M.R. Sharma, J.
1. This judgment will dispose of Criminal Appeals Nos. 291-DB and 511-DB of 1983 as also Criminal Revision No. 627 of 1983, as they all arise out of the same incident.
2. Vide his judgment dt. 4-3-1983 and order dt. 5-3-1983, the learned Additional Sessions Judge, Kurukshetra, convicted and sentenced the two appellants as under:
Ram Kumar Under Section 302/34, Imprisonmentand Ratna I.P.C. for life eachappellants.
3. Ram Kumar appellant was the real brother of Chander Shekhar deceased who lost his life in this incident. There was some controversy with regard to land raging between the members of the family. It would be useful to refer to the following pedigree table to understand the nature of this controversy :
Om Dutt
__________________________________________|_________________________________
| | | | |
Ram Kumar Chander Gautam Bhagat Parshotam
(appellant) Shekhar (died) Ram
(deceased) (died)
|
Ramesh Kumar
P.W.6
4. According to Smt. Surji Devi P.W. 11, her husband Bhagat Ram was the real brother of Ram Kumar appellant. The land belonging to the family stood inthe name of her father-in-law Om Dutt. Bhagat Ram, the husband of this witnes s, had died about 29 years ago. Om Dutt and his sons used to live together as members of a joint Hindu family. Gautam, another brother of Ram Kumar appellant, had died 12 years ago. About eighteen months thereafter Om Dutt also died. The mutation of the land left by Om Dutt was sanctioned in the names of his sons, but she was not given any share in the land. Smt. Panno Devi, widow of Gautam, inherited the parcel of land which would have fallen to her husband's share had he been alive. When Surji Devi P.W. 11 found that Smt. Panno Devi had got her share of land left by her father-in-law, she felt there was no reason why she should not get her share. She accordingly filed a civil suit to enforce her rights. That suit remained pending for 5/6 years and then settled by a compromise. Smt. Surji Devi P.W. 11 was to get 7 Killas of land. Under the compromise, she was given 1 Killa of land and the remaining 6 Killas of land was given to her on lease for 60 years. The arrangement adopted was that in the revenue record the land would be shown under the cultivation of Smt. Surji Devi P.W. 11 whereas in fact it would be cultivated by her husband's brothers who would give Batai to her. For two years batai was given to her whereafter it was stopped. Smt Surji Devi P.W. 11 filed a fresh suit to enforce her rights. Prior to that Ram Kumar appellant had also filed a suit that Smt. Surji Devi P.W. 11 had no concern with six Killas of land which was in possession of the family. The suit filed by Smt. Surji Devi was fixed for a date in the month of May, 1982. She had cited Chander Sheikhar deceased as a witness in that suit. The latter was murdered in April, 1982.
5. In respect of the aforementioned murder, the law was set into motion on the basis of first information report Ex. P.K lodged by Romesh Kumar P.W. 6, son of the deceased, at 9.15 A.M. at Police Station, Pundri, on 12-4-1982. It was mentioned therein that Chander Sheikhar deceased was posted as a Patwari at village Kaul but he used to visit village Sanch quite often. About a year before the present occurrence a dispute arose between the deceased, Ram Kumar appellant and Parshotam with regard to the partition of the land. This dispute was settled by the brotherhood and it was agreed that Ram Kumar appellant and Parshotam would give a passage to the deceased to enable him to go to his fields. In spite of this settlement the appellant and Parshotam did not carve out the passage. On this point verbal altercations arose between the deceased on the one side and Ram Kumar appellant and Parshotam on the other on several occasions. It was asserted that because of this dispute Ram Kumar appellant had a grudge against the deceased. On 11-4-1982 the deceased had come to village Sanch. On the following morning after taking breakfast at about 7 AM he left his house on foot for going to the bus-stand to catch a bus for village Kaul. Reshma, daughter of the deceased, was following him to hand him over keys Romesh Kumar P.W. 6 himself was going to the village pond with his buffalos.
At that time, the two appellants were standing in the way along with tractor No. HRL-8884 (Escorts 335) belonging to Ram Kumar appellant. When the deceased reached near the house of ouds, he saw the appellants sitting on the tractor. At that time Ratna appellant immediately started the tractor and drove it behind the deceased. Ram Kumar appellant proclaimed that the deceased should not be allowed to escape and he be taught a lesson for claiming a passage. On the exhortation of this appellant, Ratna appellant drove the tractor in such a manner that the deceased fell down on the ground The tractor ran over his head and his skull was fractured. Immediately after the occurrence both the appellants ran away with the tractor. Romesh Kumar P.W. 6 raised an alarm 'mar ditta, mar ditta,' and went towards his father who had died onassage. On the exhortation of this appellant, Ratna appellant drove the tractor in such a manner that the deceased fell down on the ground. The tractor ran over his head and his skull was fractured. Immediately after the occurrence both the appellants ran away with the tractor. Romesh Kumar P.W. 6 raised an alarm 'mar ditta, mar ditta,' and went towards his father who had died on the spot It also mentioned in the first information report Ex. PK that at that time Tehl Singh P.W. 7 was standing near the place of the occurrence. After leaving his brother Dinesh Kumar to guard the dead body, he himself went to Police Station, Pundri, to lodge the report.
6. After recording the first information report, Sub-Inspector Jasrath Singh P.W. 15 went to the place of the occurrence in the company of Romesh Kumar P.W. 6 and some police officials. He inspected the dead body, prepared the inquest report Ex. PB and sent the dead body for post mortem examination. The Investigating Officer also picked up bloodstained earth from the place of occurrence, sealed it into a parcel and took the same into possession vide Memo. Ex. PQ. He made a search for the two appellants. They were not available in the village. They were produced before him by Karta Ram P.W. 12 on 14-4-1984.
7. In the meantime, autopsy on the dead body was conducted by Dr. Narinder Dhawan P. W. 1 at 4.25 PM on 12-4-1982. In the words of the Doctor --
1. A lacerated wound V/2' X fc' going upwards was present in front of right ear. Right ear was also cut except it was attached with a tag of skin.
2. An abrasion V/2' X 1' was present on the right lateral side of the forehead, just above the right eye-brow.
3. An abrasion 2' X 1/4' extending from injury No. 1 going downwards and medially towards the right angle of the mouth.
4. An abrasion 2V2' XI' was present on the left temporal region with bleeding from the left ear.
5. An abrasion 3' X 1' was present on the left shoulder joint including the left arm, lateral side.
6. An abrasion 2' X 1' was present on the right scapula.
7. An abrasion 1/4' X i/4' was present on the xiphisternum. On exploration of the skull, right temporal and parietal bone were found fractured. There was fracture also of the left temporal bone. On further exploration there was laceration of the right and left temporal lobe of the brain and I found fracture of the middle and interior cranial fossa.
The stomach was healthy and contained ten Ozs of undigested food. Small intestines were healthy and contained chyle. Large intestines were healthy and contained slight faecal matter. Bladder was healthy and empty. All other viscera were healthy and no abnormality was detected in them.
In my opinion, the cause of the death was shock and haemorrhage as a result of injuries to the vital organs, i.e., skull tend brain. All injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. All injuries were caused by blunt weapon, can be due to heavy vehicular accident, i.e. tractor.
8. After the completion of the investigation, the appellants were sent up for trial.
9. The prosecution relied upon the aforementioned medical evidence, the ocular version given by Romesh Kumar P.W. 6 and Tehl Singh P.W. 7 as well as the alleged extra-judicial confession made by the two appellants before Karta Ram P.W. 12. Ram Kumar appellant pleaded innocence and asserted that Ratna was engaged as a tractor driver by Parshotam. Ratna appellant in his statement under Section 313, Cr. P.C. put forth the following plea in defence :
I am innocent. I was servant of the family of Chander Sheikhar and others, I have never driven the tractor of Ram Kumar. Ram Kumar himself used to drive the tractor. I was employed as servant of Chander Sheikhar about 10/12 years back and was working in the family of Chander. Sheikhar since then.
10. The learned trial Judge rejected the defence plea, accepted the version given by the two eye-witnesses, disregarded the evidence relating to the extra-judicial confession and convicted and sentenced the appellants as indicated earlier.
11. The appellants came up in appeal before us which was party allowed on Sept. 1, 1983. The material portion of the judgment reads as under :
There is no manner of doubt that the deceased lost his life because he had been overrun by the tractor. The occurrence took place near village Sanch and the presence of Ramesh Kumar P.W. 6, son of the deceased, at that place does not appear to be unnatural. He has stated that on seeing the deceased going away. Ram Kumar appellant raised a lalkara that Chander Shekhar deceased be not allowed to escape whereupon his tractor driver Ratna speeded up the tractor and overran the deceased. Tehal Singh P. W. 7 is another witness who has no connection with this family. He has also made a similar statement. The evidence of this witness has been criticised by Mr. Sibal on the ground, inter alia that he had been convicted in a case under Section 307, Penal Code, he had appeared as a witness for to police in a case under Section 302 and that he had admitted that he had filed an affidavit in court in support of the plea that the bail granted to Ram Kumar appellant be cancelled. This criticism is not without basis. Lalkara is usually introduced to rope in as many persons as is possible. It is quite likely that Ram Kumar appellant was merely sitting on the tractor when this incident occurred. However, we are told by the learned Counsel for the parties that they being closely related some members of the village have intervened and have brought about some sort of arrangement under which Ram Kumar appellant has already made a gift of three acres of land in favour of Smt. Maya Devi widow of Chander Shekhar as compensation on account of the loss of life of her husband. Though this is not 'a matter which can be taken notice of by this Court, yet it has always been our desire to see that enmity between close relations should be encouraged to come to an end. Since the father of Romesh Kumar P.W. 6 had lost his life, he could possibly have indulged in some exaggeration to magnify the nature of the offence. In the circumstances, we give benefit of doubt to Ram Kumar appellant and acquit him. We convert the conviction of Ratna appellant from one under section Section 302 to one under Section 304A, Penal Code, and sentence him to undergo two years' rigorous imprisonment. Ram Kumar appellant is on bail. His bail bond shall stand discharged.
(underlining supplied).
11A. Against our judgment, the complainant went up in appeal before the Supreme Court of India. The Court extracted the underlined part of the judgment and observed as under :
We can only say that the judgment of the High Court has left us shocked and perplexed. We are at a total loss to understand it. The entire system of administration of criminal justice is reduced to a mockery. If the judgment of the High Court is upheld, it is as if a person who can afford to make gifts of land or money to the heirs of the victim may get away even with a charge of murder. Courts are to dispense justice, not to dispense with justice. And, justice to be dispensed is not palm-tree justice or idiosyncratic justice. The judgment cannot stand a second's scrutiny. It is accordingly set aside and the matter is remanded to the High Court so that the criminal appeals and revision may be reheard.
12. The case was accordingly remanded for a fresh decision. This is how the matter has come up before us once again.
12A. We have gone through the evidence with the help of the learned Counsel. Ram Kumar appellant has been attributed a lalkara only and if the evidence on this point is to be accepted then the offence undoubtedly would fall under Sections 302/34, I.P.C. But the evidence of lalkara right from the days when this Court was functioning at Lahore had been looked upon with extreme disfavour. The Supreme Court also had occasion to comment upon this type of evidence on more than one occasion. In Amar Singh v. State of Haryana : 1973CriLJ1409 , it was observed -
If the appellant had only shouted lalkara, probably it would have been difficult to sustain the conviction. But the part played by him in the incident as found by the High Court would clearly indicate that he was guilty of the offence under Section 302 read with Section 34.
12B. In Jainul Haque v. State of Bihar : 1974CriLJ143 , it was said --
The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. The evidence adduced at the trial in respect of the part alleged to have been played by the appellant is contradicotyr and far from convincing. We would therefore, accept the appeal set aside the conviction of the appellant and acquit him.
13. We have therefore to see whether the prosecution evidence on the question of lalkara is worthy of acceptance or not.
14. In the first information report Ex. PK lodged by Ramesh Kumar P.W. 6, it was mentioned -- 'Ram Kumar exhorted Ratna in a loud tone that Chander Shekhar should not be allowed to escape and he be taught a lesson for asking a path-way.' However, when he appeared as a witness in the Court, he stated --'Ram Kumar accused gave a lalkara that Ratna, enemy had been spotted (fas gaya hai). He should be done to death and should not be allowed to escape and he should be taught a lesson for asking for the right of way and helping Surji.'
15. It has been argued by the learned defence counsel, and in our opinion rightly, that there is a material change in the words employed in the lalkara as stated in the first information report and the statement in court made by the witness. When a person states that the victim be taught a lesson, it does not necessarily imply that he should be done to death. The damage caused to him might be restricted to causing of ordinary injuries short of death only. We, therefore conclude that Ramesh Kumar P.W. 6 did try to make the lalkara more serious at the trial for magnifying the part played by Ram Kumar appellant. It has already been mentioned that Ramesh Kumar P.W. 6 mentioned in the first information report that there was some dispute between this appellant and the deceased about the grant of a passage. Lal Singh P.W. 10 who was produced to corroborate the statement of Ramesh Kumar P.W. 6 about the dispute relating to the passage, was inimical towards Ram Kumar appellant. The alleged dispute about the passage appears to be imaginary. Surji Devi P.W. 11 stated that she had cited the deceased as a witness in her suit against Ram Kumar appellant. This circumstance does indicate that the family of the deceased had reasons to suspect that the latter had been caused injuries at the instance of Ram Kumar appellant. In this situation, it was quite easy for Ramesh Kumar P.W. 6 to coin out the story regarding the alleged lalkara.
16. The other circumstances which impels us to take this view appears to be more weighty. The prosecution claims that the two appellants approached Karta Ram P.W. 12 and made an extra-judicial confession before him. In the words of Karta Ram P.W. 12 --
About either months ago at about 9 AM I was in my village in my baithak. Ratna and Ram Kumar had come to me. I inquired from them as to how they had come. Ram Kumar had told me that he had committed zulam and that he had murdered his brother Chander Shekhar Patwari. He also told me that he had murdered him with the help of a tractor. Ram Kumar had further stated that the tractor was driven by Ratna. Ratna also told me that he had murdered Chander Shekhar with the help of the tractor and that Ram Kumar was with him at that time. Ram Kumar had also stated so. They further requested me that I should produce them before the Thanedar otherwise the Thanedar will give them beating. I took them in a bus towards Pundri.
17. If Ram Kumar appellant had raised a lalkara for having the desired effect, this fact could not have gone out of his memory when he appeared before Karta Ram P.W. 12 to make the alleged extra-judicial confession. The lalkara is conspicuous by its absence in the alleged oral confession. Besides, therein it has been stated that Ram Kumar himself committed the murder of the deceased with the help of a tractor. This indeed is not the prosecution case. The theory of lalkara actually stands falsified by the statement of karta Ram, P.W. 12:
18. Tehal Singh P.W. 7, the other eye witness an his own showing, had been convicted case under Section 307, IPC. He has admitted that he filed an affidavit in court in support of the plea that the bail granted to Ram Kumar appellant should be cancelled. The evidence of this witness on the point of lalkara becomes unacceptable in view of the statement made by Karta Ram P.W. 12, which has been extracted above.
19. The learned Counsel for the complainant has vehemently argued that there was hardly any difference between the words 'that the victim be taught a lesson and not allowed to escape' and the words 'that the victim be done to death' and that since Karta Ram P. W. 12 had been disbelieved his evidence should not be utilised to contradict the evidence of the two eye witnesses on the point of lalkara. We find no substance in these submissions.
20. It is universally accepted that the evidence regarding an oral extra-judicial confession has to be taken with a pinch of salt. It is also accepted that the actual words used by an accused person have to be proved before hi extra-judicial confession is acted upon. If a prosecution witness makes an improvement upon his earlier statement regarding the words used by an accused person in his extra-judicial confession, or if there is substantial discrepancy between the statements of two witnesses about the words used by the accused person, then the confession made by him is not admitted in evidence. The reason usually advanced in support of this proposition is that the evidence regarding an extra-judicial confession is weak in character and it should not be relied upon unless it is absolutely convincing. A lalkara or a mere exhortation stands on a much lower pedestal. We are firmly of the view that if there is a variation in the words employed in a lalkara between the statement made by a witness before the police and the statement made by him in court, that is a relevant circumstance for considering whether the evidence on this point should be accepted or not.
21. The evidence of Karta Ram P. W. 12 has been discarded by the learned trial Court and in our opinion rightly. This witness admitted in cross-examination that he told the accused persons that he was not an important man and that he did not know the Investigating Officer. As mentioned in para 23 of the judgment under appeal, the learned Public Prosecutor and the learned Counsel for the complainant conceded before the learned trial Court that the evidence of this witness should not be relied upon. We are of the view that it still remains open to an accused person to make use of the evidence of such a witness as best as he can. The learned Public Prosecutor cannot be allowed to keep his options open and to have the statement of a witness virtually wiped out from the record if it does not suit his purpose or if it goes against the prosecution. As a matter of fact, the very introduction of Karta Ram P. W. 12 as a witness to some extent shakes the credibility of Ramesh Kumar PW. 6 also. It is a matter of common knowledge that even if an Investigating Officer wants to set up a false witness about an extra-judicial confession, he usually does so with the assistance and active connivance of the complainant party.
22. It was then argued by the learned Counsel for the complainant that there was hardly any delay in lodging the first information report and in the short span of time available to Ramesh Kumar P. W. 6 he could not have coined out a false story about the lalkara. There is no merit in this submission either. Whether promptness in the matter of lodging a first information report should be taken as a factor in favour of the prosecution or not depends upon a variety of circumstances. If the prosecution story is long or consists of incidents happening at more than one place then it is usually inferred that the first informant probably adhered to the truth. But in a simple incident the introduction of a lalkara can be thought of in no time. We have already noticed that Ramesh Kumar P. W. 6 had reasons to form an -opinion that Ram Kumar appellant probably bore grudge against his father and could have instigated his servant.
23. We are accordingly of the view that the evidence of lalkara given by Ramesh Kumar P. W. 6 and Tehal Singh P. W. 7 is not at all worthy of being relied upon. Once it is so held, Ram Kumar appellant has to be exonerated of the charge of complicity in this crime. While giving him the benefit of doubt, we allow Cr. A. No. 291-DB of 1983 and order that he be acquitted of the charge.
24. The case of Ratna appellant remains to be considered. If the evidence of the eyewitnesses on the point of lalkara is disbelieved, it does not necessarily imply that they should be disbelieved qua the main accused person also. One thing is however clear. If the eyewitnesses are shown to have falsely implicated a person in the crime, that point to some extent does tell against their credibility. There is evidence on record to indicate that Ram Kumar appellant acquired the tractor when he and the deceased were joint in cultivation. This appellant himself has put forth the plea in his statement under Section 313, Cr. P.C. that he had been in service of the deceased. Even if the two brothers had parted company, there was hardly the type of animosity between them which might impel the servant of one to go to the extent of killing the other. The deceased belonged to this village and he must have been paying frequent visits to it.
Ramesh Kumar P. W. 6 gave no indication in his statement that this appellant had at any time exhibited any illwill against the deceased. Even when a person dies as a result of a motor-vehicle accident, there is a general tendency on the part of his close relations to magnify the matter so that the accused is dealt with more seriously. About the criminality of this appellant, there can be no doubt because even if the witnesses had appeared on the scene slightly later, they could possibly have seen him running away from the place of the accident. As a measure of abundant caution, we accept the evidence of these two witnesses to the extent that the deceased died when he was accidentally hit by Ratna appellant. We are fortified in this conclusion by the following statement made by Tehal Singh P. W. 7 in his cross-examination :
I had stated before the police that Chander Shekhar was run over by the tractor (confronted with Ex, DA where it is not so recorded but it is mentioned from point 'A' to 'A' that Chander Shekhar was hit by the tractor.)
25. For reasons aforementioned, we set aside the conviction of Ratna appellant under Section 302/34, I.P.C. and instead convict him under Section 304A, I.P.C. and award him rigorous imprisonment for two years.
26. Cr. A. No. 511-DB of 1983 is allowed to the extent indicated above. Cr. Revision No. 627 of 1983 stands dismissed in view of the discussions made above.
27. We wish to add that we have indeed been showing some concern for the dependants of the victims of the crime by awarding them compensation as laid down in Section 357, Cr. P.C. In determining this amount, the needs of the family of the victim and the capacity of the accused to pay were kept in view. Since there is no provision in the Code of Criminal Procedure to cast a duty on the investigating agency to collect evidence on these points, open discussions were sometimes made with the learned Counsel for the parties for arriving at a just figure. To offset the time consumed in such discussions the practice of dictating shorter judgments in open court was adopted. If there was sufficient evidence against an accused person he was never acquitted because he was prepared to pay compensation or something in the nature of blood-money. However, in cases where conviction of a criminal could not be maintained on the basis of the evidence led and that facts disclosed that he was vicariously liable under the Law of Torts, he was persuaded to pay compensation to the dependants of the victims of crime.
The results achieved in terms of the relief granted and the clearance of the arrears, it is submitted with respect, sufficiently justify our approach. The fines imposed and ordered to be paid as compensation runs into several lacs of rupees. To avoid tortuous delays in the collection of fines, efforts were also made to collect the fines in court. A sum of approximately rupees 40 lacs so collected was deposited in the names of the awardees in the High Court branch of a nationalised bank. The widows and the orphans whose bread-winners have been murdered are regularly receiving interest on this amount. By the end of May, 1984, only 4 appeals in murder cases instituted in 1983 were pending because the records were not complete. By that time 20 odd appeals instituted in 1984 had also been disposed of. We are told that appeals instituted in March, 1984, are now appearing on the board.
28. Let a copy of this judgment be forwarded to the Secretary, Union of India in the Ministry of Home Affairs and the Ministry of Law, Justice and Company Affairs, New Delhi, for considering the question of amending Section 173, Code of Criminal Procedure.
Surinder Singh, J.
28A. The earlier judgment rendered by this Court on Sept. 1, 1983 in the present matter was set aside by the Supreme Court and the case has been ramanded for re-hearing and fresh decision.
29. In the judgment now rendered by Brother M. R. Sharma, J. after considering the various aspects of the case in detail, he has come to the conclusion that Criminal Appeal No. 291-DB of 1983 filed by Ram Kumar should be accepted and by conferment of the benefit of doubt upon the said appellant, he has been acquitted of the charge under Sections 302/34, Indian Penal Code. In Criminal Appeal No. 511-DB of 1983 filed by Ratna co-accused, my learned brother has converted the conviction of the said appellant from one under Sections 302/34, I.P.C. to one under Section 304A, I.P.C. and for the said offence Ratna appellant has been sentenced to two years rigorous imprisonment. Criminal Revision No. 627 of 1983 filed by Ramesh Kumar complainant has been ordered to be dismissed. With utmost respect to the view adopted by my learned brother, I have to strike a discordant note and I proceed to re-assess the matter in the light of the material on the record and the arguments addressed at the bar.
30. The facts of the case have been noticed in detail by my learned brother in his judgment However I will briefly recapitulate the salient features. The prosecution allegations as contained in the First Information Report lodged by Ramesh Kumar (P. W. 6) son of Chander Sheikhar deceased are that the deceased was employed as a Patwari in the Revenue Department and was posted at Village Kaul. He used to visit village Sanch occasionally. The deceased had four other brothers out of whom two, namely, Gautam and Bhagat Ram had died long ago. Ram Kumar appellant is the third brother while the fourth is Parshotam. The deceased, Ram Kumar appellant and the third brother jointly owned forty Killas of land About a year before the occurrence, there was some dispute between the brothers in regard to the land but a settlement was effected by the brotherhood. It is stated that Ram Kumar appellant and Parshotam had agreed to give a path to the complainant and his deceased father for going to their fields but they had gone back on their promise. The deceased used to ask Ram Kumar and Parshotam to provide him with the agreed path and on this score hot words used to be exchanged. Ram Kumar appellant, therefore, nursed a grudge against the deceased.
31. On the evening of April 11,1982, i.e., a day prior to the occurrence, the deceased had come to village Sanch from village Kaul. On the next morning i.e. April 12,1982 at about 7 a.m. the deceased left his house after taking his breakfast, on his way to village Kaul where he was posted. He proceeded towards the bus-stand on foot. Ramesh Kumar (son of the deceased) was also going towards the pond with his buffaloes. The deceased had forgotten to take the keys of the Patwari Office with him and Reshma Devi P. W. (not produced) left the house in order to hand over these keys to her father. Ram Kumar appellant was sitting on the mudguard of his tractor bearing Registration No. HRL 8884. His servant Ratna appellant sat at the steering-wheel. It is alleged that as soon as Chander Sheikhar reached near the house of Ouds, Ratna appellant started the tractor with Ram Kumar sitting on the mudguard. The tractor was driven at a fast speed and they followed Chander Sheikhar.
When the tractor was at a short distance from Chander Sheikhar, Ram Kumar gave a lalkara that the former should not be spared and that he Should be taught a lesson for asking for the path. Ratna appellant then speeded the tractor and ran it over Chander Sheikhar who fell down on the ground in an injured condition. The two appellants made good their escape on the tractor. Ramesh Kumar had witnessed the occurrence. When he reached near his father, he found that he had already died. Lot of blood was found coming out of the head of the deceased. Tehal Singh (P. W. 7) is another person who is said to have witnessed the occurrence as also Reshma Devi P. W., the daughter of the deceased. After leaving Dinesh-Kumar at the spot, Ramesh Kumar went to lodge the First Information Report Exhibit PK at Police Station Pundri at 9.15 a.m. on the same day, i.e., April 12, 1982. In substance, the allegation made in the First Information Report is that the two appellants had committed the murder of Chander Sheikhar with their common intention.
32. Sub Inspector Jasrath Singh (P. W. 15) reached the spot and took up the investigation of the case. After preparing the Inquest Report in respect of the dead body, he lifted bloodstained earth from the spot. A canvas-bag containing some documents was found lying at the place of occurrence and was taken into possession along with some other articles like a diary etc. He sent the dead body for postmortem examination. Thereafter he recorded the statements of some withnesses and completed the remaining investigation at the spot. In spite of search, the two appellants were not available on April 12, 1982 and April 13, 1982. It was on April 14,1982 that Karta Ram (P. W. 12) ex-Sarpanch produced both the appellants before the Investigating Officer who took, them into custody. The Investigating Officer interrogated the appellants on April 16, 1982 in presence of witnesses and it is stated that in consequence of the disclosure statement by Ratna appellant the tractor in question was recovered in a chhan in the Fatehpur jungle. The front tyre of the tractor was taken into possession.
33. The medical evidence consists of the testimony of Dr. Narinder Dhawan (P. W. 1) who had conducted the autopsy on the dead body of Chander Sheikhar deceased at 4.25 p.m. on April 12, 1982. The medical witness noticed seven injuries on the body of, the deceased, all of which were in the 'region of the head. These injuries have been reproduced' in the judgment of my learned brother and there is no need to extract them again. In the opinion of the Doctor, the cause of death was shock and haemorrhage as a result of injuries to the vital organs, i.e. skull and brain. All the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The witness further opined that all the injuries could be 'due to heavy vehicular accident i.e. tractor'.
34. The two appellants were challahed and tried by the trial Court. During the course of the trial, both the appellants in their statements recorded by the trial Court under Section 313, Criminal P.C., denied the various prosecution allegations put to them with a view to connect them with the crime. However Ram Kumar appellant admitted that the tractor in question belonged to him and his brother Parshotam. He also stated that Ratna appellant was the driver of Parshotam. Ratna appellant at the end of his statement took up the stand that he was the servant of the family of Chander Sheikhar and others and that he had never driven the tractor of Ram Kumar. He Pleaded that Ram Kumar used to drive the tractor himself. He further averred that he was employed as a-servant of Chander Sheikhar about 10/12 years back and was working with his family since then. The two appellants were convicted and sentenced as already noticed.
35. I would take up the case of Ram Kumar appellant in the first instance. Indeed only a lalkara is attributed to this appellant. My learned brother has observed that right from the earliest times the Courts have looked upon the evidence relating to a lalkara with extreme disfavour. He has extracted the observations of the Supreme Court in Amar Singh v. State of Haryana : 1973CriLJ1409 and Jainul Haque v. State of Bihar : 1974CriLJ143 . To my mind, however, these observations could be of no benefit to the case of Ram Kumar appellant. The circumstances which lead me to this conclusion are these. Ram Kumar was the real brother of Chander Sheikhar deceased. It is the prosecution case that there was a family dispute in regard to the land of Surji Devi widow of Bhagat Ram, a third brother who had since died. The three brothers, namely, Chander Sheikhar deceased, Gautam and Parshotam had given some land to the said lady in a family settlement and Ram Kumar appellant had challenged this arrangement by means of a suit.
Chander Sheikhar deceased was cited as a witness in the said suit and he had to appear as such on May 31, 1982. The documentary evidence in regard to this suit is available in Exhibit PE which is a certified copy of the plaint filed by Rarrt Kumar against Surji Devi on Oct 5, 1981. Exhibit PF is the certified copy of the list of witnesses filed by Surji Devi in that suit, wherein she had included the name of Chander Sheikhar deceased as one of her witnesses. The other facts regarding the dispute have been deposed to by Ramesh Kumar (P. W. 6) son of the deceased. The prosecution has also brought on the record that a partition of the land of the joint holding had taken place amongst the three brothers and in this arrangement Ram Kumar appellant and Parshotam were to provide a passage to Chander Sheikhar for going to the fields.
Ram Kumar had not, however, provided this passage in spite of requests made by Chander Sheikher and this had led to exchange of abuses between them. There was, thus, a motive on the part of Ram Kumar to have connived for the murder of Chander Sheikhar. In this background, the lalkara raised by Ram Kumar cannot be treated as insignificant or ignored as a mere act of an un-involved accused. It is, therefore, not possible to hold that Ramesh Kumar P. W. had tried to attribute a different phraseology to the lalkara in order to make it seem more serious. In this view of the matter, Ram Kumar appellant cannot be absolved from the responsibility of the offence under Sections 302/34, I.P.C., if otherwise proved against Ratna co-accused.
36. Coming next to the case of Ratna, the evidence of the two eye-witnesses, namely Ramesh Kumar (P. W. 6) and Tehal Singh (P. W. 7) does not suffer from any serious infirmity, nor has any material been brought out in their lengthy cross-examination which would lead one to the conclusion that they are not witnesses of truth. Even my learned brother has accepted the evidence of these witnesses though to the extent that the deceased died when he was accidentally hit by Ratna appellant. In the situation in which the parties were placed at the time of the occurrence and particularly in view of the fact that the deceased was walking in an open space and not a crowded thoroughfare, the chance of his having met his end as a result of accident can be safely excluded. Ratna appellant indeed took up the stand that he was in the service of the deceased but this assertion is not worthy of credence in face of the overwhelming evidence produced by the prosecution to the effect that he was the servant of Ram Kumar appellant. Being an employee of Ram Kumar, it is more in consonance with the prosecution allegations that he obeyed his master, i.e. Ram Kumar who raised a lalkara that the deceased had been caught and he should be finished. The act of Ratna appellant being an intentional act, question of application of Section 304A, I.P.C., in his case could not arise.
37. In the result, I would maintain the conviction of both the appellants under Sections 302/34, Penal Code, as also the sentence of imprisonment for life imposed upon each one of them for the said offence. Their respective appeals stand dismissed. Criminal Revision No. 627 of 1983 filed by the complainant is also dismissed.
ORDER
38. In view of the difference of opinion, the papers be placed before Hon'ble the Chief Justice for entrusting the case to another Hon'ble Judge for decision.
D.S. Tewatia, J.
39. Appellant Ram Kumar and Ratna were tried for an offence under Section 302 read with Section 34, Penal Code, for the murder of Chander Sheikher. They both were convicted and sentenced to life imprisonment under Section 302 read with Section 34, I.P.C. by the Additional Sessions Judge, Kurukshetra, vide his judgment dt. 4-3-1983 and order dt. 5-3-1983.
40. The conviction and sentence came to be challenged in this Court by the accused through two separate Criminal Appeals Nos. 291DB and 511-DB of 1983 moved by Ram Kumar and Ratna respectively. Complainant Romesh Kumar also filed Criminal Revision No. 627 of 1983 for the enhancement of the sentence. All the three matters in the first instance were disposed of by the Division Bench comprising of M. R. Sharma and Surinder Singh, JJ. by their judgment dt. 1-9-1983, whereby Ram Kumar altogether was acquitted and Ratna's conviction was altered to one under Section 304A, I.P.C. and sentenced to two years' rigorous imprisonment. This judgment was impugned in the Supreme Court by the complainant and their Lordships set aside the judgment and remanded the case back for decision on merits vide judgment dt. 26-4-1984 Ramesh Kumar v. Ram Kumar 1984 SCC (Cri) 387 : 1984 Cri LJ 832.
41. When the matter thus came up for hearing before the Division Bench, the two Judges this time rendered differing judgments. Whereas, Sharma J. maintained the earlier judgment, Surinder Singh J. dismissed the appeal and sustained the judgment of the trial Court. In view of the difference of opinion between the two Judges of the Division Bench, the matter has been placed before me.
42. The prosecution case in brief is that deceased Chander Sheikhar had four other brothers namely Ram Kumar accused, Bhagat Ram, Gautam and Parshotam. Bhagat Ram had died long time back leaving behind his widow Surji Devi PW. 11 and Gautam too had died leaving behind his widow Panno Devi. The surviving three brothers namely the deceased, accused Ram Kumar and Parshotam between them owned 40 acres of land. They had partitioned their land. Ram Kumar and Parshotam are said to have promised a path to the fields that came to the share of Chander Sheikhar deceased but they later on went back on their promise and whenever Chander Sheikhar deceased asked them to abide by their promise and give him the path, the parties used to quarrel and exchange hot words. There was civil litigation between Smt. Surji Devi and Ram Kumar in which deceased Chander Sheikhar is said to be helping Smt. Surji Devi against accused Ram Kumar. She had cited him as a witness in that case. He, however, came to be murdered before he gave evidence.
43. It is the prosecution case that on account of the deceased's insistence for path and his siding with Smt. Surji Devi against Ram Kumar accused in civil litigation, Ram Kumar accused harboured a grudge against him.
44. A day before the fateful day, the deceased who was a Revenue Patwari had come to his native village from village Kaul where he was posted. In the morning of fateful day, i.e. 12-4-1982 aroung 7 A,M, he was on his way to the bus stand from his house when he was run over by a tractor, which was driven by Ratna, driver-cum-servant of Ram Kumar, with Ram Kumar at that time sitting on the mudguard of the tractor. The incident was witnessed by Romesh Kumar, the son of the deceased, who at that time was carrying his buffaloes to the pond, Tehl Singh, who was coming back after attending to the call of nature and Reshma, daughter of the deceased. The accused after running over the deceased with their tractor ran away from the spot. Romesh Kumar and other eye-witnesses reached near the dead body. Thereafter, other villagers were attracted to the place of occurrence.
45. Romesh Kumar PW. 6 then left for police station Pundri, where he lodged the F.I.R. Ex. PK at9.15 A.M. on 12-4-1982, which was recorded by S. I. Jasrath Singh PW. 15. Special report of the F.I.R. was delivered to Ilaqa Magistrate at Kurukshetra on April 12, 1982, at 11.30 AM.
46. The Investigating Officer after recording the F.I.R. went to the place of occurrence. He held inquest on the dead body and got the dead body despatched to the Civil Hospital, Kaithal. He also lifted the blood stained earth from the place of occurrence which was found to be stained with human blood as per report of the Serologist.
47. Dr. Narinder Dhawan PW. 1 performed autopsy on the dead body at 4.25 P.M. on 12-4-1982 and found the following injuries on his person :
1. A lacerated would H/2 X V2' going upwards was present in front of right ear. Right ear was also cut except it was attached with a tag of skin.
2. An abrasion Vh' X 1' was present in the right lateral side of the forehead, just above the right eye-brow.
3. An abrasion 2' X y4' extending from injury No. 1 going downwards and medially towards the right angle of the mouth.
4. An abrasion 2V2' X I' was present on the left temporal region with bleeding from the left ear.
5. Anabrasion3' X 1' was present on the left shoulder joint including the left arm, lateral side.
6. An abrasion 2' X 1' was present on the right scapula.
7. An abrasion lM' X y4' was present on the xiphisternum. On exploration of the skull, right temporal and parietal bones were found fractured. There was fracture also of the left temporal bone. On further exploration there was laceration of the right and left temporal lobes of the brain and I found fracture of the middle and interior cranial fossa.
48. He opined that the stomach was healthy and contained ten ozs of undigested food. In his opinion, the cause of death was shock and haemorrhage as a result of injuries to the vital organs, i.e. skull and brain. The time that elapsed between injuries and death was few minutes and between death and postmortem 12 hours. He further opined that all the injuries were caused by blunt weapon, which also could be due to heavy vehicular accident, i.e. tractor.
49. Both the accused are said to have made. extra-judicial confession before Karta Ram Ex-Sarpanch of 'village Kaul, PW. 12, who produced them before the Investigating Officer on 14-44982.
50. The prosecution case primarily rested on the testimony of the eye-witnesses namely Romesh Kumar PW. 6 and Tehl Singh PW. 7, Smt. Rashma having been given up as unnecessary, medical evidence of Dr. Narinder Dhawan PW. 1, Amar Singh P. W. 9, Lal Singh P. W. 10, and Smt. Surji Devi P. W. 11 who deposed to the motive part of the prosecution case and of the investigating officer who, inter alia, deposed to the recording of the F.I.R., holding of the inquest on the dead body, lifting up of the blood-stained earth from the spot, recovery of the front wheel of the tractor and the arrest of the accused.
51. When examined under Section 313, Cr. P.C. both the accused denied the prosecution allegations altogether. Ram Kumar denied that Ratna was his servant and driver. Ratna took up the stand that he was, in fact, the servant of the deceased Chander Shekhar for a number of years. They, however, led no evidence in defence.
52. It has been canvassed on behalf of the appellants that none of the eye-witnesses had seen the occurrence. Romesh Kumar had come forward to depose against them on account of being the son of the deceased whereas Tehl Singh had come forward to depose against them, being inimical towards Ram Kumar. It has been further canvassed that the accused have been falsely implicated by the witnesses.
53. Arguing about the involvement of Ram Kumar, it has been contended that but for the fact that a Lalkara allegedly given by him to Ratna not to allow the deceased to escape he having come in the grip; there is no case against him on the record as the tractor was driven by Ratna and he was a mere passenger thereon, even if it is assumed for the sake of argument that the deceased had met his end by being run over by the tractor and that Ram Kumar did happen to be then on that tractor.
54. The most salient feature of this case is the fact that the deceased and accused Ram Kumar are real brothers. The deceased happened to be the elder brother of the accused. It is unthinkable that if the deceased had met his end in the manner other than the one suggested by the prosecution, then Romesh Kumar would have falsely implicated his real uncle in such a serious case and have allowed the real culprit to go scot free and further, Romesh Kumar had nothing against Ratna, a mere servant, who till the partition between the brothers was servant of all of them and it was only after the said partition that he became exclusive driver of the tractor of Ram Kumar. Hence, there was no question of implicating Ratna at all in such a heinous crime if his role in the crime was not that which is suggested in the prosecution case.
55. Counsel for the appellant contended that the only incriminating evidence against Ram Kumar appellant on the record is that which pertains to his having given a Lalkara in question to Ratna and that the evidence of Lalkara is admittedly looked at with suspicion by the Courts, as lalkara is noramally attributed merely to implicate in a case an otherwise innocent person out of enmity. It is suggested that the evidence of Ramesh Kumar in this regard who lodged the F. I. R is not acceptable at its face value, as in the F.I.R. the wording of the Lalkara was '... and Ram Kumar exhorted Ratna in a loud tone that Chander Shekher should not be allowed to escape and he be taught a lesson for asking for a pathway,' whereas in the Court the wording of the Lalkara is '...Ram Kumar accused gave a Lalkara that Ratna enemy had been spotted (phas gya hai) the should be done to death and should not be allowed to escape and he should be taught a lesson for asking for the right of way...', which shows that in the Court Ramesh Kumar witness tried to make the language of the Lalkara more serious and incriminating. That the F.I.R. version being the first version, the same should carry more weight and so far as the version in the F.I.R. is concerned, it is not suggestive of an inference that Ram Kumar appellant wanted Ratna, his co-accused, to kill the deceased, for, exhortation to teach a lesson does not invariably mean the exhortation to kill the person.
56. In my opinion, there is no merit in the contention advanced by the learned Counsel for the appellant. The evidence regarding Lalkara has to be evaluated in the circumstances of a given case, In hurt cases involving a large number of accused, it is no doubt true sometimes that even an innocent member of the family of the real culprit is sought to be implicated by attributing a Lalkara to him. Such is not the case here and, therefore, the evidence regarding Lalkara cannot be looked at with suspicion, nor the Lalkara evidence can be considered of less value, merely because Ramesh Kumar P. W. 6 could not put the Lalkara in the same words in the Court, as he had used in the F.I.R. The substance of the Lalkara, in my opinion, is the same.
Even if for the sake of argument the version of the Lalkara given in the F.I.R. is to be taken as the correct version, then too one cannot reach any other conclusion but the one that Ram Kumar appellant exhorted Ratna to kill the deceased. The position would have been otherwise if it was a case where Ratna was to wield a Lathi against the deceased, then, of course, one might have interpreted the expression 'to teach a lesson' as merely to inflict injuries and not to kill, but where it was the tractor which had been used to injure the deceased, the deceased could be taught a lesson only by being hit and overrun by the tractor, in which case the death of the deceased would normally be a foregone conclusion and, therefore, the person who had exhorted must have this result in anticipation when exhorting Ratna to teach the deceased a lesson and not allow him to escape.
57. It was then urged that if Ram Kumar appellant had given a Lalkara to Ratna, then he (Ram Kumar Appellant) would have mentioned this fact to Karta Ram PW 12 before whom he had confessed his guilt and had surrendered. Since the witness of extra-judicial confession Karta Ram PW 12 had not so mentioned in his evidence, so it must be taken that Ram Kumar appellant had not given any Lalkara for had he given the Lalkara, then he would have mentioned that fact to this witness and this witness would have deposed to that effect at the trial.
58. Here again, I find no merit in the contention. If, for the sake of argument, it is assumed that Karta Ram PW 12 had stated all what he had been told by Ram Kumar appellant, then it cannot be assumed that Ram Kumar appellant must have told him all the details. Hence any omission in regard to Lalkara in the statement of Karta Ram PW 12 would not throw a doubt on the testimony of Ramesh Kumar PW 6.
59. It has been next argued on behalf of Ram Kumar appellant that if the intention was to get the deceased under the tractor's wheel, firstly it was not necessary for him to be on the tractor as Ratna at his behest would have done it without Ram Kumar being on the tractor and secondly if Ram Kumar did happen to be on the tractor and if the intention was to run over the deceased, then silence would have been more in consonance with that design than the raising of Lalkara which would have put the deceased on the alert, which fact rather may have enabled him to make effort to get away from the part of the tractor.
60. One cannot import one's own thinking and better intelligence for better planning of the commission of the crime. One has to see as to whether, in fact, there are circumstances to show that, in fact, the crime had been committed in the manner deposed to by the eye-witnesses. Present is a case where if the deceased had been hit by a tractor by mere chance or as a result of accident, then it is not believable that Ram Kumar brother of the deceased would have run away from the scene of occurrence instead of taking care of his brother, even if he entertained some grudge against him. Even Ratna would not have run away from the scene of occurrence if it was a mere chance that the tractor driven by him hit the deceased because he was an old servant of the deceased, and would not have acted in the manner they allegedly acted.
61. The occurrence has taken place around 7 A.M. on 12th April, 1982, at a time when there can be no difficulty in seeing as to what had happened It is in evidence of Romesh Kumar P. W. 6 that before starting from the house, his deceased father had eaten his breakfast. Medical evidence shows that the deceased had undigested food in his stomach which establishes the fact that the occurrence had taken place at the time alleged by the eyewitnesses.
62. The place of occurrence is also established from the fact that the blood-stained earth removed from the place of occurrence was found by the Serologist to be stained with human blood.
63. The time and place of occurrence having been established beyond reasonable-doubt as alleged by the prosecution, the next question that arises for consideration is as to whether the deceased died as a result of being run over by the tractor or in the some other manner. The injuries are on the head of the deceased. Injuries show that all the bones of the skull were fractured.
64. It was contended on behalf of the appellants that such injuries to the head could not have been caused while deceased was on his feet and that if he had fallen as a result of impact of the tractor and thereafter his head had come under the wheel, then there would have been some injury at the point of impact. I find no merit in this contention of the learned Counsel. It may be, the tractor being upon him, the deceased in panic slipped and head portion of his body came under the front wheel of the tractor which wheel happens to be lighter than the hind wheel. The injuries are such that these could have been caused by the impact and pressure of the lighter wheel of the tractor. The medical evidence is thus in consonance with the ocular testimony. Therefore, there cannot be two opinions about the fact that the deceased had been run over by the tractor.
65. The next question that arises is as to whether he was designedly brought under the tractor wheel or it happened by accident. As already observed, had it been an innocent accident, then the behaviour of a brother and an old servant would have been entirely different from the one, we find here. They would have immediately stopped the tractor and had taken the injured to the nearest hospital or at least would have stopped to see his injuries. This conduct of the accused leaves no manner of doubt that they had designedly caused the death of the deceased with their tractor.
66. As to the argument that the eyewitnesses were overdoing their part designedly when they attributed a Lalkara to Ram Kumar appellant, it may be observed that Ram Kumar, out of impatience and in order to see that the opportunity is not missed by Ratna, might have impulsively considered it necessary to exhort Ratna in the given words.
67. As to the veracity of the ocular testimony, it may be observed that no doubt, Romesh Kumar was the son of the deceased and to that extent interested in bringing to book the murderer of his father but then that relationship is also a guarantee against the factum of false involvement of an innocent person. He would not have falsely implicated in a heinous crime an innocent close relation like his uncle.
68. What is held out against Tehl Singh is the fact that he was a previous convict under Section 307, I.P.C. and he had applied for the cancellation of the bail of Ram Kumar, after he was granted bail in this case. In my opinion this would not prove that he was inimical towards the accused when the occurrence took place and it was for that reason that he was named as an eye-witness in the F.I.R. Their testimony of the ocular version is in consonance with the circumstances of the case which are already highlighted. Their testimony in my view carries a ring of truth.
69. Motive part of the prosecution case too stands established from the testimony of Romesh Kumar PW 6, Amar Singh PW 9 and Lal Singh PW 10. Statement of Smt. Surji Devi PW 11 that she had cited the deceased as an eye-witness, has not been challenged in cross-examination. This fact clearly corroborates her oral testimony that the deceased was siding with Smt. Surji Devi PW11 against Ram Kumar accused. The documentary evidence placed on the record by the prosecution as referred to by Surinder Singh, J. lends further assurance in regard to the veracity of her testimony in this regard. The testimony of Amar Singh PW 9 and Lal Singh PW 10 clearly shows that there had been formal partition between the brothers and Ram Kumar and Parshotam had promised to give a path from which promise they later on resiled and their dispute could not be mutually settled in that regard. These witnesses are neither inimical to the accused nor in any manner interested in the complainant party. Nor anything has been brought out in their cross-examination which may create any doubt about the veracity of their testimony.
70. For the reasons aforementioned, I hold that the prosecution has proved its case beyond reasonable doubt and therefore I agreeing with Surinder Singh, J. uphold the judgment of the trial Court and sustain the conviction and sentence awarded to the appellants and dismiss the Cr. A. No. 291-DB/1983 and Cr. A. No. 511-DB/1983.