Mahabir Singh and Others vs State of Haryana

Hemant Gupta, J.—The present appeal is directed against the judgment of conviction dated 04.06.2001 and order of sentence dated 07.06.2001 passed by the learned Addl. Sessions Judge, Rohtak, whereby he convicted and sentenced the Appellants Mahabir Singh, Raju, Satbir, Satish and Zile Singh to undergo imprisonment for life and to pay a fine of Rs. 10,000/-each for the offence punishable under Sections 302/149 IPC. In default of payment of fine, the defaulter was directed to undergo further simple imprisonment for a period of two years. The Appellants have been further directed to undergo rigorous imprisonment for two years and to pay a sum of Rs. 1000/-each. In default of payment of fine, the defaulter was directed to undergo further simple imprisonment for a period of three months.

The prosecution case was set in motion on the statement of Jitender Singh son of Raghbir Singh (deceased) made to ASI Sat Pal, who alongwith other police officials has reached Village Jassia on receipt of telephonic message, on 24.05.1995. In his statement (Ex.PF), Jitender stated that about 8/9 months ago, there had been a quarrel between their family and family of Zile son of Teka. In that quarrel, one person from each side was killed. Both the parties have been challaned and are facing trial and are on bail. His father was released on bail on 03.05.1995. He further stated that today i.e. 24.05.1995 at about 10.00 AM, he, his father Raghbir Singh and his uncle Bhoop Singh son of Bharat Singh were going from their house to the house of his paternal uncle Krishan. When they reached near the house of Chand son of Hazari, one Eicher tractor being driven by Satbir son of Zile Singh came from behind. Zile Singh, Mahabir, Satish, Raju and Ashok were sitting on that tractor. Satbir suddenly stopped the tractor. He stated that Zile and Raju were armed with lathies and the remaining persons were armed with pharsas. He and his companions were empty-handed. On seeing them, Zile exhorted his companions ''le lo'' (take them) and immediately thereafter, Ashok and Satish dealt one blow each with their pharsas on the back side of head of his father Raghbir Singh. Satbir and Mahabir also dealt one pharsa blow each on the head of his father. His father fell down. Then Zile and Raju gave lathi blows to his father, who was lying on the ground. He and his uncle Bhoop Singh saw the incident and then the assailants proceeded towards them, but they managed to escape away from the place of occurrence. Thereafter, they reached their home and informed their family members about the incident and then he alongwith his paternal uncle Bhoop Singh and his cousin brother Asha Ram son of his paternal uncle Jagbir Singh reached the spot and on seeing them, Zile and other accused alongwith their respective weapons went away from the place of occurrence on their tractor. His father succumbed to his injuries at the spot. He further stated that his father has been murdered by the accused as they had been nourishing enmity because of previous murder. On the basis of such statement, ruqa (Ex.PF/1) was sent to the police station for registration of an FIR. On receipt of ruqa, an FIR (Ex.PF/2) was lodged by SI/SHO Abdul Majid at about 2.30 PM for the offence punishable under Sections 148/302/149 IPC. The special report was received by the learned Duty Magistrate at 4.30 PM.

On reaching at the spot, SI/SHO Abdul Majid completed the inquest proceedings and sent the dead body of Raghbir Singh for post-mortem examination. The post-mortem examination on the dead body of Raghbir Singh was conducted by PW-9 Dr. Punam Malhotra on 25.05.1995. Accused Mahabir and Raju were arrested from their house on the date of occurrence itself, when they were allegedly washing blood-stains from their kasola and lathi respectively. After converting into parcels, kasola and lathi were taken into possession. Ashok was arrested on 01.06.1995. Ashok got recovered a pharsa on 02.06.1995 in pursuance of his disclosure statement suffered during interrogation. Zile, Satish and Satbir were arrested on 02.06.1995. During interrogation, Zile Singh, Satish and Satbir suffered disclosure statements Exs.PT, PU & PV respectively in respect of concealment of their respective weapons. In pursuance of disclosure statements, Zile Singh got recovered a lathi, whereas Satish and Satbir got recovered pharsas on 04.06.1995. On 15.06.1995, SI/SHO Abdul Majid-the Investigating Officer obtained opinion of the Doctor in respect of injuries caused by the weapons recovered at the instance of the accused. The Investigating Officer also sent the clothes of the deceased, weapons recovered from the accused i.e. kasola, pharsas and lathi for chemical analysis to the Forensic Science Laboratory.

After completing the necessary investigations, all the accused were made to stand trial for committing murder of Raghbir Singh son of Duli Chand, resident of Village Jassia on 24.05.1995. However, during the pendency of trial, Ashok Kumar was found to be juvenile. Consequently, vide order dated 03.07.1999, Ashok Kumar was directed to be produced before the Juvenile Court alongwith supplementary challan in view of the fact that he was found to be juvenile on the date of commission of crime.

To prove the guilt against the accused-Appellants, the prosecution has examined the alleged eye-witness and son of the deceased Jatinder, as PW-7. He was further cross-examined after his statement was recorded by the Juvenile Justice Board on 08.01.2001. Bhoop Singh, another alleged eye-witness has been examined, as PW-8. He was also further cross-examined on 18.08.2000. Similarly, PW-9 Dr. Punam Malhotra has been examined on 07.03.1998 and re-examined on 07.01.1999 in respect of her opinion that the injuries of the deceased could be caused by the weapons allegedly recovered from the accused. Apart from the oral evidence, the prosecution has also tendered into evidence reports of the Forensic Science Laboratory Exs.PX and PX/1. As per the said reports, blood could not be detected on lathies and pharsas, whereas in respect of kasola, serological analysis of blood could not be performed because of material disintegration. On the other hand, accused-Appellants have denied all the incriminating circumstances appearing against them in their statements recorded u/s 313 Code of Criminal Procedure After going through the oral as well as documentary evidence on record, the learned trial Court, convicted and sentenced the Appellants, as mentioned above.

At the outset, learned Counsel for the Appellants has stated that Appellant No. 5 Zile Singh has since died. In view of the said fact, appeal qua Appellant No. 5 Zile Singh stands abated.

Learned Counsel for Appellants has vehemently argued that it is a case of blind murder. PW-7 Jitender and PW-8 Bhoop Singh were not present at the time of occurrence, as it is impossible that such young persons would not react when Raghbir Singh, father of PW-7 Jatinder is being given multiple injuries by the alleged accused. It is also contended that PW-7 Jatinder in his statement has deposed that he went to his house after the occurrence and came back with other relations, whereas PW-8 Bhoop Singh has deposed that he went to the house of Asha Ram and came back to the place of occurrence with him. It is, thus, contended that the evidence led by the prosecution is contradictory in nature, which makes it that of unreliable and untrustworthy witnesses. It is also argued that PW-9 Dr. Punam Malhotra in her re-examination has admitted that the stab wounds suffered by the deceased were the injuries by a sharp weapon i.e. stab/chhurra. Since none of the accused is said to be armed with sharp edged weapon like chhurra, therefore, the ocular evidence led by PW-7 Jatinder and PW-8 Bhoop Singh remains uncorroborated. It is also argued that numerous cases are said to be pending against deceased Raghbir Singh and his family members. Therefore, the cause of death could be due to enmity with any other villager. It is pointed out that in the statement Ex.PF, Mahabir is said to be armed with pharsa, but the weapon recovered from his custody is stated to be kasola on the date of occurrence itself. The prosecution case in respect of Mahabir armed with kasola is not believable. It is contended that it is impossible to imagine that the accused will clean kasola and lathi in the day time in the full public view. It is, thus, contended that the prosecution case is full of improbabilities, therefore, the conviction of the Appellants for an offence punishable u/s 302 IPC is not sustainable.

We have heard learned Counsel for the parties and with their assistance have carefully gone through the record. We do not find any merit in respect of the foremost argument of the learned Counsel for the Appellants that PW-7 Jatinder and PW-8 Bhoop Singh were not present at the spot at the time of occurrence. Both the witnesses have been cross-examined in detail, but apart from minor insignificant contradictions both have stood the test of cross-examination. The graphic account of the manner of occurrence as given by PW-7 Jatinder and PW-8 Bhoop Singh is supported by the medical evidence in material aspects. Initially, on seeing Raghbir Singh in the street, firstly Ashok and Satish are alleged to have given pharsas blows on the back side of head of the deceased. It is, thereafter, Satbir and Mahabir, who have given pharsa and kasola blows again on the head of the deceased. Since accused Ashok Kumar has been tried by the Juvenile Justice Board, therefore, it transpires that Satish, Mahabir and Satbir have given blows on the head of the deceased with sharp edged weapons in their possession. As per PW-9 Dr. Punam Malhotra, following are the injuries suffered by the deceased:

Stab wound bone deep in size 30 x 9 cm on occipital region.

Stitched wound 8 x 1 cm bone deep present on left parietal region.

Stitched wound 7 x 1/2 cm bone deep about 4 cm away from left ear pinna and 6 cm away from injury No. 1 on left side of left temporal region.

On deeper dissection:

(i) fracture of left and right parietal bone.

(ii) Fracture of left and right temporal bone.

(iii) Fracture of occipital bone in pieces.

Underlying brain tissues were highly congested. Sub-dural heamatoma was present over parietal region, temporal region and occipital region.

Incised wound present over nose. On deeper dissection, fracture of nasal bone was present.

There were 5 to 6 abrasions present over face of different sizes.

There were 8 to 9 abrasions present over left shoulder and left arm and fore-arm.

In her further examination, she has deposed that injury Nos. 2 and 3 were stab wounds and not stitched wounds and that injuries on the person of the deceased could be caused by the weapons namely kasola, pharsa and lathi. In her cross-examination conducted on 07.01.1999, she has stated that by stab wound, she means injury by a sharp-edged weapon i.e. stab/chhurra.

Though the learned Counsel for the Appellants has vehemently argued that there is no penetrating wound, which could be result of chhurra, therefore, the injuries suffered by the deceased could not have been caused by the weapons allegedly recovered from the accused. We do not find any merit in the said argument. Though PW-9 Dr. Punam Malhotra in her cross-examination has stated that in respect of stab wound, she means injury by sharp weapon i.e. stab/chhurra, but the injuries suffered by the deceased are the fractures i.e. fractures of left and right parietal bone; fracture of left and right temporal bone; and fracture of occipital bone as well as incised wound over nose and fracture of nasal bone. Such fractures are result of multiple blows on the head of the deceased by Appellants Mahabir, Satbir and Satish apart from Ashok Kumar (juvenile). The ocular evidence stands corroborated by the medical evidence to that extent. The deceased had not suffered any penetrating wound nor any of the accused is said to be armed with knife kind of weapon, therefore, the opinion expressed by the Doctor is not sufficient to create doubt on the ocular version given by the eye-witnesses. Therefore, keeping in view the reliable and trustworthy eye-witness account rendered by PW-7 Jatinder and PW-8 Bhoop Singh, mere fact that medico-legal report has mentioned injury Nos. 2 and 3 stab wounds, is not sufficient to doubt the prosecution case, especially when the FIR in this case has been lodged with utmost promptness, giving complete details of the occurrence and naming the Appellants as assailants. The testimonies of both the eye-witnesses are corroborated on material particulars and remain unshattered despite lengthy cross-examination.

The argument that PW-7 Jatinder has deposed that Mahabir was armed with pharsa in his statement given to the police, but in the Court he has alleged kasola, therefore, the said witness is not truthful witness is again not correct. PW-7 Jatinder, in his statement given to the Police has attributed lathies to Zile and Raju and then generally said that all the other accused were armed with pharsas. The first information report is not required to have minute details in respect of the weapons of offence possessed by each of the accused. In fact, kasola is recovered from Mahabir on the date of occurrence itself by PW-11 SI/SHO Abdul Majid, when he was found cleaning the blood stains alongwith Raju. Since the accused Mahabir was arrested with kasola on the date of occurrence soon after the occurrence and the injuries found by the Doctor could be caused by the broad blade of kasola, therefore, we do not find that the prosecution has not completed the chain of circumstances or that any doubt is created in the testimony of the prosecution witnesses.

Similarly, the discrepancy pointed out in the statement of PW-7 Jatinder that they had gone to home and in the statement of PW-8 Bhoop Singh that they have gone to the house of Asha Ram after the assault on the deceased is again not a case of any discrepancy. PW-7 Jatinder in the Court has deposed that he has gone to the house of their family members. The statement is not to the effect that he has gone to his own house. PW-8 Bhoop Singh has specified that they have gone to the house of Asha Ram.

We also do not find any merit in the argument raised by the learned Counsel for the Appellants that the complainant family had many criminal cases against them and that it was unidentified persons, who have killed Raghbir Singh, but due to enmity the present Appellants have been robbed in. From the cross-examination of PW-7 Jatinder and PW-8 Bhoop Singh, it transpires that Duli Chand father of Raghbir Singh was imprisoned for death of Dariya. PW-7 Jatinder stated that he was not born at that time, when Duli Chand was tried. PW-7 Jatinder was around 23 years of age at the time, when he appeared as a witness . Therefore, the occurrence which has taken place more than 20 years ago is not sufficient motive for the assault on Raghbir Singh, when soon before the occurrence, the deceased Raghbir was arrested and was released on bail on 03.05.1995 for the death of Anand son of Mahabir, i.e. just 21 days before the occurrence. The sequence of events and the proximity of time of assault with the release of Raghbir Singh on bail, lead to irresistible conclusion that it was the Appellants, who were nourishing grudge against the deceased.

Apart from the recovery of kasola on the date of occurrence itself, recovery of lathi and pharsas in pursuance of the disclosure statements suffered by Zile Singh, Satish and Satbir on 03.06.1995 also supports the prosecution case. Therefore, the active role played by accused Mahabir, Satish and Satbir in causing grievous injuries on the person of Raghbir Singh having been proved, the findings recorded by the learned trial Court do not call interference in the present appeal.

Raju and Zile Singh are said to be possessed of lathies. In the FIR, the allegation against Raju is that he had given lathi blow to the deceased, when he had already fallen down. PW-11 SI/SHO Abdul Majid-the Investigating Officer has recovered lathi from Raju on the date of occurrence. PW-11 SI/SHO Abdul Majid has deposed that at the time of arrest, Raju was cleaning his blood-stained lathi. The injuries of lathi are injury Nos. 5 and 6 i.e. abrasions. In the cross-examination, PW-9 Dr. Punam Malhotra has deposed that such injuries by dragging cannot be ruled out. We find that the prosecution story that Raju was cleaning the blood-stains of his lathi is not reliable for the reason that there is no lacerated wound, which could be caused by a lathi leaving blood stains on lathi. Injury Nos. 5 and 6 are abrasions meaning thereby that the blood has not oozed out from the said injuries, which could be found on the lathi. In view of the said fact, we find that the prosecution has not been able to prove beyond any reasonable doubt any role played by Raju in causing death of Raghbir Singh. Therefore, Raju is entitled to benefit of doubt.

In view of the above discussion, the present appeal qua Satish, Satbir and Mahabir stands dismissed. However, we acquit Appellant Raju of the charges framed against him by granting him benefit of doubt.

The learned Chief Judicial Magistrate, Rohtak shall take necessary steps to implement the order.