Bhartu alias Bharat Singh vs State of Haryana

Sukhdev Singh Kang, J.

This appeal by Bhartu alias Bharat Singh, appellant, is directed against the judgment dated 20th September, 1984, of the learned Additional Sessions Judge, Bhiwani, who was convicted and sentenced the appellant

(i) under Section 396, Indian Penal Code, to undergo imprisonment for life;

(ii) under Section 395, read with Section 397, Indian Penal Code, to undergo rigorous imprisonment for 7 years, and

(iii) under Section 412, Indian Penal Code, to undergo rigorous imprisonment for three years.

The appeal has been filed in the following circumstances :

On the night between 23rd and 24th of July, 1982, Shiv Dayal (PW19) and his wife Smt. Santosh (PW35) were sleeping on the roof of their house in village Pichopa, district Bhiwani, Smt. Dhan Kaur (PW29), Smt. Ram Ratti (PW30) and Ram Niwas (PW31), the mother, the sister and brother respectively of Shiv Dayal, were sleeping into courtyard of the house. Kalu Ram (PW32), his grandfather and their servant Rajinder were sleeping in front of the shop in the street. At about 11.30 p.m. dacoits armed with fire arms raided the house of Shiv Dayal (PW). They surrounded Kalu Ram, PW and assaulted him. They snatched the keys of the shop from him. Kalu Ram, PW raised an alarm "mar diya, mar diya, bachayo, bachayo". On this Shiv Dayal, PW, woke up and came down stairs. His wife Smt. Santosh, PW, also followed him. Some of the dacoits entered the house and started ransacking the trunks and almirahs. They started collecting the valuable articles and putting them in a bag. One of the dacoties climbed the roof on the chaubara and started firing with his guns. The alarm raised by the inmates of the house attracted Ved parkash (PW15), Paramvir (PW16), Sham Lal (PW17), Nand Ram (PW18), Paras Ram, Geeta Devi, Rekha, Partap, Satbir and Dhanpati, all residents of the village to the spot. They suffered pellets injuries, as a result of the shots fired by the dacoit on the roof. Some other persons namely Dhanpati, Attar and Hanuman also converged on the site through Gali Brahman. The dacoits on the roof fired more shots and injured these persons also. The dacoits looted the house for 1 or 1/12 hours. Thereafter they left the house along with the booty and passed through the Gali Brahman. The villagers chased them. Hanuman, abovementioned, after receipt of the pellet injuries returned to his house which is situated in Gali Brahamn. His father Rameshwar was also present there. The departing dacoits passed by the side of that house. Hanuman raised an alarm "catch hold the dacoits". On this Bhartu, appellant, who was armed with a pistol fired at Hanuman. The culprit escaped with the booty. Shiv Dayal (PW) left for the police station.

The injured persons including Hanuman were removed to Civil Hospital, Dadir and from there to Civil Hospital, Bhiwani in a truck.

SubInspector Ram Kumar, PW40 met Shiv Dayal, PW at the busstand, Bhiwani. Shiv Dayal, PW, made a statement before him. It was recorded by SubInspector Ram Kumar. It was read over to him in token of its correctness. Shiv Dayal signed the same. SubInspector Ram Kumar sent his statement along with his endorsement on it to the Police Station, on the basis of which a formal FIR was recorded by head Constable Mahabir Singh. SubInspector took up the investigation of the case and reached village Pichopa at 5.40 a.m. He requisitioned dog squads. He lifted moulds of the tyres of a vehicle and foot prints from near the scene of the crime and took the same into possession. Head Constable Braham Dass Photographer PW11 took photographs of the scene of the crime. SubInspector took into possession the empty cartridges from the roof, the gate and the street and made them into sealed parcels. He prepared the site plan.

On 24th July 1982, Dr. B.M. Kapur (PW6) sent a requa to the Police Station City, Bhiwani regarding the arrival of 14 injured persons and the dead body of Hanuman in Civil Hospital, Bhivani. He medically examined Nand Ram (PW18), Smt. Dhanpat wife of Subhash Chand, another Dhanpati wife of Mohan Sharma, Rekha, Mohinder Singh and Kalu Ram (PW32) and noticed pellet injuries on the person of these persons, except Kalu Ram. Kalu Ram had five blunt weapon injuries on his persons.

Dr. R.E. Pandey (PW7) medically examined Smt. Gita wife of Nand Ram Paras Ram, Satbir son of Rajrup, Satbir son of Sheonath, Sham Lal, Ram Partap, Karanvir and Ved Parkash and noticed various pellet mark injuries on their persons.

On receipt of a ruqa from Civil Hospital, Bhiwani, SubInspector Kishan Lal PW26 reached the hospital. He prepared inquest proceedings in respect of the dead body of Hanuman, Sub Inspector Dulle Ram of police station Badhra (PW28) also went to the hospital, at Biwani where Sub Inspector Kishan Lal handed over the inquest report and other papers to him. He completed necessary formalities of the case.

Dr. K.C. Kajal (PW5) conducted autopsy on the dead body of Hanuman and noticed various injuries on it. In the opinion of the doctor, the death of hanuman was due to shock and haemorrhage, caused by the gun shot wounds on the vital organs. The injuries were antemortem and were sufficient to cause death in the ordinary course of nature 47 pellets taken out of the dead body of Hanuman were handed over to SubInspector Dulle Ram.

Dr. Suresh Arya, Senior Medical Officer, General Hospital, Bhiwani (PW1) had given opinion that the injured persons admitted in the hospital were in fit conditions to make their statement and their statements were recorded.

During investigation, the police arrested Prem Singh, Suraj Pal, Subhash and Rajinder Singh on various dates and effected recoveries from them of various articles alleged to have been looted by the dacoits from the house of Shiv Dayal. Bhartu, accused appellant, was arrested by SubInspector Neki Ram (PW38) on 19th September, 1982 at bus stand Shimli. He was directed to keep his face muffled. He was produced in the same condition before the Judicial Magistrate, Ist Class Dadri and a request was made to the learned Magistrate to sent the accused to Jail for the purpose of identification. Bhartu appellant, made a statement before the learned Magistrate that he did not want to joint the identification parade because he had been shown to the prosecution witnesses.

On 20th September, 1982, SubInspector Neki Ram (PW) interrogated Bhartu, appellant, who disclosed that he had pawned six bangles of gold with Ashwani Kumari of Bhogal Jangpura, Delhi, and offered to get the same recovered. This statement was recorded by SubInspector Neki Ram and the appellant thumb marked it. He then led the police party to the shop of Ashwani Kumar on 21st September, 1982. However, on that day the shop was closed. Again on 26th September 1982 Bhartu led the police party to the shop of Ashwani Kumar and got recovered six bangles of gold, Exhibit P12/P6, which were taken into possession vide recovery memo, Exhibit PJJ/3. Ashwani Kumar produced Pawn deed, Exhibit PJJ/1, which had been thumb marked by Bhartu, appellant.

Sample thumb impressions of Bhartu appellant were taken before the learned Magistrate and the same were got compared with the thumb impressions appearing on the pawn deed, Exhibit PJJ/1 Shri Ram Dhan, Handwriting and Finger Prints Experts, Madhuban (PW29) after careful comparison of the two impressions opined that they were of one and the same person. After thorough investigation, Bhartu, appellant, Rajinder Singh, Subhash, Prem Singh and Suraj Pal were challaned. The police had not been able to arrest Suresh and Kishan Lal, their alleged companions in the dacoity and these were declared to be proclaimed offenders. The accused were tried.

The learned trial Judge painstakingly analysed the prosecution evidence. He acquitted Prem Singh, Subhash, Rajinder Singh and Suraj Pal, but convicted and sentenced Bhartu, appellant, as mentioned in the opening part of the judgment.

The conviction of Bhartu, appellant, rests mainly on the statement of Rameshwar father of Hanuman, deceased, who has furnished the ocular account and the statements of SubInspector Neki Ram and Ashwani Kumar, PWs, who have proved the disclosure statements and the recovery of six bangles of gold, which have been proved by the complainants to be belonging to them and which had been looted at the time of dacoity.

Rameshwar, PW20, has stated in clear terms that on the night intervening 23rd and 24th of July, 1982, he was sleeping in front of his house at about 11.00 or 11.30 p.m. when he heard the noise. His son Hanuman aged 1617 years was sleeping on a separate cot by his side. They were awaken by the commotion. Hanuman got up and ran towards the house of Kalu Ram (PW32). Rameshwar heard the report of shots. After 57 minutes, Hanuman came back and told Rameshwar that he had suffered a pellet injury on his neck which was a minor injury. Electric light was on the front of his house. After 20 minutes, 89 dacoits appeared in front of Ramashwar''s house. Hanuman raised lalkara that they should capture the dacoties as several villagers were chasing them. Bhartu, appellate, who was one of the dacoties, fired a shot from is weapon hitting Hanuman on the chest. Some pellets hit and injured Smt. Dhanpati also. However, Rameshwar was not injured. Hanuman fell on the ground. The dacoits including Bhartu, appellant, escaped. The injured persons were removed to the hospital. Hanuman was, however, declared dead. He stated that all five accused persons, present in Court were the culprits. He abruptly pointed out towards Bhartu, appellant. He stated that he earlier knew Bhartu because his brotherinlaw was married in village Pichopa and he used to take stones from the witness.

Mr. R.K. Malik, the learned counsel for the appellant contended that the statement of Rameshwar was not reliable. In the inquest report prepared by Kishan Lal, SubInspector, the witness had not mentioned that Bhartu, appellant, had fired shot at Hanuman. So, this is a clear improvement introduced at the instance of the police. We are not impressed with this argument. Rameshwar (PW) is not shown to be in any way biased against the appellant. He is not under the influence, of the family of Kalu Ram or the police. He has made a straightforward statement and implicated Bhartu, appelant, as the culprit, who had murdered his son. It has been well established by now that a close relation will be the last person to let off a real culprit and implicated falsely someone for the crime.

In order to appreciate the argument of Sh. Malik, one has to keep in mind the purpose underlying the inquest proceedings, as envisaged under section 174, Code of Criminal Procedure. It is only to ascertain whether a particular person had died an unnatural death or under the circumstances raising a reasonable suspicion that some other person has committed an offence. A police officer incharge of the police station, shall make an investigation and draw up a report of the apparent cause of death. So, the question about the details as to how the deceased was assaulted or who assaulted him are foreign to the ambit of proceedings under section 174, Code of Criminal Procedure.

In Podda Naravana and others v. State of Andhra Pradesh AIR 1975 Supreme Court, 1252, their lordships have observed :

"The proceedings under section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an apparent cause of the death. The question regarding the details as to how the deceased was assaulted who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report."

We cannot also lose sight of the fact that SubInspector Kishan Lal (PW26) who prepared inquest report was posted in Police Station Bhiwani City. He was not the Investigating Officer. The crime had been committed within the jurisdiction of a different police station. In these circumstances, it is reasonable to conclude that he may not have been aware of the details of the crime. So he may have been in a position to question the witnesses on all the material aspects of the crime and elicit all the information. Interestingly, Rameshwar, P.W. has not been confronted with his statement under Section 161, Code of Criminal Procedure, recorded by the Investigating Officer that very day, i.e. 24th July, 1982.

The recovery of the looted bangles at the instance of Bhartu, appellant, from the shop of Ashwani Kumar (PW) is also a vital piece of evidence. Ashwani Kumar is an independent witness. He belongs to Delhi. He is not in any manner under the influence of the Haryana Police. It has not been shown that he has any suspicious antecedents or is under the influence of police. His testimony is corroborated by the recovery of the bangles. Entry Exhibit PJJ/1 is regarding the pawning of the bangles.

It was argued that Exercise Book in which entry Exhibit PJJ/1 was made had not been maintained in a regular course of business. It was a stray entry. Be that as it may, that is not sufficient to disregard the disinterested testimony of Ashwani Kumar, PW.

Some of the eyewitnesses namely Sham Lal (PW17), Shiv Dayal (PW19), Ram Niwas (PW31), Smt. Dhan Kaur (PW34) and Smt. Ram Ratti (PW36) have also deposed that Bhartu, appellant, was one of the dacoits. Their evidence may not be independently sufficient to once Bhartu, appellant, but they furnish corroboration to the statement of Rameshwar.

It is significant that immediately after the arrest of Bhartu, appellant, he had been produced with his face muffled before a learned Magistrate and a request was made by the police that the appellant be sent to Jail to participant in an identification parade by the witnesses. The appellant made a statement before the learned Magistrate that he did not want to join identification parade. This circumstance goes against the appellant and the prosecution rightly claimed that a presumption can be drawn against the appellant and if he had a attended the identification parade, the prosecution witnesses especially Rameshwar would have identified him. None of the witnesses has stated that the appellant has been shown at any stage to Rameshwar, PW.

For the foregoing reasons, we find no merit in this appeal and dismiss the same.