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SUBHASH versus STATE OF HARYANA.

High Court of Punjab and Haryana, Chandigarh

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Subhash v. State of Haryana. - CRA-D-183-db-1997 [2006] RD-P&H 1169 (27 February 2006)

Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH.

Criminal Appeal No.183-DB of 1997.

Subhash Vs. State of Haryana.

Coram: Hon'ble Mr.Justice J.S. Narang.

Hon'ble Mr.Justice Baldev Singh.

Present: Mr.Sukhdeep Parmar, Advocate, for Mr.Sandeep S. Ghangas, Advocate,

for the appellant.

Mr.Kulvir Narwal, Additional Advocate General, Haryana.

Criminal Appeal No.193-DB of 1997.

Jai Kumar and another. Vs. State of Haryana.

Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

Present: Mr.R.S. Chahar, Advocate,

for the appellants.

Mr.Kulvir Narwal, Additional Advocate General, Haryana.

-.-

BALDEV SINGH , J.

This judgment would dispose of Criminal Appeal No.183-DB of 1997, filed by Subhash (appellant) and Criminal Appeal No.193-DB of 1997, filed by Jai Kumar (appellant) and Joginder Singh (deceased-appellant).

The appellants were tried in case First Information Report No.259 dated October 10, 1991, under Sections 392/ 397/ 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as `the Code') registered at Police Station Gohana and they were convicted vide impugned judgment dated January 04, 1997 for the offences punishable under Section 392 read with Section 397 of the Code and also Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

under Section 302 read with Section 34 of the Code and vide impugned sentence order dated January 08, 1997, each of them was sentenced to undergo R.I for seven years for the offence under Section 392 read with Section 397 of the Code. Further, each of them was sentenced to undergo imprisonment for life under Section 302 read with Section 34 of the Code for having caused the death of Raghbir Singh and each of them was also ordered to pay Rs.10,000/- as fine and in default of payment of fine to further undergo R.I for two years. Both the substantive sentences were ordered to run concurrently. The amount of fine, if recovered, was ordered to be paid to the legal representatives of deceased Raghbir Singh by way of compensation.

Joginder Singh (appellant) died during the pendency of the appeal. So, the proceedings against him were abated.

The facts of the prosecution case are that on October 09, 1991, P.W.8 Mane Ram along with Raghbir Singh (deceased) had gone to Village Kailana to bring `Barma' (an instrument for drawing out water) from P.W. Nand Lal. They had gone on a Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

Swaraj make tractor. After collecting `Barma' from P.W. Nand Lal, they left for their village at about 12 noon. They reached Village Pugthala and purchased half bottle of liquor from a liquor vend. They consumed it in the `Ahata' adjoining the liquor vend. Raghbir Singh (deceased) purchased separately a nip of liquor and carried it with him. When they reached near Village Chamrara, son of Wasu Sardar and Jai Kumar and Subhash (appellants) and Joginder Singh (deceased-appellant) met them.

Son of Wasu Sardar took the nip of liquor from Raghbir Singh (deceased) and consumed it. They all then went to the house of son of Wasu Sardar. There they all consumed illicit liquor. They then came back at the place where they had met Mane Ram and Raghbir Singh (deceased). An altercation took place between the son of Wasu Sardar, on the one side, and Subhash and Jai Kumar (appellants), on the other side. Son of Wasu Sardar caused injury on the head of Subhash (appellant) and fled away.

Subhash (appellant) was brought to Village Pugthala in order to get his wound dressed. Joginder Singh (deceased-appellant) drove Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

the tractor towards Village Bajana on the bank of the canal.

They reached near the bridge of the canal in the area of Village Kasandi. Joginder Singh (deceased-appellant) stopped the tractor and started robbing money from the pocket of Raghbir Singh (deceased). On the intervention of P.W.8 Mane Ram, Subhash and Jai Kumar (appellants) and Joginder Singh (deceased- appellant) caught hold of Mane Ram and threw him in the canal.

The time was about 8 P.M. Then the appellants caught hold of Raghbir Singh (deceased) by his legs and also threw him in the canal. Raghbir Singh (deceased) tried to catch hold of the grass grown on the bank of the canal. Jai Kumar (appellant) and Joginder Singh (deceased-appellant) gave leg blows on his face.

Raghbir Singh was again thrown in the water. He did not come out. P.W.8 Mane Ram kept on swimming with the flow of water and after covering a distance of about three acres, he came out of the canal. He went to Village Kasandi. There he met P.W. Jai Singh. They searched for Raghbir Singh (deceased) and the tractor, belonging to P.W Amar Singh, but they could find them Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

there. Then, Mane Ram and Jai Singh went to Village Mandi. It was about mid-night. They narrated the occurrence to P.W.6 Amar Singh, father of Raghbir Singh (deceased). Thereafter, they went to Police Post, Israna, in the area of District Panipat. P.W.2 Ram Kishan, Assistant Sub Inspector, the then incharge, Police Post, Israna, sent V.T message to Police Station Gohana. Ram Kishan, Assistant Sub Inspector and P.Ws Mane Ram and Amar Singh then went to the bank of Kasandi canal whereat Raghbir Singh was thrown in the canal and the appellants had snatched the tractor, Swaraj make bearing registration No.HR-06-8501 from Raghbir Singh. They could not find Raghbir Singh (deceased) nor the said tractor.

On October 10, 1991, at about 8 A.M, on receipt of a V.T message from Police Post, Israna, P.W.11 Man Singh, Sub Inspector, then posted as Station House Officer in Police Station, Gohana, reached the place of occurrence. He met P.W Mane Ram and others. He recorded the statement of P.W.8 Mane Ram, which is Exhibit P.J. Endorsement (Exhibit P.J/2)was made and this case Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

was got registered. Exhibit P.J/1 is the First Information Report which Head Constable Om Parkash had scribed. Site plan (Exhibit P.M) was prepared showing the place of occurrence.

On October 12, 1991, P.W.11 Man Singh, Sub Inspector, received information about the presence of the dead body. He then went to Village Kasandi along with other police officials and recovered the dead body of Raghbir Singh from inside the canal.

Inquest report was prepared on the dead body, which is Exhibit P.A/1. The dead body was despatched for postmortem examination vide application Exhibit P.A/2. Exhibit P.N site plan was prepared showing the place of recovery.

On October 12, 1991, at 2 P.M, P.W.1 Dr.S.S.Punia along with Dr.S.S. Malik conducted autopsy on the dead body of Raghbir Singh son of Amar Singh resident of Village Mandi. Their observations, on seeing the dead body, were as under:- " We found that length of the body

was 5' x 7". It was moderately built and nourished, wearing greenish coloured shirt and Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

payjama and white baniyan. The clothes were wet and mud was present on them. Rigor mortis was absent. The body was swollen. Face was swollen. There was a greenish discolouration of abdomen and skin over the iliac fossae. There were bully formations over the abdomen and upper thighs. Abdomen was very much

distended. Penis and scrotum were distended and swollen. Skin was swollen. A frothy reddish fluid was coming out from the mouth. Mud was present over the body, most so over the chest.

Skin of the hands and feet showed corrugated and sudden appearance. Skin was peeled off on different parts of the body. No mark of injury was present over the body. Mud and sand was present under the finger nails. Hairs were loose.

On internal examination pleurae was

healthy and congested. Larynx and trachea were Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

healthy and congested and were containing reddish froth and mud. Lungs were distended and on cutting frothy blood came out. The lungs were congested. Pericardium and heart were healthy.

Right side of the heart contained little blood.

Pharynx and esophagus were healthy and

containing some particle of sand. Stomach along with its contents were sent for chemical analysis.

Small intestines were healthy and foul smelling gas came out with pressure on incision. It was sent for chemical examination. Large intestine was also sent for chemical examination. Liver was healthy and congested and there was a greenish discolouration on its under surface.

Spleen, kidneys and bladder were healthy and congested."

In the opinion of the doctors, the cause of death was Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

asphyxia due to drowning, which was sufficient to cause death in the ordinary course of nature. The act of drowning was ante mortem. Probable time between injury and death was two to five minutes and between death and post mortem examination within seventy two hours. Exhibit P.A is the carbon copy of the post mortem report.

Viscera of the deceased was sent for chemical analysis.

Report Exhibit P.A/3 was received from Chemical Examiner, Karnal.

No common poison was detected.

On October 14, 1991, P.W.11 Man Singh, Sub Inspector, received information that the appellants were going towards Rohtak. He joined with him Jag Pal, Assistant Sub Inspector and P.W Zile Singh. They reached Sukhpura Chowk, Rohtak. The appellants were seen coming from the power house side on a tractor.They were signaled to stop the tractor.

Joginder Singh (deceased-appellant) was driving it while Jai Kumar and Subhash (appellants) were sitting on the mud-guards.

The tractor was seized vide seizure memo Exhibit P.K. The Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

appellants were arrested.

On October 15, 1991, Joginder Singh (deceased- appellant) was interrogated by P.W.11 Man Singh, Sub Inspector.

He disclosed that he had kept concealed `Barma'. His disclosure statement (Exhibit P.L ) was reduced into writing. He offered to get it recovered. He then got the `Barma' (Exhibit P.1) recovered from the disclosed place. It was taken into possession vide recovery memo (Exhibit P.G), which was attested by Jag Pal, Assistant Sub Inspector and P.W Amar Singh. Site plan (Exhibit P.O) was prepared, showing the place of recovery.

On completion of the investigation, Man Singh,Sub Inspector, had prepared final report on November 23, 1991 under Section 173 of the Code of Criminal Procedure.

The case was committed to the Court of Session for trial. Charge was framed against the appellants for the offence punishable under Section 392 read with Section 397 of the Code for robbing of tractor No.HR-06-8501, belonging to P.W Amar Singh, from the possession of Raghbir Singh (deceased) and for Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

the offence punishable under Section 302 read with Section 34 of the Code for causing the death of Raghbir Singh in furtherance of their common intention. They did not plead guilty to the charge and claimed trial.

The prosecution, at the trial, examined eleven witnesses, namely, P.W.1 Dr.S.S. Punia, P.W.2 Ram Kishan, Assistant Sub Inspector, P.W.3 Rajbir Singh, Patwari, P.W.4 Jagdish, P.W.5 Nand Lal, P.W.6 Amar Singh, P.W.7 Om Parkash, P.W.8 Mane Ram, P.W.9 Zile Singh, P.W.10 Jag Pal Singh, Sub Inspector and P.W.11 Man Singh, Sub Inspector. They proved various documents which are on the file.

Statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure on the conclusion of the prosecution evidence. They denied the prosecution allegations and complained of their false implicity in the case.

Subhash and Jai Kumar (appellants) deposed that they were innocent and were falsely implicated in the case.

Joginder Singh (deceased-appellant) had stated that he was falsely Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

implicated at the instance of P.W. Zile Singh. Said Zile Singh was inimical towards him in view of the fact that his elder brother Ramesh Kumar, Advocate at Panipat, had been pursuing cases against P.W.Zile Singh and the latter had been pressurising his brother not to do so. The appellants did not lead any evidence in defence.

Arguments of Ld. Counsel for appellants Subhash and Jai Kumar and of the Additional Advocate General, appearing for the respondent-State, were heard and the evidence was scrutinised with their help.

The Ld. Counsel for the appellants, first of all, argued that there is delay in this case in lodging the First Information Report, which casts suspicion on the prosecution case. The prosecution version was concocted by the local police in connivance with the complainant party.

The occurrence took place in this case between 8 to 9 P.M on the night intervening 9th

/10th

October, 1991. P.W.11 Man

Singh, Sub Inspector, had recorded the statement of P.W.8 Mane Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

Ram on October 10, 1991 at 11.45 A.M, which is Exhibit P.J. He had made his endorsement on it, which is Exhibit P.J/2. Formal First Information Report was registered at 1P.M on October 10,

1991. The delay has been satisfactorily explained in this case by the prosecution. The occurrence had taken place in the area of Village Kasandi, where Mane Ram and Raghbir Singh (deceased) were thrown in the canal water. P.W. Mane Ram went to P.W. Jai Singh and narrated him the occurrence. Then they both came on a tractor of P.W. Jai Singh at the place of occurrence. The tractor which the appellants had robbed from Raghbir Singh (deceased) was not there. Raghbir Singh himself was also not traced out.

Sufficient time was consumed in this exercise. Then they both went to Village Mandi and informed P.W Amar Singh about the occurrence. The said Amar Singh is the father of Raghbir Singh (deceased). From there, they all went to Police Post, Israna. A V.T message was sent from there to Police Station Gohana. On receipt of the same, Man Singh, Sub Inspector, the then Station House Officer of Police Station, reached the place of occurrence in the Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

area of Village Kasandi while P.Ws Amar Singh and Mane Ram, accompanied by Ram Kishan, Assistant Sub Inspector, incharge of Police Post, Israna, also reached the place of occurrence. There, at that time, statement of P.W.8 Mane Ram (Exhibit P.J) was recorded by P.W.11 Man Singh, Sub Inspector. It was completed at 11.45 A.M on October 10, 1991. Ruqa was sent and formal First Information Report was registered at 1 P.M on October 10, 1991, in the Police Station. The law is well-settled that delay in lodging the First Information Report is not such a circumstance on the sole basis of which the prosecution case should be thrown aside. There was no delay in the despatch of the copy of the First Information Report to the Ilaqa Magistrate in this case. Whatever delay was occasioned in the registration of the First Information Report in the Police Station, has been cogently explained by the prosecution. So, this is one aspect of the case.

The prosecution case rests on the testimony of P.W.8 Mane Ram. His statement is credible. He is an independent Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

witness. He is neither interested in the complainant party nor he is inimical towards the appellants. Except for a few improvements made in his statement, his testimony stands like a pole-star. He proved that all the three appellants threw him and Raghbir Singh (deceased) in the canal, with the intent to rob money from them and also the tractor. He saved his life while Raghbir Singh drowned in the canal water. His testimony finds corroboration from P.W.6 Amar Singh, father of deceased Raghbir Singh and from P.W.2 Ram Kishan, Assistant Sub Inspector, the then incharge of Police Post, Israna, whom he and Amar Singh had contacted. The testimony of P.W.8 Mane Ram is also in consonance with the medical evidence, furnished by P.W.1 Dr.S.S.

Punia. He had conducted autopsy on the dead body or Raghbir Singh. In the opinion of the doctor, the cause of death of Raghbir Singh was asphyxia due to drowning. Raghbir Singh struggled for life but the appellants again made him drown in the canal water by giving him leg blows. According to the doctor, the probable time between injury and death was two to five minutes.

Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

It corroborates the version of P.W.8 Mane Ram. The relevant portion of his testimony is as under:-

" The accused started robbing of

money from the pocket of Raghbir deceased. On my intervention, all the accused caught hold of me and pressed my neck and threw me in canal. It was about 8 P.M. After throwing me in the canal, the accused caught hold of Raghbir deceased by the legs and also threw him in the canal.

Raghbir deceased tried to catch hold of the grass grown on the bank of the canal. Thereafter, accused Joginder and Jai Kumar gave leg blows on the face of Raghbir deceased. Thereafter Raghbir was again thrown in the water and did not come out whereas I kept on swimming with the flow of water and came out of the canal after having covered a distance of about three acres. After having out of the water I went to V. Kasandi. I Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

had not seen the tractor on the bank of the canal" No taint is attached to the testimony of P.W.8 Mane Ram. Indeed, the prosecution has not examined P.W. Jai Singh whom P.W.8 Mane Ram first of all contacted in Village Kasandi.

The prosecution case is not enfeebled for not examining P.W. Jai Singh. A Prosecutor is well within his rights to pick and choose among his witnesses. It is not necessary that all the witnesses be examined. If P.W. Jai Singh had been examined, his testimony would have been relevant under Section 6 of the Evidence Act on the principle of res gestae.

Occurrence was reported soon thereafter to P.W.6 Amar Singh, father of Raghbir Singh (deceased). His testimony is relevant under the principle of res gestae. It cannot be discarded because of his relationship with the deceased.

The Ld. Counsel for the appellants argued that the prosecution fabricated evidence for the false implication of the appellants in this case. This contention is not tenable. There are Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

circumstances proved on the file which point towards the guilt of the appellants, from which there is no escape. The first circumstance is the recovery of the dead body of Raghbir Singh on October 12, 1991 from the place of occurrence. Exhibit P.A/1 is the inquest report. Exhibit P.N is the site plan showing the place of recovery of the dead body. It was recovered from near the place whereat Raghbir Singh was drowned in the canal by the appellants. The second circumstance is that on October 14, 1991, the appellants were apprehended at Sukhpura Chowk, Rohtak. They were riding the tractor. Joginder Singh (deceased- appellant) was driving it while Jai Kumar and Subhash 8501 was recovered from their possession. This was the same tractor which they had taken away after throwing Raghbir Singh (deceased) and P.W.8 Mane Ram in the canal. Its recovery is proved by P.W.11 Man Singh, Sub Inspector, P.W.9 Zile Singh and P.W.10 Jag Pal Singh, Sub Inspector. The recovery memo is Exhibit P.K. The testimonies of these witnesses are cogent and Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

consistent. The appellants were, thus, found in possession of the tractor which they had robbed from Raghbir Singh (deceased). The third circumstance is the recovery of `Barma' (Exhibit P.1) from the possession of Joginder Singh (deceased-appellant) on October 15, 1991 in pursuance of his disclosure statement. Its recovery is also proved by P.W.10 Jag Pal Singh, Sub Inspector and P.W.11 Man Singh, Sub Inspector. Mane Ram and Raghbir Singh (deceased) had brought this `Barma' from P.W. Nand Lal of Village Kailana.

P.W.5 Nand Lal has not supported the prosecution version. He was got declared hostile and was cross-examined. He denied that Mane Ram and Raghbir Singh (deceased) had come on a tractor to his house and had taken away the `Barma'. However, testimony of P.W.8 Mane Ram stands unimpeached on this point.

Exhibit P.L is the disclosure statement made by Joginder Singh (deceased-appellant). Exhibit P.G is the recovery memo. The factum of the recovery is cogently proved by P.W.6 Amar Singh and P.W.11 Man Singh, Sub Inspector.

In view of the above discussed facts and the evidence Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.

supporting them, we find no infirmity in the impugned judgment of conviction. The sentences imposed on the appellants also commensurate with the offences committed by them. We, therefore, uphold the impugned judgment dated January 04, 1997 and the sentence order dated January 08, 1997 and finding no merit in the appeals filed by Subhash and Jai Kumar (appellants), dismiss them.

Appellants Subhash and Jai Kumar are on bail. The Chief Judicial Magistrate, Sonepat, would issue their warrants of arrest and would commit them to jail to undergo the remaining part of their sentence.

( BALDEV SINGH )

JUDGE

February 28, 2006. ( J.S. NARANG )

ak JUDGE

Criminal Appeal No.183-DB of 1997 and

Criminal Appeal No.193-DB of 1997.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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