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2010 DIGILAW 3142 (PNJ)

Dalbir Singh v. State of Haryana

2010-11-23

AJAY TEWARI, RANJAN GOGOI

body2010
JUDGMENT Mr. Ranjan Gogoi, J.: (Oral):- This appeal is directed against the judgment dated 23.1.2002 passed by the learned Sessions Judge, Bhiwani convicting the accused-appellant under Section 302 I.P.C. and the order dated 25.1.2002 sentencing the accused-appellant to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/-, in default to suffer rigorous imprisonment for further six months. 2. The short case of the prosecution is that at about 8/8-15 P.M. on 4.8.1999 Rajender Singh (PW-3) was grinding wheat in his house in village Bohal whereas his uncle Daya Nand (DW-2) was present in his house. According to the prosecution at that time the accused, Dalbir Singh, who was residing separately was also present in his house. It is stated that PW-3, complainant, heard the cries of his father and on coming to the spot PW-3 alongwith his uncle Daya Nand (DW-2) could see the accused causing injuries on the neck, head and mouth of his father with a ‘phalli’. According to the prosecution when the complainant (first informant) and his uncle tried to prevent the accused, the accused wielded his weapon in their direction. Therefore, the aforesaid two persons could not prevent the assault by the accused on the deceased. It is the further case of the prosecution that as a result of the injuries caused by the accused the father of the complainant died. Thereafter the dead body was removed to a room in the house. The prosecution has also alleged that the accused had nursed a grudge against his father i.e. the deceased for not being given any land on the ground that the accused was addicted to ‘sulfa’. The further case of the prosecution is that leaving his uncle, Daya Nand,(DW-2) and other villagers near the dead body, the complainant alongwith others went in search of the accused and on the next morning while the complainant was going to report the matter to the police he met the police party headed by S.I. Bal Kishore of Police Station Bawani Khera near the bus terminus. Accordingly, the complainant made a statement before S.I. Bal Kishore which was reduced into writing and thereafter being duly endorsed, the same was sent to the Police Station. On the basis of the aforesaid statement, the F.I.R. was registered under Section 302 of the Indian Penal Code. 3. Accordingly, the complainant made a statement before S.I. Bal Kishore which was reduced into writing and thereafter being duly endorsed, the same was sent to the Police Station. On the basis of the aforesaid statement, the F.I.R. was registered under Section 302 of the Indian Penal Code. 3. It is the further case of the prosecution that S.I. Bal Kishore immediately rushed to the place of the occurrence, prepared inquest report and lifted the blood stained earth from the spot which was sealed in parcels. The rough site plan of the place of the occurrence was prepared and statements of the witnesses were recorded. The dead body was sent for post mortem examination and on receipt of report of the post mortem, the report of the investigation was submitted against the accused-appellant under Section 173 Cr.P.C. It may be noticed, at this stage, that it is also the case of the prosecution that on 7.8.1999 the accused was arrested near village Rohnat and he made a disclosure statement on the basis of which the alleged weapon of an assault was recovered from the bushes of the shamlat land of village Bohal. 4. The case against the accused-appellant, as alleged by the prosecution, being under Section 302 I.P.C. the learned Judicial Magistrate vide order 5.11.1999 committed the case for trial to the court of Sessions Judge, Bhiwani. In the trial court charge under Section 302 I.P.C. was framed against the accused-appellant to which he pleaded not guilty and claimed to be tried. In the course of trial ten witnesses were examined by the prosecution including complainant Rajender Singh as PW-3 and a brother of the deceased one Munshi as PW-4. The doctor who performed the post mortem of the deceased was examined as PW-1 and the Investigating Officer S.I. Bal Kishore was examined as PW-9. After closure of the evidence of the prosecution the accused was examined under Section 313 of Cr.P.C. and his statement was recorded in the course of which he has stated as follows:- “PW Rajender developed illicit relations with my wife because we both brothers are married in the same family with real sisters. My father separated Rajender from his family on this account. My father and myself were living jointly and in cosmality. I had good relations with my father. My father separated Rajender from his family on this account. My father and myself were living jointly and in cosmality. I had good relations with my father. I and my father Banwari Lal used to object about the illicit relations of Rajender PW with my wife. After getting murdered my father, by Rajender himself or with the help of somebody else, he got me falsely implicated with active connivance of the police in this false case in order to grab my property and my wife. I am innocent. At the alleged time of occurrence, I was not present in the house itself.” 5. The accused, on being called to enter his defence, examined two defence witnesses both of whom are brothers of the deceased. DW-1 Dalip Singh and DW-2 Daya Nand, in their depositions, denied that the accused was responsible for inflicting injuries on the deceased. The said witnesses had also denied that they had made any statement before the police implicating the accused in the commission of the alleged offence. Thereafter, the learned trial Court by judgment dated 23.1.2002 and order dated 25.1.2002 convicted and sentenced the accused-appellant as aforesaid giving rise to the present appeal. 6. We have heard Mr. Vinod Ghai, learned counsel appearing for the appellant and Mr. Ajay Gupta, learned Additional Advocate General Haryana for the State. 7. The learned counsel for the appellant has urged a number of points before us. It is contended that there was an unusual delay in lodging the F.I.R. in the present case which gave sufficient opportunity to the complainant to implicate the accused. Learned counsel for the appellant has also contended that the prosecution has failed to prove any motive for the crime allegedly committed by the accused. It has also been submitted that there are no independent witnesses of recovery of the weapon of assault which was, in any case, made from an open field. Learned counsel has contended that in the present case though PW-3 and PW-4 have implicated the accused-appellant in the commission of the offence, yet, DW-1 and DW- 2 who are brothers of the deceased had clearly deposed to the effect that the accused was in no way involved in the offence. It is also submitted by the learned counsel for the appellant that the evidence of the defence witnesses has not been successfully demolished or proved to be unacceptable. It is also submitted by the learned counsel for the appellant that the evidence of the defence witnesses has not been successfully demolished or proved to be unacceptable. Consequently, according to the learned counsel, two versions of the alleged occurrence are available before the court the benefit of which must go in favour of the accused. 8. In reply, Shri Ajay Gupta, learned Additional Advocate General Haryana has submitted that even if the prosecution is held not to have successfully demolished the version unfolded by the defence witnesses there are several highly incriminating circumstances against the accused which have been proved by the prosecution. Recovery of the weapon of assault and collection of blood stained earth from the house besides the disappearance of the accused for about two days after the occurrence have been pointed out to be incriminating circumstances appearing against the accused. It is the submission of the learned counsel that the said circumstances coupled with the evidence of PW-3 and PW-4 clearly establishes the case of the prosecution beyond all reasonable doubt. Hence, according to the learned counsel, there is no room for interference with the impugned judgment and order passed by the learned trial court. 9. We have considered the submissions advanced on behalf of the rival parties. We have also perused the evidence and materials on record particularly the evidence of PW-3 and PW-4 and DW-1 and DW-2. 10. The evidence of PW-3 Rajender Singh who is the first informant of the case is in reiteration of what has been stated by the said witness in his statement recorded by S.I. Bal Kishore which formed the basis of the registration of the F.I.R. against the accused-appellant. PW-4 Munshi is a brother of the deceased who in his deposition has stated that he had gone to the place of occurrence on hearing hues and cries and on reaching the place he saw dead body of his brother lying. According to PW- 4 the accused had fled away after the occurrence by the time he had arrived at the spot. Both the witnesses have testified that the accused-appellant was addicted to ‘sulfa’ and as he was wasting the money, the deceased, who was father of the accused, had refused to give any land to the accused for which the accused had a grievance against his father i.e. deceased. 11. Both the witnesses have testified that the accused-appellant was addicted to ‘sulfa’ and as he was wasting the money, the deceased, who was father of the accused, had refused to give any land to the accused for which the accused had a grievance against his father i.e. deceased. 11. A consideration of the evidence tendered by PW-4 would go to show that he is not an eye witness to the occurrence as, admittedly, he had arrived at the spot after the accused had fled away from there. The sole eye witness that the prosecution had examined, therefore, is PW-3. As against the said evidence brought by the prosecution the defence had examined Dalip Singh as DW-1 and Daya Nand as DW-2. Both Dalip Singh and Daya Nand are brothers of deceased Banwari Lal. In their deposition both the witnesses have denied that the accused was addicted to ‘sulfa’ and that the accused was involved in the commission of the alleged offence. Both the witnesses had denied that they had made any statements before the police involving the accused in the commission of the crime alleged against him. Obviously both the conflicting versions unfolded by the first informant i.e. PW-3 and the defence witnesses cannot be correct. As to which of the two versions is the correct version is for the prosecution to establish. After having examined PW-3, if the prosecution wanted the version of the said witness to be accepted by the court, it was incumbent upon the prosecution to prove and establish that the version narrated by the defence witnesses is incorrect and therefore, unacceptable. 12. Witnesses examined by the prosecution as well as by the defence stand on an equal footing insofar as the court is concerned. In the present case both the eye witnesses denied making any statement to the police implicating the accused in the commission of the crime. If the prosecution wanted to discredit the said part of the testimony of the defence witnesses it should have contradicted the said witnesses with reference to their previous statement(s) in writing. In the present case both the eye witnesses denied making any statement to the police implicating the accused in the commission of the crime. If the prosecution wanted to discredit the said part of the testimony of the defence witnesses it should have contradicted the said witnesses with reference to their previous statement(s) in writing. Such contradiction had to be made by adhering to the provisions of Section 145 of the Evidence Act which is in the following terms:- “A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” 13. A witness may be cross-examined with regard to a previous statement made by him in writing without such writing having been shown to him but if it is intended to contradict such witness with reference to any previous statement made by him in writing his attention is required to be drawn to such previous statement and the same is required to be proved. In the present case in the cross-examination of the defence witnesses by the prosecution only a suggestion was offered to them that in their statements to the police they had implicated accused in the commission of the crime alleged. The said suggestion was denied by the defence witnesses. Thereafter, neither the statement(s) made before the police was brought to the notice of the witness nor the relevant part of the police statement was proved by the prosecution. It may be noticed that the prosecution had exhibited (Ex.PN) the statement of DW-1 Dalip Singh recorded under Section 175 Cr.P.C. In the said statement however, DW-1 had only stated that he could come to know on the previous day that the accused had murdered his father i.e. the deceased. It will also be relevant to specifically note that the statements of both the defence witnesses recorded under Section 161 Cr.P.C. had not been proved and exhibited by the prosecution. 14. It will also be relevant to specifically note that the statements of both the defence witnesses recorded under Section 161 Cr.P.C. had not been proved and exhibited by the prosecution. 14. The learned trial Court, on the basis of a mere suggestion put by the prosecution, came to the conclusion that the two defence witnesses had actually made statements before the police implicating the accused in the commission of the crime alleged. In other words, the learned trial Court not only overlooked the provisions of Section 145 of the Evidence Act while deciding as to whether the defence witnesses had been contradicted with reference to their previous statements in writing but it would also appear that the learned trial court also proceeded as if the statements allegedly made by the defence witnesses before the police, which were found to have been resiled from, was in the nature of substantive evidence. This is a serious fallacy that is apparent on reading of the order of the learned trial Court. 15. The net result of the above discussion is that the evidence tendered by the defence witnesses does not stand discredited by the prosecution. If that be so there are two versions of the incident that confronts the court. Which of the two versions is correct has not been proved by the prosecution. Naturally, the benefit of the said lapse on the part of the prosecution must go in favour of the accused. Viewed from the above, the circumstances relied upon by the learned Advocate General Haryana to determine the culpability of the accused would pale into insignificance. 16. In the light of the foregoing discussion this appeal is allowed. The judgment and order passed by the learned Sessions judge is set aside and the accused-appellant is acquitted on the benefit of doubt. He be set at liberty forthwith, if not required in any other case. ------------