Dharmender alias Chiniya vs State of Haryana

S.S. Grewal, J.—This appeal is directed against the order of Sessions Judge, Narnaual, dated 19-2-1992, whereby the present appellant was convicted u/s 302 of the Indian Penal Code for intentionally committing the murder of Som Dutt and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000/- or in default of payment of fine to undergo further rigorous imprisonment for six months.

In brief facts relevant for the disposal of this appeal as emerge from the first information report lodged by Kaushalya Devi, an alleged eye-witness and wife of Som Dutt deceased, are, that on 23-9-1990 she along with her husband Som Dutt went to the house of Santosh wife of Dharmbir but she was not present at her house. She went up stairs and sat in the Chaubara whereas her husband Som Dutta and Dharmender alias Chiniya accused who is younger brother of the husband of Santosh sat on the cot down-stairs near the door-steps, and, started taking liquor. While consuming liquor at about 3 or 3.30 p.m. Dharmender alias Chiniya accused told her husband Som Dutt that he had an evil eye on Santosh, his brother''s wife, and on that account he had been visiting their house to entice his Bhabi Santosh. Over this matter an altercation took place between them. Dharmender alias Chiniya accused picked up an iron pipe lying nearby and started giving blow to her husband with that iron pipe. She came down and raised alarram ''Bachao Bachao'' and rushed to the door. Thereafter her father-in-law''s brother Ram Kumar reached the spot on hearing her alarm and also witnessed Dharamender alias Chiniya inflicting injuries to Som Dutt with an iron pipe. After they reached near the spot, Dharmender alias Chiniya ran away from the spot along with the iron pipe. She and Ram Kumar found that Som Dutt, who was lying on cot succumbed to the injuries received by him on his chest, abdomen, and ribs towards the left side and his back. Blood was oozing out from under the abdomen towards the left side. According to Kaushalya Devi, Dharmender alias Chiniya after serving liquor had killed her husband by inflicting injuries on him, as he suspected that her husband had evil eye on his Bhabi. Kaushalya Devi along with Bahadur Singh another brother of her father-in-law who was serving in the Railways, left for police station on foot to lodge report with the police, as Roadways employees were on strike, leaving Ram Kumar to guard the dead body of Som Dutt at the spot. After recording the first information report, SI Rameshwar Dyal PW6 along with Kushalya Devi PW and Bahadur Singh went to the spot, prepared inquest report and rough site plan of the place of occurrence, and, sent the dead body for post-mortem examination. Thereafter he lifted blood stained earth from near the spot and after sealing the same took it into possession vide seizure memo. He also took into possession cot on which the dead body of Som Dutt was lying. One empty bottle of liquor and one glass tumbler were also taken into possession by the said SI, through seizure memo.

Dr. R.K. Chaudhary, PW 1 conducted postmortem examination on the dead body of Som Dutt on the next morning of the occurrence at 10.30 a.m. and he found the following injuries:-

Contusion 1" x 1/2" red in colour on the right side of face just lateral to the right lateral canthus of eye. On exploration subcutaneous ecchymosis was found.

Multiple contusions red in colour parallel in shape 1/4" in width and 1/2" apart on the whole of the from of both the sides of chest and lft lateral side of chest. On exploration ecchymosis was found on the sub-cutaneous tissues. On cleaning the sub-cutaneous tissues haemotoma was found under the injuries. There was fracture of left 4th to 1 10th ribs on the lateral side. The fractured ends of the ribs were penetrating into the left lung, spleen and left lobe of liver. Left lung spleen and left lobe of liver were badly lacerated. The pleurae and the peritonium were torn and pleurae and peritoneal cavities were full of blood.

Contusion red in colour 5" x 3/4" on the left hypo-chondriac region transversally placed. On exploration subcutaneous ecchymosis was present and a big haematoma was present around the left kidney.

Contusion red in colour 5" x 1" on the front of left illiac region over the left illiac crest. On exploration sub-cutaneous ecchymosis was found present and there was fracture of the underlying left illiac bone.

In the opinion of the said doctor the cause of death of Som Dutt in this case was due to shock and haemorrhage as a result of multiple contusions which were sufficient to cause death in the ordinary course of nature.

According to SI Ramesh war Dayal he arrested Dharmender alias Chiniya accused on 26-9-1990 at 2.45 PM from the bus stand at village Bhaglana. Blood stained Pyjama was removed from his person and taken into possession through seizure memo. On 28-9-1990 in pursuance of his disclosure statement the accused led the police party and got recovered one iron pipe from the corner of the Chappar which too was taken into possession. After completion of the investigation, the accused was challenged, committed to the Court of Session, tried, convicted and sentenced, as stated earlier.

The learned counsel for the parties were heard.

According to the prosecution story, the occurrence took place at about 3.15 P.M. on 23-9-1990 in the house of the accused. After the occurrence Kaushalya Devi along with Bahadur Singh her father-in-law''s brother went to the Police Station and lodged the first information report at 8.30 P.M. after covering a distance of 6 Kilometers on foot and the special report was received by the Ilaqa Magistrate at Mohindergarh at 10 P.M. on the same day. The delay in lodging the first information report has been duly explained and the special report too had reached the IIlaqa Magistrate without undue delay. However, prompt lodging of the first information report does not necessarily afford guarantee that the version given by the two eye-witnesses in this case is true.

The two eye-witnesses namely Kaushalya Devi and Ram Kumar produced by the prosecution in this case are close relations of the deceased. The first and the fore-most question which arises for determination in this case is as to whether presence of these two eye-witnesses at the spot at the time of the occurrence is natural, probable and convincing, and, secondly whether the version given by them during the trial concerning the main occurrence is true, and, worthy of reliance. It is the prosecution case that an altercation took place between the accused and the (deceased when they were allegedly taking liquor in the house of the accused. At that time the accused allegedly told the deceased that the latter had an evil eye on his Bhabi Santosh and for that reason he has been visiting their house quite often to entice her and shortly thereafter the accused is alleged to have picked up iron pipe lying nearby and given blows with the same to the deceased. The defence plea taken by the accused in this case is that the deceased had come to the house of the accused in a drunken condition to have sexual intercourse with Santosh who was not present in the house, and, the deceased tried to molest Savitri Devi wife of his other brother Satbir. In view of this background it seems highly improbable that the deceased would take his own wife to the house of the accused or that the wife of the deceased would go with her husband to see Santosh.

Another important aspect of the case is that according to the version given by Kaushalya Devi PW, on reaching the house of the accused when she found that Santosh was not inside the house, she went up-stairs and sat down and had a chat with the mother of the accused for about 15/20 minutes. The latter while appearing as DW2 specifically denied that Kaushlaya Devi had come to their house to see Santosh. According to Kaushalaya Devi PW2, Dharmender alias Chiniya accused was giving beating to her husband who had already sustained 15/20 injuries before she came to the spot from the first floor of the house and Ram Kumar reached the spot simultaneously with her. Ram Kumar PW3 who is a mere chance witness and has not given any specific reason concerning his presence near the spot, stated that on hearing alarm when he entered the Polly of the house he saw Dharmender alias Chiniya accused beating Som Dutt with an iron pipe and in the meantime Kaushalaya Devi came there. None of these two alleged eye-witnesses have given any specific details either about the number of blows given by the accused or even the seat of the injuries received by the deceased. Nor any one of them tried to intervene in order to save the deceased. All these tell-tale circumstances cast grave doubt about the very presence of these two eye-witnesses at the time of the occurrence and we are of the view that both the eye-witnesses are wholly unreliable witnesses and it would not be safe to base conviction of the accused appellant on their testimony.

The defence plea taken up by the accused rather seems to be quite probable in the circumstances of the case. According to the defence, the deceased while in drunken condition went inside the house of the accused and tried to molest Savitri Devi, who, while appearing as DW. 1 deposed that Som Dutt embraced her. She took a piece of wood lying in the court-yard of the house and struck with the piece of wood on the deceased and on the alarm raised by her, her monther-in-law also came down and she also picked up a piece of wood and gave beating to Som Dutt and both of them gave number of blows to Som Dutt, who, fell down on the cot. Thereafter number of other persons gathered there. To the similar effect is the testimony of Sarvan Devi DW. 2 widowed mother of the accused. Both these DWs are rustic women from the village and naturally had reacted strongly to the misconduct of the deceased and had given good thrashing to the deceased, who, while in drunken condition and tried to molest Savitri Devi, and, wanted to gratify his lust.

Report of the Chemical Examiner Ex. PJ shows that contents of sealed bottle of sample of blood gave positive test for ethyl alcohol estimated as 46.0 mg. per cent. Sample of blood sent in this case was taken from the heart of the deceased. Dr. R.K. Chaudhary, PW. 1 who conducted autopsy on the dead body opined that if blood is found to contain 46.0 mg percent of alcohol then that means that the person was dead-drunk. This aspect of the case supports the defence plea that the deceased was dead drunk when the occurrence took place.

Medical evidence reveals that all the injuries on the dead body are contusions. Taking into consideration the nature and extent of the injuries particularly the difference in the width of the individual injuries, the opinion given by the doctor that the injuries of the deceased could also be caused by different weapons can be safely relied upon. This aspect of the case contradicts the ocular account given by the two eye-witnesses produced by the prosecution that all the injuries of the deceased were caused by the accused with the same weapon. Rather this aspect of the case supports the defence plea that both Savitri and Sarvan Devi DWs had inflicted injuries to the deceased while the latter came to their house in drunken state and tried to molelt Savitri Devi.

Testimony of Rameshwar Dayal, Sub Inspector, PW. 6 that at the time of the arrest of the accused on 26-9-1990 the accused was wearing Pyjama stained with blood is not worthy of reliance. It is difficult to believe that after about three days of the occurrence the accused would still be wearing the Pyjama stained with blood and would not discard it, while, he had ample time or opportunity to change the clothes. We are thus not placing any reliance either on this circumstance, or, on the recovery of iron pipe, in pursuance of the disclosure statement alleged to have been made by the accused on 28-9-1990 from an open place accessible to all.

For the foregoing reasons, we are of the considered view that the prosecution has not been able to bring home the charge u/s 302 of the Indian Penal Code against Dharmender alias Chiniya accused beyond reasonable doubt, and, giving him the benefit of doubt, we, hereby acquit him, by setting side the order of conviction and sentence passed against his by the learned trial Court. This appeal is accordingly allowed.