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2006 DIGILAW 821 (PNJ)

Satpal And Anr. Etc. v. State Of Haryana

2006-03-01

MEHTAB S.GILL, UMA NATH SINGH

body2006
Judgment Mehtab S.Gill, J. 1. We will be deciding Criminal Appeal Nos. 116-DB of 2003 and 153-DB of 2003 as they arise out of a common judgment/order. Appellants Satpal son of Chander, Deepak son of Satpal and Sahi Ram son of Chander were convicted by the Additional Sessions Judge (Fast Track Court), Sonepat on 23/24-12-2002 and sentenced to undergo rigorous imprisonment, for a period of five years and to pay a fine of Rs. 1000.00 each, in default of payment of fine, to further undergo rigorous imprisonment, for a period of one month each under Section 452, IPC. Life imprisonment was awarded to the appellants under Section 302 read with Section 34, IPC and to pay a fine of Rs. 2000.00 . 2. The case of prosecution is unfolded by the statement Ex.PG (dying declaration) of Rameshwar son of Raghubir Singh Tyagi, made on 4 8-1999 at 6.15 p.m. to Baljit Singh ASI PW-14, at C.H.C. Ganaur. Rameshwar stated that he was sleeping in his kotha (room) of his tubewell, in his fields. At about 2 p.m. Satpal, Sahi Ram sons of Chander and Deepak son of Satpal, all residents of village Ghasauli came there. Sahi Ram was armed with a Saria (iron rod). Depak was armed with a knife and Satpal was armed with a Farsa. Sahi Ram gave a Saria blow on the cot, Satpal gave a Farsa blow on his right leg and Deepak gave a knife blow on his left thigh. Thereafter, Sahi Ram gave 2/3 Saria blows on his foot and back. He raised an alarm. Radhe son of Bhaiya Ram Tyagi came there and rescued him, from the assailants. The three accused then fled away towards the village, along with their weapons. They gave a threat to him that he has been saved, but on the next opportunity, he would be killed. Rameswar further stated that injuries were inflicted on him inside the kotha (room), of the tubewell. Injuries were inflicted due to past enmity. On the basis of this statement, formal FIR Ex.PG/1 was recorded on the same day at Police Station Ganaur at 6,30 p.m. Special report was delivered to the Duty Magistrate at 12 p.m. (mid night) on the same day. Rameshwar after giving his statement died any time between 6/7 p.m. on 4-8-1999. 3. Injuries were inflicted due to past enmity. On the basis of this statement, formal FIR Ex.PG/1 was recorded on the same day at Police Station Ganaur at 6,30 p.m. Special report was delivered to the Duty Magistrate at 12 p.m. (mid night) on the same day. Rameshwar after giving his statement died any time between 6/7 p.m. on 4-8-1999. 3. Prosecution to prove its case brought into the witness box PW-1 Constable Gopi Chand, PW-2 H.C. Raj Kumar, PW-3 Dr. Suman Mathur, PW-4 Mahender Singh S. I., PW-5 Ranbir Singh, PW-6 UGC Lachhman Singh, PW-7 Dr. J. B. Sharma, PW-8 S.I. Ram Mehar, PW-9 Radhe, PW-10 Parveen Kumar, PW-11 Pawan Kumar, PW-12 Sushil Kumar, PW-13 Shardha Nand and PW-14 ASI Baljit Singh. 4. Learned Counsel for the appellants has assailed the dying declaration Ex.PG. He has argued that there are grave infirmities in the dying declaration. In fact Rameshwar was not in a fit state of mind to make a statement and document Ex.PG has been fabricated by ASI Baljit Singh PW-14, the Investigating Officer. 5. As per the prosecution, ruqqa Ex.PE dated 4-8-1999 showing Rameshwar to be admitted in the hospital at 4 p.m. was sent by the Medical Officer, C.H.C. Ganaur, to the S.H.O. of Police Station Ganaur. Application Ex.PF made by Baljit Singh ASI PW-14 to the Medical Officer, C.H.C. Ganaur for his opinion, as to whether Rameshwar was fit to make a statement is dated 4-8-1999, but no time is given. The doctor in his opinion Ex.PF/1 has stated that Rameshwar was fit for statement and patient is referred to C.H. Sonepat. No time has been recorded, as to when Rameshwar was referred to C. H. Sonepat. Though the doctor has stated that Rameshwar is in a fit state of mind to make a statement, but at the same time, strangely he has referred him to C. H. Sonepat. Medico legal report Ex.PD shows that the date and hour of the arrival of Rameshwar in C.H.C. Ganaur is 3.45 p.m. on 4-8-1999 in column (A). Thereafter, it shows that Rameshwar was referred to C. H. Sonepat In Column (D). In Column (E), no name was mentioned as to who brought Rameshwar to the hospital. Learned Counsel for the appellants has vehemently argued, that Dr. J. B. Sharma PW-7, who examined Rameshwar, tampered with the Medico legal report Ex.PD. In Columns Nos. Thereafter, it shows that Rameshwar was referred to C. H. Sonepat In Column (D). In Column (E), no name was mentioned as to who brought Rameshwar to the hospital. Learned Counsel for the appellants has vehemently argued, that Dr. J. B. Sharma PW-7, who examined Rameshwar, tampered with the Medico legal report Ex.PD. In Columns Nos. 4 an 5, where the blood pressure and the pulse of the patient is shown, the words "semi conscious" have been tampered with. This was done, so the dying declaration Ex.PG, could be shown as genuine document. In fact Rameshwar was at that time in a semi conscious condition. His blood pressure was 80/40 and pulse was 48 per minute. Pulse being feeble is also mentioned in report Ex.PD. Rameshwar could not have given statement Ex.PG, as at that moment of time, he was not in a fit state of mind to do so. ASI Baljit Singh PW-14 the scribe and sole witness to the dying declaration Ex.PG, has stated in his testimony that ruqqa Ex. PE was received by him at 5/5.15 p.m. on 4-8-1999. He reached the hospital at 5.30 p.m. He sought the opinion of the doctor immediately. Relations of Rameshwar were sitting besides him in the ward, at that time. Constable Lachhman Singh PW-6 was with him at that time, when the dying declaration was recorded. Further, he stated, that it is correct that he did not seek any opinion of the doctor regarding patients fitness at the time of recording his statement. Thereafter, he went to village Ghasauli at about 7 p.m. He noticed blood behind the tubewell and inside the kotha (room) of the tubewell. 6. The name of the alleged eye-witness to the occurrence, Parveen Kumar PW-10 has not been mentioned in dying declaration Ex.PG. Both the eye-witnesses i.e. Radhe PW-9 and Parveen Kumar PW-10 have stated that they saw the appellants inflicting injuries on Rameshwar outside the kotha (room) of the tubewell. But Rameshwar in his statement Ex.PG has stated, that he was inflicted injuries inside the room of the lubewell. It is a case where Dr. J. B. Sharma PW-7, Radhe PW-9, Parveen Kumar PW-10 and Baljit Singh ASI PW-14 have collided with each other, to bring into existence document Ex.PG. 7. Radhe PW-9 and Parveen Kumar PW-10 the alleged eye-witnesses to the occurrence, have contradicted the statement Ex.PG made by Rameshwar. It is a case where Dr. J. B. Sharma PW-7, Radhe PW-9, Parveen Kumar PW-10 and Baljit Singh ASI PW-14 have collided with each other, to bring into existence document Ex.PG. 7. Radhe PW-9 and Parveen Kumar PW-10 the alleged eye-witnesses to the occurrence, have contradicted the statement Ex.PG made by Rameshwar. Rameshwar in his statement Ex.PG has not named Parveen Kumar PW-10 to be an eye-witness to the occurrence. He has only named Radhe PW-9, Further, both Radhe PW-9 and Parveen Kumar PW-10 have stated in Court that Rameshwar ran out of the tubewell and it was outside the kotha (room) of the tubewell, where he was inflicted injuries. While in Ex.PG Rameshwar has stated that he was inflicted injuries inside the room of the tubewell. Presence of the eye-witnesses is highly doubtful. 8. Weapons of offence, which have been used, are Farsa Ex.P1. Knife Ex.P2 and iron rod Ex.P3 by Satpal, Deepak and Sahi Ram respectively. As per the post mortem report Ex.PA, there are 11 blunt, 1 stab and 3 punctured wounds on the person of Rameshwar, Injury No. 3 is the only sharp edged injury. There are three punctured wounds, but none of the appellants carried a pointed weapon. The medical evidence does not corroborate the ocular account. 9. Learned Counsel for the State has argued that the dying declaration Ex.PG, made by deceased Rameshwar to Baljit Singh ASI PW-14 is a truthful document. Baljit Singh ASI PW-14 recorded his statement after moving application Ex.PF to Dr. J. B. Sharma PW-7, who declared him fit to make a statement. The persons, who were sitting with Rameshwar, were told to go out so that he could not be tutored. Only Constable Lachhman Singh PW-6 was present. Baljit Singh ASI PW14 reached the hospital at 5.30 p.m. and it was in between 5.30 p.m. and 6 p.m. that statement of Rameshwar was recorded. At that state a case under Sections 323/324/452/506/34 IPC was made out against the appellants. After Rameshwar died in between 6/7 p.m., it is thereafter that the case was converted under Section 302 IPC. Both Radhe PW-9 a neighbour of the deceased and Parveen Kumar PW-10 the nephew of the deceased, saw the occurrence. Their testimony could not be demolished even in cross-examination. Dr. J. B. Sharma PW-7, who prepared the medico legal report Ex.PD, has not tampered with the document. Both Radhe PW-9 a neighbour of the deceased and Parveen Kumar PW-10 the nephew of the deceased, saw the occurrence. Their testimony could not be demolished even in cross-examination. Dr. J. B. Sharma PW-7, who prepared the medico legal report Ex.PD, has not tampered with the document. In fact the words "semi conscious" were not written on Ex.PD. If some columns have been left out by Dr. J. B. Sharma PW-7, they were done so inadvertently as Dr. J.B. Sharma PW-7 was anxious first to attend to the patient and in the process forget to fill in some columns. 10. We have heard the learned Counsel for the parties and perused the record with their assistance. 11. Dying declaration Ex.PG is shrouded in suspicious circumstances. As per ruqqa Ex.PE sent by Dr. J. B. Sharma PW-7 to the S.H.O. Police Station Ganaur, it has been stated that Rameshwar patient has been admitted as a medico legal case. This ruqqa was sent on 4-8-1999 at 4 p.m. Baljit Singh ASI PW-7 has stated in his testimony that he received ruqqa Ex.PE at 5/5.15 p.m. He reached the hospital at 5.30 p.m. Thereafter, he moved an application Ex.PF and got the opinion of the doctor. Dr. J. B. Sharma PW-7 opined as per Ex.PF/1, that Rameshwar was fit to make a statement and he was referred to C.H. Sonepat. Baljit Singh ASI PW-14 has further stated, that the relations of Rameshwar were sitting there besides him. They were asked to go out and thereafter statement Ex.PG of Rameshwar was recorded. No one was present except UGC Lachhman Singh PW 6, at the time of recording of the statement. Baljit Singh ASI PW-14 did not seek the opinion of the doctor regarding patients fitness, at the time of recording of his statement. It was incumbent upon Baljit Singh ASI PW-14 to have got a second opinion of the doctor, whether Rameshwar was fit to make a statement at the time when he started recording his statement. In document, Ex.PF when the opinion of Dr. J.B. Sharma PW-7 was sought, time has not been mentioned. The doctor after giving the fitness certificate had also in the same opinion, referred Rameshwar to C.H. Sonepat. When was Ex.PG recorded, is not clear from documents Ex.PD, Ex.PF or Ex.PF/1. In document, Ex.PF when the opinion of Dr. J.B. Sharma PW-7 was sought, time has not been mentioned. The doctor after giving the fitness certificate had also in the same opinion, referred Rameshwar to C.H. Sonepat. When was Ex.PG recorded, is not clear from documents Ex.PD, Ex.PF or Ex.PF/1. We have only the statement of Baljit Singh ASI PW-14, who has stated that he reached the hospital at 5.30 p.m. Rest is only for us to presume as to when it was recorded. By 7 p.m. ASI Baljit Singh PW-14 had left the hospital and had reached village Ghasauli. The medico legal report Ex.PD also does not put much light as to whether Rameshwar was in a fit state of mind to give statement Ex.PG after 5.30 p.m. or not, when Baljit Singh ASI had reached. Document Ex.PD shows the arrival of Rameshwar at 3.45 p.m. on 4-8-1999 in the hospital. In columns (C) and (D), it is shown that he has been referred to C.H. Sonepat. Column (F), which is for the purposes of filling of name of the person, who had accompanied him and his address, has been left blank. It shows that Rameshwar was not accompanied by Radhe PW-9. 12. On top of the columns where the injuries are shown B. P. is shown as being 80/40 and a feeble pulse of 45 per minute. There is interpolation on the words "semi conscious". This has been deliberately done by Dr. J. B. Sharma PW-7 so that it can be shown, that Rameshwar was in a fit state of mind to make a statement. Time of the death of Rameshwar has not been given anywhere in MLR ExPD. Dr. J. B. Sharma PW-7 has stated that patient arrived in the hospital at 3.45 p.m. on 4-8-1999 and he found nine injuries on his person. He did not find any injury on the head of Rameshwar in the MLR. Dr. Suman Mathur PW-3 performed the autopsy on the dead body of Rameshwar. As per the post mortem report Ex.PA, injury No. 8 is a lacerated wound, bone deep over the left side of the forehead. Clotted blood was present. Injury No. 7 is a lacerated wound, bone deep over the left temporal parietal region. On the opening of the skull, the underlying bone was fractured. There was diffused haematoma in the scalp. As per the post mortem report Ex.PA, injury No. 8 is a lacerated wound, bone deep over the left side of the forehead. Clotted blood was present. Injury No. 7 is a lacerated wound, bone deep over the left temporal parietal region. On the opening of the skull, the underlying bone was fractured. There was diffused haematoma in the scalp. On further exploration there was a big haematoma in the subdural and extra-dural. Brain matter was lacerated. In the opinion of Dr. Suman Mathur PW-3, the cause of death was due to shock and haemorrhage as a result of the injuries to the vital organs and head injury. It comes out that Rameshwar was given two severe blows, by an iron rod on the region of his head, which were not noticed by Dr. J.B. Sharma PW-7. 13. In the dying declaration, Rameshwar has stated that Sahi Ram armed with Sarja. (iron rod), Deepak armed with a knife and Satpal armed with a Farsa inflicted injuries on him. Satpal gave a Farsa blow on his right leg. Deepak gave a knife blow on his left thigh and Sahi Ram gave 2/3 Saria blows on his feet and back. He has not mentioned injuries Nos. 7 and 8 as pointed out in the post mortem report Ex. PA. If Rameshwar was in a fit state of mind, the head injuries, would have been first injuries to be pointed out by Rameshwar, as his head would have been in severe pain. He would not have forgotten to point out injuries Nos. 7 and 8, when his statement Ex.PG was recorded by Baljit Singh ASI PW-14. In fact the dying declaration ExPG, was not made by Rameshwar, but Baljit Singh ASI PW-14, in connivance with the complainant party scribed document Ex.PG. Injuries Nos. 7 and 8 in Post Mortem Report Ex.PA could not be seen by the naked eye and thus Baljit Singh ASI PW-14 did not include them in the dying declaration Ex.PG. Apart from the left thumb impression of Rameshwar and Baljit Singh ASI PW-14 being the attesting witnesses, there is no other attesting witness on the dying declaration Ex.PG. UGC Lachhman Singh PW-6 and Dr. J. B. Sharma PW-7 were both available. Baljit Singh ASI PW-14 could have included them also as attesting witnesses. Apart from the left thumb impression of Rameshwar and Baljit Singh ASI PW-14 being the attesting witnesses, there is no other attesting witness on the dying declaration Ex.PG. UGC Lachhman Singh PW-6 and Dr. J. B. Sharma PW-7 were both available. Baljit Singh ASI PW-14 could have included them also as attesting witnesses. The alleged time shown of recording of statement Ex.PG of Rameshwar is at 6.15 p.m. on 4-8-1999. It is thereafter that Baljit Singh ASI PW-14 left for the place of occurrence, where he reached at 7 p.m. Another suspicious circumstance surrounding document Ex.PG, is that Rameshwar has stated, that Radhe PW-9 son of Bhaiya was attracted to the place, when injuries were inflicted on him. In Ex. PG name of Parveen Kumar PW-10 has not been mentioned as being a witness to the occurrence. Parveen Kumar PW-10 is no other person than the real nephew of the deceased. If Parveen Kumar PW-10 was present, he would have tried to save the life of his uncle Rameshwar. Rameshwar has stated in his statement Ex.PG that appellants inflicted these injuries on him, inside the kotha (room) of the tubewell. Radhe PW-9 and Parveen Kumar PW-10, the two eye-witnesses have stated, that injuries were inflicted outside the kotha (room) of the tubewell. 14. Radhe PW-9 in his testimony has stated that on 4-8-1999 at about 2 p.m. he heard the noise from the kotha (room) of the tubewell of Rameshwar. He was standing at a distance of about 2 acres. He ran towards the kotha and noticed the appellants following Rameshwar. Rmeshwar after running at a distance of 40/50 paces was caught hold of by the appellants. They started beating him with their weapons. Parveen Kumar PW-10 also reached there. They both saved Rameshwar. Rameshwar at that time was lying in a water course. The fight took place near the water course. The fight between Rameshwar and the appellants took place for 15 minutes. Many villagers had collected there at the time of the fight. Similarly, Parveen Kumar PW-10 has stated in Court, that when he reached near the Khari. 50 paces away from the room of the tubewell, he saw the appellants inflicting injuries on the person of Rameshwar. Police reached the spot after 7 p.m. and lifted blood-stained earth and grass, stained with blood, vide memo EX.PH from the khal. Similarly, Parveen Kumar PW-10 has stated in Court, that when he reached near the Khari. 50 paces away from the room of the tubewell, he saw the appellants inflicting injuries on the person of Rameshwar. Police reached the spot after 7 p.m. and lifted blood-stained earth and grass, stained with blood, vide memo EX.PH from the khal. He was standing at a distance of 10 feet from Rameshwar when appellants inflicted injuries on him. He did not try to catch hold of the appellants, as they were fully armed. He has further stated that he remained a silent spectator and just kept standing at a distance of 10/12 feet. Injuries were inflicted on Rameshwar, near the water course and some injuries were inflicted on him when he fell in the water course. The water course was situated at a distance of 50 feet from the tubewell. The account given by both Radhe PW-9 and Parveen Kumar PW-10 does not corroborate the dying declaration Ex.PG. Deceased Rameshwar has stated that he was inflicted injuries inside the kotha (room) of the tubewell. He has not mentioned anything about falling in the khal and running 50 feet away, as stated by Radhe PW-9 and Parveen Kumar PW-10. Nor has he mentioned that he was inflicted more injuries by the appellants when he fell in the khal. In the dying declaration Ex.PG, only the name of Radhe PW-9 has been mentioned, who had seen the occurrence. Parveen Kumar PW10, who is the real nephew of Rameshwar, does not find any mention in the statement Ex.PG. Both the witnesses have stated that Rameshwar was fully conscious at the time "he had been assaulted. Meaning thereby, that if Parveen Kumar PW-10 was present, Rameshwar would not have forgotten to take his name in Ex.PG. 15. Pawan Kumar PW-11 in his testimony before the Court has stated that he received a message on 4-8-1999 that Rameshwar was lying in an injured condition in his field. He along with his family members, reached the fields in a jeep and took him to C.H.C. Ganaur. From C.H.C. Ganaur he was taken to C.H. Sonepat. He died on the way. Deceased Rameshwar was lying injured about 50 feet near the kotha (room) of his tubewell. Baljit Singh ASI PW-14 met him at about 4.20 p.m. in C.H.C. Ganaur. He along with his family members, reached the fields in a jeep and took him to C.H.C. Ganaur. From C.H.C. Ganaur he was taken to C.H. Sonepat. He died on the way. Deceased Rameshwar was lying injured about 50 feet near the kotha (room) of his tubewell. Baljit Singh ASI PW-14 met him at about 4.20 p.m. in C.H.C. Ganaur. Though Baljit Singh ASI PW14 has stated that he received ruqqa Ex.PE at 5/5.15 p.m. and reached the hospital at 5.30 p.m. There is contradiction in the statements of both Pawan Kumar PW-11 and Baljit Singh ASI PW-14. It seems that Baljit Singh ASI PW-14 reached the hospital at about 4.20 p.m. and it is thereafter that he started manufacturing the documents Ex.PF, Ex.PE and Ex.PF/1 and dying declaration Ex.PG in connivance with the complainant party. 16. Weapons of offence used by the appellants were Farsa Ex.P1, knife Ex.P2 and iron rod Ex.P3. 14 injuries were inflicted on the person of the deceased. Injury No. 3 as shown in the medico legal report prepared by Dr. D. B. Sharma PW-7, is a stab wound with incised margins. Similarly, injuries Nos. 5 and 7 are punctured wounds. He has opined that injury No. 3 could be inflicted with knife Ex.P2. Injuries Nos. 5 and 7 being punctured wounds, could not have been inflicted by Farsa. knife or Saria. as these injuries could be inflicted only if the appellants wielded a pointed weapon. We examined Saria (iron rod) Ex.P3. The Saria (iron rod) was not a pointed weapon, but he noticed that it was blunt from both the sides. The medical evidence does not corroborate the ocular account. 17. We are of the considered opinion that I the dying declaration Ex. PG on the basis of which the learned trial Court had convicted the appellants, is a fabricated and false document. Deceased Rameshwar was not in a fit state of mind, to make a statement. Baljit Singh ASI PW-14 in connivance with the complainant party prepared document Ex.PG. It would be hazardous to place reliance on the dying declaration Ex.PG. Both the appeals are allowed. Appellants are acquitted of all the charges framed against them. If in custody, they be set free forthwith, if not required in any other case.