Som Nath and Another vs State of Haryana

K.S. Kumaran, J.—Appellants (1) Som Nath (2) Raj Kumar alias Raju, both sons of Barkat Ram, along with (3) Naresh (4) Kashmiri Lal both sons of said Barkat Ram, and also (5) Barkat Ram faced trial before the Additional Sessions Judge Rohtak for the murder of Ram Ditta Mal. Charges were framed against all of them u/s 148, I.P.C. and u/s 302 read with Section 149, I.P.C. While Naresh, Kashmiri and Barkat Ram were acquitted, appellants Som Nath and Raju were convicted by the Addl. Sessions Judge u/s 302 read with Section 34, I.P.C. sentenced to undergo rigorous imprisonment for life, to pay a fine of Rs. 1000/- each and in default to undergo further rigorous imprisonment for one year.

The case of the prosecution is that on 9-6-1992 at about 5.45 a.m., Ram Ditta Mal (deceased in this case) after waking up his wife Krishnawanti (the complainant) left for the Gurdwara. After a shortwhile, cries of Ram Ditta Mal were heard. Krishnawanti (the complainant who was also examined as PW-5) and her son Surinder tried to rush out but found the door of their house bolted from outside. Both of them went to the roof of their house, saw what was happening, and raised alarm, saying "killed", "killed". Shadi Lal (PW-6) had also reached the spot. While accused Naresh Kashmiri and Barkat Ram caught hold of Ram Ditta Mal, the appellants Som Nath and Raju, each armed with a dagger, dealt dagger blows on the chest and abdomen of Ram Ditta Mal. Ram Ditta Mal fell on the ground and appellants Som Nath and Raju caused nine or ten dagger blows to him. Som Nath inflicted a dagger blow on the back of Ram Ditta Mal and the dagger got stuck up in his back. After the assailants had fled away from the spot, Shadi Lal (PW-6) opened the bolt of the door of the house of Krishnawanti (PW-5). Krishnawanti and her son Surinder came out and found that Ram Ditta Mal had succumbed to the injuries. Krishnawanti proceeded to the Police Post, met ASI-Joti Ram (PW-7) near the clinic of Dr. Som Nath and gave report to him (Ex.PJ).

The motive for the occurrence is said to be the previous enmity between the two families. About eight or nine years prior to this occurrence, Krishnabai, wife of Barkat Ram (accused in this case) was murdered. Krishnawanti (PW-5 herein) and her sons Suresh and Surinder were charge-sheeted. Krishanawanti (PW-5) and her son Suresh were convicted by the Sessions Court, but, on appeal to the High Court, Krishnawanti PW was acquitted. Suresh, her son, is still undergoing life imprisonment. This is said to be the cause of murder of Ram Ditta Mal.

Krishnawanti PW-5 and Shadi Lal PW-6, the two eye-witnesses deposed on the lines of the prosecution case. PW-3 is Dr. Vimal Kumar Sharma, Medical Officer of the General Hospital Rohtak, who performed autopsy on 9-6-92 at 2.15 p.m., deposed about finding 15 incised wounds on the body of Ram Ditta Mal. He also found rigor mortis present on all the four limbs. He opined that death was due to shock and haemorrhage as a result of these injuries which were ante mortem in nature and sufficient to cause death in the ordinary course of nature. According to him, all the injuries collectively were sufficient to cause death and could have been caused by a weapon like Ex. P1. the dagger, which was sticking out from the back of the deceased, and was removed and handed over by him to the police. PW-1 Sub Inspector Budh Singh produced a copy of the FIR (Ex. PA) relating to the murder of Krishna, wife of Barkat Ram, to which we have referred earlier. PW-7 ASI Jyoti Ram is the Investigating Officer. He stated about the recording of the report by the complainant, Krishnawanti (PW-5), about the arrest of all the five accused on 11-6-1992 and also about the disclosure statements made by Som Nath, Kashmiri Lal and Naresh Kumar, leading to the recovery of a pant, a pyjama and a bush shirt. The appellants and the other accused in their statements u/s 313 Cr. P.C. generally denied the allegations made against them and said that this was a blind murder and that they have been falsely implicated in view of the murder of Krishna, wife of Barkat Ram. The accused examined as DW-1. Tara Chand from the Telegraph Department to prove five telegrams, Ex. D-1 to D-5. In those telegrams it is mentioned that the accused have been falsely implicated and that they are being kept in custody from 9-6-92 onwards. DW-2 is Constable-Rajbir Singh from the office of the Supdt. of Police, Rohtak, who produced Ex. DB and Ex. D-8, copies of telegrams sent by Attar Chand, complaining about the attempt to falsely implicate the accused. He also produced the copies of two complaints to the Director General of Police and to the Chief Minister (Ex. DC and Ex. DD). He stated that from the records it is seen that these complaints were sent to ASI Jyoti Ram (PW-7) for enquiry and report. The reports received after enquiry are Exs. D-10 to D-13. DW-3. Baldev Raj deposed that on the day of the occurrence, i.e. on 9-6-1992 he was going from his house in Mohalla Bhaistipura to Sugar Mills at about 3.30 a.m. or 4.00 a.m. as usual. He Stated that he used to park his jeep during nights near the Gurdwara in his street, that when he started from his house to go and get his jeep on the day of the occurrence, he came across the dead body of Ram Ditta Mal lying near a culvert of the street. According to him he went to the house of Ram Ditta Mal, which is just opposite to his house across the street, and informed the inmates about the same. DW-4 is Ram Parkash son of Attar Chand. He stated that his father Attar Chand died on 21-4-1993 and proved the signature in the complaint Ex. DW-4/B given by Attar Chand.

We have now to consider whether the prosecution has succeeded in establishing the guilt of the appellants accused beyond all reasonable doubt.

So far as motive is concerned, there can be no doubt whatsover that the appellants/accused were aggrieved against the family of the deceased Ram Ditta Mal. Krishana Bai, the mother of the appellants was murdered by the son of Ram Ditta Mal. PW-5 Krishnawanti was also charge-sheeted for the murder of Krishna, (wife of Barkat Ram), convicted by the Sessions Court, but was acquitted by the High Court. Even the appellants do not deny that there is enmity between them and they contend that they have been falsely implicated because of the enmity. The learned counsel for the appellants contended that the murder of Krishna, wife of Barkat Ram. had taken place in the year 1984 and the accused cannot be expected to bear and carry in their hearts the enmity for eleven long years to murder Ram Ditta Mal. He also contended that nothing had happened during a long period of 9 years preceding the alleged occurrence. This contention the learned counsel for the appellants cannot be accepted. First of all the fact that their mother was murdered by the present complainant party will not easily be forgotten by the family of the accused. Mere lapse of time cannot be stated to have had the effect of appeasing them. Even the appellants in their statement u/s 313, Cr. P.C., Stated that they have been falsely implicated in view of the enmity. They did not say that the killing of their mother was forgotten by them. Secondly, though the murder of Krishna, the mother of the appellants had taken place in the year 1984, the trial relating to the said murder would have taken time and both P.W. Krishna Wanti and her son Suresh were convicted and sentenced to life imprisonment. It is only on appeal to the High Court that Krishna Wanti (PW-5) was acquitted. Some years must have elapsed between the trial Courts judgment and the acquittal of Krishnawanti by the High Court. Therefore, the grouse over the murder of Krishna must have been alive in the minds of the appellants and, therefore, the contention that 11 years had passed from the date of murder of Krishna, wife of Barkat Ram, and, therefore, the appellants would not have any motive to kill Ram Ditta Mal cannot be accepted. So, we find that there was motive for the appellants to murder Ram Ditta Mal, whose son is undergoing imprisonment for life and whose wife was tried for the murder of Krishna, though acquitted by the High Court.

As pointed out already, we have the evidence of Krishnawanti (PW-5) and Shadi Lal (PW-6) who had actually seen the occurrence. Krishnawanti (PW-5) Stated that at about 5.00 a.m. on the day of occurrence, her husband-Ram Ditta Mal, after waking her up as usual, left the house as usual for going to the Gurdwara, which is situated at a short distance, i.e. after two or three houses from her house. She Stated that after a little while they heard her husband crying as "killed, killed", that she and her son Surinder tried to come out, found the outer door of their house bolted from outside, that they climbed on to the roof of their house and saw the occurrence. She Stated that the appellants-Som Nath and Raju with a dagger each, dealt several blows to her husband. She also stated that Shadi Lal was also there at the time of the occurrence. Shadi Lal (PW-6) stated in his evidence that his house is also situate in the same street of the house of Ram Ditta Mal, that at about 5.30 or 5.45 a.m. on the day of occurrence, when he was coming back after getting milk from the dairy, and had reached near the chowk of Gurdwara, he heard the noise raised by Krishnawanti (PW-5) and her son Surinder who were standing on the roof top of their house. He also Staled that the appellants Som Nath and Raju caused knife blows to Ram Ditta Mal. PW-6 Shadi Lal Stated that it was he who opened the door of the house of Krishnawanti. Of course, PW-5 Krishnawanti and PW-6 Shadi Lal stated that accused Barkat Ram, Naresh and Kashmiri caught hold of Ram Ditta Mal while the appellants dealt initial blows to Ram Ditta Mal. They also stated that after the first two or three blows. Ram Ditta Mal fell down and the appellants gave some more knife-blows thereafter. If we consider the evidence of these two eye-witnesses along with the evidence of the doctor, who conducted the autopsy on Ram Ditta Mal and who stated that he found 15 incised injuries on the body of Ram Ditta Mal in the regions of chest, abdomen and back and that death had resulted due to shock and haemorrhage as a result of these ante mortem injuries, then it will be clear that the appellants had caused the death of Ram Ditta Mal by giving as many as 15 dagger blows to him.

But, the learned counsel for the appellants contended that the occurrence had taken place much earlier than the time mentioned by the prosecution, for which there was no eye-witness and that the time of occurrence has been postponed to 5.45 a.m. only to make it appear that PW-5 Krishnawanti and PW-6 Shadi Lal were natural eye-witnesses. He contended that the very fact that Krishnawanti (PW-5) and Shadi Lal (PW-6) had implicated not only the appellants herein, but also the other members of the family, namely Barkat Ram, (the father of the appellants) and two other sons of Barkat Ram who were also tried but ultimately acquitted by the trial Court itself, and against which there is also no appeal, shows that the evidence of PWs 5 and 6 cannot be believed. He further contended that PW-5 Krishnawanti had not only falsely implicated the three acquitted accused but has also falsely mentioned the name of Shadi Lal (PW-6) as an eye-witness and is, therefore also, totally unreliable. He also pointed out that Shadi Lal is none else than the brother''s son of the deceased-Ram Ditta Mal, and the prosecution had not examined any other independent witness even though the evidence of PW-5 Krishnawanti and PW-6 Shadi Lal indicates that there were some others present and who could have seen the occurrence (if it was true). He further contended that Shadi Lal (PW-6) is the stock witness for the complainant party, whose antecedents are also bad and, therefore, he is also unreliable. The learned counsel for the appellants also contended that near about the place of occurrence there is a Gurdwara, a temple, and dairies (where milk was being sold) and it is also in evidence that people were either coming from or going to the Gurdwara and the dairies at the time of the alleged occurrence and yet, none has been examined. Of course, PW-5 Krishnawanti admitted in her evidence that three persons namely, Parkash, Gobind and Kashmiri are having their respective dairies as well as houses either opposite to or near the Gurdwara and that there is also a Shiva Temple opposite to the Gurdwara. Though, she Stated that she does not know if people come to the dairy at 4.00 a.m. for getting milk, she admitted that many other people might have been going to the Gurdwara like her husband. She also stated that some people might have been seen by her, some of whom were going to take milk while others were coming after taking the milk. PW-6 Shadi Lal also admitted about the existence of the dairies, and also Stated that he had seen 2-4 other people also standing there at the dairy, who had come for getting milk. He further admitted that people start coming from Gurdwara at 4 a.m., and that people might have been going to all the dairies at 4 a.m. Therefore, it is evident that at the time of the occurrence some other persons could have been either going to or coming from any one of the dairies or the Gurdwara. But at the same time it cannot be said that all or any of them should have been examined by the prosecution as witnesses in this case. We find from the evidence that there were three previous murders, two in the family of the complainant-party and one in the family of the accused-party. Sohan Lal, one of the sons of PW-5 Krishnawati, died as a result of a lathi blow caused to him in a fight. Krishna, the wife of Barkat Ram (accused) was murdered. Now, the present case relates to the murder of Ram Ditta Mal, the husband of PW-5 Krishnawati. Therefore, it is quite probable that no other person would like to associate himself or herself as a witness to this occurrence, since in such a background people totally unconnected will be afraid to involve themselves as witnesses in the murder case relating to such people with a history of homicidal tendency, and whenever known for taking revenge. Therefore, in these circumstances, we hold that the non-examination of any independent witness cannot affect the case of the prosecution. Of course, PW-5 is the wife, and PW-6 Shadi Lal is the brother''s son of the deceased-Ram Ditta Mal. The mere fact that they are relations is no ground for rejecting their evidence, if it is otherwise credit-worthy and reliable. It is, of course, true that PW-6 Shadi Lal was a witness for the prosecution relating to the murder of Sohan Lal, the son of PW-5 Krishnawati. Shadi Lal also admitted that he was himself prosecuted in a case u/s 302, I.P.C. and in another case u/s 420, I.P.C. But, the fact that he is a relation and had also deposed as a prosecution witness in an earlier case relating to the murder of a son of PW-5, and the fact that he was himself involved in certain cases cannot be reasons to discredit his evidence. The evidence of PW-5 Krishnawanti and PW-6 Shadi Lal is cogent and convincing on material particulars. Of course, in his statement to the police u/s 161, Cr. P.C. Shadi Lal had Stated that he was going home at about 5.15 a.m. after getting milk from the dairy and had seen the occurrence. According to the prosecution, the occurrence had taken place at about 5.45 a.m. But, this cannot be Stated to be a material variation or contradiction affecting the case of the prosecution, and on this ground his evidence cannot be brushed aside. Of course, both PW-5 Krishnawanti and PW-6 Shadi Lal implicated the three accused who were acquitted by the trial Court in this case, and there is also no appeal against their acquittal. But, this type of exaggeration cannot result in the rejection of the case of the prosecution outright. They were rightly given the benefit of doubt by the trial Court and acquitted, but, at the same time, there is no reason for rejecting the evidence of PW-5 and PW-6 (Krishnawanti and Shadi Lal) in respect of the appellants herein. As has been very often held, the relations of the deceased would not let the real culprit go unpunished and falsely implicate totally unconnected persons. Therefore, taking into consideration all these facts, we find that these grounds raised by the learned counsel for the appellants are not sufficient to reject the evidence of either PW-5 Krishnawanti or PW-6 Shadi Lal.

The learned counsel for the appellants next contended that though the occurrence had allegedly taken place at 5.45 a.m., and the FIR itself is alleged to have been recorded between 6 and 6.30 A.M., yet the special report was received by the Addl. Chief Judicial Magistrate at 9.30 a.m. only, which shows that the intervening time has been used for the purpose of falsely implicating the accused in this case. It is, of course, seen from the evidence of the investigating officer ASI-Jyoti Ram (P. W. 7) that the distance between the place of occurrence and the clinic of Dr. Som Nath, near which he recorded the statement of complainant is only one furlong. He also admitted that the police post is only about 100 paces from Dr. Som Nath''s clinic. The learned counsel for the appellants contended that the prosecution has deliberately stated that the statement of Krishnawanti was recorded at a place which is 100 paces from the police post simply to get away from the responsibility to record about this in the register maintained in the police post. But, these contentions of the appellants are not going to help them. The occurrence in this case had taken place at 5.45 A.M. The statement of PW5 - Krishnawanti was recorded between 6 and 6.30 A.M. and had reached the concerned Magistrate at 9.30 A.M. Very little time had elapsed between recording of the FIR and the receipt of the special report by the concerned Magistrate rather the special report had reached the Magistrate promptly. The contention that this occurrence had taken place during midnight, but the time has been postponed by the prosecution to 5.45 A.M. cannot at all be accepted since there is no acceptable evidence with regard to the same. Of course, Baldev Raj examined on the side of the defence (D. W. 3) stated in his evidence that on the day of the occurrence at about 3.30 or 4 A.M. he left from his house as usual to go to the Sugar Mills, that he had parked his jeep near the Gurdwara in their street, and when he started from the house to get his jeep, he saw the dead body of Ram Ditta Mal lying near a culvert in the street, and that he had informed about the same to the inmates of the house of Ram Ditta Mal. The defence very much relied upon his evidence to show that the murder had taken place in the preceding midnight and that there was no eye-witness for the same. But, we find that the evidence of DW-3 Baldev Raj is unacceptable. He admitted that he did not tell anybody else about this, which is improbable. Of course, he attempted to explain this by stating that almost every member of the Mohalla had come to know about this by reaching the street. But, he stated that he came to know about the arrest of the accused by the police in the evening, yet he stated that he did not mention about the false implication of the accused to the police or anybody else. Further, if really DW-3 had seen the dead body of Ram Ditta Mal at 3.30 A.M. or 4 A.M., we would find mention about this fact in the complaints sent on behalf of the accused party alleging false implication of the accused, but that has not been done. So, it is evident that the services of DW-3 have been utilised by the accused to buttress their false contention that the murder had taken place in the preceding mid-night itself. Therefore, we are unable to accept these contentions put forth by the defence.

The learned counsel for the appellants next contended that PW5 Krishnawanti and her son Surinder could not have been in a position to see, and could not have seen the occurrence as narrated by PW-5. He pointed out that even according to PW-5 she was woken up by her husband Ram Ditta Mal (Deceased) when Ram Ditta Mal Proceeded to the Gurdwara, and only after she had heard the cries of Ram Ditta Mal she tried to rush out of the house, but, found the door of her house bolted from outside. It is only thereafter PW-5 Krishnawanti and her son climbed on the roof of their house to see as to what had happened. The learned counsel for the appellants contended that it should have taken considerable time, and PW5 Krishnawanti and her son could not have been in a position to see the occurrence. But, we find that the appellants had given as many as 15 dagger-blows to Ram Ditta Mal (deceased). Even if PW-5 could not have seen the first few blows she could have certainly seen the appellants giving some of the blows inflicted thereafter. We have to bear in mind the fact that totally 15 dagger-blows were inflicted, and that the dagger used by one of the appellants was sticking out from the back of the deceased and was removed by the doctor (PW 3), only at the time of post mortem. If really PW-5, her son, and PW-6 had not seen at least a part of the occurrence and if PW-5 had not raised the alarm, the assailant would not have left the knife sticking from the body of the deceased and run away. Since PW 5 - Krishnawanti raised alarm and PW 6 had seen the occurrence, the appellants were in a hurry and that is why they had run away leaving a knife sticking from the body of the deceased, which they would have removed otherwise. This is a point which goes to show that PW5 - Krishnawanti, her son, and PW-6 Shadi Lal must have seen atleast a part of the occurrence, i.e., when the appellants dealt some blows to the deceased with daggers.

The learned counsel for the appellants contended that the doctor (P.W. 3)) who had performed the postmortem at 2-15 P.M. on the same day (9-6-92) had found that rigor mortis was present in all the four limbs and opined that the probable time between death and post mortem was within 12 hours, and this goes to support his contention that death had occurred at midnight. But, as rightly contended by the learned counsel appearing for the State, the speed of onset of rigor mortis depends upon various factors, like the temperature and mode of death. Where violent activity had taken place immediately before death, rigor mortis comes on rapidly. The learned counsel for the State also relied upon the following observations of the learned author Cox at page 164 of his text on Medical Jurisprudence and Taxicology (5th Edition).

"Where the body is in full rigor, then death probably took place between six and thirty-six hours previously, though caution must be used in accepting this interpretation."

Further, we are of the view that when there is direct and acceptable evidence about the time of occurrence, it is not safe too have recourse to the presence or absence of the rigor mortis or the presence or absence of faecal matter in the intestines, or the contents or their condition in the stomach to hold that the death had occurred at a different time. The obvious reason is that they are not sure and perfect tests to determine the time of death. They are dependent upon various factors about which there should be definite evidence. When the death of Ram Ditta Mal had occurred after the deceased was attacked violently with daggers 15 times, it is quite possible that rigor mortis had set on the body quickly. Therefore, this contention of the learned counsel for the appellants also cannot be accepted.

Taking into consideration all these aspects, we find that the appellants have rightly been convicted by the trial Court and there is no reason for interfering with the same.

Accordingly the appeal fails and is dismissed.