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2004 DIGILAW 175 (HP)

JAGAR SINGH v. STATE OF H. P.

2004-07-28

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT Lokeshwar Singh Panta, J.—Appellant-Jagar Singh @ Jagia, herein-, after referred to as the accused stands convicted by the learned Additional Sessions Judge, Sirmour District at Nahan in Sessions trial No. 8-N/7 of 2001 vide judgment and order dated 27.3.2002 for an offence under Section 302 of the Indian Penal Code and upon such conviction he has been sentenced to life imprisonment and to pay fine of Rs. 5,000/-. In default of payment of fine, to suffer rigorous imprisonment for three months. The amount of fine, if realised, is ordered to be paid as conpensation to Smt. Dhurhi Devi wife of deceased Jalam Singh. 2. The prosecution case may be briefly stated thus: 3. The accused and Jalam Singh both were the residents of village Jerva, Tehsil Shillai, District Sirmour. Jalam Singh was married to Smt. Naumi Devi. After the death of Smt. Naumi Devi, Jalam Singh contracted second marriage with Smt. Dhurhi Devi, who is deaf and dumb. The accused is unmarried person. He wanted to develop illicit intimacy with Smt. Dhurhi Devi. Jalam Singh used to protest against the visits of the accused to his house. The residential house of PW-2 Gora Ram is located at a distance of about 60 paces from the house of Jalam Singh. 4. It was on the fateful evening of October 16, 2000, when PW-2 Gora Ram heard some noise coming from the house of Jalam Singh. PW-2 came out of his house and met Jeet Singh, a resident of the same village. They both went to the house of Jalam Singh. When they reached near a field below Jalam Singhs house, they noticed the accused sitting on the chest of Jalam Singh and throttling his throat with hands. PW-2 asked the accused what he was doing. The accused suddenly turned towards PW-2 and grabbed him by the neck. Jeet Singh rescued PW-2 from the clutches of the accused. The accused thereafter fled away from the scene of the occurrence. 5. PW-2 and Jeet Singh (not examined) came back to their home and brought Sanathas (wooden sticks lit with fire at the top). They again went to the scene of the occurrence and found blood oozing out of the nostrils of Jalam Singh. His shirt was stained with blood. Jalam Singh was found dead. 5. PW-2 and Jeet Singh (not examined) came back to their home and brought Sanathas (wooden sticks lit with fire at the top). They again went to the scene of the occurrence and found blood oozing out of the nostrils of Jalam Singh. His shirt was stained with blood. Jalam Singh was found dead. PW-2 and Jeet Singh then informed other residents of the Village including Daulat Ram and Gian Singh a J.B.T. Teacher in regard to the incident. Gian Singh and Daulat Ram went to the house of PW-1 Ram Singh and told him that Jalam Singh had been done to death by the accused. PW-1 along with Daulat Ram, Narayan Singh and Sant Ram went to the house of deceased Jalam Singh and saw his dead body lying in a field in front of his house. Many co-villagers including PW-2 and Jeet Singh were present in the field. PW-2 and Jeet Singh told PW-1 that Jalam Singh had been inurdered by the accused. The report ot the crime could not be lodged at the Police Station on the day of occurrence as it was night time and the Police Station Shillai was at far away distance from the spot. The place of the occurrence was secured and the dead body of the deceased was guarded the whole night by some of the residents of the village including PW-1. On the following day that is October 17, 2000, PW-1 alongwith co-villagers, namely, Mohar Singh and Ramsa went to Police Station, Shillai and lodged First Information Report (Ext. PW-1/A). The First Information Report was recorded by PW-6 Head Constable Lajja Ram. 6. Further case of the prosecution was that after having escaped from the scene of the occurrence, the accused went to the house of his maternal uncle PW-3 Netar Singh situated in the same village where Jagran of Baba Peer was celebrated. The accused started annoying his uncle Meru at the house of PW-3. When PW-3 intervened, he noticed blood stains on the clothes of the accused. On being questioned by PW-3 as to how his clothes were stained with blood, the accused misbehaved with him. PW-3 slapped the accused whereupon the accused held out threats to PW-3 saying "I will kill you within three days” . The accused than absconded from that place. When PW-3 intervened, he noticed blood stains on the clothes of the accused. On being questioned by PW-3 as to how his clothes were stained with blood, the accused misbehaved with him. PW-3 slapped the accused whereupon the accused held out threats to PW-3 saying "I will kill you within three days” . The accused than absconded from that place. PW-11 Sub Inspector/S.H.O. of Police Station, Shillai left for the place of occurrence and reached there at about 6-7 P.M. on October 17, 2000. Photographs (Exts P-3 to P-12) of the spot and dead body of Jalam Singh were taken by PW-9 Inder Singh. PW-11 S.I. Lal Man prepared site plan (Ext.PW-11/A) on 18th October, 2000. Inquest report (Ext.PW-11 /B) was also prepared. The dead body of Jalam Singh was sent to Community Health Centre, Shillai for conducting post mortem examination. PW-11 the Investigating Officer lifted sample ot blood stained earth from the scene of occurrence vide memo Ext.PH-2/A. Aksh Tatima (Ext.PW-4/A) and the copy of the Jamabandi (Ext.PW-4/B) for the year 1997-98 of the place of occurrence were prepared by PW-4 Tulsi Ram Patwari. The Post Mortem on the dead body of Jalam Singh was conducted by PW-10 Dr. Talvinder Singh who issued Post Mordem Report (Ext.PW-10/A). The cause of the death of Jalam Singh was opined to be due to asphyxia. The clothes removed from the body of the deceased and visera etc. were handed over by the Doctor to the Police in sealed parcels. The sealed parcels along with samples of blood, earth were sent to the Forensic Science Laboratory, Junga. On examination of the reports (Exts. PW-10/B and PW-10/C) of the Chemical Examiner, the cause of death of Jalam Singh was opined to be the same as given by Dr. Talvinder Singh in his Post Mortem Report (Ext.PW-10/A). 7. The accused could not be arrested despite intensive search launched by PW-11 the Investigating Officer, A proclamation with photograph ot the accused was issued. The accused came to his village on February 1, 2001 when he was nabbed by his co-villagers. The Investigating Officer was informed who immediately came to the village and arrested the accused. 8. On completion of the investigation, the accused was sent for trial for the offence under Section 302 of the Indian Penal Code. 9. On having been charged, the accused pleaded not guilty and claimed trial. The Investigating Officer was informed who immediately came to the village and arrested the accused. 8. On completion of the investigation, the accused was sent for trial for the offence under Section 302 of the Indian Penal Code. 9. On having been charged, the accused pleaded not guilty and claimed trial. The defence of the accused in his statement recorded under Section 313 Cr. P.C. was denial simplicitor and false implication. He pleaded that Jalam Singh might have died by a fall or might have been murdered by certain villagers. He was away from the village and the co-villagers had made him a scapegoat, no evidence was led in defence by the accused. 10. The learned trial Judge on consideration ot the entire evidence led before him came to the conclusion that the offence under Section 302 I.P.C. stood proved against the accused beyond reasonable doubt. He accordingly convicted and sentenced the accused as aforesaid. 11. The accused has filed this appeal through jail challenging his conviction and sentence. This Court vide order dated 24.5.2002 appointed Mr. M.S. Guleria, as Legal Aid Counsel for the accused. 12. We have heard learned Counsel for the parties. 13. Out of the two witnesses, namely, Gora Ram and Jeet Singh who as per prosecution case had witnessed the accused throttling the throat of Jalam Singh with his hands, the prosecution has examined Gora Ram as PW-2 whereas Jeet Singh has not been examined. We have scrutinized the evidence ot PW-2 Gora Ram. He deposed that in the month ot Kartik on the day of Sakrant when he was sitting at his residential house in village Jerva, he heard some noise coming from the house of Jalam Singh at about 7 p.m. He came out of his house and covered a short distance when Jeet Singh co-villager met him. They went to the house to Jalam Singh. When they reached near a field below Jalam Singhs house, they found the accused sitting on the chest of Jalam Singh and throttling his throat with his (accused’s) hands. When the accused was questioned by this witness as to what he was doing the accused caught the neck of the witness. He was saved by Jeet Singh. PW-2 and Jeet Singh then went back to their home to bring Sanathas. When the accused was questioned by this witness as to what he was doing the accused caught the neck of the witness. He was saved by Jeet Singh. PW-2 and Jeet Singh then went back to their home to bring Sanathas. When they again returned to the scene of the occurrence, they found blood oozing out from the nostrils of Jalam Singh. His shirt was found stained with blood. Jalam Singh was found dead by that time. They informed some other residents of the village about the incident. PW-2 along with other villagers secured the place of occurrence and guarded the dead body of Jalam Singh whole night. PW-11 the Investigation officer in the presence of PW-2, had taken blood stained earth for the spot vide recovery memo (Ext.PW-2/A). The blood stained earth was put in a plastic container sealed with impression H. A suggestion was put to PW-2 that due to some dispute over a piece of land, he wanted to implicate the accused in a false case, was emphatically denied by him. Mr. M.S. Guleria contended that the testimony of this witness cannot be accepted as he had given the time of hearing notice by him at 8 p.m. to the police, but it was stated to be 7 p.m. in the deposition. On scrutiny of the evidence of PW-2, we have noticed that in cross-examination he has clarified that it was about 7 p.m. when he heard the noise from the house of Jalam Singh. He could not be expected to mention the accurate time being an illiterate and rustic villager. He is a truthful witness who had seen the accused sitting on the chest of Jalam Singh and throttling his throat with both hands. His testimony has gone unsheltered. He has no axe to grind against the accused. His evidence finds corroboration and assurance from the evidence of PW-1 Ram Singh and PW-10 Dr. Talvinder Singh. Non-examination of Jeet Singh the second eye witness cannot be held fatal to the prosecution case as contended by the learned Counsel for the accused. The evidence of PW-2 an eye witness is trustworthy, reliable and convincing and we have no sound reason to disbelieve and discredit his version. Talvinder Singh. Non-examination of Jeet Singh the second eye witness cannot be held fatal to the prosecution case as contended by the learned Counsel for the accused. The evidence of PW-2 an eye witness is trustworthy, reliable and convincing and we have no sound reason to disbelieve and discredit his version. It is well settled proposition of law that it would be the quality of evidence of one witness if implicit relevance can be placed on his testimony in a criminal case and not the quantity of the witnesses to be examined by the prosecution. The ratio of the decision relied upon by the learned Counsel for the accused in the case of State ot U.P. v. Bhagwant and others (2003) 10 Supreme Court Cases 74 is of no help and assistance to the accused to disbelieve the reliable/trustworthy and consistent evidence of PW-2 an eye witness. In the said case the Honble Supreme Court on scrutiny of the evidence had found that all the eye witnesses were interested witnesses and their presence at the scene of the occurrence was found doubtful. In Leela Ram (dead) through Duli Chand v. State of Haryana and another (1999) 9 Supreme Court Cases 525, their Lordships have held that in criminal cases corroboration with mathematical niceties should not be expected. In Jhapsa Kabari and others v. State of Bihar 2002 Cri.L.J. 587, their Lordships ot the Supreme Court have held that there is, however, no bar in basing conviction on the testimony of solitary witness so long as the said witness is reliable and trustworthy. Again in Babu Ram and another v. State of U.P. and others reported in AIR 2002 S.C. 2815, their Lordships reiterated that if the evidence coming from the mouth of the eye witness examined in the case is found to be trustworthy and worth being relied on so as to form safe basis of recording a finding of guilt of the accused persons, then non-examination of yet another witness who would have merely repeated the same story as has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case. 14. PW-1 went to Police Station, Shillai on 17.10.2000 and informed the Police about the incident on the basis of the information given to him by Gian Singh J.B.T. Teacher and Daulat Ram. 14. PW-1 went to Police Station, Shillai on 17.10.2000 and informed the Police about the incident on the basis of the information given to him by Gian Singh J.B.T. Teacher and Daulat Ram. PW-6, H.C. Lajja Ram recorded the FIR Ext.PW-1/A at Police Station Shillai at about 12.15 hours. The learned Counsel for the accused contended that no reliance upon F.I.R. (Ext. PW-1/A) lodged by PW-1 can be placed as it was lodged by PW-1 on the basis of hearsay evidence. It is no doubt true that PW-1 was informed by Daulat Ram and Gian Singh in regard to the murder of Jalam Singh by the accused. Both Daulat Ram and Gian Singh have not been examined by the prosecution for the reasons best known to them. Non-examination of Gian Singh and Daulat Ram and other persons who accompanied him to Police Station cannot be a ground to disbelieve the testimony of PW-1 which otherwise is found unblemished and unimpeached. It is the categorical version of this witness that when he reached at the scene of occurrence, Gora Ram and Jeet Singh told him that accused had murdered Jalam Singh. PW-1 was an independent witness and no suggestion has been put to him by the defence that he was inimical or hostile to the accused to involve him in a false case. On the day of occurrence at about 8.30 p.m. the accused joined Jagran of Baba Peer at the house of PW-3 Netar Singh. It is the evidence of PW-2 that after committing murder of Jalam Singh the accused had fled away from the scene of the occurrence. PW-3 noticed blood stains on the wearing apparels of the accused when the accused went to the house of the witness. PW-3 has certified the presence of the accused at his house. He said that the accused was drunk and he annoyed his uncle in the Jagran and for his indecent behaviour, the witness gave an slap on his face whereupon the accused held out threats that he would murder PW-3 too within three days. The accused had run away from the house of PW-3. The evidence of PW-3 has not been shattered in the cross-examination. 15. PW-5 Smt. Subhadra Devi is the daughter of deceased Jalam Sinah. The accused had run away from the house of PW-3. The evidence of PW-3 has not been shattered in the cross-examination. 15. PW-5 Smt. Subhadra Devi is the daughter of deceased Jalam Sinah. Her version was that after the death of her mother Smt. Naumi Devi, her father has died and her father had contracted second marriage with Smt. Dhurhi Devi who is deaf and dumb. It is her evidence that on October 17, 2000, two persons came at her house at village Naora and informed that the accused had murdered her father. She stated that about one year prior to the occurrence, the accused came at the door-steps of her fathers house in a drunken state and when her father questioned him why he came there in a drunken state then the accused pounced upon her father and pushed him down. The suggestion of the defence that the accused had a illicit intimacy with her step mother Smt. Dhurhi Devi has been emphatically denied by her. 16. The ocular version of PW-2 the eye witness has been corroborated by the medical evidence of PW-10 Dr. Talvinder Singh. PW-10 conducted an autopsy on the dead body of the deceased on October 18, 2000 around 3 P.M. He prepared post mortem report (Ext. PW-10/A). In the opinion of the doctor the cause of death of Jalam Singh was asphyxia caused by throttling. He affirmed his opinion after perusal of reports Ext.PW-10/E and Ext.PW-10/C received from the Chemical Examiner. The probable time that elapsed between the injury and death was within 15 minutes. Dr. Talvinder Singh has supported his opinion by making reference to Parks Medical Jurisprudence. The injuries found on the trachea of the deceased, in the opinion of the Doctor could be caused by throttling. 17. Mr. Guleria, learned Counsel for the accused pointed out that in report (Ext.PW-10/B) submitted by the Chemical Examiner, one vest coat and one sweater belonging to the deceased were received in the laboratory whereas at the time of the post mortem of the dead body of the deceased, Doctor had only found one shirt, one pyzama, one vest and one underwear and the prosecution has not explained as to where from a vest coat and one sweater belonging to the deceased, were sent to the Chemical Examiner. It is not in dispute that in the report (Ext.PW-10/E) the Chemical Examiner has mentioned that one waist coat and one sweater allegedly belonging to the deceased were also received along with other parcels of clothes and articles. The addition of the above-said two clothes in the report of the Chemical Examiner, will not in any manner prejudice the defence of the accused, nor the prosecution case is found false against the accused. 18. The learned council for the accused next urged that post mortem report [Ext. PW-10/A) is said to have been prepared on the basis of the rough note by PW-10 Dr. Talvinder Singh but the rough note is not forthcoming and has not been marked in evidence and in the absence of it, the post mortem report could not be accepted in evidence. We have reappraised the cross-examination of PW-10 Dr. Talvinder Singh in which he has admitted that before preparing the post mortem report (Ext. PW-10/A), he had prepared rough note but he could not produce the rough note before the Court. In the absence of production of rough note by the Doctor before the Court, no sound reason can be recorded by us to disbelieve the version of PW-10 Dr. Talvinder Singh made before the Court and his opinion recorded in the post mortem report (Ext. PW-10/ A) which was supported by the reports (Exts. PW-10/B and PW-10/C) of the Chemical Examiner. Post Mortem Report (Ext. FW-10/A) placed on record by the Doctor is admissible piece of evidence and it cannot be presumed that it has been falsely prepared by the Doctor to support the prosecution case. 19. Mr. M.S. Guleria, learned Counsel for the accused challenged the post mortem report (Ext. PW-10/A) on one more point that larynx trachea was found normal by the Doctor in the report but subsequently he opined that the cause of death of the deceased was asphyxia by throttling and the opinion of the Doctor was contradictory. The learned Counsel has referred to certain paragraphs of the Modis Medical Jurisprudence 22nd Edition in this context. In the case on hand according to the Doctor his opinion finds support from Parks Medical Jurisprudence and on the basis of the injuries found on the body of the deceased besides the reports of the Chemical Examiner. The learned Counsel has referred to certain paragraphs of the Modis Medical Jurisprudence 22nd Edition in this context. In the case on hand according to the Doctor his opinion finds support from Parks Medical Jurisprudence and on the basis of the injuries found on the body of the deceased besides the reports of the Chemical Examiner. Thus, the contention of the learned Counsel for the accused that the Post Mortem Report prepared by the Doctor was unreliable and unfounded in our view does not merit acceptance. 20. One more circumstance brought on record by the prosecution against the accused was that after committing the crime, he had absconded and could not be apprehended by the Police for more than three months. The evidence on record shows that it was on February 1, 2001 when the accused came back to his village he was nabbed by the residents of the village. PW-11 the Investigating Officer immediately arrested the accused on the same day when he was informed by the village people. Before the arrest of the accused, a proclamation (Ext. PW-11/C) with his photographs was issued. PW-11 has denied the suggestion of the accused that the death of the deceased could be caused by a fall from his house. The plea of the accused that he was away to Rohru, District Shimla to earn his livelihood during the period when the occurrence had taken place in our view, is not plausible and tenable. The defence of the accused that Jalam Singh might have died by a fall or might have been murdered by some villagers appears to be after thought. The accused has not put any suggestion to the prosecution witnesses to establish that he was not in the village when the murder of Jalam Singh took place. As noticed in the earlier part of this judgment, the presence of the accused at the scene of the crime has been proved by PW-2 Gora Ram and thereafter the accused participated in Jagran of Baba Peer at the house of PW-3 Netar Singh on the day of the occurance. There is not an iota of evidence to establish that the accused was working at Rohru in District Shimla prior to or on the day when Jalam Singh was murdered. His plea of alibi is therefore, unsustainable and unfounded. 21. No other points were urged by the learned Counsel for the parties. 22. There is not an iota of evidence to establish that the accused was working at Rohru in District Shimla prior to or on the day when Jalam Singh was murdered. His plea of alibi is therefore, unsustainable and unfounded. 21. No other points were urged by the learned Counsel for the parties. 22. For the abovesaid reasons, there in no merit in this appeal and it is dismissed accordingly. The conviction and sentence imposed upon the accused by the learned Additional Sessions Judge, Sirmour at Nahan, are affirmed. 23. Before parting, we place on record our appreciation of the assistance rendered by Mr. M.S. Guleria, learned amicus curiae at the time of hearing. Appeal dismissed.