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2014 DIGILAW 1522 (PNJ)

Hem Raj v. State of Haryana

2014-11-11

MUTTACI JEYAPAUL, SNEH PRASHAR

body2014
Muttaci Jeyapaul, J. 1. Criminal Appeal No. 661-DB of 2002 was filed assailing the judgment of conviction dated 07.08.2002 and the order of sentence dated 10.08.2002 vide which five persons, namely, Hem Raj s/o. Chatru, Randhir Singh s/o. Hem Raj, Jangli s/o. Hem Raj, Joginder s/o. Ram Singh and Dharampal s/o. Ram Singh were convicted for commission of offences punishable under Section 148, 302 read with Section 149, 326 read with Section 149 and Section 323read with Section 149 of the IPC and were sentenced as under: "Under Section 302 read with Section 149 IPC: Rigorous imprisonment for life each and fine of ` 1000/- each. In the event of nonpayment of fine, to undergo further rigorous imprisonment for three months each. Under Section 326 read with Section 149 IPC: Rigorous imprisonment for five years each and fine of ` 1000/- each. In the event of nonpayment of fine to undergo further R.I. for three months each. Under Section 324 read with Section 149 IPC: Rigorous imprisonment for two years each and fine of ` 500/- each. In the event of nonpayment of fine to undergo further R.I. For 1-1/2 months each. Under Section 323 read with Section 149 IPC: Rigorous imprisonment for one year each and fine of ` 500/- each. In the event of nonpayment of fine, to undergo further R.I. for 1-1/2 each. Under Section 148 IPC: Rigorous imprisonment for two years each and fine of ` 500/- each. In the event of non-payment of fine to undergo further R.I. for 1 1/2 months each." The said CRA-661-DB of 2002 was taken up alongwith CRR No. 23 of 2003 preferred by complainant-Chanda Singh as common questions of law and fact were involved in both the cases by a Division Bench of this Court and both were dismissed vide judgment dated 12.05.2011 observing that appellants/accused Hem Raj and Randhir Singh were reported to have died and the appeal qua them stood abated. However, at the instance of Krishan, brother of complainant Chanda Singh, it was later brought to the notice of this Court that accused/appellant Randhir Singh was alive and was at large. Appearance of accused-Randhir Singh was procured by issuing bailable warrants and he was sent to jail. However, at the instance of Krishan, brother of complainant Chanda Singh, it was later brought to the notice of this Court that accused/appellant Randhir Singh was alive and was at large. Appearance of accused-Randhir Singh was procured by issuing bailable warrants and he was sent to jail. After convict appellant-Randhir Singh was apprehended and it was observed that the factum of his death recorded in the judgment dated 12.05.2011 was incorrect vide order dated 17.02.2014 the appeal filed by him bearing No. CRA-D-661-DB of 2002 was restored to its original number. In presence of appellant-Randhir Singh, Shri D.S. Brar, Advocate was appointed as Amicus Curiae to argue the appeal on his behalf and he was ordered to remain in custody till the decision of the appeal. 2. Shri Abhaypal Singh Gill, learned counsel representing the appellant and Mr. Dhruv Dayal, learned Deputy Advocate General, appearing on behalf of State have been heard and with their able assistance the material available on record has been perused. 3. In nutshell, the story of the prosecution was that Chanda Singh (complainant) had three brothers namely, Rajma, Maman and Krishan who all were married and were living separately alongwith their children for the last about 7 months. A dispute was going on over a water-course (Khal) between Chanda Singh and his brothers on one side and Hem Raj s/o. Chatru, Randhir and Jangli sons of Hem Raj, Ram Singh s/o Chatru, Dharam Pal and Joginder sons of Ram Singh all residents of Village Hathlana, on the other side. On 01.05.1999 at about 9 a.m. Hem Raj and others dismantled the water course of Chanda Singh and diverted the flow of water, which led to an exchange of abuses between the aforesaid parties. Hem Raj and others (accused-appellant) threatened the complainant and his brothers to teach them a lesson some day. Later, on the same day at about 8 p.m. Chanda singh and his brothers Maman and Rajma, after having dinner at their respective houses had collected in their fields and served grass to their cattle. Out of fear of quarrel, all three of them slept at the tubewell of Rajma. On the next morning, i.e. 02.05.1999 at 4.00 a.m., Maman and Rajma, after milching their cattle left for the village. Chanda Singh woke up at 5:15 a.m., and left for his field. Out of fear of quarrel, all three of them slept at the tubewell of Rajma. On the next morning, i.e. 02.05.1999 at 4.00 a.m., Maman and Rajma, after milching their cattle left for the village. Chanda Singh woke up at 5:15 a.m., and left for his field. At about 5:30 a.m., when Maman and Rajma reached on the 'Kacha' passage near the field of Ramesh, Hem Raj armed with gandasi and his sons Randhir and Jangli armed with sword and gandasi respectively, came running from back side of the tubewell room of Sher Singh and exhorted. On this, Rajma and Maman started running towards the fields of Ramesh, but they were waylaid by Ram Singh and his sons Dharam pal and Joginder, who appeared from the back of heap of fodder and were armed with Lathi, Gandasi and sword respectively. In the meantime, on hearing the cries, complainant-Chanda Singh rushed to the spot. Within the sight of Chanda Singh, Hem Raj gave a Gandasi blow and hit on the right temple of Maman; Randhir gave a sword blow which hit on the back side of Maman's head; Jangli gave a gandasi blow which hit on the forehead of Maman; Dharampal gave a gandasi blow, which fell on the left arm of Maman; Joginder gave a sword blow and hit on the left arm of Maman. Ram Singh gave a lathi (stick) blow to Rajma. Having suffered injuries, Maman fell on the ground. The assailants caused more injuries to Rajma with their respective weapons and he too fell down. Seeing Krishan coming to the fields and Chanda Singh raising an alarm, the assailants fled from the spot along with their respective weapons. 4. Maman succumbed to the injuries at the spot, several people of the village gathered. Krishan accompanied Rajma to the hospital, Chanda Singh accompanied by Banarsi Sarpanch proceeded to the police station and on meeting the police on the way lodged a complaint narrating the entire incident. He added that Hem Raj and his co-accused in furtherance of their common intention had murdered his brother-Maman and had caused injuries to Rajma. 5. Based on the statement of Chanda Singh, FIR Ex. PC was recorded at Police Station Nissing. Investigation commenced. An inquest report in respect of the dead body was prepared. The rough site plan of the place of occurrence was also prepared and the site was got photographed. 5. Based on the statement of Chanda Singh, FIR Ex. PC was recorded at Police Station Nissing. Investigation commenced. An inquest report in respect of the dead body was prepared. The rough site plan of the place of occurrence was also prepared and the site was got photographed. Blood stained earth was lifted and a lathi lying at the spot was taken into possession by preparing a memo. A milk container and one pair of slipper (chappel) belonging to Maman were also taken in possession and the dead body was sent for postmortem examination. The statement of injured Rajma was recorded on 04.05.1999. The accused were arrested and the weapons used for commission of offence were recovered. 6. The accused were charge-sheeted to which answered in negative and opted for a trial. 7. The prosecution examined as many as 14 witnesses to substantiate its allegations. PW-1 HC Bal Kishan, PW-2 Constable Dalvinder Singh, PW-3 Constable Ajit Singh, PW-4 Dr. Kuldep Singh, PW-5 Chanda Singh, PW-6 Rajma, PW-7 Dr. Rakesh Girdhar, PW-8 Dr. Sham Wadhwa, PW-9 Ramesh Chand Patwari, PW-10 Dr. Rakesh Mittal, PW-11 Krishan Lal, PW-12 Kalu Ram, PW-13 Pardhan Constable and PW-14 Devinder Singh, DSP. On closure of the prosecution evidence, the statement of accused under Section 313 of the Criminal Procedure Code was recorded. They denied the incriminating circumstances appearing against them and pleaded their false implication. They also stated that Dharambir and Joginder were living separate from the other accused Hem Raj etc. Ram Singh and his sons Dharam Pal and Joginder were cultivating their land separately and had no dispute with the complainant party. No evidence was led by the accused in defence. 8. The trial resulted in the conviction and sentence as indicated above of accused Hem Raj, Randhir Singh, Jangli, Joginder and Dharam pal, while accused Ram Singh was given benefit of doubt and was acquitted accordingly. 9. The appeal in hand is qua appellant Randhir Singh only as the appeal qua other appellants was disposed of vide judgment dated 12.05.2011 passed by a Division Bench of this Court. 10. The foremost argument raised by learned counsel for the appellant was that Chanda Singh-complainant, brother of deceased Maman was the star witness of the prosecution. It was on his alleged statement Ex. PF that the FIR Ex. PC was registered by the police. 10. The foremost argument raised by learned counsel for the appellant was that Chanda Singh-complainant, brother of deceased Maman was the star witness of the prosecution. It was on his alleged statement Ex. PF that the FIR Ex. PC was registered by the police. He claimed to be an eye witness of the occurrence, but surprisingly he did not sustain even a scratch on his body during the alleged violent attack. It also appears strange that despite having seen the accused inflicting injuries with gandasi, sword and lathi etc. on his brother Maman and Rajma, he opted to remain away and a silent spectator and did not come forward to save his brothers. His conduct was completely unnatural and therefore, his deposition could not be relied upon. 11. Elaborating further learned counsel contended that as stated in the FIR complainant-Chanda Singh had gone to his field whereas, his brothers Maman and Rajma had left for the village. His statement indicates that they had gone in different directions. Occurrence, as stated by the witnesses, had taken place in the field near the village. During cross-examination, Chanda Singh PW 5 in first breath stated that their land is at a distance of 2 Kms from the village 'abadi' and in the next breath, he stated that the distance is 3 Kms. In any case, as per his own version, he was present in his field and that field was at a distance of 2/3 Kms from the field where the occurrence took place. Such being the situation it seems improbable that he could witness the occurrence. 12. Another argument raised with vehemence by learned counsel for the appellant was that the place of occurrence was disputable. Complainant-Chanda Singh got incorporated in the First Information Report that when his brothers Maman and Rajma reached the 'Kacha' path near the field of Ramesh, Hemraj, Randhir Singh and Jangli, armed with gandasi, sword and gandasi respectively, came out from the back side of the tubewell room of Sher Singh resident of their village. During the course of investigation PW 12 Kalu Ram-Inspector prepared a rough site plan Ex. P7 of the spot of occurrence but in the said site plan he did not indicate existence of any such tubewell room of Sher Singh. During the course of investigation PW 12 Kalu Ram-Inspector prepared a rough site plan Ex. P7 of the spot of occurrence but in the said site plan he did not indicate existence of any such tubewell room of Sher Singh. Similarly, PW 9-Patwari Ramesh Chand who prepared scaled site plan Ex-PJ of the spot stated during cross-examination that Sher Singh owned five killas of land and there is no tubewell in any of his killa numbers. When there was no tubewell room of Sher Singh, the story of the complainant that accused Hemraj, Randhir and Jangli had come out from behind the tubewell room is proved to be false. His having given wrong facts shows that he was not an eye witness and was fakely introduced in order to create evidence. 13. The evidence of the prosecution indicates that the facts which remained undisturbed were that PW-5 Chanda Singh complainant, PW 6 - Rajma injured, Maman deceased and one Krishan were real brothers; Randhir Singh (appellant) and Jangli were sons of Hemraj and Joginder and Dharampal were sons of Ram Singh brother of Hem Raj. Both the parties were residents of village Hathlana and that the occurrence took place in the fields of the said village. Further, as deposed by PW-5 Chanda Singh and PW-6 Rajma. The field of Ramesh, the field of Sher Singh and of both the parties were situated on both sides of the passage on which Maman and Rajma were waylaid by Hem Raj, Randhir and Jangli who were armed with swords and gandasis and when they ran towards the field of Ramesh they were trapped/encircled by other three accused among whom were Dharampal and Joginder who were also armed with gandassi and sword respectively. 14. No doubt PW-7 Ramesh Chand Patwari stated that there was no tubewell in the filed of Sher Singh, but he was proved to be wrong from the evidence on record. It appears, he missed to recollect because existence of the tubewell of Sher Singh was not recorded in the revenue record. PW-5 Chanda Singh and PW-6 Rajma as well as PW-12 Kalu Ram Inspector consistently stated that there was a tubewell room of Sher Singh near the place of occurrence. It appears, he missed to recollect because existence of the tubewell of Sher Singh was not recorded in the revenue record. PW-5 Chanda Singh and PW-6 Rajma as well as PW-12 Kalu Ram Inspector consistently stated that there was a tubewell room of Sher Singh near the place of occurrence. Their statement to the said effect was not challenged by the accused as none of them was suggested that there was no tubewell of Sher Singh adjacent to the place of occurrence as stated by them. Rather, it was suggested to PW 5 - Chanda Singh that there was no room (Kotha) on the tubewell of Sher Singh. Meaning thereby that the accused did not dispute existence of tubewell in the field of Sher Singh but according to them there was no room on the tubewell. Normally there is always a room at the tubewell for installation of electric connection etc. As such, if the tubewell was there, it is difficult to believe that there was no room structure for the connection at the tubewell of Sher Singh. It was for the investigation officer and the Patwari to show the tubewell room in the respective site plan prepared by them especially when PW-12 Investigation Officer admitted that the tubewell room, from the back of which Hemraj, Jangli, Randhir had come out, was shown to him by the witnesses. Similarly the heap of fodder from the back of which the other three accused came out was also stated to have been shown to the investigation officer. In case the investigation officer or the Patwari did not indicate the existence of the tubewell room and the heap of fodder in their site plans, the unequivocal statement of the prosecution witnesses could not be discarded. The infirmity left by the investigating officer or the Patwari was incompetent to impair the credibility of the witnesses. 15. Indeed, PW 5 Chanda Singh complainant, who claimed to be an eye witness of the occurrence, did not sustain any injury during the occurrence. The question is whether absence of injury on his person was enough to prove that he was not present at the relevant site at the time of occurrence. 15. Indeed, PW 5 Chanda Singh complainant, who claimed to be an eye witness of the occurrence, did not sustain any injury during the occurrence. The question is whether absence of injury on his person was enough to prove that he was not present at the relevant site at the time of occurrence. In our considered opinion, the reply to the query has to be 'no' PW 5 Chanda Singh and his brother PW 6 Rajma, who survived the attack by the accused, consistently deposed that during the night preceding the occurrence, they and their brother Maman had slept together at the tubewell of Rajma. They further deposed that on the next morning i.e. on 02.05.1999 Chanda Singh woke up at 5:15 am and by then Rajma and Maman, who had woken up at 4:00 am had fed and milched their cattle. While they both started towards the village, Chanda Singh left for his field. At about 5:30 am as Maman and Rajma reached Kaccha passage leading to the village, accused Hemraj, Randhir and Jangli emerged with deadly weapons from the back of tubewell of Sher Singh. The gap between the time Chanda Singh started from the tubewell of Rajma and the occurrence was hardly 15 minutes. Even if the time of starting stated by the witnesses is taken to the accurate, yet the fact remains that the time of occurrence thereafter was stated depending on their observation. If Maman and Rajma could reach only the Kaccha passage after they had started from the tubewell of Rajma, it is obvious that PW 5 Chanda Singh who was going to his field could have also covered some distance only. 16. It is not the case that there were crops of considerable height in the fields that Chanda Singh could not have heard the shouts of his brothers or an alarm given by accused Hemraj etc. when they were running after Maman and Rajma with Gandasi and swords in their hands. During cross-examination no query was put to PW-5 Chanda Singh to know the distance from where he had seen the occurrence. He stated that when he saw that accused Ram Singh, Dharampal and Joginder, who had come out from behind the wheat husk, had encircled his brothers, he rushed towards the spot. Meaning thereby that the complainant witnessed the occurrence while rushing towards the spot. He stated that when he saw that accused Ram Singh, Dharampal and Joginder, who had come out from behind the wheat husk, had encircled his brothers, he rushed towards the spot. Meaning thereby that the complainant witnessed the occurrence while rushing towards the spot. It is there in his deposition that he raised rescue calls "Bachao Bachao". Needless to say that to every action different individuals react in a different manner. No hard and fast rule can be laid down to analyse the reaction. Chanda Singh did not intervene, when the accused were inflicting injuries on his brother. Possibly, he was shocked or he did not get the time to intervene, but he certainly raised hue and cry for help. In the said set of facts, neither his conduct was unnatural nor his presence at the time of occurrence could be put to suspicion. 17. It is proved from the Medico Legal Report Ex. PK of PW 6 Rajma, who was accompanying Maman (deceased) that he suffered as many as seven injuries during the occurrence. His injury No. 7 which was an incised wound 8 c.m. x 2.2 c.m. bone deep on the left leg was referred for x-ray. PW-8 Dr. Sham Badwa proved that PW-6 suffered fracture of shaft left fibula and fracture of acromion process of right scapula. The report of the doctor in the said regard is Ex. PH. Being a victim himself at the hands of the accused, PW-6 Rajma was a natural witness. Stepping into the witness box, he gave a detailed narration of the occurrence and identified the accused as assailants. Since his statement is very much in tune with the statement of PW 5 Chanda Singh on all material particulars, there is no reason to doubt the credibility of Chanda Singh who stated that he was an eye witness to the occurrence. 18. Since his statement is very much in tune with the statement of PW 5 Chanda Singh on all material particulars, there is no reason to doubt the credibility of Chanda Singh who stated that he was an eye witness to the occurrence. 18. No doubt, PW 5 Chanda Singh and PW 6 Rajma stated that accused Ram Singh who was armed with Lathi had given a blow with the same on the left thigh of Rajma but the injury attributed to Rajma could not be proved and therefore, the benefit of doubt was extended to Ram Singh by learned trial Court, however, as far as other injuries suffered by Rajma and the injuries which proved fatal to the life of Maman were concerned, they were consistently stated by both PW-5 and PW 6 and were corroborated by medical evidence. Both the said witnesses unequivocally deposed that appellant Randhir Singh gave a sword blow on the back side of head of Maman and Jangli gave a gandassi blow on the forehead of Maman. The said injuries along with 3 other injuries found on the person of the deceased were specifically mentioned by PW 4 Dr. Kuldeep Singh, who along with Dr. Sunil Midda conducted postmortem examination on the dead-body of deceased Maman. The cause of death was stated by him as under: "The cause of death in this case in our opinion was shock and hemorrhage due to injuries described which were ante mortem in nature and were sufficient to cause death in normal course." Apparently, one of the main injuries suffered by the deceased was attributed to appellant Randhir Singh. 19. No material discrepancy in the statement of the witnesses could be pointed out by learned counsel for the appellant. Minor discrepancies are bound to occur in the statement of witnesses when they are examined after a lapse of long time from the date of occurrence. In fact, only a parrot like statement of a witness appears to be suspicious. 20. Another argument raised by learned counsel for the appellant was that according to PW 5 Chanda Singh, his brother Krishan was attracted to the spot by his shouts for help. The said witness Krishan was not examined by the prosecution which amounts to a dent in the story. In our considered opinion, it is not the requirement of law to produce voluminous evidence to prove commission of crime. The said witness Krishan was not examined by the prosecution which amounts to a dent in the story. In our considered opinion, it is not the requirement of law to produce voluminous evidence to prove commission of crime. Only material and reliable witnesses are to be produced to prove the charges. PW 5 Chanda Singh and PW 6 Rajma were natural eye witnesses and both were examined. Infact, according to PW 5 Chanda Singh his brother Krishan came hearing his cries for help, which means, he was not an eye witness and he came only after hearing shouts. Therefore his absence from the witness box has no bearing on the merits of the case. 21. Last but not the least, learned counsel for the appellant argued that the motive set up by the prosecution indicated that there was a dispute between Hans Raj and his sons on the other side Ram Singh and his sons had no motive to cause injuries to Rajma and his brother deceased Maman. For the reason that Ram Singh and his sons were also implicated and Ram Singh was proved to be not present during the occurrence, shows how the complaint fabricated a false story. There appears no merit in the argument of learned counsel. The dispute between the parties, as stated by the prosecution witnesses, was over a water course which passed through the field of Ram Singh and Hemraj. It has come in evidence that the field of Ram Singh was situated at the place near the field of Ramesh and that of one Sher Singh where the occurrence had taken place. PW 5 Chanda Singh and PW 6 Rajma consistently stated that on 01.05.1999 at about 9:00 am all the accused dismantled the water course passing through their field, on which an exchange of abuses took place between them. While leaving, Hemraj etc threatened the complainant and his brothers of dire consequences. The occurrence which led to murder of Maman took place on the very next morning i.e. 02.05.1999 at about 5:30 am. Hence, it cannot be said that all the accused and the complainant party had no connection with each other or that the accused had no motive to commit the crime. The occurrence which led to murder of Maman took place on the very next morning i.e. 02.05.1999 at about 5:30 am. Hence, it cannot be said that all the accused and the complainant party had no connection with each other or that the accused had no motive to commit the crime. At the cost of repetition it may be mentioned that one of the injury which proved fatal to the life of Maman was attributed to appellant Randhir Singh and the motive he had was duly proved. The genesis of the above discussion is that the charges against the appellant were established and his appeal is hereby dismissed.