU) by giving him money in cash in lieu of the land. Inder (appellant), however, used to come to their house on many occassions and demanded land in division but his parents CRA Nos.327-DB & 464-DB of 2006 [3] and Ram Niwas (deceased) used to tell him that he had taken money in cash and now what was the share in the land to be given for. On this account, Inder (appellant) had nursed an inner jealousy against Ram Niwas, but despite that he had been coming to their house quite often. On 16.11.2002 at about 4.30 p.m., when the complainant reached home then Inder (appellant) had come to their house. His sister-in-law (Bhabi) Kamlesh, wife of Ram Niwas (deceased) was also at home. The complainant Heera (PW1) and his brother's wife (Bhabi) Kamlesh asked Inder (appellant) to sit but he refused and said that he was in a hurry and he had to go with Ram Niwas (deceased) to see a plot. Ram Niwas (deceased) was, however, not at home at that time and Inder (appellant) went back. At about 9.30 p.m. at night their relative Suresh Kumar son of Om Parkash (PW-3) had come from Jeetgarh to their house and informed them that near village Ram Nagar some persons had inflicted injuries to Ram Niwas and he was admitted in the Civil Hospital, Panipat. The complainant Heera, and his father Mai Chand (PW-2) reached the hospital at Panipat. There they saw that the face of Ram Niwas (deceased) was smeared with blood and he had suffered many injuries with a sharp edged weapon. On asking Ram Niwas (deceased) for quite some time, he (Ram Niwas) was only able to say that Inder (appellant) with the help of his companions had inflicted injuries on him. Thereafter, Ram Niwas due to the injuries that he had suffered died. The complainant, Heera, had complete suspicion that his brother Inder (appellant) had committed the murder of his other brother Ram Niwas with the help of his companions on account of CRA Nos.327-DB & 464-DB of 2006 [4] the grudge that he (Inder-appellant) nursed for not getting his share in the land from his parents. The statement (Ex. PA) of Heera (PW-1) was recorded by Balwant Singh, ASI (PW-11) Police Station, Model Town, Panipat. On 17.11.2002, the police recorded its proceedings (Ex. PA/1), which are to the effect that Balwant Singh, ASI (PW11) had through a VT message at Police Post Bus Stand, Panipat received information that Ram Niwas son of Mai Chand resident of Kishanpura on account of a fight was admitted at General Hospital, Panipat. Balwant Singh, ASI (PW11) along with Constable Parveen reached General Hospital, Panipat and submitted an application to the doctor for recording the statement of the injured. The doctor informed them that the injured had died. Then ASI Balwant Singh (PW 11) looked for the heirs of the deceased Ram Niwas and he met Heera complainant whose statement (Ex. PA) was recorded and after recording the statement, Heera complainant accepted it as correct and signed the same in Hindi. The doctor in terms of the Medico Legal Report of Ram Niwas (deceased) had mentioned that there were three injuries, which were grievous and had been caused with a sharp edged weapon. From the statement of Heera complainant (PW-1) and the Medico Legal Report of Ram Niwas (deceased), a case for the commission of an offence under Sections 302/34 IPC was found to be made out. A writing in this regard was sent to the Police Station through Constable Parveen No.1005 for registration of a case (FIR) and its number was asked to be intimated; besides, the higher officers were also asked to be informed through special report. On receipt of the writing at the Police station, FIR (Ex.PU) CRA Nos.327-DB & 464-DB of 2006 [5] was registered by ASI Randhir Singh. Balwant Singh, ASI (PW-
11) was asked to carry out further investigations in the case. Balwant Singh ASI (PW-11) obtained 'rukka' (memo) (Ex.PQ/1) from General Hospital, Panipat regarding the death of Ram Niwas. The inquest report (Ex.PR) of the deceased Ram Niwas was prepared by Balwant Singh ASI (PW 11). The dead body of Ram Niwas was identified by Heera (PW-1) and Mai Chand (PW-2) (father of the deceased and the appellant). The inquest report (EX.PR) was initialed by Dr.K.L.Chopra (PW-9). The statements of the witnesses in terms of Section 161 of the Code of Criminal Procedure (Cr.P.C. - for short) were recorded by the investigating officer Balwant Singh ASI. An application (Ex.PM) was submitted by Balwant Singh ASI on 17.11.2002 before the Senior Medical Officer, Panipat for conducting the postmortem examination on the dead body of Ram Niwas and the relevant documents were handed over to Constable Parveen. The Investigating Officer Balwant Singh, ASI (PW-11) then visited the place of occurrence. At that time Om Parkash (PW-3) ( who is the father's brother's son-in-law of the appellant, deceased and the complainant) accompanied him. Other villagers and Rameshwar, Panch also met Balwant Singh, ASI (PW-11) at the spot. Blood stained earth was lifted from the spot; besides, one chappal (Ex.P1) was also taken. The same were sealed in separate parcels with the seal of RS, which after use was handed over to Om Parkash (PW-3). The parcels were taken in possession vide recovery memo Ex.PB, which were signed by Om Parkash (PW-3) and Rameshwar, Panch. Rough site plan (Ex.PV) of the place of occurrence was CRA Nos.327-DB & 464-DB of 2006 [6] prepared at the instance of Om Parkash (PW-3). Thereafter Rattan Singh, SI/SHO (PW-12) reached the spot and the investigation file was handed over to him. On 18.11.2002, Balwant Singh, ASI (PW-11) joined the investigation of the present case along with Rattan Singh, SI/SHO (PW-12). When they reached at Garhi Sikandarpur turn Rameshwar Panch met them and he produced accused Inder and Montu (appellants) before SI SHO Rattan Singh (PW-12). The statement of Rameshwar, Panch under Section 161 Cr.P.C. was recorded. Thereafter, Rajbir (PW-8) met them and he was joined in the investigation by Rattan Singh, SI/SHO (PW-12). Rattan Singh, SI/SHO (PW-12) interrogated Inder Singh and during interrogation he disclosed that he along with his co-accused Montu murdered Ram Niwas on the 'Patri' (embankment) of the canal. He disclosed that he was having a 'Dao' and Montu caught hold of the hands of Ram Niwas and thereafter, he (Inder - appellant) caused injuries with 'Dao' to Ram Niwas. He further disclosed that after causing the injuries, the 'Dao' was thrown in the 'kikker' trees near the 'patri' (embankment) of canal and he could get the same recovered. His disclosure statement (Ex.PC) in this regard was recorded. Appellant Montu was thereafter interrogated by Rattan Singh, SI/SHO (PW-12) and he made a disclosure statement (Ex.PD) that he had caught hold of the hands of Ram Niwas, while Inder (appellant) caused injuries with his Dao. The disclosure statement (Ex.PD) was signed by ASI Balwant Singh (PW 11) and Rajbir, sarpanch. In pursuance of the disclosure statements the accused (appellants) took them near burji 41 of the canal. Inder (appellant) identified the place where he CRA Nos.327-DB & 464-DB of 2006 [7] caused the injuries to Ram Niwas along with his co-accused Montu (appellant); besides, he got recovered the 'Dao' from the 'kikker' trees near the place of occurrence. A rough sketch (Ex.PE) of the 'Dao' was prepared by Rattan Singh, SI/SHO (PW-12), which was sealed in a parcel with the seal of RS. The seal after use was handed over to Rajbir (PW-4). In this regard recovery memo and farad nishandehi (memo of demarcation) (Ex.PF) was prepared by Rattan Singh, SI/SHO (PW-12) and was signed by Balwant Singh, ASI (PW-11) as also Rajbir (PW-4). The Dao (Ex.P2) was got recovered by Inder Singh (appellant). Montu (appellant) thereafter identified the place of occurrence. In this regard memo of identification of the place of occurrence (Ex.PG) was prepared by Rattan Singh, SI/SHO (PW-12). Montu (appellant) took the police party to Purewal Colony in Sainik Factory and he got recovered his blood stained pant (Ex.P3) and shirt (Ex.P4) from his room. The pant (Ex.P3) and shirt (Ex.P4) were taken in possession vide recovery memo (Ex.PH) and sealed in a parcel by Rattan Singh, SI/SHO (PW-12) with the seal of RS. The seal after use was handed over to Rajbir (PW-4). The parcel was taken in possession vide recovery memo (Ex.PH), which was signed by Balwant Singh, ASI (PW-11) and Rajbir (PW-4).
After completion of the investigation, charge report (challan) was filed in the Court of the Illaqa Magistrate, Panipat. In view of the fact that offence punishable under Section 302 IPC was found to be made out which was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the said Court for trial. The learned Additional Sessions Judge, CRA Nos.327-DB & 464-DB of 2006 [8] Panipat, to whom the case was assigned, chargesheeted the appellants in terms of the charge sheet dated 16.12.2003 on the allegation that on 16.11.2002 at about 8-9 p.m., in the area of Ram Nagar, Police Station Model Town, Panipat, both the respective appellants in furtherance of their common intention committed murder by intentionally causing the death of Ram Niwas by 'Dao' (sharp edged weapon used in agriculture) and, thus, they both committed an offence punishable under Section 302 IPC read with Section 34 IPC and appellants were directed to be tried by the said Court. The accused pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as 12 witnesses; besides, documents were tendered in evidence. The statements of the respective appellants in terms of Section 313 Cr.P.C. were recorded. The substance of the evidence appearing against the appellants was put to them. Both the respective appellants took the stand that they were innocent and had been falsely implicated in this case. In defence the appellants examined Kamla wife of Hawa Singh as DW-1 and Malo Devi wife of Roshan Lal as DW2. It is stated by Kamla (DW-1) that she knew Inder (appellant) whose house was situated at a distance of 10/12 houses away from her house. It is stated that in the morning of 17th (17.11.2002) at about 2.30/3.00 a.m. three persons came to her residence. She did not know whether they were police officials or somebody else. At that time on her asking they told her that they were police officials. She was asked about the house of Roshan Lal. She stated that his house was situated at a distance of 2 houses from her house. Thereafter, the police persons went to CRA Nos.327-DB & 464-DB of 2006 [9] the house of Roshan Lal. They heard a noise in the mohalla and saw three/four persons with police officials including the lady in whose house the police went. In cross-examination, it is stated that she had seen Inder (appellant) along with the police on that night and the police had brought/apprehended Inder (appellant) from his house. It is stated that it was incorrect to suggest that Inder (appellant) was accompanying the police officials at the time when they first knocked the door of their house. Malo Devi (DW2) stated that she knew Inder (appellant) being her neighbour. The distance between their house and the house of Inder (appellant) was about 10/12 houses. At mid-night three persons knocked at the door and asked about the house of Inder (appellant). At that time, the said persons told her that they were police officials. Malo Devi (DW2) accompanied them to the residence of Inder (appellant). On calling Inder (appellant), he came down along with his family members. Thereafter, Inder (appellant) was apprehended. In cross-examination it is stated by Malo Devi (DW2) that Inder (appellant) was her relative. Kamla (DW1) is neighbour of Inder (appellant). She stated that it was incorrect to suggest that she was deposing in favour of Inder (appellant) being her relative. She denied the suggestion that the police officials had come to her residence on the night of 17.11.2002. It is also denied as in correct that police officials apprehended Inder (appellant) on that night from his residence. The learned trial Court after considering the evidence and material on record, as already noticed, convicted and sentenced the appellants in pursuance of the impugned judgment and order which is assailed in this appeal. CRA Nos.327-DB & 464-DB of 2006 [10]
Sh. Aman Chaudhary, Advocate learned counsel appearing for Inder (appellant) as amicus curiae, has contended that the prosecution has miserably failed to prove and establish its case against the appellants. It is submitted that the present is not a case of any eye witness account and is based only on circumstantial evidence, which does not inspire confidence so as to record a finding of guilt. It is further submitted that even in case of circumstantial evidence there is no evidence of last seen nor there is any dying declaration. A reference has been made to the deposition of Dr.K.L.Chopra (PW-9), who has stated that at the time of examination of Ram Niwas (deceased) he was unable to speak properly. It is further submitted that the extra judicial confession before Ram Mehar (PW-8) is not believable and he, in fact, was a total stranger; besides, no reliance can be placed on the disclosure statement (Ex.PC) of Inder (appellant). Lastly it is submitted that there was no motive or any thing to connect Inder (appellant) to commit the murder of his own brother Ram Niwas. In fact, the witnesses had deposed against the appellants for their own selfishness.
Ms. Anju Arora, Advocate learned counsel appearing for Montu (appellant) as amicus curiae, has submitted that the identity of the appellant, Montu, is not at all established. It is submitted that apart from the appellant Montu having no motive he is not a family member of Inder (appellant), the complainant and deceased. A reference has been made to the deposition of Balwant Singh, ASI (PW-11), who it is submitted did not collect any documentary proof regarding Inder (appellant) serving at the CRA Nos.327-DB & 464-DB of 2006 [11] Sainik factory, where he was alleged to be serving; besides, it is submitted that Rattan Singh, SI/SHO (PW-12) has deposed that during investigation he could not find any proof of the appellants being close friends or even on visiting terms with each other. Therefore, it is submitted that the appellant Montu in any case is liable to be acquitted.
In response Sh.H.S.Sran, Addl.A.G.Haryana, learned counsel appearing for the State has submitted that Rajbir (PW-14), who is the brother-in-law of the appellant and deceased as well as the complainant, has supported the prosecution case. It is submitted that the involvement of Montu (appellant) is clearly established inasmuch as he was a close friend of Inder (appellant) and, therefore, his role is also clearly established. It is submitted that the learned trial Court after considering the entire evidence and material on record reached at a clear finding regarding the involvement and role of the appellants, which would not warrant any interference by this Court in the well reasoned judgment and order passed by the learned trial Court.
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. In order to appreciate the contentions of the learned counsel for the parties, it may be noticed that the deceased Ram Niwas and Inder (appellant) are brothers and Montu (appellant) is stated to be a close friend of Inder (appellant). The following pedigree table would be of help to ascertain the relationship:-
CRA Nos.327-DB & 464-DB of 2006 [12]
Gorkha Ram Mai Chand (PW2) Duli Chand Om Parkash Murti (daughter) (PW3) Husband of Murti Inder Ram Niwas Heera Daughter (appellant) (deceased) (Complainant) married to (PW1) Rajbir (PW4) A perusal of the above shows that Gorkha Ram had two sons namely Mai Chand (PW-2) and Duli Chand. Duli Chand had a daughter namely Murti, who was married to Om Parkash (PW-3); besides he (Duli Chand) had four sons also and one of them had died. However, they are not relevant for the purposes of the present case. Mai Chand (PW-2) son of Gorkha Ram had three sons and a daughter. Inder (appellant) is the eldest son of Mai Chand, Ram Niwas (deceased) is the second son and Heera (complainant) is the third son. The daughter of Mai Chand was married to Rajbir (PW-4). The complainant Heera (PW-1), who is brother of the appellant Inder and also the deceased Ram Niwas, has supported the prosecution case. He has stated that he and Ram Niwas (deceased) used to live with their parents while Inder (appellant) had separated from them and was residing at Arjun Nagar, Kabri Road, Panipat. His father namely Mai Chand (PW2) had sold four killas (acres) of land out of six killas. Cash amount CRA Nos.327-DB & 464-DB of 2006 [13] of the share of Inder (appellant) was paid to him in lieu of the land of his share. Therefore, Inder (appellant) was not left with any share in the remaining land. However, he used to come to their house and used to demand his share again from his brother Ram Niwas (deceased) and his father Mai Chand (PW-2). On 16.11.2002 at about 4.30 p.m., Inder (appellant) came to their house. Kamlesh, wife of Ram Niwas (deceased) and the complainant Heera were present in the house at that time. The complainant and Kamlesh asked Inder (appellant) to sit but he refused by saying that he was in a hurry. He (Inder-appellant) said that he wanted to take Ram Niwas (deceased) with him for showing a plot. However, Ram Niwas (deceased) was not present at home at that time and Inder (appellant) went back. On 16.11.2002 at about 9.30 p.m. their reletive Suresh Kumar son of Om Parkash (PW-3) resident of Jeetgarh had come to their house and informed that some persons had caused injuries to Ram Niwas in the area of village Ram Nagar and he was admitted in the Civil Hospital, Panipat. The complainant Heera and his father Mai Chand (PW-2) went to the Civil Hospital at Panipat and found that the face of Ram Niwas (deceased) was smeared with blood and he had suffered many injuries on his face and head which had been caused with a sharp edged weapon. On enquiry Ram Niwas (deceased) told them that Inder (appellant) and his companion had caused injuries to him. Ram Niwas died after about 15-20 minutes.
Due to enmity of not giving a share in the land, Inder (appellant) had murdered Ram Niwas with the help of his companion. The complainant Heera (PW-1) was cross-examined by the learned CRA Nos.327-DB & 464-DB of 2006 [14] counsel for the respective appellants. In cross examination on behalf of Inder (appellant) it is stated by Heera (complainant PW1) that his brother Ram Niwas (deceased) was an agriculturist. He was working in village Thirana and on 16.11.2002 he had gone to village Thirana during working season. There was no particular time for him to go to the fields and return home. His father had six acres of land in village Thirana. The complainant (PW1), his father (Mai Chand) and Ram Niwas (deceased) used to look after the fields. It is further stated by the complainant (PW1) that Duli Chand who is the elder brother of his father did not transfer any land in favour of Inder (appellant). The agricultural land at village Thirana near Assan was purchased by his father. Inder (appellant) it is stated had separated from the joint family about 10 years ago and he was paid an amount of Rs.4,50,000/- as his share. When Inder (appellant) had separated, a writing was done. The amount of Rs.4,50,000/-, it is stated, was not paid in his presence nor he signed the proceedings. It is stated that Rs.1 lac was arranged from their own savings and Rs.1,50,000/- was obtained from the relatives and one tractor and other agricultural equipments amounting to Rs.2 lacs were given to Inder (appellant). The tractor was of Escort make and he could not tell the model of the tractor. He could not tell the exact cost of tractor and other equipments which were assessed at that time. They borrowed Rs.70,000/- from his brother-in-law (Jija) namely Pala resident of Murthal and Rs.70,000/- were borrowed from his maternal uncle namely Pala resident of Tarori. His father had brought the cash from village Tarori and his brother Ram Niwas (deceased) had brought the cash CRA Nos.327-DB & 464-DB of 2006 [15] from Murthal. He, however, could not tell the date, time and place when the money was given to Inder (appellant). No share was given to him (complainant) and Ram Niwas. Neither was it disclosed as to how much amount would come to their share. It is further stated that Rs.4,50,000/- came in share of each i.e. Inder (appellant), Ram Niwas (deceased) and the complainant himself. He had not brought the document in which the share was mentioned. The said document was written in the Tehsil Panipat. None of the relatives had signed that document. In further cross- examination on behalf of Inder and Montu (appellants), it is stated by Heera (complainant PW1) that it was wrong to suggest that father-in-law of Om Parkash (PW3) transferred some agriculture land in favour of accused Inder. It was also wrong to suggest that accused Inder was adopted by Duli Chand, father-in-law of Om Parkash. It was also wrong to suggest that wife of Om Parkash was demanding her share from Inder. It was also wrong to suggest that on that account a quarrel had taken place at any time between Inder and wife of Om Parkash who is the daughter of Duli Chand. It was also wrong to suggest that the complainant (PW1) had conspired with Om Parkash (PW3) and murdered Ram Niwas. It was also wrong to suggest that they had falsely implicated Inder (appellant) in the present case for grabbing his share. It was also wrong to suggest that Om Parkash (PW3) became a false witness in the present case.
It may, therefore, be noticed that the defence set up by Inder (appellant) is that he himself had been adopted by Duli Chand. As already noticed Duli Chand is the elder brother of the CRA Nos.327-DB & 464-DB of 2006 [16] father of the complainant, the deceased Ram Niwas and Inder (appellant) and is the father-in-law of Om Parkash (PW3). In fact as has also been noticed, Duli Chand had four sons and one of them had died. Therefore, there was no circumstance for Duli Chand to adopt Inder as his son. Even otherwise, nothing has been brought on record as to when said adoption had taken place. Besides, the adoption would not be valid in view of the provision of Section 11 (i) of the Hindu Adoptions and Maintenance Act, 1956 which provides for certain conditions to be complied with for the purpose of adoption and it is inter alia provided that if adoption is of a son, the adoptive father or mother by whom the adoption is to be made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption. Duli Chand, therefore, having four sons could not legally adopt Inder as a son. Apart from putting the suggestion that Inder (appellant) had been adopted by Duli Chand there is nothing else on record in this regard.
Mai Chand (PW-2), father of the appellant Inder and Ram Niwas (deceased) has corroborated the version of the complainant Heera (PW1). It is stated by Mai Chand (PW-2) that he had three sons i.e. Inder (appellant) who was his elder son, Ram Niwas (deceased) was younger to him and Heera (PW1) was the youngest. The appellant Inder, it is stated, used to live separate from them at Arjun Nagar, Kabri Road, Panipat. Ram Niwas and Heera were living with him (PW2) he had six killas (acres) of land. Inder (appellant) had separated from them about 10 years CRA Nos.327-DB & 464-DB of 2006 [17] back. He was paid Rs.4.5 lacs by him (Mai Chand) which was full payment of his share in the land from his property at the time of separation. Mai Chand (PW2) sold four killas (acres) of land after his separation. Inder (appellant) demanded his share from the sale proceeds of the said four killas of land. Mai Chand (PW2) and Ram Niwas (deceased) told Inder (appellant) that he had already taken his share. Mai Chand (PW2) also told Inder (appellant) that Ram Niwas (deceased) was the 'Karta Dharta' of his house. However, Inder (appellant) demanded his share in the remaining two killas of land to which he (PW2) and Ram Niwas (deceased) had refused. On this account Inder indulged in altercations for taking his share and he (appellant) harboured enmity due to this reason. On 16.11.2002 Suresh son of Om Parkash (PW3) resident of Jeetgarh came to their house at about 9.30 p.m. and informed that Ram Niwas (deceased) had suffered injuries and was admitted in Civil Hospital, Panipat. Mai Chand (PW2), his son Heera (PW1) and informer Suresh went to Civil Hospital, Panipat. They saw that the face and head of Ram Niwas (deceased) were smeared with blood and Ram Niwas had suffered injuries on his face and head. They asked Ram Niwas again and again and he merely stated that Inder (appellant) had caused injuries to him with his companion namely Bantu Bihari. Mai Chand (PW2) had full suspicion that Inder (appellant) had murdered Ram Niwas with the help of his companion as he was not giving his share in the property. Ram Niwas (deceased) before his death had told his father Mai Chand (PW2) that the injuries had been caused by Inder (appellant) along with his companion. In the cross- CRA Nos.327-DB & 464-DB of 2006 [18] examination it is stated by Mai Chand (PW2) that when Inder (appellant) was living with them at that time, he owned six acres of land in village Thirana. He had two acres of land in the area of village Sondhapur at Jatal Road. He sold his land in village Sondhapur about 10 years earlier and after that he purchased six acres of land in village Thirana. He denied the suggestion that two acres of land in village Sondhapur was their ancestral property. When he purchased land in village Thirana, Inder (appellant) was living with them. After harvesting of wheat crop Inder (appellant) was separated from them and he (Mai Chand PW2) gave him his share in cash and some other articles (agricultural equipments). It is stated that a writing was made before the Tehsildar when accused Inder (appellant) was separated from the joint family. It is stated that he did not remember when his father and his brother Duli Chand had died. His father Duli Chand had four sons and one of them had died. Murti is the daughter of Duli Chand. It is stated as correct that she was married with Om Parkash (PW3) resident of Jitgarh. Mai Chand (PW2) was cross-examined at considerable length. However, nothing could be brought out; which may favour the appellant. Om Parkash (PW3) has stated that Inder (appellant) was known to him. He was related to Om Parkash (PW3) as his brother-in-law (i.e. his wife's father's younger brother's son). On 16.11.2002 Om Parkash (PW3) was present at his house and at about 8.30 p.m. he received information from some person that one person was lying injured on the 'patri' (embankment) of the canal and was calling him. He (PW3) took some neighbour with him and went on a motorcycle to that place. There he saw Ram CRA Nos.327-DB & 464-DB of 2006 [19] Niwas (deceased) lying in an injured condition. Ram Niwas was lying on the 'patri' (embankment) of the canal towards Sithana village near Burji No.41. Om Parkash (PW3) asked Ram Niwas as to how he suffered the injuries, on which he told him that Inder (appellant) and one Bihari had caused injuries to him. Om Parkash (PW 3) took Ram Niwas to the Civil Hospital, Panipat and got him admitted there. He (PW3) sent his son Suresh Kumar to the house of Ram Niwas (deceased) for informing his family members. After sometime Heera (PW1)- brother of Ram Niwas (deceased) and his father Mai Chand (PW2) reached Civil Hospital, Panipat. Ram Niwas (deceased), it is stated, also told Heera (PW1) and Mai Chand (PW2) in his presence that Inder (appellant) and one Bihari had caused injuries to him. After sometime, Ram Niwas died due to the injuries that he had suffered. The police reached Civil Hospital, Panipat and recorded the statement of Om Parkash (PW3). On 17.11.2002, Om Parkash (PW3) took the police to the place where from he had picked up Ram Niwas (deceased) from the 'patri' (embankment) of the canal. The police prepared a rough site plan of that place as disclosed by Om Parkash (PW3). The police lifted blood stained earth and also recovered a black colour 'chappal' (slipper) of the deceased. The police prepared parcels of the blood stained earth lifted from that place and the 'chappal' (slipper) and the same were sealed with the seal RS and were taken in possession by the police vide memo Ex.PB which bears his signatures. At that time Rameshwar, Panch was also present. Om Parkash (PW3) was cross-examined at considerable length. However, nothing which may favour the appellant could be CRA Nos.327-DB & 464-DB of 2006 [20] brought out from him. In the cross-examination it is stated by Om Parkash (PW3) that his village falls within the jurisdiction of Police Station, Model Town, Panipat. It is stated that the police recovered the 'chappal' (slipper) of Ram Niwas from the place of occurrence which was lying at a distance of about 5-7 feet from Ram Niwas. It is stated that the name of his father-in-law was Duli Chand and he had died. He did not know whether his father-in-law Duli Chandi transferred any land of his share to Inder (appellant). He denied the suggestion that his wife namely Murti indulged in fights with the appellant Inder a number of times for giving her share in the land transferred to Inder (appellant) by Duli Chand. He denied the suggestion that when he reached the place of occurrence, Ram Niwas (deceased) was lying in an unconscious condition and subsequently he died.
It may be noticed that the statement of Ram Niwas (deceased) is in the nature of a dying declaration. The three witnesses namely Heera (PW1), Mai Chand (PW2) and Om Parkash (PW3) who are closely related with the appellant Inder have stated that Ram Niwas (deceased) informed them that he was caused injuries by Inder (appellant) and one Bihari. In view of their close relationship there was no reason for them to falsely involve the appellant Inder, who is none other than the brother of Heera (PW1), the son of Mai Chand (PW2) and the brother-in-law of Om Parkash (PW3). In the circumstances, the contention of the learned counsel for the appellants that it is not a case of eye witness account and only circumstantial evidence is there is inconsequential. In fact the circumstances on record from the CRA Nos.327-DB & 464-DB of 2006 [21] depositions of Heera (PW1), Mai Chand (PW2) and Om Parkash (PW3) are complete insofar as Inder (appellant) is concerned and these unerringly point towards his guilt. The contention that there is no dying declaration in the circumstance is devoid of merit as a dying declaration was made by Ram Niwas (deceased) which is established and proved from the depositions of Heera-complainant (PW-1), Mai Chand (PW-2) and Om Parkash (PW-3), who are the close relatives of the appellant Inder as also the deceased. Besides, there is a motive also for the appellant Inder to commit the murder of Ram Niwas as he (Inder-appellant) felt that Ram Niwas (deceased) was coming in the way for the share of the land that was sold by Mai Chand (PW2) to be given to him (Inder- appellant). It has come on record that Inder (appellant) had separated from his family about 8-10 years earlier to the incident that had occurred and he was at that time given an amount of Rs.4,50,000/- in cash in lieu of his share in the land. Despite that he was demanding his share again, which was objected to; besides, on the day of occurrence he had come to the house of his father and wanted to take Ram Niwas (deceased) with him on the pretext of showing him a plot. Therefore, it was he (Inder-appellant), who was wanting to take Ram Niwas (deceased) out of his house and it now transpires that he wanted to take him with an intention to murder him. In the circumstances, it cannot be said that there was no motive for Inder (appellant) to commit the murder of Ram Niwas.
An extra judicial confession was made by Inder (appellant) before Ram Mehar (PW-8) who has supported the CRA Nos.327-DB & 464-DB of 2006 [22] prosecution case. It is stated by Ram Mehar (PW8) that on 18.11.2002, he was present at his house and Inder (appellant) along with his co-accused came to him at his house before noon. Inder (appellant) told him that they were three brothers and there was a dispute between them regarding land. Inder (appellant) told Ram Mehar (PW8) that his parents had not given him full share of his land. Inder also told Ram Mehar (PW8) that his brothers Heera (PW1) and Ram Niwas (deceased) were living together. He also told Ram Mehar (PW8) that he had demanded his share from his family members but they refused. He further stated that he made a conspiracy with Montu (appellant) to murder Ram Niwas his brother. Thereafter, he purchased a 'Dao' and along with Montu (appellant) took Ram Niwas at the Paschmi Yamuna Canal. Inder (appellant) further told Ram Mehar (PW8) that Montu Bihari (appellant) had caught hold of the hands of Ram Niwas and he (Inder) caused injuries on the person of Ram Niwas with a 'Dao'. He also told Ram Mehar (PW8) that Ram Niwas (deceased) had disclosed his name to the family members at the Civil Hospital, Panipat and requested him to produce them before the police. When Ram Mehar (PW8) was going to produce Inder and Montu (appellants) before the police near Sikandarpur Turn near Kabri Road, the police met him and he produced both the accused before the police. Ram Mehar (PW8) was cross-examined. An extra judicial confession as is well-known is a weak type of evidence, however, in the facts and circumstances of the present case, the same corroborates the chain of circumstances that have come on record. Therefore, it can be taken into account being corroborative CRA Nos.327-DB & 464-DB of 2006 [23] in nature. Even otherwise, the case against the appellant Inder stands established on the basis of facts and circumstances and of the dying declaration made by Ram Niwas soon before his death before his brother Heera (PW-1), father Mai Chand (PW-2) and his brother-in-law Om Parkash (PW-3). Therefore, even if the extra judicial confession is not entirely to relied upon, the case of the prosecution would be otherwise established against the appellant Inder. It is quite rare that in a murder case one can get the brother, father and brother-in-law of an accused to depose against him. However, they having done so it creates an assurance that the appellant Inder had indeed committed the murder of Ram Niwas.
The appellant Inder also made a disclosure statement (Ex.PC) which led to the recovery of 'Dao' that was used in the occurrence. With the 'Dao' he gave many blows on the face and head of Ram Niwas (deceased). Dr. K.L. Chopra (PW-9), who medico legally examined Ram Niwas and thereafter conducted his postmortem examination, has clearly established the injuries that were inflicted on the person of Ram Niwas (deceased). In the medical examination of Ram Niwas the following injuries were found:-
1. "An incised wound 15 cm x 2.5 cm starting from the right side of nose, over to nose and then left cheek up to left mandible. Nose was cut, floor of nose, maxilla on left side was cut. Teeth were visible. Bleeding was present.CRA Nos.327-DB & 464-DB of 2006 [24]
2. An incised wound starting just below and outside the lateral angle of left eye and going out wards cutting pinna into two parts and then to lateral part of upper part of neck. It was 12 cm x 2 cm in size. Fresh bleeding was present.
3. An incised wound on the back of right hand dividing into medial 1/3rd and later 2/3rd parts through and through.
Fresh bleeding was present. It was 6 cm x 2 cm in size.
Patient was kept under observation.
All the injuries were grievous in nature caused with a sharp weapon within a duration of six hours. Ex.PL is the true carbon copy of the MLR."
Thereafter, on 17.11.2002 supplementary Medico Legal Report was prepared in which the following injuries were found:-
"1. An incised wound 8 cm x 1 cm on the right side of head 6 cm from mid line underline wound was visible. Clotted blood was present.
2. An incised wound 8 cm x 1 cm cutting right pinna in upper part and extending on to head. Clotted blood was CRA Nos.327-DB & 464-DB of 2006 [25] present. Underline wound was visible. Ex.PL/1 is the true carbon copy of supplementary MLR which was sent by me."
It is further stated by Dr. K.L. Chopra (PW9) that on 16.11.2002 and 17.11.2002 he was posted as medical officer in General Hospital, Panipat. Then the police on 17.11.2002 submitted an application ( Ex.PM) before him for conducting the post-mortem examination on the dead body of Ram Niwas. Dr. Chopra (PW9) along with Dr. Lata Sangwan conducted the postmortem examination on the dead body of Ram Niwas and the following injuries were found:-
"1. An incised wound having four loose stitches starting just outside the nose on right side crossing nose then on to left cheek up to angle of mandible on left side. Underlying nasal bone and maxilla were cut. The wound communicated with oral cavity.
2. An incised wound 12 cm x 2cm starting just anterior to left ear cutting left ear then on to lateral side of upper part of neck. Underline bone was cut.
3. An incised wound 8 cm x 1 cm on the right side of head 6 cm from mid line. Clotted blood was present.CRA Nos.327-DB & 464-DB of 2006 [26]
4. An incised wound 8 cm x 1 cm cutting right pinna in upper part and extending on to head. Clotted blood was present. Underline bone was visible.
5. An incised wound 6 cm x 2 cm on the back of right hand dividing hand into medial 1/3rd and lateral 2/3rd. Clotted blood was present.
Hard palate was cut. Pharynx and oesophagus contained clotted blood.
Stomach contained brownish fluid. Heart was healthy and empty. Other organs were healthy and pale.
Cause of death in this case in our opinion was haemorrhage, shock and asphyxia. The injuries were anti mortem in nature and sufficient to cause death in ordinary course of time. Following were handed over to the police after the postmortem examination. Well stitched dead body, copy of postmortem report, police papers 1 to 12 initialed by us, a parcel containing clothes of the deceased and bearing one seal and a sample seal.
Duration between injury and death was within few hours and between death and postmortem was within 6 to 36 CRA Nos.327-DB & 464-DB of 2006 [27] hours. Ex.PN is the true carbon copy of MLR. Today I have brought the original."
Therefore, the injuries that were caused with the 'Dao' by Inder (appellant), which has been recovered in pursuance of his disclosures statement (Ex.PC) and the medical evidence referred to above, fully completes the chain of circumstances so as to rule out any possibility of false implication; besides, the plea of adoption that has been raised by the appellant Inder is not established and is not borne out from the record which also goes to show his involvement in the crime.
Insofar as the appellant Montu is concerned, it may be noticed that he is alleged to have only caught hold of Ram Niwas (deceased). Otherwise his presence from the material and evidence on record is not established. It has come in the evidence of the prosecution that Inder (appellant) was accompanied by another companion, who was a Bihari. Therefore, merely because Montu happens to be a Bihari, it cannot be said that his involvement in the crime is established. Ms. Anju Arora, Advocate learned counsel appearing for appellant Montu is, therefore, quite right in her contention that the identity of Montu (appellant) is not established. Balwant Singh, ASI (PW-11) in his cross-examination stated that he could not say as to what was being manufactured at the Sainik factory from where the accused Montu (appellant) got his clothes recovered. The clothes which Montu (appellant) got recovered in pursuance of his disclosure statement (Ex.PD), CRA Nos.327-DB & 464-DB of 2006 [28] therefore, cannot be said to be the same, which he was allegedly wearing at the time of occurrence. It is further stated by Balwant Singh, ASI (PW-11) that he did not collect any documentary proof regarding the appellant Montu serving in the Sainik factory. In the presence of Balwant Singh, ASI (PW-11) neither the statement of owner nor that of the labourers of the said factory were recorded by the Investigating Officer Rattan Singh, SI/SHO (PW-12). No labourer of the factory was joined in the investigation at the time of recovery by the Investigating Officer; besides, no material was gathered by the Investigating Officer or otherwise brought on record that accused Montu (appellant) had any relation or connection with accused Inder. Even Rattan Singh, SI/SHO (PW-
12), who investigated the case, in his cross-examination, has stated that during investigation he could not find any proof that the accused (appellants) were close friends or had visiting terms with each other. Therefore, the benefit of doubt is liable to be given to the appellant Montu.
In view of above, we hold that the appellant Inder has committed an offence punishable under Section 302 IPC. However, we give the benefit of doubt to the appellant Montu. Accordingly, Criminal Appeal No.327-DB of 2006 is dismissed while Criminal Appeal No.464-DB of 2006 is allowed and the appellant Montu is acquitted of the offences for which he has been charged.
(S.S.SARON)
JUDGE
November 25, 2008 (SABINA)
anita/amit JUDGE