State of Haryana vs Mahipal and Others

Adarsh Kumar Goel, J.—The State is aggrieved by acquittal of the respondents Mahipal and Dan Singh of the charge of murder of Ranbir Singh by inflicting injuries to him on the night intervening 4/5.8.1994, on account which, he died on 11.08.1994.

According to statement Ex. PE, made by Mahabiri (PW-3) widow of the victim, her husband Ranbir Singh, deceased and her brother Manbir Singh (PW-4) were lying asleep on the night intervening 4/5.8.1994 on the roof of their house. At about 3.00 A.M., Mahipal, accused armed with axe and his brother Dan Singh, accused came to the roof via stair-case from the adjoining house. Dan Singh, accused held the deceased in his grip while Mahipal, accused gave a kulhari blow on his neck and both the accused fled away from there. The occurrence was witnessed by Mahabir and her brother Manbir Singh (PW-4). 25-26 days prior to the occurrence, Subash son of the deceased was alleged to have committed theft of cash and ornaments of Mahipal, who had given threat to settle scores with the deceased. Statement of Mahabiri was recorded by HC Hari Chand (PW-5) at Safdarjang Hospital, New Delhi at 5.30 P.M. on 5.8.1994.

Ranbir, injured was first taken to Government Hospital, Ballabgarh at 4.55 A.M. on 5.8.1994, from where he was referred to All India Institute of Medical Sciences, New Delhi. A message was sent by the Medical Officer, Government Hospital, Ballabgarh to the Police Station, Ballabgarh, on which, HC Hari Chand proceeded to All India Institute for Medical Sciences, New Delhi. After reaching there, HC Hari Chand learnt that the deceased, in injured condition was shifted to Safdarjang Hospital, New Delhi. HC Hari Chand reached there and he sought the opinion of the doctor at 12.30 P.M. about the fitness of the injured to make the statement. The doctor declared him unfit to do. He then recorded the statement of Mahabiri at 5.30 P.M. referred to above. On the said statement, HC Hari Chand sent a message to Police Station through C. Hamid Khan for registration of a case u/s 324/34 IPC. FIR was registered at 7.30 P.M. Ranbir Singh succumbed to his injuries on 11.8.1994, on which, the offence was converted to Section 302 IPC.

Inquest proceedings were conducted by ASI Suresh Pal (PW-7) of Police Station, Defence Colony, New Delhi vide report Ex. PC. Post-mortem examination was conducted by Dr. Chander Kant (PW-1) at Safdarjang Hospital, New Delhi on 11.8.1994 at 2.35 P.M., who found the following injuries:

An incised wound on neck left side, below left ear towards mid line of cervical spine region. Margins were clean cut, with both angles acute. Upper border of the margin - contused size 8 cm x 3.2 cm x 4.5 cm deep. Lateral end of the wound was 4.1 cm below left ear, below angle of mandible.

Dissection of the neck revealed left sternomastoid severed in the outer part left internal jugular vein served. There was fracture of fourth cervical vertebrae. Underneath tissues severely clean cut.

The doctor had also noticed surgical wounds in the shape of traction mark circular in shape about 5 cm above the right ear and left ear.

It was opined by the doctor that the death had occurred due to shock and haemorrage as a result of injury to cervical vertebrae and that the injuries, as detailed in report Ex. PA, prepared by him, were ante-mortem and caused by a sharp edged heavy weapon like an axe, which were ante-mortem and sufficient to prove fatal in ordinary course of nature.

The investigation was then taken up by ASI Juthar Singh (PW-6). He arrested the accused Dan Singh on 11.8.1994. Niadar Singh (PW-9), SHO, Police Station, Ballabgarh also conducted investigation and he arrested Mahipal, accused on 20.08.1994 and recovered kulhari in pursuance of disclosure-statement of Mahipal on 21.08.1994.

After completing the investigation, the accused were challaned.

The prosecution examined Dr. Chander Kant (PW-1), Dr. S.K. Sharma (PW-2), Mahabiri, widow of the victim (PW-3), Manbir Singh (PW-4), HC Hari Chand (PW-5), ASI Juthar Singh (PW-6), SI Suresh Pal of Delhi Police (PW-7), Constable Anoj Kumar (PW-8) and SI Niadar Singh, the then SHO, P.S. Sadar, Ballabgarh (PW-9), The accused in their statement u/s 313 Cr.P.C., denied the prosecution allegations. Mahipal, accused set up the plea of alibi and stated that he was on duty at Police Post Bichhjore, Police Station, Punhana, Distt. Gurgaon and his attendance was duly marked in the duty register. Dan Singh, accused pleaded that case of the prosecution was false. In defence, Head Constable Dinesh Kumar (DW-1) was examined, who with reference to entries in the record of duty register, stated that Mahipal was on patrol duty on 4.8.1994.

After considering the evidence, the trial Court held that case of the prosecution was not proved beyond reasonable doubt and acquitted the accused.

It was, inter-alia, observed as under:

(i) Witnesses, Mahabiri (PW-3) and her brother Manbir Singh (PW-4) did not physically intervene or grapple with the assailants to apprehend them and on this ground, their presence at the place of occurrence was doubtful;

(ii) Version given by the PWs that the assailants were armed with axe and came on the roof via the stair-case and fled away after inflicting a fatal blow before the witnesses could raise any hue and cry and no person from the neighbouring house was attracted, was not reliable;

(iii) The statement of Mahabiri (PW-3) was not reliable for the following further reasons:

(a) Mahabiri stated in her initial statement (Ex. PE) that her brother had come from his village on the same day, while in the Court she stated that her brother was living with her for the last 6 years;

(b) Mahabiri disowned portion ''B to B'' of her statement to the effect that her husband had cried for help;

(c) In her statement (Ex. PE), she stated that her son was alleged to have committed theft 25-26 days ago while in her statement in the Court, this period was mentioned as 15 days;

(d) She had not made any complaint to the Sarpanch or any one else about the false allegation of theft against her son;

(e) In her statement (Ex. PE), she stated that children were also sleeping on the roof, but in Court, she stated that her brother and husband were sleeping in separate cots in the verandah of the roof and no other family member was sleeping there. Version of Manbir sleeping in the company of the couple, was not reliable.

(f) There was no reason for Dan Singh to have overpowered the victim, who was sleeping.

(g) The witness did not report the incident to any one else before her statement was recorded at 5.30 P.M. in the hospital on 5.8.1994.

(h) Her clothes were not taken into possession though she stated that as a result of bleeding from the injury inflicted to her husband, her garments were smeared with blood.

(iv) Manbir Singh, eyewitness was also not reliable for the following further reasons:

(a) His version in his statement before the police (Ex. PG) is that he, his sister, her husband and both the children were also sleeping on the roof and in Court he stated that children were sleeping at some other place and remained sleeping during the night;

(b) His statement that neither he nor his sister raised any alarm, was not reliable;

(c) He denied having informed his other sister or her husband residing in the same village, about the occurrence;

(d) He stated that his garments were not smeared with blood, which was not believable;

(e) He stated that though many people had gathered but none accompanied them to the hospital, which was not believable;

(f) He stated that he was residing in the house of his sister for the last 6-7 years, but in his statement (Ex. PG) before the police, he stated that he visited the village of his sister only on the day of occurrence;

(v) There was delay of 15 hours in lodging of the FIR, even though the police station was three kilometers away. The copy of FIR was received by the Area Magistrate only on 9.8.1994 at 10.00 A.M.;

(vi) The police was not justified in registering the case u/s 324 IPC and then altering the offence to Section 307 and then to 302 IPC;

(vii) Motive was not proved, as no member of the family lodged protest about the allegation of theft;

(viii) Recovery of weapon at the instance of Mahipal, accused was not reliable as Mahabiri (PW-3) did not recognize the axe (Ex. P1), shown to her, as being the same with which injury was caused to her husband;

(ix) Plea of alibi raised by Mahipal, accused could not be brushed aside. He was arrested on 20.8.1994 even though he was employed as a Constable in Police and there was no allegation of his absence from duty.

(x) Dinesh Kumar (DW-1) Head Constable proved entry in duty roster (Ex. D1) showing that he was on patrol duty on 4.8.1994. Though it was not established that the accused was present at the place of his duty, but he was entitled to benefit of doubt as this aspect was not probed by the investigating agency.

We have heard learned Counsel for the parties and perused the record.

Learned Counsel for the State submitted that the reasons given by the trial Court for acquittal of the respondent Mahipal are perverse. The approach adopted by the trial Court was not tenable in law. The prosecution version was clearly proved by direct eyewitnesses'' account and the same could not be discarded an account of minor discrepancies. However, accused Dan Singh may be entitled to benefit of doubt.

After hearing learned Counsel for the parties, we are satisfied that the reasons given by the trial Court for acquittal of Mahipal, accused, can be held to be perverse. Before turning to each of the reasons given by the trial Court, it will be worthwhile to refer to the evidence on record.

In her statement (Ex. PE), Mahabiri clearly stated that her son Subash was a student of 10th class and allegation of theft was made against him by the accused Mahipal 25-26 days back. The accused Mahipal came to the place of occurrence and declared that he will teach a lesson to Ranbir Singh and caused injuries with the axe. Injured raised alarm ''Bachao-Bachao'' (Save-Save), on which, Manbir Singh (PW-4), who was sleeping nearby, saved the injured.

This statement was recorded at 5.30 P.M on 5.8.1994 when she was in the hospital alongwith Ranbir Singh, injured. PW-1 Dr. Chander Kant, who conducted the post-mortem examination found incised wound on the neck, which was the cause of death. The injury was ante-mortem and sufficient to prove fatal in the ordinary course of nature. PW-2 Dr. S.K. Sharma, Medical Officer, General Hospital, Ballabgarh examined the injured on 5.8.1994 at 4.55 A.M. and addressed communication Ex. PD to SHO, Police Station, Sadar Ballabgarh. PW-3 Mahabiri widow of the deceased supported her version in her statement Ex. PE given to the police which had led to registration of FIR. PW-4 Manbir Singh brother of PW-3 Mahabiri, fully corroborated the version given by Mahabiri (PW-3). PW-5 HC Hari Chand deposed about his recording of the statement of Mahabiri and for having made application to the doctor for seeking opinion about the fitness of Ranbir and the opinion that he was not fit to make statement. He prepared site plan and lifted the traces of blood from the place of occurrence. He obtained opinion about nature of injury being dangerous to life. PW-6 ASI Jhuthar Singh conducted investigation after 7.8.1994 and arrested Dan Singh on 11.8.1994. He is also a witness to the interrogation of Mahipal, accused by SHO Niadar Singh on 21.8.1994 and recording of his disclosure-statement (Ex. PL), leading to recovery of kulhari from his house. PW-7 SI Suresh Pal deposed about conducting of investigation proceedings by him. PW-8 C. Anuj Kumar prepared the draft plan of the place of occurrence, PW-9 SI Niadar Singh interrogated the accused Mahipal and effected recovery of weapon.

Before appreciating the evidence on record, it may be noticed that evidence of witnesses cannot be rejected merely because they were blood relations of the deceased or on account of enmity between the parties. A close relation will be the last person to screen the real culprit and falsely implicate the innocent person. Tendency to exaggerate the number of accused has to be safe-guarded by careful examination of evidence in each case by separating the grain from the chaff. The maxim falsus in uno, falsus in omnibus cannot be applied except as a rule of caution. It may also be noted that normal discrepancies due to errors of observation, error of memory or due to mental disposition such as shock and horror at the time of occurrence are always there, however, honest and truthful a witness may be and such discrepancies do not affect the credibility of the witnesses.

Different persons may react differently even in same situation and evidence cannot be rejected on the ground that reaction of the witness was different than expected. There can be no set pattern of reaction of any witness. If on broad probabilities, case of the prosecution taken as a whole is found to be truthful, it cannot be rejected either on account of witnesses being related or on account of minor discrepancies. Where eye witnesses account is found to be credible or trustworthy, medical evidence pointing to alternative possibilities cannot be treated as conclusive. These principles are well-settled and have been reiterated in the judgment of the Hon''ble Supreme Court in Gangadhar Behera and Others Vs. State of Orissa, .

It is well settled that delay in lodging FIR cannot be always a ground to doubt the case of the prosecution. The villagers cannot be expected to rush to the police station immediately after the occurrence. They are bound to take some time in going to the police station. Only effect of delay is that the court should be cautious in scrutinising the evidence of interested witnesses with greater care and caution and subject the evidence to closer scrutiny. Reference may be made to judgment of the Hon''ble Supreme Court in Tara Singh and others Vs. The State of Punjab, , Para 4.

In the present case, evidence given by PW-3 Mahabiri is reliable and truthful and there is no reason whatsoever to reject the same. Discrepancies in her statement are minor. Her having earlier stated that allegation of theft was 25-26 days ago and her statement before the Court that said allegation was 15 days ago, was not material. Similarly, her statement that Manbir Singh had come to meet them on the same day or was living with them for the last six years, did not cause any doubt about her version about the occurrence. Identity of the accused was well-known, the accused being neighbour. The discrepancies about the place where the children were sleeping was also not significant. Similarly, version given by PW-4 Manbir Singh is also reliable and there is no valid reason to reject the same. Case of the prosecution about the accused Mahipal having committed the murder of Ranbir Singh stands fully proved beyond any doubt.

The reasons given by the trial Court may now be discussed:

Re : Reason No. (i):

No inference could be drawn against the prosecution for Mahibiri and Manbir Singh not physically intervening and apprehending the assailants.

In Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, , the Hon''ble Supreme Court observed:

The Court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.

In Rana Partap and Others Vs. State of Haryana, , it was observed:

...Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible.

Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

Re : Reason No. (ii):

As already mentioned while dealing with reason No. (i), it is not always necessary that witnesses will raise hue and cry and will be able to apprehend the assailant. Mere fact that the assailant successfully inflicted the fatal blow and escaped could be no ground to disbelieve the presence of PWs and version given by them.

Re : Reason No. (iii):

It has already been observed here-in-above that minor discrepancies are bound to be there, either on account of error of observation or error of memory or due to mental disposition and such discrepancies are not enough to reject the version given by a witness unless veracity of the version in material particulars becomes doubtful, which may falsify the implication of the accused or the role attributed to the accused. The discrepancies pointed out for rejecting the version given by Mahabiri are minor discrepancies and do not cast any doubt about presence of the witnesses or involvement of the accused in causing the offence. We have made it clear that we are only referring to the case of Mahipal, accused.

Re : Reason No. (iv):

For the reasons given while dealing with reason No. (iii), the view taken in rejecting the evidence of Manbir Singh, is not sustainable in law.

Re : Reason No. (v):

Delay in receipt of a copy of the FIR by the Magistrate is not always significant unless it casts doubt about the recording of the FIR at the mentioned time. Reference may be made to judgment of the Hon''ble Supreme Court in Pala Singh and Another Vs. State of Punjab, , wherein it was observed:

...This is really designed to keep the magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction u/s 159. But when we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to our notice, then, however, improper or objectionable the delayed receipt of the report by the magistrate concerned it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable....

Re : Reason No. (vi):

The fact of registering the FIR u/s 324 IPC and then changing of offence to Section 307 IPC and then to Section 302 IPC, does not create any doubt whatsoever.

Re : Reason No. (vii):

This reason is without any basis. When there is direct eyewitnesses'' account, motive loses its significance. Moreover, there was no occasion for the family members to lodge protest with any one else. Such allegations are made at times and if cognizance thereof may not be necessarily taken. Reaction of different persons may be different.

Re : Reason No. (viii):

Recovery of weapon which may not be identified is not enough to reject the case of the prosecution. It is well-settled that defect in investigation is not always a ground to reject the prosecution''s case unless the accused is prejudiced.

Reference may be made to judgment of the Hon''ble Supreme Court in Dhanaj Singh @ Shera and Others Vs. State of Punjab, .

Re : Reason Nos. (ix) & (x):

Burden of proving the plea of alibi is on the accused as held in Vijayee Singh and others Vs. State of U.P., .

It has not been established that the accused was physically present elsewhere. Mere fact that he was on patrol duty, does not mean that at the relevant time, he could not come to commit the offence.

In view of above, all the reasons given by the trial Court are clearly perverse and cannot be sustained in law.

Accordingly, we hold that case of the prosecution is proved beyond reasonable doubt against Mahipal, accused. We, however, give benefit of doubt to Dan Singh, as role attributed to him is only of catching hold of the deceased who was sleeping. In absence of clear evidence to that effect, we do not consider it safe to convict Dan Singh.

As regards nature of offence, learned Counsel for the appellant relied upon judgment of the Hon''ble Supreme Court in Rajangam Vs. State (Tamil Nadu), , to submit that the offence will fall u/s 304 Part-II IPC.

We are unable to accept the submission made. In the case relied upon, the deceased was the step-mother of the accused.

The accused was demanding partition, on account of which, dispute arose. The accused came inside through door-way with a knife and stabbed the deceased. The deceased died after eight days.

Gangrenous had set in after the operation.

In the present case, facts are different. The accused came at odd hour when the deceased was sleeping and caused injuries with sharp-edged weapon. Though the deceased was immediately taken to the hospital and given medical aid, he died after six days. It cannot be said that wherever death is after six days by a single injury, offence will not fall u/s 302 IPC. Reference may be made to the judgment of the Hon''ble Supreme Court in State of Rajasthan Vs. Dhool Singh, , wherein it was observed:

In regard to the finding of the High Court that the prosecution has not even established that the respondent herein had acted with an intention of causing death of the deceased, we must note that the same is based on the fact that the respondent had dealt a single blow which according to the High Court took the act of the respondent totally outside the scope of Exception I to Section 300 IPC. Here again we cannot agree with the finding of the High Court. The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case it is true that the respondent had dealt one single blow with a sword which is a sharp-edged weapon measuring about 3 ft in length on a vital part of the body, namely, the neck. This act of the respondent though solitary in number had severed sternocleidal muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharp-edged weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot be sustained.

In the present case, there was incised wound on the neck, and left sternomastoid was severed and there was fracture of fourth cervical vertebrae and underneath tissues were severely cut. The injury was ante-mortem and sufficient to cause death in the ordinary course of nature. In these circumstances, the offence will clearly fall u/s 302 IPC.

For the above reasons, we allow this appeal qua Mahipal, accused and convict him u/s 302 IPC and sentence him to undergo life imprisonment. He will also be liable to pay fine of Rs.5,000/-, in default, he will undergo further imprisonment for one year.