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Judgment
Kanwaljit Singh Ahluwalia, J—Om Niwas @ Niwas his brother Jagpal Singh and son Harbeer Singh have been tried by the Court of Additional Sessions Judge (Fast Track) No. 1, Jhunjhunu for having caused murder of Smt. Rama Devi and Antar Singh on the intervening night of 6th & 7th February, 2007 to be precise, between 12.00 AM to 1.00 AM in the house of deceased and solitary eyewitness Babita (P.W.11). In the present case, Babita (P.W.11) had suffered injuries and her presence at the place of occurrence is stamped. Babita (P.W.11) during investigation had named present appellants Om Niwas @ Niwas, Jagpal Singh, Harbeer Singh and Sanjay Pal, Sheopal, Radhey Shyam and Rajpal as accused. Sanjay Pal was held to be delinquent juvenile and his trial was assigned to the Court of concerned Juvenile Justice Board. Radhey Shyam, Sheopal and Rajpal were not sent for trial as they were found innocent by the investigating officer.
The Court of Additional Sessions Judge (Fast Track) No. 1, Jhunjhunu vide impugned judgment dated 28.5.2011 held Om Niwas and Jagpal Singh both substantively liable for offence of murder punishable under Section 302 IPC, whereas Harbeer Singh for offence of murder was convicted with the aid of Section 34 IPC. The trial court further held all the three appellants guilty of offence under Section 459 IPC. Jagpal Singh was substantively held liable for offence under Section 326 IPC and other two accused Om Niwas @ Niwas and Harbeer Singh guilty of offence under Section 326 read with Section 34 IPC. All the three appellants were convicted for offence under Section 307 read with Section 34 IPC. Having held the appellants guilty of the above said offences, trial court vide a separate order of even date sentenced the appellants as under:--
"Accused, Om Niwas @ Niwas:
"U/s. 459 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.326/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.307/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.302 IPC: Life imprisonment which shall be enforced till the last breath of life and to pay a fine of Rs. 50,000/-.
Accused, Jagpal Singh:
"U/s. 459 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.326 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.307/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.302 IPC: Life imprisonment which shall be enforced till the last breath of life and to pay a fine of Rs. 50,000/-.
Accused, Harbeer Singh:
"U/s. 459 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.326/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.307/34 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one year simple imprisonment.
U/s.302/34 IPC: Life imprisonment and to pay a fine of Rs. 50,000/-."
Criminal proceedings in the present case were set into motion on the basis of statement (Ex. P.21) of Kum. Babita (P.W.11) recorded by the Sub-Inspector Sanwar Mal (P.W.8). Statement (Ex. P.21) of Babita (P.W.11) led to registration of FIR (Ex. P.69) bearing FIR No. 17/2007 registered at Police Station Mandawa, District Jhunjhunu. Statement (Ex. P.21) of Babita (P.W.11) when translated into English reads as under:--
"Statement of Kum. Babita D/o. Banwari Lal, caste Jat, aged 15 years, r/o. Bajisar, P.S. Mandawa, at present admitted at B.D.K. Hospital, Jhunjhunu dated 7.2.2007.
Stated that I am a student of 8th class in school at our village Bajisar. Our house is also in the village. Tonight between 12.00 to 1.00 O''clock, we all the family members were sleeping. My grandmother Rama Devi and my younger brother Antar were only present in the house. At that time in the night, Niwas s/o Harlal and his two sons whose names are not known to me, but they were elder in age and Jaipal brother of Niwas and one son of Jaipal whose name is not known to me and is a student, after scaling boundary wall of the house came inside with a common intention armed with sword and lathi. Immediately on arrival they all started giving beating to us. Son of Niwas and Jaipal caused injuries to me on face, left hand. All were giving blows in quick succession. They were beating all the three family members present in the house. Due to beating given, my grandmother Rama Devi and my younger brother Antar received many injuries and they died at the spot. We raised noise. They ran away the spot. People came running. House of Niwas, Jaipal etc. is at some distance from our house. Twenty days ago they had also given beating to us. The case pertaining to that incident is pending. Due to that grudge, Niwas, Jaipal and their three sons came with common intention armed with weapons and having trespassed into our house, had caused murderous assault. They gave beating to us.
Note: Since Babita is having injuries on both hands, her thumb impression was obtained.
RTI Babita.
Sd/- P.S. Kotwali, Jhunjhunu Camp BDK Hospital, 7.2.07."
Dr. N.S. Naruka (P.W.10) on 7.2.2007 was posted as Medical Jurist at BDK Hospital, Jhunjhunu. He alongwith Dr. Pratap Singh Sahu and Dr. Subhash Chandra Chauhan had conducted autopsy on the dead body of Rama Devi on 7.2.2007 at 9:15 AM. In the post-mortem report (Ex. P.22), the doctors have noted the following injuries on the person of Rama Devi:--
"1. Rigor mortis was present, postmortem staining present on back of chest.
Incised wound 8x6x5 cm on the occipital region at level of middle of ear starting from 4 cm of left ear towards right ear. On further dissection, wound shows the brain matter lacerated and small dark coloured blood. Occipital bone is fractured and extending upto right ear. The margins of wound are clean cut and straight. All tissues are cleanly cut.
Incised wound 8x5x4 1/2 cm on right occipito-temporal region upto middle between right ear and eye dividing the ear in two portions. The margins are clean cut. Wound shows the lacerated brain matter and small dark coloured blood. The underlining bone fractured."
As per opinion of the Medical Board, cause of death was hemorrhage and shock due to multiple injuries. All the injuries were ante-mortem in nature. The duration of death was within 12 hrs. and the injuries No. 2 and 3 were sufficient to cause death in ordinary course of nature.
On the same day i.e. on 7.2.2007 at 10.30 AM, the doctors also conducted autopsy on the dead body of Antar Singh and as per post-mortem report (Ex. P.23) following injuries were found on the person of deceased Antar Singh:--
"1. Rigor mortis present and postmortem staining present on the back of the chest and buttocks.
Incised wound with sharp clean cut margins measuring 18x5x4 cm extending from right occipital region upto right temporal region just above right ear. The wound shows the lacerated brain matter and small dark coloured blood. The under lining bone is fractured and showing the gap."
In the opinion of the doctors, cause of death was hemorrhage and shock due to injury on skull. All injuries were ante-mortem in nature. The duration of death was within 12 hrs. and the injury No. 2 was sufficient to cause death in ordinary course of nature.
On 7.2.2007 Dr. N.S. Naruka (P.W.10) at about 5.00 AM had also examined Kum. Babita (P.W.11) on the application given by the SHO, P.S. Mandawa. As per injury report (Ex. P.24), following injuries were noted on the person of Babita:--
"1. Incised wound on little and ring finger of right hand measuring 1 1/2 x 1/2 cm x bone deep on each finger.
Incised wound 3 x 1/2 x 1/2 cm on dorsal aspect of right hand.
Incised wound 3 x 1/2 x 1/2 cm on left forearm on latero-anterior aspect near wrist joint of left hand.
Incised wound 3 1/2 x 1/2 cm x bone deep in the middle of the left forearm.
Incised wound 3 cm x 1 cm x bone deep on left arm.
Incised wound 2 cm x 1 1/2 cm x bone deep on the middle of the left leg.
Incised wound 10 cm x 4 cm x 3 cm just below the nose exposing the bucal cavity.
Incised wound 3 x 1 cm x 1/2 cm on left face extending from lateral angle of left eye to downwards upto upper tip on left side.
Duration of injuries seems to be within 6 hrs. of examination."
For the above injuries, doctors advised X-ray. After radiological examination, fracture of 5th metacarpal bone on the right hand and fracture of both bones of left forearm was found. Doctor had also found fracture of occipital bone. Thus, there is no denial of the fact that Babita (P.W.11) had suffered serious injuries in the occurrence.
Before we advert to the evidence of Kum. Babita (P.W.11) solitary eye-witness, we shall have a quick glance over the testimony of the remaining witnesses.
Banwari Lal (P.W.1) is father of Babita (P.W.11) In court he deposed that on 3.2.2007 he had gone to the house of her sister Manbhari (P.W.5) at Jhunjhunu for taking treatment. On the intervening night of 6th and 7th February, 2007 he was sleeping. In the night Manbhari (P.W.5) told him that they have to visit Village Bajisar. Then after hiring a Jeep they returned to their house and found that police was standing outside their house and when Manbhari went inside the house, she told that they will go back to Jhunjhunu. At Jhunjhunu they reached at Khetan Hospital where they found that Babita had suffered serious injuries. Babita told that Om Niwas, Jagpal, Radheyshyam, Sheopal, Rajpal, Harveer, Sanjay Pal had caused injuries due to which grand mother and Antar Singh son of the witness had died.
Kedar Singh (P.W.2) is a neighbour. He stated that on intervening night of 6th and 7th at about 12.30 AM he was sleeping in his house. When he woke up to urinate, he heard noises coming from the house of Banwari. He recognized three persons coming out of the house namely Om Niwas, Jagpal Singh and Sanjay Pal Singh. He also recognized Harbeer Singh. The witness stated that all were coming out of the house of Banwari.
Rameshwar (P.W.3) is also neighbour. This witness stated that on 6.2.2007 at about 12.00 O''clock at night he was sleeping in his house when he woke up due to the barking of the dogs and came out of the house and saw that Om Niwas, Jagpal, Harbeer, Sanjay Pal alongwith three other persons who could not be recognized were coming out of the house of Banwari. Jagpal was armed with a Barchi, Om Niwas with a sword, Harbeer with a Gandasi and Sanjay Pal was armed with a stick. He went inside his house, fearing that the antecedents of the accused were not good.
Ashok Kumar (P.W.4) is a neighbour from whose house allegedly Babita had made telephonic call to Smt. Manbhari (P.W.5) sister of her father. Ashok (P.W.4) has turned hostile to the prosecution.
Smt. Manbhari (P.W.5) stated that on the intervening night of 6th and 7th February, 2007 at about 1.15 AM she received a telephonic call from Babita (P.W.11). Babita (P.W.11) had disclosed to her that Rama Devi and brother Antar have been murdered. She further asked the witness to come immediately alongwith uncle Dhuda Ram.
Sanjay Kumar (P.W.6) stated that he was posted as a Teacher in a Government School. On the intervening night of 6-7th February he received a telephonic call from Manbhari (Mausi). She disclosed on mobile that grandmother Rama Devi and Antar Singh have been murdered and Babita has been caused injuries.
Dhuda Ram (P.W.7) is brother of Banwari. He was also examined to corroborate information received regarding murder.
Sanwar Mal (P.W.8) was posted as S.I. at P.S. Kotwali, Jhunjhunu and he reached hospital in the morning of 7.2.2007 and had recorded statement (Ex. P.21) of Babita (P.W.11).
Dr. S.H. Jabbar (P.W.9) has deposed in court that in his presence statement (Ex. P.21) made by Babita was recorded by the investigating officer.
Remaining witnesses are the police officials who had participated in the investigation. They have proved link evidence. We need not reproduce their testimony as nothing substantial hinges upon their evidence.
We may notice that on the next day of occurrence, police had requisitioned the services of Kanhaiyalal Verma (P.W.15) who was in-charge of Mobile Unit of State Forensic Science Laboratory, Jhunjhunu. This witness had arrived at the spot and prepared description of the place of occurrence (Ex. P.43).
Now, we shall advert to the evidence of solitary eye-witness Kum. Babita (P.W.11).
Babita (P.W.11) in court reiterated that on the night of 6.2.2007 they were sleeping in their house. He alongwith her grandmother Rama Devi and younger brother Antar Singh were present in the house. Nobody else was there. Her father had gone to Jhunjhunu to the house of her Bhua (paternal aunt) Manbhari (P.W.5), her mother had gone to her maternal home (Nanihal), Rakesh had gone to visit another paternal aunt (Badi Bhua) Parmeshwari. In the night at 12.00-1.00 O''clock accused Niwas, Jagpal, Harbeer, Sanjay Pal, Sheopal, Radhey Shyam, Rajpal trespassed into their house after scaling the boundary wall. She further stated that Niwasi is also known as Om Niwas. The witness stated that accused caused injuries immediately upon arrival. Niwasi had caused sword blow on the head of her grandmother, Jagpal had caused a Barchi blow on the neck of her grandmother. When the witness attempted to run away from the spot, Jagpal caused an injury with a Barchi on her left foot. She fell on the cot, while she was lying fallen on the cot, injuries on the face were caused to her by Sanjay Pal.
Having noted the gist of evidence, we have heard counsel for the parties.
Shri Suresh Sahni, learned counsel for the appellants, has extensively referred to Exhibit-P.43, the inspection report of Mobile Unit, State Forensic Science Laboratory, Jhunjhunu. Shri Sahni has submitted that from the spot only mould of foot pertaining to one person was lifted. It is further contended that one Gandasa stained with blood was also found at the place of occurrence. Thus, it is contended that both the murders and injuries on the person of Babita (P.W.11) were caused by one accused only and it is only after relations had arrived at the hospital number of accused were inflated. Learned counsel has vehemently urged that Babita had named seven persons as accused, three were not sent for trial by the investigating agency. Thus, we cannot say that Babita being a solitary eye-witness is a wholly reliable witness. To fortify above submission, Shri Sahni has relied upon Vadivelu Thevar Vs. The State of Madras, AIR 1957 SC 614 : (1957) CriLJ 1000 : (1957) 1 SCR 981 .
It has been further canvassed before us that no test identification parade was carried and Babita (P.W.11) in court has also not identified the assailants.
Learned counsel has further submitted that during investigation apprehending that Babita may not survive, her statement (Ex. D.5) was recorded by the Magistrate and Babita (P.W.11) in court had made material improvements from her statement (Ex. P.21) made to the police and statement (Ex. D.5) recorded by the Magistrate.
It is contended that the solitary witness Babita (P.W.11) has not only inflated the number of accused, but regarding the sequence, manner of occurrence she has made material improvements and thus, the witness is not wholly reliable.
It is further contended that Babita (P.W.11) has made departure from the version given in both statements, i.e. Ex. P.21 recorded by the police and Ex. D.5 recorded by the Magistrate. It is further contended that statement Ex. D.4 of Babita (P.W.11) was recorded under Section 161 Cr.P.C. and thus, the testimony of the witness in court suffer from the blemish of discrepancies, contradictions and improvements. Thus, it is not safe to rely upon her testimony.
Mrs. Sonia Shandilya, learned Public Prosecutor, assisted by Shri Deepak Sharma, learned counsel for the complainant, has stated that presence of Babita (P.W.11) cannot be doubted. She has suffered serious injuries in the occurrence. It is further contended that the court cannot become oblivious of the fact that Babita (P.W.11) was aged 15 years only and she was badly beaten by the accused.
We have heard the learned counsel for the parties and perused the material available on record.
In the present case, occurrence had taken place in the intervening night of 6th and 7th February, 2007 between 12.00 AM to 1.00 AM. Statement/Parcha Bayan (Ex. P.21) of Kum. Babita (P.W.11) was recorded by the Sub-Inspector Sanwar Mal (P.W.8) on 7.2.2007 at 5.25 A.M., within 4-5 hours of the occurrence. Case was registered at P.S. Mandawa at 8.05 A.M. and special report reached to the Illaka Magistrate on 7.2.2007 itself at 3.00 P.M. Promptness in registration of FIR and reaching of the special report to the Illaka Magistrate is sufficient to infer that FIR contains spontaneous version which is free from blemish of contradictions and deliberations.
We may notice that in her statement (Ex. P.21), the witness, Babita (P.W.11), has specifically named Niwas and his brother Jagpal. She has further stated that two sons of Niwas and one son of Jagpal was there. It is not denied that the accused are residing near to the house of the complainant party. It has been proved on record that 20 days before the occurrence, the accused had given beating to the family of the complainant and the complainant party had got registered a case against them. Thus, there is a motive on the part of the accused to commit offence.
In the first statement itself, both the appellants Niwas and Jagpal have been named. Immediately after receipt of injuries, telephonic information was relayed to Smt. Manbhari (P.W.5). They (Manbhar, P.W.5 and Banwari Lal, P.W.1) came to village and then returned to the hospital where Babita (P.W.11) was admitted. It has come in the evidence of two independent witnesses, namely Kedar Singh (P.W.2) and Rameshwar (P.W.3) who are neighbours of both the parties complainant as well as accused. That the accused appellants were seen coming out of the house of the complainant party armed with weapons.
Kedar Singh (P.W.2) and Rameshwar (P.W.3) are emphatic that in the night they heard cries coming from the house of Banwari (P.W.1), father of Babita (P.W.11) and they recognized three accused coming out of the house. Thus, the version given by Babita (P.W.11) is corroborated not only by two neighbours Kedar Singh (P.W.2) and Rameshwar (P.W.3), but also by the medical evidence.
Since Niwas @ Om Niwas and Jagpal are living in the same village and that too at some distance from the house of the complainant, no test identification parade of these accused is called for. Because of previous incident and being co-villagers, witness is expected to know them well.
Having said that Jagpal and Om Niwas have been named in the FIR, we are of the view that, indeed, an exercise is called for to sift the grain from the chaff and to examine the role assigned to Harbeer Singh who has been convicted with the aid of Section 34 IPC.
Babita (P.W.11) has been extensively confronted with her statements (Ex. P.21 and Ex. D.5) so far role assigned to Harbeer Singh is concerned. In cross-examination, she stated that police had not asked her as to out of two sons of Niwas who was armed with which weapon. She has also not stated to the police or the Magistrate as to where they caused injuries. She further stated that she had told the police names of other assailants, but she cannot explain as to why their names have not been recorded in her statement (Ex. P.21). She further stated that she was conscious about names of other accused, but as to why their names were not mentioned in her statement she could not offer any explanation. It will be apposite to reproduce the exact words from the cross-examination of the witness as under:--
She further stated that she had disclosed to the Magistrate and to the police that Harbeer was armed with Gandasi and he caused injuries to her grandmother and her brother Antar, but the witness could not give any explanation as to why this fact was not recorded in her statements (Ex. P.21 and Ex. D.5),
She further stated that she cannot furnish any explanation as to why injuries caused to her by Harbeer were not recorded in her statement (Ex. P.21) noted by the police and statement (Ex. D.5) recorded by the Magistrate. Qua the injuries given to her, exact words of the witness are as under:--
Considering that accused Harbeer Singh was not named in the FIR and in the subsequent statement (Ex. D.5) recorded by the Magistrate on 9.2.2007 no specific role has been assigned to Harbeer though he has been named therein, we shall extend the benefit of doubt to Harbeer Singh as matter of abundant caution.
Consequently, placing reliance on the testimony of the witness Babita (P.W.11), we hold that so far involvement of Om Niwas @ Niwas and his brother Jagpal Singh is concerned, it is fully proved by the prosecution, however we shall grant benefit of doubt to Harbeer Singh whose name was not recorded in initial statement (Ex. P.21) and no specific role has been assigned to him in the subsequent statement (Ex. D.5) recorded by the Magistrate.
In view of above, the appeal filed by the accused-appellants Om Niwas @ Niwas and Jagpal Singh is dismissed, however same is accepted qua accused-appellant Harbeer Singh. He is acquitted of the charges framed against him by giving benefit of doubt and his conviction and sentence is set aside.