advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, September 5, 2014

Acquittal - one of the accused - Apex court held that While considering the involvement of Satbir Singh in the occurrence, we find some difficulty. The eye witnesses PW4 Rekha and PW5 Sudha have testified Satish @ Shakti gave a gandasa blow on the neck of Bani Singh and thereafter Satbir Singh gave a gandasa blow on the neck of Bani Singh. PW14 Dr. N.K. Chaudhary who conducted autopsy on the body of Bani Singh found a single injury on the neck of Bani Singh. Hence the overt act attributed to Satbir Singh, namely, attack on neck of Bani Singh with gandasa, becomes doubtful and his presence cannot be said to be established and the benefit of doubt has to be given to him. But so far as the other appellants are concerned, the prosecution version is consistent, namely, that they were armed with the lethal weapons and attacked the deceased and others and the conviction and sentences recorded by the Courts below are correct and does not call for any interference. In the result the appeal preferred by the appellant Satbir Singh in Special Leave Petition (Criminal) no.6674 of 2012 is allowed and the conviction and sentences imposed on him is set aside and he is acquitted of the charges. = CRIMINAL APPEAL NO. 1842 OF 2014 [Arising out of Special Leave Petition (Crl.) No.6673 of 2012] Balwan & Ors. … Appellant(s) versus State of Haryana … Respondent(s) = 2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41844

  Acquittal - one of the accused - Apex court held that  While considering the involvement of Satbir Singh in  the  occurrence, we find some difficulty.  -The eye witnesses PW4 Rekha  and  PW5  Sudha  have testified  Satish @ Shakti gave a gandasa blow on the  neck  of  Bani  Singh
and thereafter Satbir Singh gave a gandasa blow on the neck of  Bani  Singh. PW14 Dr. N.K. Chaudhary who conducted autopsy on  the  body  of  Bani  Singh found a single injury on the  neck  of  Bani  Singh.  Hence  the  overt  act attributed to Satbir Singh, namely,  attack  on  neck  of  Bani  Singh  with gandasa, becomes doubtful and his presence cannot be said to be  established and the benefit of doubt has to be given to him.  But so far  as  the  other appellants are concerned, the prosecution  version  is  consistent,  namely, that they were armed with the lethal weapons and attacked the  deceased  and others and the conviction and sentences recorded by  the  Courts  below  are correct and does not call for any interference. In the result the appeal preferred by the  appellant  Satbir  Singh in Special Leave Petition (Criminal) no.6674 of  2012  is  allowed  and  the conviction and sentences imposed on him is set aside and he is acquitted  of
the charges.  =

 It is trite law that the  evidence  of  injured  witness,  being  a  stamped
witness, is accorded a special status in law.
This is as a  consequence  of
the fact that injury to the witness is an inbuilt guarantee of his  presence
at the scene of the crime and because the witness  would  not  want  to  let
actual assailant go unpunished.

17.   The contradictions and variations in the testimonies of the  aforesaid
witnesses, in our considered view do not go to the root of the case and  the
substratum of the prosecution version remains  undisturbed.  
It  is  to  be
borne in mind that both of them are rustic women and not tutored witnesses.

18.   The occurrence had taken place in the midnight at  1.30  a.m.  leaving
one person dead on the spot and four others injured.
Two of the  grievously
injured persons were immediately taken to hospital  and  the  remaining  two
remained near the body in the house.
The distance  between  the  occurrence
place and the police station is about  10  kilometers.  
PW18  Sub-Inspector
Balwan Singh recorded the statement  of  PW4  Rekha  at  9.00  a.m.  in  the
occurrence place and the FIR came to be registered at  10.10  a.m.  and  the
special report was delivered in the Court at about 11.30 a.m.
In the  facts
of the case, we are unable to appreciate the contention  of  the  appellants
that FIR came into being after deliberation and there is nothing to  suspect
in the prosecution  case.  
The  Investigation  Officer  PW18  Sub-Inspector
Balwan Singh has seized blood stained earth from the  occurrence  place  and
that clinches the situs of the crime.  
The  contention  of  the  appellants
that the occurrence had not taken place  in  the  house  of  Bani  Singh  is
devoid of merit.  In fact, Bani Singh immediately succumbed to the  injuries
and the homicidal death is established by the medical evidence.

19.   There was also motive for the occurrence.
The appellants  nurtured  a
grudge against the victims on account of murder of  Yudhvir,  son  of  Gugan
Singh, belonging to their party  and  one  of  the  family  members  of  the
complainant side was involved in the said murder and that has culminated  in
the occurrence.

20.   While considering the involvement of Satbir Singh in  the  occurrence,
we find some difficulty.  
The eye witnesses PW4 Rekha  and  PW5  Sudha  have
testified  Satish @ Shakti gave a gandasa blow on the  neck  of  Bani  Singh
and thereafter Satbir Singh gave a gandasa blow on the neck of  Bani  Singh.
PW14 Dr. N.K. Chaudhary who conducted autopsy on  the  body  of  Bani  Singh
found a single injury on the  neck  of  Bani  Singh.  
Hence  the  overt  act
attributed to Satbir Singh, namely,  attack  on  neck  of  Bani  Singh  with
gandasa, becomes doubtful and his presence cannot be said to be  established
and the benefit of doubt has to be given to him.  
But so far  as  the  other
appellants are concerned, the prosecution  version  is  consistent,  namely,
that they were armed with the lethal weapons and attacked the  deceased  and
others and the conviction and sentences recorded by  the  Courts  below  are
correct and does not call for any interference.

21.      In the result the appeal preferred by the  appellant  Satbir  Singh
in Special Leave Petition (Criminal) no.6674 of  2012  is  allowed  and  the
conviction and sentences imposed on him is set aside and he is acquitted  of
the charges.  
The other two appeals in  Special  Leave  Petition  (Criminal)
no.6673 of 2012 and Special Leave Petition (Criminal) no.6384 of  2012,  are
dismissed.
  
2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41844

                                                           REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO.   1842         OF 2014
       [Arising out of Special Leave Petition (Crl.) No.6673 of 2012]


Balwan & Ors.                                      …     Appellant(s)

                                   versus

State of Haryana                                        …    Respondent(s)

                                    With

                  CRIMINAL APPEAL NO.  1844         OF 2014
       (Arising out of  Special Leave Petition (Crl.) No.6384 of 2012)
                                     And

                   CRIMINAL APPEAL NO.  1843       OF 2014
       (Arising out of Special Leave Petition (Crl.) No.6674 of 2012)


                               J U D G M E N T

C. NAGAPPAN, J.

1.    Leave granted.


2.    These three appeals are preferred against the  common  judgment  dated
27.01.2012 passed by the High Court of Punjab and Haryana at  Chandigarh  in
Criminal Appeal no.486-DB of 2004 and Criminal Appeal no.547-DB of 2004.

3.    The appellants herein are six in numbers and  were  tried  along  with
others for the charges under Sections 148, 149, 302, 307, 449, 323  and  216
of Indian Penal Code and in addition under Section 25 of the Arms Act,  1959
against appellant Naresh and the  Trial  Court  found  them  guilty  of  the
offence under Section 302 read with Section 149 IPC and sentenced them  each
to undergo imprisonment for life and to pay fine of  Rs.10,000/-  each  with
default sentence; further found them guilty for the  offence  under  Section
307 read with Section 149 IPC and sentenced them each  to  undergo  rigorous
imprisonment for 8 years and to pay fine  of  Rs.5000/-  each  with  default
sentence; further found them guilty for the offence under Section  449  read
with  Section  149  IPC  and  sentenced   them  each  to  undergo   rigorous
imprisonment for 5 years and to pay fine  of  Rs.3000/-  each  with  default
sentence; further found them guilty for the offence under  Section  148  IPC
and sentenced them each to undergo rigorous imprisonment for  2  years  each
and found them guilty for the offence under Section 323  read  with  Section
149 IPC and sentenced them each  to  undergo  rigorous  imprisonment  for  9
months.  In addition appellant Naresh  was  found  guilty  for  the  offence
under Section 25 of the Arms Act  and  was  sentenced  to  undergo  rigorous
imprisonment for  2  years  and  to  pay  fine  of  Rs.2000/-  with  default
sentence.  The  Trial  Court  directed  the  substantive  sentences  to  run
concurrently.   Challenging  the  conviction  and   sentence   the   accused
preferred appeals in Criminal Appeal no.486-DB of 2004 and  Criminal  Appeal
no.547-DB of 2004 and  the  High  Court  allowed  the  appeal  preferred  by
accused Subhash and acquitted him of the charges.  The appeals preferred  by
the other accused were dismissed.  Aggrieved by the  confirmation  of  their
conviction and sentence six accused have preferred the present appeals.

4.    The prosecution case in brief is stated thus :  PW4 Smt. Rekha is  the
daughter-in-law of deceased Bani Singh.   PW5  Smt.  Sudha  is  the  married
daughter of the deceased.  Accused Naresh and Naseeb  are  sons  of  accused
Dharambir.  Accused Satish @ Shakti and accused Satbir  are  real  brothers.
On 26.5.2001 at about 1.30 a.m. PW4 Smt. Rekha  and  her  husband  Rishikesh
were sleeping in the upstairs room of their house.  Her  father-in-law  Bani
Singh, her mother-in-law Smt. Phulla and her sister-in-law  PW5  Smt.  Sudha
were sleeping in the ground floor  of  the  house.   At  that  time  accused
persons Dharambir carrying gandasa, Naresh armed with country  made  pistol,
Satbir, Satish @ Shakti and Dhillu all armed with gandasa,  Balwan  carrying
jelly, Ram Mehar armed with  gandasa  and  Dhaula  armed  with  darant,  all
entered   their   house   after   scaling   the    boundary    wall.     The
appellants/accused went upstairs and brought PW4 Smt. Rekha and her  husband
Rishikesh to the ground floor and exhorted that they  should  be  killed  to
take revenge for  the  murder  of  Yudhvir.   Thereafter,  Satish  @  Shakti
inflicted a gandasa blow on the neck of Bani Singh,  Satbir  caused  gandasa
blow at the very same place on the neck  of  Bani  Singh,  as  a  result  of
which, Bani Singh fell down and Dharambir  inflicted  gandasa  blow  on  his
right wrist and Dhillu gave gandasa  blow  which  hit  him  in  between  his
little and ring finger of the right hand.  Dhaula inflicted  a  darant  blow
on the right leg of Rishikesh.  Ram Mehar gave  two  gandasa  blows  on  the
left side of PW4 Smt. Rekha’s back and one gandasa blow on the head  of  PW5
Smt. Sudha.  Naresh fired shots from  the  pistol  which  he  was  carrying.
Balwan gave a jelly blow causing  an  injury  on  the  right  hand  of  Smt.
Phulla.  Hearing the cries raised by the injured  persons,  Umed  Singh  and
Ram Kumar rushed to the spot and the appellants/accused ran away with  their
weapons.  Bani Singh succumbed to the injuries on  the  spot.   The  injured
Rishikesh and PW5 Smt. Sudha were taken to  the  General  Hospital,  Bhiwani
for treatment.

5.    At 9.00 a.m. on the same day, PW18 Sub-Inspector Balwan Singh  reached
the occurrence place and recorded Ex.PE the statement of PW4 Smt. Rekha  and
the Ex.PR, FIR was registered at 10.10 a.m. on the same day.  PW  18  Balwan
Singh conducted inquest and prepared Ex.PCC inquest report.  Ex.PHH  is  the
rough site plan prepared by him.  He sent the body of Bani Singh to  General
Hospital, Bhiwani for conducting post-mortem.

6.    PW14 Dr. N.K. Chaudhary conducted autopsy on the body  of  Bani  Singh
on 26.5.2001 and found the following injuries :

1.    An eleptical wound left side of neck starting  from  midline  reaching
up to  mastoid  process  measuring  5.5”  x  4”  involving  the  left  pinna
partially amputated.  The lower lateral lobule of  pinna,  muscles,  carotid
vessels were exposed and there was subcutaneous echymosis present under  the
skin, carotid vessels ruptured.  Clotted blood present.

2.    Incised wound 1 x .5 inch  on  the  right  hand  at  lower  one  third
laterally placed.  Muscle exposed.

3.    Incised wound cutting through the centre of  little  finger  and  ring
finger at right hand reaching up to middle of palm, Muscle deep fracture  of
second metacarpal present.

He expressed opinion that  death  has  occurred  on  account  of  shock  and
haemorrhage due to injuries to major vessels and nerves.

7.    PW8 Dr. Vasundhara Gupta examined  Rishikesh  on  26.5.2001  at  03.25
a.m. and found following injuries :

1.    Lacerated wound of 8 cm x 6 cm over the anterior surface of right  leg
middle 1/3rd region.  Fresh bleeding was present.  Advised x-ray  and  ortho
surgeon’s opinion.

2.    A lacerated wound of 12 x 4 cm over the left side  of  face  extending
from the cheek  to  left  frontal  region  of  scalp.   Fresh  bleeding  was
present.  Advised x-ray band surgeon’s opinion.

8.    On the same day PW8 Dr. Vasundhara Gupta examined PW5 Smt.  Sudha  and
found the following injury :

Lacerated wound of 8 cm x 4 cm x 1 cm over the left side of  frontal  region
of scalp.  Swelling was present.  Profuse bleeding was present.  Advised  x-
ray and surgeon’s opinion.  The  patient  was  kept  under  observation  and
subjected to x-ray and opinion for nature of injuries.  Duration  of  injury
was within 24 hours.  Kind of weapon was to be  given  after  x-ray  report.
Copy of MLR is Ex.PM which bears my signature.

9.    PW15 Dr. Mahender Kumar examined  PW4  Smt.  Rekha  on  26.5.2001  and
found the following injuries :

1.    A lacerated wound triangular shape having 4 cm length of each  arm  on
left lower back, superficial, redish in colour at the level of  L4  and  L5.
Advised x-ray lumbar area AP and lateral also opined for  General  Surgeon’s
opinion.  Injury was kept under observation.

2.    A lacerated wound present at upper  back  on  the  left  lateral  side
measuring 6 cm x .5 cm x .5 cm and another just above it measuring  3  cm  x
.5 cm x .5 cm.  Advised  x-ray  thorasic  AP  and  lateral  and  opined  for
surgeon opinion.

10.   PW15 Dr. Mahender Kumar  also  examined  Smt.  Phulla  and  found  the
following injuries :

1.    Swelling, tenderness  the  right  forearm.   Advised  x-ray.   AP  and
lateral and opined for ortho surgeon opinion.

2.    Complaint of pain in the left foot.

11.   PW18 Sub-Inspector Balwan Singh seized blood stained earth,  one  khol
of cartridge and one sikka from the occurrence place  by  preparing  a  Memo
and recorded the statements of  witnesses.   He  arrested  the  accused  and
recovered the  weapons  on  the  information  furnished  by  them  in  their
disclosure statements.  On completion of investigation final report came  to
be filed in the case.

12.   During the trial the prosecution examined  PWs  1  to  27  and  marked
documents.  The accused persons were examined under Section 313 Cr.P.C.  and
their statements were recorded.  Thereafter, two witnesses were examined  in
defence.  The Trial Court acquitted  accused  Balbir  Singh  and  found  the
remaining nine accused guilty.  Out of them accused Naseeb was  released  on
probation since he was found to be a juvenile.  The remaining eight  accused
were convicted and sentenced as stated earlier.

13.   On appeal to the High Court the appeal preferred  by  accused  Subhash
was allowed and he was acquitted of the charges and at the  same  time,  the
appeals  preferred  by  the   other   appellants/accused   were   dismissed.
Challenging their conviction and sentence six  accused  have  preferred  the
present appeals.

14.    Shri  Sushil  Kumar,  learned  senior  counsel  appearing   for   the
appellants, contended that there was inordinate  delay  in  registering  the
FIR and it has come  into  existence  after  due  deliberations  to  falsely
implicate the appellants and the prosecution case should be  discarded.   He
also contended that as per the testimonies  of  the  eye  witnesses  accused
Satish @ Shakti and Satbir Singh gave individual gandasa blows on  the  neck
of Bani Singh, whereas the post-mortem  doctor  has  noticed  single  injury
only on the neck of Bani Singh and hence the overt act attributed to  Satbir
Singh is doubtful and his presence itself is not  established.   It  is  his
further contention that out of four persons alleged  to  have  been  injured
during the occurrence, two alone were examined as  witnesses  and  the  non-
examination of other two injured witnesses affects the prosecution case  and
makes it doubtful.  Lastly, he contended that the occurrence had  not  taken
place inside the  house  of  Bani  Singh  and  the  appellants  are  falsely
implicated due to party faction in the village.

15.   Per contra, Shri Manjit Singh,  learned  Additional  Advocate  General
appearing  for  the  respondent-State,  contended  that   it   is   midnight
occurrence and the parties are known to each other, being residents  of  the
same village and PW4 Rekha  and  PW5  Sudha  have  not  only  witnessed  the
occurrence but sustained injuries in the attack made by  the  assailants  on
them and their testimonies have rightly  been  relied  upon  and  after  the
occurrence immediate  attention  was  given  to  take  the  injured  to  the
hospital and thereafter the police were informed and it cannot be said  that
there was undue delay in  this  regard  and  the  conviction  and  sentences
imposed on the appellants are sustainable.

16.   The prosecution case is based on the ocular  testimony  of  PW4  Rekha
and PW5 Sudha.  They are the daughter-in-law and daughter, respectively,  of
deceased Bani Singh.  They have categorically  testified  about  the  brutal
attack made by the appellants on victims  by  describing  their  overt  acts
during the occurrence.  Both of them in  their  statements  recorded  during
the investigation, as  well  as,  in  their  testimonies  have  stated  that
electricity lights were on in the house, at the time of  occurrence.   Their
presence in the house cannot be  doubted  and  they  had  no  difficulty  in
identifying the  assailants.   Both  of  them  sustained  injuries  and  the
grievously injured PW5 Sudha was admitted  in  the  hospital  at  3.25  a.m.
itself.  The medical evidence is available on record.   Rishikesh  and  Smt.
Phulla were also injured during the occurrence but were not  examined.   The
testimonies of injured witnesses  PW4  Rekha  and  PW5  Sudha  are  natural,
cogent  and  trustworthy  and  non-examination  of  the  other  two  injured
witnesses does not, in any way, affect the prosecution case.  In  a  similar
fact situation this Court in the decision in Mano Dutt  vs.  State  of  U.P.
(2012) 4 SCC 79, held thus :

“29.  As per PW5, Dr. Surya Bhan Singh, he had examined Salik Ram  Yadav  as
well as Nankoo on 22.10.1977 itself and noticed as many as five injuries  on
Salik Ram and four injuries upon the person of Nankoo.  He stated  that  the
deceased was the son of Nankoo, while Salik  Ram  was  his  brother.   These
injuries were suffered by them from a blunt object.

30.   Salik Ram was examined as PW2 and his statement is  cogent,  coherent,
reliable and fully supports the  case  of  the  prosecution.   However,  the
other  injured  witness,  Nankoo,  was  not  examined.   In  our  view  non-
examination of Nankoo, to which the accused raised the objection, would  not
materially affect  the  case  of  the  prosecution.   Normally,  an  injured
witness would enjoy greater credibility because he is the  sufferer  himself
and thus, there will be no occasion for such a person to state an  incorrect
version of the occurrence, or to involve anybody falsely and in the  bargain
protect the real culprit.”……………….



It is trite law that the  evidence  of  injured  witness,  being  a  stamped
witness, is accorded a special status in law.  This is as a  consequence  of
the fact that injury to the witness is an inbuilt guarantee of his  presence
at the scene of the crime and because the witness  would  not  want  to  let
actual assailant go unpunished.

17.   The contradictions and variations in the testimonies of the  aforesaid
witnesses, in our considered view do not go to the root of the case and  the
substratum of the prosecution version remains  undisturbed.   It  is  to  be
borne in mind that both of them are rustic women and not tutored witnesses.

18.   The occurrence had taken place in the midnight at  1.30  a.m.  leaving
one person dead on the spot and four others injured.  Two of the  grievously
injured persons were immediately taken to hospital  and  the  remaining  two
remained near the body in the house.  The distance  between  the  occurrence
place and the police station is about  10  kilometers.   PW18  Sub-Inspector
Balwan Singh recorded the statement  of  PW4  Rekha  at  9.00  a.m.  in  the
occurrence place and the FIR came to be registered at  10.10  a.m.  and  the
special report was delivered in the Court at about 11.30 a.m.  In the  facts
of the case, we are unable to appreciate the contention  of  the  appellants
that FIR came into being after deliberation and there is nothing to  suspect
in the prosecution  case.   The  Investigation  Officer  PW18  Sub-Inspector
Balwan Singh has seized blood stained earth from the  occurrence  place  and
that clinches the situs of the crime.   The  contention  of  the  appellants
that the occurrence had not taken place  in  the  house  of  Bani  Singh  is
devoid of merit.  In fact, Bani Singh immediately succumbed to the  injuries
and the homicidal death is established by the medical evidence.

19.   There was also motive for the occurrence.  The appellants  nurtured  a
grudge against the victims on account of murder of  Yudhvir,  son  of  Gugan
Singh, belonging to their party  and  one  of  the  family  members  of  the
complainant side was involved in the said murder and that has culminated  in
the occurrence.

20.   While considering the involvement of Satbir Singh in  the  occurrence,
we find some difficulty.  The eye witnesses PW4 Rekha  and  PW5  Sudha  have
testified  Satish @ Shakti gave a gandasa blow on the  neck  of  Bani  Singh
and thereafter Satbir Singh gave a gandasa blow on the neck of  Bani  Singh.
PW14 Dr. N.K. Chaudhary who conducted autopsy on  the  body  of  Bani  Singh
found a single injury on the  neck  of  Bani  Singh.  Hence  the  overt  act
attributed to Satbir Singh, namely,  attack  on  neck  of  Bani  Singh  with
gandasa, becomes doubtful and his presence cannot be said to be  established
and the benefit of doubt has to be given to him.  But so far  as  the  other
appellants are concerned, the prosecution  version  is  consistent,  namely,
that they were armed with the lethal weapons and attacked the  deceased  and
others and the conviction and sentences recorded by  the  Courts  below  are
correct and does not call for any interference.

21.      In the result the appeal preferred by the  appellant  Satbir  Singh
in Special Leave Petition (Criminal) no.6674 of  2012  is  allowed  and  the
conviction and sentences imposed on him is set aside and he is acquitted  of
the charges.  The other two appeals in  Special  Leave  Petition  (Criminal)
no.6673 of 2012 and Special Leave Petition (Criminal) no.6384 of  2012,  are
dismissed.

                                                             …….…………………...J.
(T.S. Thakur)


                                                               .…………………………J.
(C. Nagappan)


                                                            ……..…………………...J.
(Adarsh Kumar Goel)


New Delhi;
August   26, 2014.


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.