CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-D-234-DB of 2009 Date of Decision:20.02.2014 Balraj son of Chander Singh and others ...Appellants Versus State of Haryana ...Respondent CRA-D-255-DB of 2009 Date of Decision:20.02.2014 Kaliya @ Kali Ram son of Gopi Ram and others ...Appellants Versus State of Haryana ...Respondent CRA-D-530-DB of 2009 Date of Decision:20.02.2014 Rajesh @ Kali son of Rattan Singh and others ..Appellants Versus State of Haryana ...Respondent CRA-D-1246-DB of 2010 Date of Decision:20.02.2014 Mahabir son of Hazoor Singh ...Appellant Versus State of Haryana ...Respondent Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -2- CRA No.2398 of 2009 Date of Decision:20.02.2014 Pardeep Kumar son of Raj Kumar ...Petitioner Versus State of Haryana and another ...Respondents CORAM:HON'BLE Mr.JUSTICE HEMANT GUPTA HON'BLE Mr.JUSTICE FATEH DEEP SINGH Present: Mr.Vinod Ghai, Senior Advocate with Mr.Paras Talwar, Advocate for the appellants (in CRA-D-530-DB of 2009).Mr.Sanjay Vashisht, Advocate for the appellants (in CRA-D-234-DB of 2009 and CRA- D-1246-DB of 2010).Mr.Rajesh Kumar Moudgill, Advocate for appellant (in CRA-D-255-DB of 2009) Mr.Pardeep Singh Poonia, Additional Advocate General, Haryana.
Mr.H.S.Dhindsa and Mr.A.S.Sullar, Advocates for the petitioner (in CRA No.2398 of 2009).FATEH DEEP SINGH , J These four appeals by the convicts-appellants namely Balraj, Manoj, Raju @ Rajdev, Kaliya @ Kali Ram, Rajesh @ Kali, Balinder, Satbir, Jagmender, Krishan and Mahabir along with criminal revision of complainant Pardeep Kumar against the acquittal of respondent No.2 Baljit, being an outcome of a common judgement and order of sentence of the Court of learned Additional District and Sessions Judge, Jind dated 26.10.2010 whereby, respondent No.2 Baljit stood acquitted and accused- Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -3- appellants were found guilty for commission of offences under Sections 302, 149, 148, 120B, 332, 353, and 449 IPC and sentenced as follows:- Under Section 148 IPC Accused Rajesh, Balinder, Satbir Jagmender, Krishan, Balraj, Manoj, Raju and Kaliya @ Kali Ram were sentenced to undergo rigorous imprisonment for two years and to pay fine of `500/- each and in default of payment of fine to undergo further rigorous imprisonment for ten days each.
Under Section 302/149 IPC All the accused were sentenced to undergo rigorous imprisonment for life and to pay fine of `5000/- each and in default of payment of fine to undergo further imprisonment for three months each.
Under Section 332/149 IPC All the accused were sentenced to undergo rigorous imprisonment for two years and to pay fine of `500/- each and in default of payment of fine to undergo further imprisonment for ten days each.
Under Section 353/149 IPC All the accused were sentenced to undergo rigorous imprisonment for one year and to pay fine of `500/- each and in default of payment of fine to undergo further imprisonment for ten days each.
Under Section 449/149 IPC All the accused were sentenced to undergo rigorous imprisonment for five years and to pay fine of `3000/- each and in default of payment of fine to undergo further imprisonment for two months each.
Under Section 120B IPC All the accused were sentenced to undergo rigorous imprisonment for life and to pay fine of `5000/- each and in default of payment of fine to undergo further imprisonment for three months each.
Thus, are being conjointly disposed off by this common Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -4- judgement to prevent repetition of facts and for the sake of brevity.
The brief story of the prosecution as envisaged in statement of the complainant PW1 Pardeep Kumar Ex.PA are that Raj Kumar father of the complainant worked as a Canal Patwari at Canal Rest House, Pegan.
It is alleged that on 13th June, 2006 around 1.30 p.m.the complainant Pardeep Kumar PW1 received a telephonic call from his father that on account of grudge between him and accused Balwant Singh S.D.O, Satpal J.E.and Kaliya @ Kali Ram, Mate having sent a telegram to higher authorities regarding theft of canal water and that they could harm him along with Baljit, who was committing theft of the canal water.
Acting on this, complainant Pardeep Kumar PW1 reached Rest House, Pegan along with others and heard shrieks of 'bachao bachao' coming from the room of the Rest House.
When they entered in the room saw S.D.O Balwant Singh, J.E.Satpal and Kaliya @ Kali Ram Mate along with 8/10 other boys holding wooden bindas/handles of the spade causing injuries to the deceased Raj Kumar and were trying to drag him out of the room.
Complainant PW1 Pardeep Kumar and PW4 Shamsher Singh came to the rescue of deceased Raj Kumar, whereupon, all accused ran away from the spot.
Seeing the injuries on the person of his father complainant Pardeep Kumar PW1 rushed him to General Hospital, Kaithal where the deceased succumbed to his injuries.
This statement of the complainant Pardeep Kumar PW1 was recorded by Inspector/SHO Virender Singh PW18 after Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -5- medical ruqas Ex.PMM/1 and Ex.PMM/2 regarding admission and death of deceased Raj Kumar respectively was received in the Police Station.
The Investigating officer made his endorsement Ex.PA/1 leading to registration of FIR Ex.PA/2 after necessary compliance by way of Ex.PA/3 by HC Rajender Singh PW5.
The Investing Officer prepared inquest report Ex.PCC and handed over the dead body to PW12 ASI Raj Kumar and PW9 HC Mahender Singh along with police papers and request for post mortem examination Ex.PN.
After post mortem examination the articles of the dead body consisting of pants Ex.P22 and underwear Ex.P23 were handed over to the police by way of memo Ex.PG.
The doctor on police request Ex.PN has opined these injuries to be caused by bindas/wooden dandas and proved weapons consisting of bindas Ex.P19 to Ex.P24, iron rod Ex.P25 and bamboo sticks Ex.P26 to Ex.P28.
Dr.
Aman Sood, PW20 proved MLRs of injuries received by PW1 complainant Pardeep Kumar and eye-witness PW4 Shamsher Singh and proved MLRs with pictorial diagrams Ex.PJ.Ex.PJJ/1, Ex.PKK and Ex.PKK/1 respectively.
PW15 Dr.
B.B.Kakkar, who had earlier conducted medico legal examination by way of MLR Ex.PM with pictorial diagram Ex.PM/3 and post mortem report Ex.PO, wherein he had observed nine injuries consisting of lacerated wounds, swelling, bruises, stitched wounds and opined all these injuries to be ante mortem in nature and sufficient to cause death in ordinary couRs.of events as a result of these injuries.
Meanwhile, the Investigating Officer examined the place of occurrence and on pointing out prepared rough site plan Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -6- Ex.PDD.
From the place of occurrence he lifted carpet Ex.P17, black colour shoes Ex.P18 and three pieces of broken bindas Ex.P19 to Ex.P21, stained with blood which were prepared into parcels and taken into police possession through memo Ex.PC.
On the same very day, the Investigating Officer arrested accused Manoj, Rajesh @ Kali, Krishan, Balinder, Mahabir, Balraj, Jagmender and Satbir.
While in police custody accused suffered disclosure statements i.e Manoj Ex.PH, Rajesh Ex.PJ.Krishan Ex.PK, Balinder Ex.PL, Mahabir Ex.PM, Balraj Ex.PN, Jagmender Ex.PO and Satbir Ex.PQ.
On 15.6.2006 accused Krishan as per his disclosure statement Ex.PK got recovered one iron rod Ex.P22 from the bushes near the school, whose rough sketc.Ex.PJ was prepared and the same was taken into police possession after converting into parcel.
Similarly, accused Satbir got recovered on the basis of his disclosure statement Ex.PQ a wooden binda Ex.P23 which was taken into police possession through memo Ex.PL.
Accused Rajesh on the basis of his disclosure statement Ex.PJ got recovered another binda Ex.P24 whose rough sketc.Ex.PM was prepared and was taken into police possession after converting into parcel.
Accused Balinder on the basis of his disclosure statement-cum-identification memo Ex.PB identified the room where the occurrence has taken place.
Accused Mahabir on the basis of his disclosure statement got recovered wooden binda Ex.P25 whose rough sketc.Ex.PQ was prepared and was taken into police possession through memo Ex.PR by way of parcel.
On Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -7- the basis of disclosure statement of accused Balraj Ex.PN a bamboo danda Ex.P26 was recovered from his conscious and exclusive possession, whose rough sketc.Ex.PH was prepared and after converting into a parcel the same was taken into police possession through memo Ex.PT.
Accused Jagmender Singh got recovered another binda Ex.P27, whose rough sketc.Ex.PU was prepared and after converting into parcel the same was taken into police possession through memo EX.PV.
Lastly, at the behest of accused Manoj another danda Ex.P28 was recovered whose rough sketc.Ex.PW was prepared and after converting into a parcel the same was taken into police possession through memo Ex.PX.
The Investigating Officer during the couRs.of investigations recorded statements of the witnesses and all the articles were deposited in the Laboratory in an intact condition.
PW3 Kaptan Singh got the photographs of the site clicked by way of Ex.P1 to Ex.P12 with corresponding negatives Ex.P13 to Ex.P16.
Kuldeep Singh, Draftsman PW16 prepared scaled site plan of the place of occurrence Ex.PP at the asking of the complainant.
After receipt of report of laboratory and after completion of usual formalities, challan against accused Balraj, Manoj, Raju @ Rajdev, Kaliya @ Kali Ram, Rajesh @ Kali, Balinder, Satbir, Jagmender, Krishan, Mahabir, Baljit, Balwant Singh SDO and Satpal J.E.was presented.
Accused Balwant Singh, S.D.O and Satpal, J.E.(who were earlier found innocent) who as per order dated 24.4.2007 were not summoned under the provisions of Section 319 Cr.P.C.Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -8- That is how there were 11 accused before the learned trial Court.
It is worthwhile to refer here that out of 11 accused Baljit was acquitted, whereas, accused Kailya @ Kali Ram died during the present proceedings and in his place his LRs have been arrayed in view of law laid down in Pranab Kumar Mitra versus State of West Bengal 1959 AIR144 The prosecution at the trial examined 21 witnesses.
When put to this evidence of the prosecution, each of the accused denied their involvement taking the plea of false implication.
The accused in their defence examined five witnesses leading to the passing of impugned findings.
Heard, Mr.Vinod Ghai, Rajesh Kumar Moudgil counsel for the appellants, Mr.A.S.Sullar counsel for the revisionist and Mr.Pardeep Singh Poonia, learned State counsel.
Since a criminal revision petition has been preferred against the acquittal of accused Baljit by the complainant Pardeep Kumar in terms of Section 378 Cr.P.C.therefore, this Court for judicious appreciation of the submissions needs to have a relook on the evidence and appreciate it.
After hearing learned counsel for all the contesting parties neither it is in any manner agitated as to the death of the deceased Raj Kumar and so is the position that the alleged incident took place in the Canal Rest House located in village Pegan.
PW15 Dr.
B.B.Kakkar has brought about the initial admission of the injured and having observed the injuries on the various parts of the body numbering 11 which are well elaborated Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -9- in the MLR Ex.PM with pictorial diagram Ex.PM/3.
The doctor has proved the medical ruqa Ex.PM/1 initially sent by him on the day of occurrence at around 3 p.m.and subsequent medical ruqa Ex.PM/2 at about 5.15 p.m.regarding death of the deceased.
The same very doctor has conducted the post mortem examination on police request Ex.PN when the body was brought by the ASI Raj Kumar PW12 and HC Mahender Singh PW9.
As per the testimony of this expert witness which is elicited in the post mortem report Ex.PO he has observed nine injuries which are by way of lacerated wounds, stitched wounds, swelling and multiple bruises.
There is a positive opinion of the doctor that all these injuries were ante mortem in nature and were sufficient to cause death in ordinary couRs.of event.
He has also proved the articles of the dead body by way of pant Ex.P22 and underwear Ex.P23.
It was on the basis of police application Ex.PN seeking opinion of the doctor as to the likelihood of injuries having been caused by recovered weapons Ex.P19 to Ex.P25, there is a positive opinion that such type of injuries can be caused by such weapons consisting of wooden bindas/bamboo sticks and an iron rod.
The contentions of the counsel for the appellants that the doctor is unable to give specific opinion as to which injury led to this death does not impresses this Court much as injuries having varied from occipital region, wrist joint, fracture of left forearm and right forearm, fractures of underlying bone of right forearm at middle, fracture of bones of the right leg tibia.
Similarly fracture of the left leg and multiple bruises with haemotoma on both the gluteal region is in itself Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -10- ample demonstration of the effects of multiplicity of these injuries and it is humanly not possible to determine with mathematical precision as out of which injury has led to this death.
Therefore, these submissions do not weigh much.
It is well enunciated law that motive loses its significance once the allegations are established by direct eye-witness account and even otherwise, is embedded deep into the crevices of the heart of accused but at the same time has a vital significance in determining the cause of the occurrence.
The deceased Raj Kumar who was a Patwari in the canal had reported about theft of canal water which is a cognizable offence to the higher authorities and which led to ill will between accused some of whom are officials of the same very department of the deceased.
PW19 Mange Ram, Assessment Clerk of the department of the deceased in no uncertain terms through documentary record based on letters Ex.PEE, Ex.PFF and Ex.PGG which have also been processed by Balwant Singh S.D.O (accused who has been found innocent) is against accused Baljit (who has since been acquitted) whereby, recommendations have been made for registration of a criminal case for this theft of canal water.
The khaSr.girdawari Ex.PHH and documents Mark-A to Mark-L are forms regarding unauthorised irrigation of the land.
It has been rightly pointed out on behalf of the State that it has come in the cross- examination of this witness that the tar (telegram) for this unauthorised irrigation was given by Zaildar Pegan to S.D.O Balwant Singh and J.E.Satpal which also comprised of 37 kanals Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -11- of agricultural land of the Government attached to the Canal Rest House was being illegally cultivated by Satpal J.E.and Balwant Singh SDO (accused who have been found innocent during investigations) along with accused Kaliya @ Kali Ram, Mate, Mahender, Signaler Ram Kishan, Baildar being a correspondence that has evolved out of the official communication of senior functionaries and has been proved from the office record by the official of the department cannot be doubted by any means and is sufficient enough to establish the bickering that has led to this episode.
Even the testimony of complainant PW1 Pardeep Kumar corroborates this fact as the deceased has confided in his son and even on the day of occurrence i.e.13th June, 2006 at about 1.30 p.m.the deceased had telephonically intimated his son PW1 Pardeep Kumar of this fact of unauthorised and illegal irrigation by the accused party.
The intimation sent by the deceased to the higher authorities and that accused were out to take a revenge reflects that the deceased has orally stated before PW1 Pardeep Kumar as to the circumstances leading to this episode which resulted in his death and therefore, to the mind of this Court is a vital piece of evidence in terms of Section 32 of the Evidence Act.
This evidence of PW1 Pardeep Kumar has been materially corroborated by none other than PW4 Shamsher Singh who is a witness to this telephonic call as well as of occurrence leading to the death of deceased.
It has been voiced with much alacrity by learned counsel for the appellants that this witness is a close relative of the deceased and PW1 Pardeep Kumar is son of Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -12- deceased and actually did not witness the occurrence and are propped up witnesses.
Though, appears to be highly inviting on the face of it, however, critically evaluating the same as has been proved through Dr.
Aman Sood, PW20 who on the day of occurrence around 3.30.p.m.conducted medico legal examination of complainant Pardeep Kumar PW1 by way of Ex.PJ.and Ex.
PJJ/1 as well as of PW4 Shamsher Singh by way of Ex.PKK and Ex.PKK/1.
Merely that these are abrasions/bruises as has sought to be argued on behalf of the appellants but having regard to the fact that these injured have been examined medico legally with promptitudeness and without loss of time certainly lends credence to the case of the prosecution.
As has been pointed out by learned State counsel doctor has specified that these injuries cannot be caused with friendly hand, rather upsets the apple cart on which the defence has sought to take a ride by terming them to be fabricated injuries and which argument certainly needs to be brushed aside.
Even otherwise, the occurrence has taken place on 13.6.2006 at about 8.50.
p.m.and FIR has been registered on the same very day at 10.30 p.m.shows that there is no delay in the registration of the same, especially, having regard that the deceased was initially given treatment and had subsequently died on the same very day and his medical examination has also been conducted without any delay.
Therefore, the presence of PW1 Pardeep Kumar and PW4 Shamsher Singh cannot be doubted and being stamped witnesses their testimonies needs to be taken seriously.
Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -13- The next most forcefully made submission on behalf of the convicts-appellants revolves around the identity of the assailants.
No doubt, it has been rightly submitted by learned counsel for the appellants that in the initial statement as has been admitted by PW1 Pardeep Kumar he has not named accused and it is in his supplementary statement Ex.DA made on 13.6.2006 he had stated it so and has added that Oma son of Jug lal told the names of the accused to him.
However, on further evaluating the testimony of this witness he has elicited that he knows Kaliya @ Kali Ram, Mate for the last more than one and a half years prior to the occurrence and there is admission by this witness that he had not seen accused Baljit at the time of occurrence and further submits that he has not recorded the names of accused Satbir, Jagmender and Krishan in the FIR but accused at no point of time have ever assailed or challenged their identity by these PWs.
As there is specific averment by him identifying accused present in the Court to be the same very persons who have given beatings to his father and has only stated that Kaliya @ Kali Ram, Mate and Baljit were not giving beatings to his father and they were standing nearby.
There is further submission by this witness that after the occurrence all these accused except Balwant Singh, SDO escaped from the spot shows in its a guilty mind in terms of Section 8 of the Evidence Act.
There had been much stress by the witness as has been reflected in his cross-examination that the main cause of the accused for committing murder of his father was only due to unauthorised Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -14- irrigation by accused Baljit regarding which his father intimated the higher authorities.
The witness has furthermore correctly identified and given the names of the accused in his statement which has remained unchallenged.
Therefore, in view of the settled law is a legitimate and legal piece of evidence as far as question of identity of the assailants is concerned.
It is also not disputed that names of accused Satbir Jagmender and Krishan are there in the FIR initially recorded by this witness.
He has further elaborated that Kaliya @ Kali Ram, Mate, SDO Balwant Singh and J.E.Satpal were standing at the door of the room where his father was being beaten by other accused.
Similarly, PW4 Shamsher Singh has highlighted the names of accused and their role in the commission of offence and rather as has been pointed out in his examination-in-chief this witness has categorically stated that he knew accused personally much prior to the occurrence and has attributed specific role to Kaliya @ Kali Ram, Mate asking the other accused to teach a lesson to the deceased for obstructing their work and has given specific details that Rajesh @ Kali accused caused binda blow on the chest followed by blow of binda on the left wrist and thereafter, accused Satbir caused blow on the left thigh and left pindli of deceased Raj Kumar.
Whereas, accused Balinder caused a binda blow on the back of the head of deceased and accused Krishan caused iron rod blow on the left elbow of the deceased.
Accused Mahabir caused danda blow on the left wrist and another blow on the chest of Raj Kumar deceased, whereas accused Raju @ Rajdev caused Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -15- danda blow on the right pindli of the deceased and accused Manoj caused danda blow on the right thigh of Raj Kumar.
Accused Balraj caused danda blow on the stomach of deceased.
There is a positive averment by this injured witness that when they tried to rescue deceased Raj Kumar accused Baljit gave danda blow on his right arm and accused Raju @ Rajdev caused a danda blow on his back near the shoulder.
Whereas, complainant PW1 Pardeep Kumar was given injuries by accused Jagmender, Balinder and Manoj specifically identified each of the accused in the Court, who were facing trial.
Further going through his submissions the witness has specified that SDO Balwant Singh and J.E.Satpal, who were standing at the door did not allow him to enter the room and it was thereafter, when the deceased was being dragged out as the story goes PW1 Pardeep Kumar came to the rescue of the deceased.
There is further corroboration to the motive by this witness, who in his cross-examination has highlighted that Kaliya @ Kali Ram, Mate used to cultivate the land of Canal Rest House and has further elaborated that he had given names of the accused to PW1 Pardeep Kumar as well as to Satpal.
Thus, from this evidence, it clearly ensues as to the identity of the assailants of the deceased as well as arrest of each of the accused in the commission of the same.
Though, it is sought to be submitted by the counsel for the appellants that names of all the accused having not been detailed in the inquest report Ex.PCC has not been controverted by learned State counsel, however, it is well illustrated in these proceedings that SDO Balwant Singh, J.E.Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -16- Satpal and Kaliya @ Kali Ram, Mate and Baljit along with 8-9 other persons were causing injuries to his father and had dragged him out of the room, thus, in its reflects the presence of these persons when the injuries were given.
Moreover, the allegations of theft are against accused Baljit who has even caused injury to the witness and thus the over all evidence is to be given effect to and not to piece meal pick and choose.
It needs to be kept in mind that neither FIR nor the inquest are encyclopaedia and only gives the brief story and that it is subsequent thereto on adducing of evidence the culprits are identified and which has precisely been done in this case by the eye-witness account that has come through PW1 Pardeep Kumar and PW4 Shamsher Singh.
The ocular version by these two PWs are in league with the medical evidence brought about by Dr.B.B.Kakker PW15.
The only point that has sought to be raised on behalf of the defence that there is punctured wound on the right forearm does not goes well with the ocular version.
Suffice it to say, as is reflected by the ocular version there were around 10-12 persons causing injuries to the deceased and out of whom two accused were standing at the door preventing the eye-witnesses to go to the aid of the deceased and therefore, it cannot be accepted in such a situation that the eye- witnesses would be able to appreciate each and every injury with a mathematical precision.
More so, an iron rod/saria has been got recovered from one of the accused and, thus, gives an inkling that might be such a weapon or a bamboo stick could cause such an injury.
More so, nothing has been put to the doctor to negate Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -17- the prosecution version qua this and therefore, such an argument does not comes to the rescue of the defence.
Even the question of holding of test identification parade as sought to be suggested by the defence does not cuts much ice as it is immediately after the occurrence the assailants have been identified by Shamsher Singh PW4 and even their names were disclosed to PW1 Pardeep Kumar by one of the witness Oma.
Keeping in view that the motive is well established for the accused to have caused injuries resulting in death of the deceased.
The accused are employed in the same very department as the deceased except accused Baljit and having regard to the documentary evidence of the motive proved through official record is well entrenched in the story of the prosecution.
More so, even if there is no proof of motive does not come to the aid of the defence when the eye-witnesses have clearly brought about the occurrence.
The case of the prosecution hinges on the criminal conspiracy that has been hatched by accused to teach the deceased a lesson for having reported the matter to the higher officers regarding theft of canal water.
The law on requirement of a criminal conspiracy has been well laid down by the Hon'ble Apex Court in Ram Narayan Popali vs CBI2003Volume (3) S.C.Cases 641 which provides that no overt act is required to be done in furtherance of the conspiracy which can be proved by direct evidence which is rarely available or by circumstantial evidence or by both.
Though, sad enough the names of instigators of this crime namely Satpal J.E.who is stated to be cultivating land of Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -18- the Rest House illegally as well as his immediate superior SDO Balwant Singh have been found innocent and even have not been summoned subsequently on the evidence of the prosecution and accused Baljit stands acquitted.
There is positive averment of PW1 Pardeep Kumar that accused Baljit was not seen by him but subsequently is shown to have caused injuries to the witness is a definite role in contributing towards commission of the offence and in determining his culpability.
The names of other accused Rajesh @ Kali, Balinder, Satbir, Jagmender being armed with bindas, Krishan armed with iron rod, Mahabir, Balraj, Manoj, Raju @ Rajdev armed with dandas, Kailya @ Kali Ram empty handed (who has since died) shows their presence at the time of commission of crime, actively involved in giving effects to this common design of teaching deceased a lesson shows irrefutably what was at the back of their minds and their concrete resolve to extinguish the life of the deceased.
Though, it is not essential that each of the participants in this criminal conspiracy ought to be an active participant and whatever bit he does in progression of the crime to ensure its sinister achievement is certainly guilty of the resultant illegal effects.
Accused Kaliya @ Kali Ram has taken plea of alibi through DW5 Vinod Garg to show that on 13.6.2006 accused had withdrawn amount from his account of Oriental Bank of Commerce, Rajaund and in the absence of any positive averment that at the time of offence he was in the bank does not help his case.
By now it is well settled position of law while interpreting provisions of Section 103 of the Evidence Act, that Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -19- where a plea of alibi is taken by accused he has to prove it.
Reliance placed on AIR1991S.C.1021 State of Haryana versus Sher Singh.
Even otherwise, the defence raised by DW2 Satnarain another official of the Irrigation Department, where accused and the deceased were employed, though, has sought to come to the rescue of accused but in his examination-in-chief accepts that there were seven persons present at the time of occurrence in the Rest House and he is unable to tell who caused the injuries to deceased Raj Kumar, Patwari shows that the witness has not witnessed the occurrence.
In his cross- examination he accepts that the persons who were apprehended by the police some of whom belonged to village Pegan and admits the fact that Balwant Singh SDO, Satpal J.E, Kaliya @ Kali Ram Mate and Baljit were amongst those persons, rather is detrimental to the interest of the defence and rather supports the prosecution story and the role of Baljit who has been acquitted.
More so, it is not the stand of the accused in the defence that no such occurrence has taken place and since their presence is well admitted, they were under bounden duty in terms of Sections 105 and 106 of the Evidence Act to have explained as to what has led to these injuries to the deceased while he was on duty in the official premises where the other accused are employed have a great bearing on the futility of the defence.
Thus, the semblance of evidence that has sought to be projected by the defence that no specific role is attributed to accused Raju @ Rajdev and Kaliya @ Kali Ram is clearly off the tangent.
Accused Raju @ Rajdev who Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -20- was armed with danda as per ocular version has caused injuries on the right thigh of deceased and on the back of PW4 Shamsher Singh and so accused Baljit.
The testimony of DW1 ASI Prem Singh does not inspire confidence as firstly this witness who was at Police Post, Kithana has not reduced the alleged statement made at the initial point of time by Balwant Singh, SDO and another in any DDR or police proceedings nor had appeared before the Investigating Officer to record his statement and admits that he does not know any of the employee at Pegan Rest House and admits that he has not made any entry about his visit to Rest House, Pegan, who claimed to be the fiRs.person, who has visited the Police Station after the occurrence.
Similarly, DW3 Dayanand has denied any record so summoned in the defence consisting of VT Message and so is the fate with DW4 ASI Kashmir Singh and no useful purpose is served by testimony of DW5 Vinod Garg, Manager OBC which is akin to the testimony of DW2 Satnarain.
The testimonies of PW2 Constable Rampal, PW3 Kaptan Singh Photographer, PW6 EHC Raj Kumar, PW5 HC Rajinder Singh PW14 Ranbir Singh, PW16 Kuldeep Singh, Draftsman and PW21 HC Vakil Singh are mere formal in nature carrying on various formalities during the couRs.of investigations.
Though, deposition of PW7 C.
Raj Kumar does not bring anything against accused Baljit though, he has stated to suffer disclosure statement Ex.PE but in his cross-examination the witness has admitted that nothing was recovered in pursuance thereof.
Similarly, PW8 ASI Gaini Ram has only lifted blood stained earth Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -21- from the place of the occurrence through memo Ex.PC and proved arrest of accused through memo Ex.PF.
PW9 HC Mahender Singh has got conducted post mortem examination of the dead body and has brought about the arrest of eight accused by SHO/SI Virender Singh PW18 and has proved the disclosure statements of accused Manoj Ex.
PH, Rajesh @ Kali Ex.PJ.Krishan Ex.PK, Balinder Ex.Pl, Mahabir Ex.PM, Balraj Ex.PN, Jagmender Ex.PO, Satbir Ex.PQ leading to recovery on 17.6.2006 of danda Ex.P-22 at the behest of accused Raju @ Raj dev on the basis of his disclosure statement Ex.PR which was taken into police possession through memo Ex.PS.
He has further proved disclosure statement of accused Kaliya @ Kali Ram by way of Ex.PT and the demarcation memo at his behest Ex.PU and the place where they consumed liquor and hatched a conspiracy which is corroborated by PW11 Jagdish by way of demarcation memo Ex.PV.
It was by this witness the recovered weapons were produced before the doctor to elicit his opinion as to the likelihood of these weapons having been used to cause injuries to the deceased.
Not much has been detailed by PW10 Sultan Singh except that he had given a SIM of BSNL No.9416132558 to his uncle deceased Raj Kumar, Patwari.
The recoveries of bindas Ex.P19 to Ex.P21, iron rod Ex.P24 and bamboos Ex.P25 to Ex.P28 on the basis of disclosure statements of the accused gives legitimate credence to the case of the prosecution as to how from the conscious and exclusive possession of each of these accused the weapons of offence were recovered and which certainly in terms of Section 27 of the Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -22- Evidence Act can be legitimately considered against the accused.
No doubt, as per the Forensic Science Laboratory report Ex.PBB the belongings of the dead body are proved to have been stained with human blood and so the blood drawn from the place of occurrence i.e.wool swab, dari, though, blood could not be detected on the recovered weapons.
Similarly, PW13 HC Balraj has only demarcated the place of occurrence by accused Kaliya @ Kali Ram, Mahabir Singh.
S.I.Mahabir Singh PW17 has proved recovery of weapons on the basis of disclosure statements of accused Krishan, Satbir, Balraj, Jagmender Singh, Raju @ Rajdev, Kaliya @ Kali Ram.
Lastly, Investigating Officer Virender Singh PW18 has brought about the recovery of the weapons and arrest of these accused on the basis of their disclosure statements.
Thus, from it all, it clearly stands established beyond any doubt from the evidence of the prosecution which has remained totally unrebutted as to the role of convicts-appellants Krishan, Satbir, Balraj, Jagmender Singh, Raju @ Rajdev, Kaliya @ Kali Ram Rajesh @ Kali, Balinder, Mahabir, Baljit and Manoj in this crime.
The learned trial Court has grossly misinterpreted the evidence against Baljit proved on the record and has thus drawn erroneous assumption of his innocence.
Since the learned trial Court has correctly appreciated the evidence brought on the record and has come to a justifiable conclusion as to the role of the convicts-appellants Krishan, Satbir, Balraj, Jagmender Singh, Raju @ Raj Dev, Kaliya @ Kali Ram Rajesh @ Kali, Balinder, Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -23- Mahabir and Manoj in this crime.
Therefore, findings returned by the trial Court qua these accused needs to be upheld and so their appeals stand dismissed.
However, the findings of learned trial Court qua Baljit being incorrect on the face of it, being perveRs.and illegal needs to be set aside.
The criminal revision of complainant Pardeep Kumar is thus allowed.
Accused Baljit is held guilty of commission of offence under Sections 302, 149, 148, 120B, 332, 353 and 449 IPC and is sentenced as follows:- Under Section 148 IPC Accused Baljit is sentenced to undergo rigorous imprisonment for two years and to pay fine of `500/- and in default of payment of fine to undergo further rigorous imprisonment for ten days.
Under Section 302/149 IPC Accused Baljit is sentenced to undergo rigorous imprisonment for life and to pay fine of `5000/- and in default of payment of fine to undergo further imprisonment for three months.
Under Section 332/149 IPC Accused Baljit is sentenced to undergo rigorous imprisonment for two years and to pay fine of `500/- and in default of payment of fine to undergo further imprisonment for ten days.
Under Section 353/149 IPC Accused Baljit is sentenced to undergo rigorous imprisonment for one year and to pay fine of `500/- and in default of payment of fine to undergo further imprisonment for ten days.
Under Section 449/149 IPC Accused Baljit is sentenced to undergo rigorous imprisonment for five years and to pay fine of `3000/- and in default of payment of fine to undergo further imprisonment for two months.
Under Section 120B IPC Accused Baljit is sentenced to undergo rigorous imprisonment for life and to pay fine of `5000/- and in default of payment of fine to undergo further imprisonment for three months.
Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document CRA-D-234-DB of 2009, CRA-D-255-DB of 2009 CRA-D-530-DB of 2009,CRA-D-1246-DB of 2010 and Criminal Revision No.2398 of 2009 -24- Warrants of this convict be sent to learned Chief Judicial Magistrate for compliance.
(HEMANT GUPTA) JUDGE2002.2014 (FATEH DEEP SINGH) aarti JUDGE Sharma Aarti 2014.02.24 17:23 I attest to the accuracy and integrity of this document