Pawan Kumar vs State of Haryana

Fateh Deep Singh, J.—These two appeals by the convicts are an outcome of common judgment and order of sentence dated 22nd April, 2006 of the Court of learned Additional Sessions Judge, Narnaul passed in a case bearing FIR No. 184 dated 25th October, 2004 and, thus, are being disposed off by this common judgment. The prosecution''s allegations in brief made by Krishan Singh complainant PW10 on 25th October, 2004 before ASI Kamal Singh by way of Ex. P8/Ex. P9 are to the effect that on 24th October, 2004 his nephew Balbir (now deceased) and Pawan Kumar accused with their respective camel cart left for village Maseet for bringing fodder in the morning. On the same evening while the complainant and his nephew Satbir Singh were returning on their motorcycles from Rewari around 10 p.m. and had reached near Shyam Ginning Mill village Baraph, saw the deceased along with accused Pawan Kumar and Ashok Kumar @ Bittu and both the accused were armed with lathies giving blows of these weapons to Balbir hitting on his head, neck and other parts of the body at which Balbir raised alarm which attracted Chowkidar Manphool and meanwhile the complainant and Satbir Singh too reached to save the deceased upon which both the accused ran away with their weapons remarking that they have taught the deceased a lesson for not settling an account of the fodder and thereafter, injured Balbir was rushed to CHC, Kanina, where an application as to the medical fitness of the injured Ex. P31 was made by the police and on intimation thereon that the injured has been referred to PGI Rohtak, the investigating officer recorded statement of complainant and also received MLR Ex. P40 of Balbir, who made his endorsement leading to registration of the FIR Ex. P8/Ex. P9.

In the meanwhile, medical ruqa was also sent along with medical opinion Ex. P39/A. The injured subsequently died on the same very day leading to addition of offence u/s 302 IPC by way of Ex. P33. The Investigating Officer prepared inquest report Ex. P3 of the dead body and post mortem examination was got conducted by PW1 Dr. Kiran Meet, who gave his report Ex. P2 on police request Ex. P1. The belongings of the dead body after post mortem examination were handed over in a sealed parcel to the police which was taken into police possession through memo Ex. P5. Thereafter, the dead body was handed over to the relatives of the deceased through receipt Ex. P22. The Investigating Officer in the presence of the witnesses examined place of occurrence and prepared rough site plan Ex. P4 and got the place photographed from PW9 Manoj Kumar by way of photographs Ex. P11 to Ex. P15 with corresponding negatives Ex. P16 to Ex. P20. From the place of occurrence police lifted samples of blood stained earth and after preparing into parcel took the same into police possession through memo Ex. P21.

The accused Pawan Kumar was arrested on 27th October, 2004 who, while in police custody suffered disclosure statement Ex. P23 on the basis of which lathi was got recovered and taken into police possession through memo Ex. P28 whose rough sketch Ex. P29 was prepared. Similarly, on same very day accused Ashok Kumar @ Bittu on the basis of his disclosure statement Ex. P24 got recovered another lathi which was taken into police possession through memo Ex. P25 whose rough sketch Ex. P26 was prepared. Site plans of these recoveries Ex. P37 and Ex. P38 were prepared. On the basis of these recoveries police moved an application Ex. P39 seeking medical opinion and on the basis of which medical opinion Ex. P39/A was given that such injuries could be caused by these weapons. The weapons thereafter, were deposited with the MHC and were despatched to the Forensic Science Laboratory and on receipt of reports Ex. P41 and Ex. P42 and on completion of investigations the challan was presented against both the accused and charges u/s 302 read with Section 34 IPC were framed, to which they pleaded not guilty and claimed trial.

The prosecution in order to establish its case at the trial in all examined fifteen witnesses comprising of PW1 Dr. Kiran Meet; PW2 HC Mahesh Kumar; PW3 S.I. Mahesh Kumar; PW4 ASI Raj Kumar; PW5 HC Lal Chand; PW6 C Ajit Singh and the latter two witnesses have tendered their affidavits Ex. P6 and Ex. P7. Furthermore, ASI Kamal Singh PW7 proved the FIR and PW8 C. Raj Kumar tendered his affidavit Ex. P10 followed by testimony of Manoj Kumar PW9 Photographer and thereafter, complainant eye-witness Krishan Singh PW10 whose testimony has been corroborated by another eye-witness Satbir Singh PW11. From PW12 Subhash Chand the prosecution proved the disclosure statements made by the accused leading to the recoveries. Thereafter, ASI Ramesh Kumar PW13 and S.I. Devender Kumar PW14 proved the investigations at different stages and lastly, PW15 proved the medical legal reports. During the cross-examination of the witnesses they were confronted with their previous statements Ex. D1 to Ex. D3. The learned trial Court held both the accused guilty for commission of offences u/s 302 read with Section 34 IPC and sentenced them to undergo imprisonment for life and to pay a fine of `5,000/- each and in default of payment of fine further rigorous imprisonment for six months.

Aggrieved over these findings the accused-appellants filed two separate appeals before this Court.

The first and foremost contention by the two sides revolves around what led to this homicidal death for which deposition of PW15 Dr. Suresh Kumar who initially conducted the MLR Ex. P40 is most vital and who has stated in his deposition that there was fresh bleeding from the mouth, ear and nose, swelling on the neck and face was blood stained and had kept the injuries under observations and meanwhile, had sent the medical ruqa Ex. P31 and after the police moved an application Ex. P39 on 22nd November, 2004 had given his opinion Ex. P39/A that the lathies so produced before him Ex. P27 and Ex. P28 could cause such type of injuries and in his cross-examination has given reasons that he might have not been able to examine all the injuries as the injured was wearing clothes and on account of seriousness of the patient and urgency of the expert management. Consequent upon death on same very day PW1 Dr. Kiran Meet had conducted post mortem examination on the dead body of Balbir and has specified in his report Ex. P2 that he found eight injuries on the dead body, out of which injuries No. 1 and 4 were contusions on the cheek and right forehead above right superciliary arch whereas, injuries No. 2 and 3 were bruises on the left eye brow, right fore head and has demonstrated that injuries No. 5, 6, 7 and 8 were lacerated wounds on the right parietal region, right parietal region of scalp and right parieto occipital region and in no uncertain terms has elaborated that all these injuries were ante mortem in nature and had on dissection found scalp was fractured by way of multiple fractures and has opined that the reason of this death was head injury which was sufficient to cause death in normal course of nature. Though, the learned counsel for the appellants have sought to highlight that it has come in the cross-examination of this witness that such injury could be caused if a person is run over by medium vehicle has been well countered by the learned State Counsel Mr. Sandeep Vermani, and certainly the arguments of the State counsel are highly impressive as there is not even a single injury by way of depressed and crushed wound and rather are lacerated wounds, contusions and bruises which are most likely to cause by weapon like dang and which is commensurate with the opinion of PW15 Dr. Suresh Kumar.

More so, it was consequent upon arrest of the accused, who, while in police custody were questioned and have suffered disclosure statements by way Ex. P23 and Ex. P24 leading to the recoveries of bamboo lathies Ex. P27 and Ex. P28 which were taken into police possession through memos Ex. P25 and Ex. P28 and rough sketches of the same have been proved as Ex. P26 and Ex. P29. Since these recoveries are from the exclusive and conscious possession of each of the accused and therefore, certainly are legitimate pieces of evidence in terms of Section 27 of the Indian Evidence Act. It is on the strength of deposition of PW 5 HC Lal Chand, PW6 C. Ajit Singh and PW8 C. Raj Kumar by way of Ex. P6, Ex. P7 and Ex. P10 the prosecution has brought forth the fact that these recoveries so made at the behest of the accused were sent in an intact state to the Forensic Science Laboratory and as per the reports Ex. P41 and Ex. P42 human blood was detected on one of the lathi and on the other test was inconclusive and in view of the fact that human blood was found present regarding which test could not be conclusive does not mean or can be construed that no human blood was there but it could not be serologically examined rather frustrates the submissions of the appellant''s counsel that one of the lathi was not found stained with human blood. Rather the opinion of the Laboratory regarding human blood or other exhibits by way of articles of the dead body lends credence to this and therefore, are relevant pieces of evidence to support the case of the prosecution. More so, PW12 Subhash Chand has materially corroborated as an independent witness to these recoveries at the behest of the accused further lends credence and helps the prosecution to brush aside the defence''s arguments. Merely because this witness is related witness and thus interested does not mean or can be construed to be not an acceptable evidence when his testimony is duly corroborated by other independent sources including the photographs Ex. P11 to Ex. P20 proved through PW9 Manoj Kumar as well as PW2 HC Mahesh Kumar.

The Investigating Officer S.I. Devender Kumar PW14 and ASI Ramesh Kumar PW13 brought about the evidence so collected by them and which is materially supporting the ocular versions given by complainant Krishan Singh PW10 and Satbir Singh PW11. The mere premise raised by Mr. Vinod Ghai and Mr. Jaivir Yadav, learned counsel for the appellants that it has very well come in the evidence of PW15 Dr. Suresh Kumar that it was Manphool who had brought the injured to the hospital does not help to advance defence as it has very well come in the initial stand of the complainant made immediately after occurrence by way of Ex. P8/Ex. P9 that at the time of occurrence on hearing raula Chowkidar Manphool was also attracted and thereafter, injured was rushed in the jeep to the hospital and it is immaterial that name of Manphool finds mention in the MLR and further it has been elaborated by PW10 Krishan Singh and PW11 Satbir Singh that after leaving Manphool Singh at the hospital both of them had come to their home to collect money and there is positive stand of the doctor, who, initially treated the injured that on account of immediate medical aid and it is likelihood that after first aid the MLR was prepared does not mean or can be construed that these witnesses were never present at the time of occurrence when learned counsel for the appellants could not pinpoint anything adverse that has come in the cross-examination to put to doubt their veracity and presence at the time of occurrence. No doubt, both the witnesses PW10 Krishan Singh and PW11 Satbir Singh are closely related to the deceased but that does not prevent their testimonies to be accepted and the fact that they have not intervened to save the deceased from the hands of the accused are matters which do not have universal application as reaction from person to person varies. Furthermore, there is a positive evidence that earlier these witnesses had seen the deceased going with accused Pawan Kumar are matters which certainly have bearing in this case together with the fact that no worthwhile and satisfactory explanation is coming forth from the side of the defence in their stand taken during cross-examination of the witnesses or u/s 313 Cr.P.C. Thus, from all this detailed discussions, it clearly ensues that it was in a well planned manner the deceased was taken away by one of the accused at the place of occurrence where the other accused also joined and both duly armed with lathies had assaulted the deceased repeatedly giving him blows of these weapons on the head and after he fell down the other blows were again given shows and establishes as to the intention of the accused and being matured persons had the requisite knowledge as to the likely consequence of their act in giving injuries to the deceased. Thus, from this conduct of the accused which has been correctly appreciated along with evidence proved on the record by the learned trial Court the prosecution certainly had fully established its case. Both the appeals are devoid of any merit and are outrightly rejected and dismissed.