Chidiya @ Baldev Singh And Ors vs State

These two criminal appeals under Section 374(2) of Cr.P.C. have been preferred by the respective accused-appellants against the judgment and order of conviction dated 11.08.2011 passed by the learned Additional Sessions Judge, Sri Karanpur District Sri Ganganagar in Sessions Case No.34/2008 whereby the accused-appellants have been convicted for the offence under section 302/34 IPC and sentenced for life imprisonment with a fine of Rs.10,000/-, in default of payment of fine further to undergo six months simple imprisonment. As both the appeals are directed against a common judgment, the same are being decided together.

The prosecution case as narrated by PW1 Ishwar Devi in the complaint (Ex.P/1) dated 16.09.2008 lodged at Police Station, Sri Karanpur District Sri Ganganagar is that on 15.09.2008, she was at her home with her children, mother in law Jati Bai and her husband Tek Chand. While she was preparing food in the kitchen, accused Chidiya S/o Jaswant Singh came to their house and called out for her husband who went out to meet him. She heard hue and cry from outside, therefore, she along with her mother in law came out of the house and saw that her husband was lying outside on the floor. The accused appellants Chidiya and Jagseer Singh were assaulting her husband. Accused appellant Chidiya inflicted 2-3 blows by iron rod (handle of the hand pump). Jagseer Singh inflicted lathi blows to Tek Chand. When she screamed and raised an alarm, the assailants fled away from the spot. Her husband became unconscious and was taken to the hospital where he succumbed to the injuries.

On this complaint, a formal F.I.R. No.178/2008 was registered at Police Station, Sri Karanpur District Sri Ganganagar for the offences under Section 302, 323/34 of I.P.C. against the accused-appellants.

After conclusion of investigation, the police filed charge-sheet against the accused-appellants for the offences under Sections 302, 323 of I.P.C.

Learned trial court framed, read over and explained the charges for the offences under Sections 302 & 323 IPC to both the charge sheeted accused, who pleaded not guilty and sought trial.

During the trial, the prosecution examined as many as 15 witnesses and got exhibited documents Ex.P/1 to Ex.P/34. In defence, documents Ex.D/1 to Ex.D/5 were got exhibited.

The accused-appellants were examined under Section 313 of Cr.P.C. and were confronted with the evidence adduced against them during the course of trial to which they denied and stated that they had been falsely implicated and recovery of iron rod (handle of the hand pump) was made on the same day by the Station House Officer and the same was taken to the Police Station. The recoveries were fake as the iron rod (handle of the hand pump) was picked up from a nearby shop of Shambhu Ji by the Station House Officer.

Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellants for the offences under sections 302/34 IPC vide judgment dated 11.08.2011. Hence these appeals.

We have heard learned counsel for the accused-appellants, learned counsel for the complainant as also learned Public Prosecutor and carefully gone through the entire record.

Mr. Rakesh Matoria, learned counsel appearing on behalf of accused-appellant Chidiya vehemently argued that there were material contradictions in the statements of the prosecution witnesses and that the appellant Chidiya was falsely implicated in the present case. There was no sufficient evidence against him and merely on the basis of conjectures and surmises, the appellant was convicted and sentenced in the present case. There was no motive for the appellant to inflict fatal injuries to the deceased Tek Chand. He further submits that the injuries were nearby to each other and since they were existing in such a close proximity, it was not possible to say as to which injury was inflicted by whom of the two accused-appellants. He further submits that the prosecution failed to prove the attribution of the injuries to both the accused appellants. He further submits that it has come on record that the iron rod (handle of the hand pump) had screws fixed upon it, therefore, the feasibility of the injuries sustained by the deceased as mentioned by the doctor and postmortem report was not possible. He, therefore, submits that the prosecution failed to prove its case against the accused appellant beyond reasonable doubt. Alternatively, he submits that since the appellant Chidiya was about 20 years of age at the time of the incident and after calling the deceased from his house, heated altercation took place between them and because of sudden and grave provocation, the injuries were inflicted by the accused appellant Chidiya. On these grounds, he implored the court to consider the case of the appellant Chidiya for converting his conviction from one under section 302 IPC to section 304 Part-I of IPC.

Mr. D.S.Gharsana, learned counsel appearing on behalf of accused-appellant Jagseer Singh has submitted that the appellant was falsely implicated in the present case as both the eye witnesses i.e. PW1 Ishwar Devi and PW2 Jati Bai who were wife and mother of the deceased stated that it was accused appellant Chidiya who inflicted 2-3 blows by an iron rod (handle of the hand pump) and they did not name the present appellant Jagseer Singh. Besides this, it was stated by PW1 Ishwar Devi in her cross examination that the name of accused appellant Jagseer Singh was stated by mistake. Further, PW2 Jati Bai also did not attribute any specific injury to the appellant Jagseer Singh as she stated that accused Chidiya inflicted blows to the deceased by iron rod (handle of the hand pump). The counsel further submits that no weapon was recovered at the instance of the present appellant. On the basis of these submissions, he submits that the trial court committed error in convicting the accused appellant Jagseer Singh for the offence alleged vide its judgment dated 11.08.2011. Therefore, he prays that the appellant Jagseer Singh may be acquitted from the charge of alleged offence.

Per contra, learned Public Prosecutor has supported the judgment dated 11.08.2011 passed by the learned trial court and has submitted that the prosecution had been able to prove the offences alleged in the present case beyond all reasonable doubt. He further submits that the testimony of PW1 Ishwar Devi and PW2 Jati Bai clearly stated that the accused-appellants called the deceased Tek Chand from his house and assaulted him with an iron rod (handle of the hand pump) and Lathi. The testimony of these two witnesses is fully corroborated by the medical evidence comprising of the statement of PW15 Dr. Surendra Mohan Batra who categorically stated that the cause of death was the injuries sustained by the deceased on the skull region and the postmortem report (Ex.P/34) wherein the cause of death is opined to be head injuries sufficient to cause death in the ordinary course of nature. Further, recovery of iron rod (handle of the hand pump) on the information supplied by the accused appellant Chidiya vide Ex.P/23 under section 27 of the Evidence Act and recovery of blood stained iron rod (handle of hand pump) fully corroborated the same. Further, FSL report (Ex.P/32) showing presence of blood of 'AB' group on the weapon of offence which matches with the blood group found on bloodstained clothes of the deceased completes the chain proving beyond all manner of doubt that present accused-appellants murdered the deceased and therefore, the learned trial court rightly convicted them vide its judgment dated 11.08.2011 for the offence under section 302/34 of IPC which calls for no interference by this court.

We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as judgment dated 11.08.2011 impugned herein.

P.W. 1 Ishwar Devi (wife of the deceased) stated that on 15.09.2008 at around 09-10:00 pm while she was preparing dinner in her kitchen, accused Chidiya S/o Jaswant Singh called her husband. Therefore, her husband went outside the house where he was assaulted by the appellant Chidiya. On hearing the hue and cry, when she along with her mother in law came outside the house, she saw that her husband was lying on the floor and accused-appellants Chidiya and Jagseer Singh were assaulting him. Accused Chidiya who was having an iron rod (handle of the hand pump) in his hand inflicted 2-3 blows on the head of her husband. Accused appellant Jagseer Singh inflicted lathi blow to her husband. When she cried, the neighbourers Rajendra and Deshraj came on the spot. Her husband became unconscious and was taken to the hospital by Rajdas where he died. Accused appellants Chidiya and Jagseer Singh were not on good terms, therefore, they murdered him. During her cross examination, she stated that she gave out the name of accused Jagseer Singh in her statement recorded by the police (D1) by mistake.

PW2 Jati Bai (mother of the deceased) stated almost on the same lines as stated by PW1 Ishwar Devi that accused appellant Chidiya had inflicted blows on the head of her son by an iron rod (handle of the hand pump).

PW3 Deshraj stated that when he reached the spot, he saw that deceased Tek Chand was lying unconscious on the floor and thereafter, he was taken to the hospital. He was declared hostile.

PW6 Gyan Chand and PW7 Vikas stated that when they reached the spot, they saw that deceased Tek Chand was lying unconscious. They affixed signatures on the memos prepared by the police during the course of the investigation.

PW12 Anil Kumar conducted investigation of the matter who stated that he prepared the site plan, recorded the statements of the witnesses, effected the recoveries, collected the samples. He further stated that after conducting the investigation, as prescribed by law, he submitted his report before the court of competent jurisdiction.

PW15 Dr. Surendra Mohan Batra who conducted autopsy upon the dead body of the deceased Tek Chand described the dimensions and nature of the injuries noticed by him on the body of the deceased. He further stated that the cause of death was the injuries sustained by the deceased which were sufficient in the ordinary course of nature to cause death.

The postmortem report is Ex.P/34 showing the cause of death as multiple head injuries sufficient to cause death in the ordinary course of nature. FSL report is Ex.P/32 showing presence of blood of 'AB' group on the weapon of offence matching with the bloodstained clothes of the deceased.

Ex.P/ 23 is recovery of bloodstained iron rod (handle of the hand pump) on the information supplied by the accused appellant Chidiya vide Ex.P/23 under section 27 of the Evidence Act.

The clinching ocular evidence in the present case is the testimony of PW1 Ishwar Devi and PW2 Jati Bai who are wife and mother of the deceased. In their testimony, it has come on record that the accused appellant Chidiya after calling the deceased Tek Chand from his house inflicted repeated blows on his head and when PW1 Ishwar Devi and PW2 Jati Bai raised a hue and cry, the accused appellant ran away from the spot. The categoric assertion of PW1 Ishwar Devi that the accused Chidiya inflicted 2-3 blows on the head of her husband and the same gets ample corroboration from the statement of PW15 Dr. Surendra Mohan Batra who described three lacerated wounds of different dimensions having been sustained by the deceased. Recovery of bloodstained iron rod (handle of the hand pump) on the information supplied by the accused appellant Chidiya to the investigating Officer under section 27 of the Evidence Act bearing the same blood group as that of the deceased i.e. blood of 'AB' group as reported in the FSL report (Ex.P/32) provide ample proof to the defence that the accused appellant Chidiya called out the deceased from his house and inflicted fatal blows by iron rod (handle of the hand pump) on his head. There is no reason for us to disbelieve the unimpeachable and truthful testimony of PW1 Ishwar Devi and PW2 Jati Bai as they were staying with the deceased in the same house, therefore, their presence at the place of the incident was quite natural. The version of the eye witnesses that the accused-appellant repeated blows on the head of the deceased by an iron rod is amply corroborated with the medical evidence further fortifying their testimony.

The evidence of eye witnesses supported by the medical testimony also gets corroborated by the factum of recovery of iron rod made in furtherance of the information supplied by the accused appellant Chidiya to the Investigating Officer under section 27 of the Evidence Act and presence of blood group thereupon which matches with the blood group of the deceased. Thus, we are convinced that otherwise clinching testimony of the two eye witnesses is amply corroborated from the independent circumstances lending further credence to their evidence so far as involvement of accused appellant Chidiya is concerned. Hence, we have no hesitation in confirming the finding recorded by the trial court to that extent.

We are satisfied that so far as accused appellant Jagseer Singh is concerned, he prima facie appears to have been falsely enroped into the case. Except omnibus statement of eye witnesses that the said accused too inflicted lathi blows on the body of the deceased, there is no other corroborative evidence so as to satisfy the court that accused-appellant Jagseer Singh was involved in the assault made upon the deceased. The categoric assertion of the eye witnesses PW1 Ishwar Devi and PW2 Jati Bai in their testimony was that the accused-appellant inflicted 2-3 iron rod blows on the head of the deceased. This assertion is corroborated from the postmortem report (Ex.P/34) as per which three lacerated wounds were noticed on the head of the deceased when postmortem was carried out. As per the postmortem report (Ex.P/34) and statement of PW15 Dr. Surendra Mohan Batra (Medical Officer), only three lacerated wounds were seen on the head of the deceased Tek Chand when the postmortem was carried out. As a direct corollary to this evidence, it is apparent that the allegation of the eye witnesses regarding the appellant Jagseer Singh to have inflicted lathi blows to the deceased is not corroborated, rather contradicted by the medical evidence. Furthermore, PW1 Ishwar Devi admitted in her cross examination that when she was confronted with her investigational statement (Ex.D/1), in portion 'A to B' wherein it is mentioned that accused appellant Jagseer's name was taken as an assailant by mistake. Thus, grave doubt is created in the prosecution story regarding participation of Jagseer Singh in the assault made on the deceased Tek Chand and to that extent, we are not inclined to accept the prosecution case. Hence, accused appellant Jagseer Singh deserves to be exonerated by giving him benefit of doubt.

Mr. Rakesh Matoria, during the course of his arguments urged that the injuries on the head of the deceased were located so close to each other that it is not possible to believe that a single human being would be able to inflict such injuries with such a precision that they would stand so near to each other. As per Mr. Matoria, close location of the injuries on the head of the deceased creates doubt in the medical evidence. We are least impressed by such statement. From perusal of the postmortem report (Ex.P/34) and statement of the Medical Officer (PW15), we find that no cross examination was made by the defence from the doctor so as to even suggest that the injuries were so closely located to each other so as to develop a doubt in the mind of the court that such injuries could have been caused by a single man by some weapon with such a canny precision. The argument so put forth by the defence that the appellant had no motive to assault the deceased, suffice to say that mere lack of motive in case involving murder cannot be a ground to discard the testimony of the eye witnesses. Thus, such argument is also noted to be rejected.

It was further submitted by Mr. Matoria that the iron rod which was recovered from the accused had bolts screwed to it. Thus, the injuries, if any, caused by such iron rod would have resulted into the injuries of different dimensions. Suffice to say that the iron rod was in the hand of the accused and it was his choice as to from which side, the same should be used. Manifestly, even the part of the iron rod which was not having bolts in the form of protrusion could have been used by the accused while inflicting the blows and in such circumstances, there would be no marks of bolts in the wounds. Thus, the said argument is also of no avail to the defence.

Last submission of Mr. Matoria was that this is a case wherein injuries were caused by the accused appellant to the deceased Tek Chand in sudden heat of passion after verbal altercations and thus, conviction of the accused appellant should be toned down from offence under section 302 IPC to section 304 Part- I IPC. We are least convinced by said submission because it is apparent that the deceased was called out from his house by the accused appellant who was holding an iron rod in his hand and the iron rod can be used as a dangerous weapon. The accused appellant caused repeated blows causing three lacerated wounds on the head of the deceased, all of which caused fracture on the skull of the deceased and proved instantaneously fatal. There is nothing on record to show that any altercation between the deceased and the accused appellant before the assault was made. Hence, manifestly, the accused appellant was not given any sudden and grave provocation which could have justified infliction of the blows caused to the deceased.

In view of above, there is no force in the appeal filed by accused appellant Chidiya and therefore, the same is dismissed. We also hold that accused Chidiya is convicted for the offence under section 302 IPC instead of 302/34 IPC.

We also find that there is no sufficient evidence in view of the discussion made above to hold the accused Jagseer Singh guilty for the offence under section 302/34 IPC. Consequently, the appeal filed by Jagseer Singh is allowed by extending benefit of doubt to the appellant Jagseer Singh and he is acquitted of the charges leveled against him. The judgment dated 11.08.2011 passed by the Additional Sessions Judge, Srikaranpur District Sri Ganganagar is set aside qua the accused appellant Jagseer Singh.

We are informed that the accused Jagseer Singh is on bail, therefore, his bail bonds be discharged. The record of the trial court be sent back forthwith.