Hoshiar vs State of Haryana

V.K. Bali, J.

Appellants, Hoshiar son of Partap Singh and Brahma Nand alias Babbar son of Partap Singh, were tried with their coaccused Yash Pal son of Hoshiar and Ajit Singh son of Dalip Singh, for having committed murder of one Mir Singh on the intervening night of 3/4th March, 1990 at 11 PM in the area of village Siwana, Police Station Beri. The learned Sessions Judge, Rohtak, after resultant trial, held the appellants guilty of the charges framed against them vide judgment dated February, 1995. Yash Pal and Ajit Singh were, however, acquitted of the charges framed against them by giving them benefit of doubt. Appellant Hoshiar has been sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code. He has also been sentenced to undergo RI for one year under Section 324 read with Section 34 IPC and for two years under Section 449 IPC. Brahma Nand appellant has been sentenced to undergo life imprisonment under Section 302 read with Section 34 IPC. He has also been sentenced to undergo RI for one year under Section 324 IPC and two years under Section 449 IPC. All the substantive sentences have been ordered to run concurrently. It is against this order of conviction and sentence that the appellants have filed the present appeal, whereas Smt. Chhanno wife of deceased Mir Singh has filed Crl. Revision No. 744 of 1995 praying therein that Yash Pal and Ajit Singh, who have been acquitted by the learned Sessions Judge be also convicted like their coaccused Hoshiara and Brahma and that the sentence awarded to the appellants be enhanced. We, thus, propose to decide both, Crl. Appeal No. 180DB of 1995 and Crl. Revision No. 744 of 1995 by this common order.

Brief facts of the case reveal that Chhanno wife of deceased Mir Singh lodged the FIR, Ex. PK on March 4, 1990 at 1 PM at Police Station Beri, which was recorded by SI/SHO Ram Sarup, PW10. A copy of the FIR aforesaid was received by the Judicial Magistrate First Class, Jhajjar at 5 PM on March 4, 1990. Chhanno stated that she was resident of village Siwana. Yesterday night at 11 PM, she and her husband Mir Singh were talking to each other, when Babbar, Hoshiara sons of Partap Singh, Billu son of Hoshiara entered their house by removing the mat while one person remained standing outside. She saw in the light of lamp that Babbar and Billu were armed with knives whereas Hoshiara was armed with a pistol. Immediately after entering all the three lifted her husband and took him outside. She raised an alarm and tried to rescue her husband whereas Babbar left her husband and gave a knife blow to her which hit her on head and caused another scratch on her right hand. In the meantime, Hoshiara and Billu took her husband outside the door. They both raised an alarm and she saw in the moonlight that Billu and Babbar who were armed with knives, were giving knife blows to her husband on his head. Fourth person, who had caught hold of her when she came out, said that since some more persons were coming, Hoshiara should shot at her husband at once. Hoshiara then fired a pistol shot on the chest of her husband. In the meantime, her son Rajbir Singh and husband''s younger brother (Devar) Wadhawa also reached there from the thrashing floor of Toria. On reaching there, they also raised an alarm. Thereafter, on seeing them Babbar etc. fled away towards the village threatening that if they dared to go to police station, they were sitting on the way. She further stated that all the four assailants had murdered her husband as Krishan, brother of Hoshiara was killed 89 years back in a quarrel with them. Due to that grudge, Hoshiara and others had killed her husband. Her son Rajbir and Devar Wadhawa had also witnessed the occurrence. Till now, they could not come out of fear. After leaving Tek Chand and Balwant to guard the dead body, she along with her son Dharam Pal had come to lodge the report. From the facts, as have been narrated above, it, thus, appears that Mir Singh was murdered at about 11 PM on March 3, 1990 whereas the FIR came to be recorded at Police Station Beri, which is situated at a distance of 14 Kms. from the place of occurrence at 1 PM on March 4, 1990 and that the special report with regard to the incident reached the Magistrate concerned at Jhajjar at 5 PM on the same day.

The prosecution, with a view to bring home the offence against the appellants and their coaccused Yash Pal and Ajit Singh, examined Dr. S.K. Bhutani as PW1. He had conducted post mortem on the dead body of Mir Singh at 9 AM on March 5, 1990 and had found following injuries:

"1. Incised wound on left parietal, transverse 3 cm x 0.5 cm x 0.5 cm.

Incised wound on left occipital, oblique, 3 cm x .3 cm x 0.75 cm.

Incised wound on right parietal, vertical 2 cm x 0.5 cm. x 0.5 cm.

On right occipital, incised wound, vertical 4 cm x 0.5 cm. x 0.5 cm.

Lacerated wound, charred, rounded wound on left chest medially along left nipple, 5 cm away from the left nipple and the diameter was 1.5 cm x 0.75 cm. depth (whole of the chest) through and through, margins were inverted, black and the wound of exit on the middle of left chest medically was 2 cm x 0.75 cm. Margins were averted and lacerated. Clotted blood was oozing out from the exit. Upper portion of right heart and left lung were ruptured and clotted blood was present around. A portion of adjacent cut ribs were present in the left lung. Both the lungs were pale and healthy."

In the opinion of the doctor, death was due to shock and haemorrhage as a result of injury No. 5. All the injuries were antemortem in nature and were sufficient to cause death in ordinary course of nature. The probable time between injuries and death was instantaneous and between death and post mortem within 36 hours. The witness further stated that injury No. 5 was a firearm injury and the bullet had entered the body from front of chest and gone out fro the back of the left chest and the remaining injuries were caused by sharp edged weapon. The incised injuries by themselves were not sufficient to cause death, individually or collectively. Only injury No. 5 was individually sufficient to cause death in the ordinary course of nature.

Dr. R.B.S Jakhar was examined as PW2. He stated that on March 4, 1990 he had medicolegally examined Chhanno wife of Mir Singh and had found following injuries on her person:

"1. Incised wound 1/2" x 1/8" on midoccipital region of scalp, obliquely placed with reddish clotted blood over the wound. The wound was skin deep.

A reddish, abrasion 1/2 x 1/4" surrounded by a defused swelling, 3"x2" in size over posterior medial aspect of right wrist. Movements of right wrist were restricted. Advised xray right wrist including lower part of right forearm.

A reddish abrasion 1/4" x 1/4" over the base of right ring finger with defused swelling, 2"x1" over medial aspect of right hand. xray was advised of right hand."

Injury No. 1 was declared simple and injuries 2 and 3 were kept under observation subject to xray report. All the injuries were within 24 hours. Injury No. 2, after receipt of xray report, was declared to be grievous, while injury No. 3 was declared to be simple.

Dr. S.C. Sharma, Senior Medical Officer, Civil Hospital, Jhajjar, was examined as PW3. He had xrayed Chhanno wife of Mir Singh and found fracture of ulna in the right forearm. PW4 Pawan Kumar Patwari deposed with regard to his having prepared site plan, Ex. PG. Rajbir and Chhanno, PW5 and PW6 are the eye witnesses of the occurrence. They have broadly supported the prosecution version. Wadhawa, brother of the deceased, who, as per the prosecution version given in the FIR, was also an eye witness, was not examined being unnecessary. PW7 Ram Parkash is a photographer and had only visited the spot in village Siwana and on asking of the police he had taken six snaps of the spot and dead body. Rajender son of Wadhawa, who was examined as PW8, stated that he had joined the investigation on April 21, 1990 when he had gone to the police station to know about the progress of the case relating to murder of Mir Singh and in his presence Ajit Singh accused was interrogated by the SHO. He made disclosure statement that he had kept concealed his blood stained clothes in an almirah in the cattle room of his house and he offered to get the same recovered. Thereafter, appellant Babbar was interrogated. He made a disclosure statement that he had kept concealed his blood stained clothes, a blood stained knife and an empty cartridge in an almirah in a room meant for keeping cattle of his residential house and he offered to get the same recovered. Thereafter, Brahma Nand @ Babbar accused led the police party to the place of concealment earlier disclosed by him and after breaking the lock of almirah, he got recovered a kurta and pjama and from the right pocket of the kurta, an empty cartridge was also got recovered by him and a knife which was wrapped in the kurta and pajama was also produced by him. ASI Ram Kumar of Police Station Assandh, District Karnal was examined as PW9 and he stated that on March 9, 1990 he was joined in the investigation of the case by SI Ram Sarup and went to the place of occurrence alongwith SI Ram Sarup. Ran Singh and Ram Kumar were also joined in the investigation. Under the directions of the SHO, PWs collected the sand lying at the place of occurrence. When the sand was being collected, a fired bullet was found in the heap of the sand. It was sealed into a parcel and taken into possession vide recovery memo. Ex. PT which was attested by him. It requires to be mentioned at this stage that Ran Singh was given up as having been won over whereas Ram Kumar was not examined being unnecessary. This witness also stated that on March 19, 1990, when he was with SI Ram Sarup and was returning from cattle fair and had reached on Bhagalpur crossing in Beri, a secret information was received about the presence of Hoshiara and Billu alias Yash Pal on Rohtak road. On the basis of this information, they reached the aforesaid place where both the accused Hoshiara and Billu were found present. They were apprehended by the police and were arrested in the case. Then Hoshiara accused was interrogated and he made disclosure statement that he had kept concealed his shirt and pajama which were blood stained in a tin box lying near western wall in a chobara of his residential house and he offered to get the same recovered. Then Yash Pal accused was interrogated. He made disclosure statement that he had kept concealed a knife under a Chakki lying in the northerneastern corner of rear kotha of his house. He further disclosed that he had kept concealed his blood stained shirt and pajama in an empty pitcher lying on a Stand in the front room of his house and he offered to get the same recovered. The accused were then brought to the police station, Beri. SI Ram Sarup, SHO Police Station Beri and SI Satbir Singh were examined as PW10 and PW11 respectively. They apprised the Court, the way and manner in which the investigation had progressed and culminated. Inspector Inder Singh was examined as PW12 and he stated that on April 12, 1990 he was posted as SI/SHO Police Station Sadar Dadri. On that day, he was on patrol duty at Delhi bye pass, Dadri when one informer got his jeep stopped and informed that Babbar and Ajit, who were wanted in a murder case of Police Station Beri, were sitting in a van near Mata Mandir in the area of village Samaspur. On receipt of this information, he deputed a constable to call an independent witness and proceeded to the spot of information. He apprehended Brahma Nand alias Babbar and Ajit accused, who were sitting in a van and had tried to run on seeing the police party. From the personal search of appellant Babbar, a pistol was recovered from the dub of pajama of the accused. Along with it, three cartridges were recovered from the kurta of the accused. The pistol was found loaded with a cartridge. He unloaded it and prepared a sketch of it. He had taken into possession the pistol and cartridges vide recovery memos and arrested the accused and on return to the Police Station deposited the arm and ammunition with the MHC with seals intact. A case under the Arms Act was registered against these two accused. From accused Ajit, six grenades were also recovered from a bag held by him in his hand. On April 18, 1990 Satbir SI/SHO, Police Station Beri got transferred the said pistol and cartridges in the sealed parcel from Police Station Dadri to P.S Beri. A case under Section 5 of the Explosive Substance Act was registered against Ajit Singh in connection with the recovery of grenades from him. The prosecution also tendered into evidence the report of Forensic Science Laboratory. Ex.PDD/1 and Ex. PDD/2. The result of the analysis done by the Forensic Laboratory was that the country made pistol had been fired through. However, the time of last firing could not be given. The country made pistol was found in working order and the bullet contained in parcel No. 1 was of .315 calibre. The .315" bullet marked BC/1 had been fired through the country made pistol marked W/1 and not from any other firearm even of the same make and bore because every firearm has its own individual characteristic marks. The .315" fired cartridge case marked C/1 had been fired from the country made pistol marked W/1 and not from any other firearm even of the same make and bore, for the same reason.

Appellant Hoshiara, when examined under Section 313 of the Code of Criminal Procedure, stated that whole story was false. Neither Rajbir nor Wadhawa nor Smt. Chhanno witnessed the occurrence. A blind murder case had been changed into an eye version account and only relation witnesses had been introduced to falsely implicate them. Smt. Chhanno had no brother or sister. After the death of her father, she inherited property in village Bilota and she settled there to look after her agricultural land. She was not residing at village Siwana. Rajbir PW also used to live there alongwith Dharam Pal at village Bilota. Chhanno''s eye sight had not been alright throughout. She had made false statement as she had not witnessed the occurrence nor she used to live in village Siwana and she knew that she was not in a position to identify the accused in jail. Therefore, she refused to take part in the test identification parade and she falsely implicated and identified them in Court. FIR in the case was not recorded at the alleged time. Recoveries were plantation. No disclosure statement was made. They were in custody far before March 19, 1990. False arrests and recoveries had been shown. No pistol was recovered from him. Roznamcha had been purposely concealed. Recovery of bullet was plantation. Dadri Police and Beri Police had conspired and planted cases in which they were acquitted. Brahma Nand while so examined also adopted the statement made by his coaccused Hoshiara. Appellants led evidence in defence. DW1 Tara Chand, Incharge, Telegraph Office, Rohtak stated that he had prepared certified copies of telegrams which were Ex. DC, DD and DE. DW2 Phool Singh, Election Kanungo, stated that he had brought voters lists of village Imlota and Chhanno wife of Mir Singh was entered as voter in the said village and that there was no other lady of these particulars as voter in the village. Om Parkash, Deputy Record Keeper, was examined as DW3. He had brought the summoned record and produced a certified copy of the judgment, Ex.DG. DW4 had not brought the summoned record and, therefore, his statement was not recorded. Shri S.P. Singh, Senior Sub Judge, Yamuna Nagar was examined as DW5. He stated that on October 7, 1992 he had received endorsement of letter dated September 30, 1992 from learned Sessions Judge, Rohtak, with a direction to conduct test identification parade of accused Yash Pal alias Ballu who was confined in District Jail, Rohtak. Test identification was to be done by Smt. Chhanno. He reached District Jail, Rohtak at 11.05 AM on October 13, 1992 but Smt. Chhanno had refused to participate in the test identification parade on the pretecxi that her eye sight was weak and that she was not in proper senses. He had recorded her statement and thereafter he made a detailed report regarding the proceedings conducted by him. It requires to be mentioned that this witness was to conduct test identification parade as directed by the High Court on some petition which was filed by Yash Pal. Mohan Lal Sharma, Cashier, Telegraph Office was examined as DW6. He had brought the receipt book and proved the same as Ex. DL,DL/1 and DL/2. Lachhi Ram, Copy Clerk, Sessions Court, Bhiwani was examined as DW7 and he had brought the summoned record and proved certified copies of orders Ex. DM, DM/1 DM/2 and DM/3.

After resultant trial, as mentioned above, whereas appellants were convicted in the manner detailed above, their coaccused Yash Pal and Ajit Singh were acquitted by giving them benefit of doubt.

We have heard Mr. Rs. Cheema, learned Senior Advocate in support of the appeal preferred by Hoshiara and Brahma Nand and Shri T.P.S Mann, learned counsel representing the complainant Smt. Chhanno as also Shri Vijay Pal Singh, Assistant Advocate General, Haryana, and with their assistance, we have gone through the records of the case.

Mr. Cheema, in support of the appeal filed by the appellants, contends that there is an unexplained delay in lodging the FIR as also that from the evidence that has come on records of the case, it is proved that but for Chhanno, no one else was present at the time of occurrence as also that Chhanno, even though injured, was unable to identify the assailants and had in fact involved the appellants and their coaccused on suspicion. It is also being argued that recovery of an empty cartridge, said to have been made from the scene of occurrence, after few days is nothing but a crude attempt on the part of the investigating agency to prop up the prosecution version and in fact and reality no empty cartridge was found from the scene of occurrence as also that the police was inimical towards the appellants, for which precise reason, the appellants were involved in number of cases including a case in which the appellants were alleged to have attacked the police. The fact that they were acquitted in all other cases, further strengthens the plea of defence that the appellants had been falsely implicated, contends the learned counsel.

Mr. Vijay Pal Singh, learned Assistant Advocate General, Haryana, has, on the other hand, endeavoured for us to uphold the order of conviction and sentence recorded by the learned Sessions Judge.

Dealing first with the argument relating to delay in lodging the FIR, it may be recalled that the occurrence leading to the death of Mir Singh had taken place on the intervening night of 3/4.1.1989 and the FIR came to be lodged at about 1 PM on January 4, 1989 and the special report had reached the Magistrate concerned at Jhajjar at 5 PM on the same day. There is no doubt that there is some delay in lodging the FIR but after scanning the evidence and, in particular, the statement of Smt. Chhanno, we are convinced that it is not a case where delay might have gone unexplained. The occurrence had taken place in village Siwana, away from the village abadi, which is stated to be at a distance of about 31/2 acres. The police station is at a distance of about 12 Kms. from village Siwana. The appellants and their associates were armed with deadly weapons including pistol with which Mr Singh was shot dead. Chhanno herself had sustained a grievous injury on her person and the appellants while leaving the place of occurrence had threatened Smt. Chhanno and others that they were prowling in the area and if somebody goes to lodge the FIR, he shall be similarly dealt as husband of Chhanno. The explanation of going to the police station on the next day has been mentioned in the FIR itself and is supported by the statement of Smt. Chhanno recorded in the Court. The previous background while appreciating the delay in lodging the FIR cannot be lost sight of. Krishan, brother of appellant Hoshiara was killed 89 years ago in which the complainant party was arrayed as accused. They were, however, acquitted. It was, thus, known to Smt. Chhanno and her associates that the appellants bore a grudge and their leaving the house at the dead of night to go to lodge the FIR shall not be free from difficulties. It is true that Smt. Chhanno could leave in the early hours of morning and could reach the police station which is stated to be 12 Kms. from the place of occurrence, before 1 PM but she has clearly stated that she missed the first bus whereas the second bus did not come and, therefore, she could board only the third bus to go to the police station. It is true that it has come in the evidence that tractor was available with Smt. Chhanno as the same was parked near the place of occurrence but in the background of the case, it was not very unreasonable for Smt. Chhanno to have travelled by bus to feel more safe and secure than of travelling by tractor. Further, it may not have been possible for Smt. Chhanno to accompany somebody else with her if she was to go by tractor. The first contention of learned defence counsel with regard to unexplained delay in lodging the FIR is, thus, repelled.

We also do not find any substance in the contention of learned defence counsel that Rajbir PW5 and Wadhawa, who was not examined and was given up as unnecessary, were not present at the scene of occurrence. All that has been argued to create doubt with regard to their presence is that no reasons have been given as to why they were not at the scene of occurrence nor in their house. As per the prosecution version and as per the statement of PW5 Rajbir, he was sleeping at the thrashing floor of his uncle, Wadhawa. Their house adjoins the threshing floor. His father Mir Singh deceased and his mother, Smt. Chhanno, were sleeping in the house. We find nothing strange in Rajbir sleeping in the thrashing floor of his uncle which adjoins his house. Further, if the prosecution was to introduce witnesses, who were not present and, in particular, Rajbir, it would have not been difficult for it to have made Rajbir to sleep in the house itself. He is afterall none other than the son of deceased Mir Singh. Assuming, however, that his presence is doubtful on the sole count that he was not sleeping in the house but was sleeping in the thrashing floor of his uncle, Wadhawa, the prosecution case still cannot be rejected as the presence of Smt. Chhanno, who had suffered a grievous injury on her person in the same incident in which her husband was murdered, could not and was actually not disputed by the learned defence counsel. It is, however, being argued that her statement should not be believed for the reason that she had a very weak eye sight and this being an occurrence of night and there being no electric light around, it was difficult for her to have identified the assailants of her husband as also that she had reason to falsely involve the appellants. We shall immediately deal with this contention of the learned counsel but, as mentioned above, the prosecution story cannot be rejected even if there might be some doubt with regard to presence of Rajbir at the scene of occurrence as Smt. Chhanno, it has been overwhelmingly proved, was present there. Smt. Chhanno, no doubt, has a weak eye sight but from the statement made by her, we are quite convinced that she must have recognised the assailants of her husband. She has stated that the accused had entered the room, where she along with her husband was sleeping, by removing a mat. The room did not have a door. An earthen lamp was burning in the room where they were sleeping. The accused had entered the house and taken her husband outside the room where he was actually killed. She had actually intervened for which reason alone she too was given injuries by the assailants. The accused belonged to the same village and were no strangers to Smt. Chhanno. It is not for the first time that she had seen them. The distance between the assailants and Smt. Chhanno could not have been more than 34 feet when she was herself attacked. From all these facts, it cannot be said that she was unable to identify the assailants of her husband. It is true that in the identification parade that was ordered at the instance of Rajbir, acquitted coaccused of the appellants, she refused to identify the said accused and it is on that count that Rajbir stands acquitted but that does not mean that she was not able to identify any of the accused. It is possible that in her anxiety to book the culprits, who had murdered her husband, she named one or two persons without properly identifying them but the assailants, who had attacked her husband, could not have been mistaken by her. Further, the aggrieved party in this case, who could have motive, was the accused party and not Smt. Chhanno or her husband. Brother of Hoshiara appellant was murdered,, allegedly by Wadhawa and others, belonging to the complainant party, in which an order of acquittal was passed. If actually the complainant party had killed the brother of appellant Hoshiara and they were acquitted also, the appellants alone could have a grouse and, therefore, there would have been no anxiety on the part of Smt. Chhanno to involve the appellants and not the real assailants, who killed her husband. Possibility of involving the appellants on suspicion alone, in our view, is totally ruled out from the facts and circumstances of this case. We do not wish to go into the contention of learned defence counsel that recovery of empty cartridge from the scene of occurrence after few days is planted by the police as, even if the said recovery is excluded from the array of circumstances appearing against the appellants, the same will not come to their rescue. Learned defence counsel in no uncertain terms concedes that if presence of Smt. Chhanno is believed and so is the statement given by her involving the appellants, recovery or nonrecovery of an empty cartridge from the place of occurrence, would be of no meaning and consequence. Acquittal of the appellants in other cases also cannot detract from the prosecution version. The said cases were decided on their own merits whereas the present one has to be decided on the basis of evidence that has been led by the prosecution in this case. We do not place any reliance upon the evidence led by the defence in this case with regard to giving telegrams with a view to show that they were arrested earlier than from the date when they were actually shown to have been arrested. The appellants, who were involved in the number of cases as per their own showing, it appears to us, were intelligent enough to create evidence in their favour and issuance of telegrams by their relations that they were arrested earlier cannot come to their rescue.

Finding no merit, we dismiss this appeal.

It is not a rarest of rare cases where the appellants might deserve extreme penalty of death and, therefore, criminal revision, preferred by Smt. Chhanno, deserves to be dismissed. So ordered.