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Tuesday, May 23, 2017

there is no hard and fast rule to say that the evidence of the prosecution witnesses is equally reliable as against Bira & Bhira, as it was reliable against the two other accused. = The High Court has taken note of the fact that Atma Ram (in whose murder case Vakil Singh was accused) was father of accused Sant Lal. Role of Sant Lal in commission of crime to take revenge after the acquittal of the deceased, cannot be doubted. Involvement of Fatta, as he was caught by the villagers immediately after the incident, can also not to be doubted. But the presence of accused Bira @ Bhira who was Son-in-law of Atma Ram, and belonged to a separate village appears to be doubtful and it cannot be ruled out if his name was added due to enmity. We do not find sufficient reason to disagree with the above view taken by the High Court. Therefore, we are not inclined to interfere with the acquittal of Bira @ Bhira recorded by the High Court.

NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  1581 OF 2013


State of Haryana                             … Appellant

Versus

Bira @ Bhira                                       …Respondent


WITH


               SPECIAL LEAVE PETITION (CRL.) NO. 3779 OF 2014


Fatta Ram                                          … Petitioner

Versus

State of Haryana                             …Respondent

                               J U D G M E N T



Prafulla C. Pant, J.


      Both Criminal Appeal filed by the State of Haryana and  Special  Leave
Petition filed by accused Fatta Ram, are directed against the  judgment  and
order dated 03.05.2012 passed  by  High  Court  of  Punjab  and  Haryana  in
Criminal Appeal No. 662-DB of 2007,  whereby  said  Court  has  allowed  the
appeal of Bira @ Bhira, and acquitted him  of  all  charges  in  respect  of
offences punishable under Sections 302, 323 read with Section 34  of  Indian
Penal Code (for brevity “IPC”), but maintained the conviction  and  sentence
recorded against remaining two accused, namely, Sant Lal and Fatta Ram.

2.    We have heard learned counsel for the parties and perused the  record.


3.    Prosecution story, in brief, is that  Vakil  Singh  (deceased  in  the
present case) was an accused in the case  of  murder  of  one  Atma  Ram  of
Village Nagal. He (Vakil Singh) was acquitted by  the  Apex  Court  about  a
month before the incident of the present case. On 08.05.2005 at about  11.00
a.m., he was coming along with his wife (PW-8 Balbiro) to his  village  from
Bicchian where the two had gone in connection  with  condolence  of  one  of
their relatives. PW-7 Tehla Ram along with his uncle Mohan  Singh  had  also
gone there and was ahead of them. At that point of time, the  three  accused
namely, Sant Lal, Fatta Ram and Bira @ Bhira  who  were  armed  with  deadly
weapons came on motorcycles and  intercepted  Vakil  Singh.  All  the  three
accused persons assaulted Vakil Singh. Accused Sant Lal gave a blow  with  a
‘Gandasi’ (heavy sharp edged weapon), accused Fatta Ram gave a blow  with  a
‘Lathi’ and Bira @ Bhira allegedly gave a blow  with  iron  rod  (handle  of
water pump).  PW-8 Balbiro resisted  but  she  was  also  assaulted  by  the
accused persons.  When Mohan Singh and  PW-7  Tehla  Ram,  who  were  ahead,
turned back, the three accused attempted to flee but  Fatta  Ram  fell  down
from his motorcycle as the same got skid and he  was  caught  by  villagers.
The other two managed to escape. PW-7 Tehla Ram took both the injured  Vakil
Singh and Balbiro to Mahavir Dal Hospital, Cheeka. Vakil Singh succumbed  to
the injuries and died in the hospital. The First Information Report (Ex. PH-
1) of the incident was lodged by PW-7 Tehla Ram on the very day. PW-13  Sub-
Inspector Brij Mohan of Police Station, Cheeka  started  the  investigation.
PW-2 Dr. Aman Sood along with team of  doctors  conducted  the  post  mortem
examination and prepared autopsy report.  The  investigation  was  completed
by PW-3 Sub-Inspector Surta Ram who submitted the charge sheet  against  all
the three accused for their trial in respect  of  offence  punishable  under
Section 302 IPC.

4.    After committal of the case, Sessions Judge,  Kaithal,  framed  charge
against all the three accused in respect of offences under Section 302,  323
read with Section 34 IPC to which all the three accused pleaded  not  guilty
and claimed to be tried. On this, prosecution got  examined  PW-1  Dr.  Ajit
Pal Singh, PW-2 Dr. Aman Sood, PW-3 Sub-Inspector Surta Ram, PW-4  Constable
Gurvinder Singh, PW-5  Head  Constable  Balwinder  Singh,  PW-6  Dr.  Romila
Jhanji, Medical Officer,  PW-7  Tehla  Ram  (informant  eye  witness),  PW-8
Balbiro (injured eye witness),  PW-9  Draftsman  Lachman  Singh,  PW-10  Ram
Mehar Singh, PW-11 Head Constable Bir Bhan,  PW-12  Assistant  Sub-Inspector
Dharam Pal and PW-13 Sub-Inspector Brij Mohan (Investigating  Officer).  The
prosecution evidence was put  to  the  accused  under  Section  313  of  the
Cr.P.C. in reply to which they pleaded that  the  evidence  adduced  against
them is false. In defence, on behalf of the accused DW-1 Ajmer  Singh,  DW-2
Garibu Ram and DW-3 Puran Singh were got examined.  The  trial  court  after
hearing the parties found that charge of offences punishable under  Sections
302, 323 read with Section 34 IPC is proved against all the  three  accused.
Accordingly, all  the  three  were  convicted  and  each  one  of  them  was
sentenced to undergo imprisonment for life and to pay fine  of  Rs.  5,000/-
(under Section 302 IPC), in default to undergo further six  months  rigorous
imprisonment.  Further, the trial court sentenced the  convicts  to  undergo
rigorous imprisonment for a period of six months under Section 323/34 IPC.

5.    Aggrieved by order  dated  16.05.2007/18.05.2007  passed  by  Sessions
Judge, Kaithal, in Sessions Trial No. 23 of 2006, the three  convicts  filed
Criminal Appeal no. 662-DB-2007 which  is  partly  allowed  by  High  Court.
Conviction  and  sentence  recorded  against  Sant  Lal  and  Fatta  Ram  is
maintained, but that of Bira @ Bhira was set aside, holding that  charge  as
against him is not proved beyond reasonable  doubt.  Consequently,  Criminal
Appeal No. 1581 of 2013  is  filed  by  the  State  of  Haryana  challenging
acquittal of Bira @ Bhira by the High  Court,  and  Special  Leave  Petition
(Crl.) No. 3779 of 2014 is filed by convict Fatta Ram which  is  clubbed  by
the Criminal Appeal filed by the State.

6.    Before further discussion, we think it just and proper to mention  the
ante mortem injuries found on the dead body of Vakil Singh by PW-2 Dr.  Aman
Sood. The same are being reproduced below:-

“1. Lacerated wound 8 x  2  cm  with  fracture  of  bone  in  left  temporal
parietal region. Brain matter was coming out of it.

2. Incised wound over left temporal region 3  x1  cm.  On  deep  dissection,
there is extra dural haematoma of the size of 5 x 3 cm.

3. Lacerated wound over the left maxillary region blood clotted  around  the
wound.

4. There was lacerated wound over the right ring  finger  with  fracture  of
proximal phalanx.”


According to PW-2 Dr. Aman Sood, the deceased had  died  due  to  shock  and
hemorrhage on account of injuries suffered by him on the vital parts.

7.    It is also relevant to mention here the injuries found on  the  person
of Balbiro by PW-6 Dr. Romila Jhanji on 08.05.2005 at about  4.00  p.m.  The
same are being reproduced below from MLR (Ex. P.G.):-
“1. A lacerated wound of 1 cm.  x  ½  cm.  on  the  left  cheek.  Wound  was
bleeding. She was referred to C.H. Kaithal  for  X-ray  of  left  cheek  and
expert opinion.

2. There was an abrasion of the size of 1 cm. x 1 cm. on left knee.”

8.    PW-8 Balbiro has narrated  the  prosecution  story  stating  that  her
husband was accused in connection with  murder  of  Atma  Ram,  and  he  was
acquitted by the Court. After release of her husband (Vakil Singh) from  the
jail they had shifted to village Darauli, and on the day  of  incident  they
had gone to village Bicchian.  She further told that on their  way  back  on
the day of incident at about 11.00 a.m.  the  accused  surrounded  them  and
assaulted. She has stated that accused Sant Lal gave blow with  Gandasi  and
accused Fatta assaulted with lathi.  She further  told  after  the  incident
she and her husband were taken to hospital by Tehla Ram. Statement  of  PW-2
is corroborated not only from  the  medical  evidence  on  record  discussed
above but also from the statement of PW-7 Tehla Ram.  Both  these  witnesses
have stated that Fatta Ram while fleeing fell down and  was  caught  by  the
villagers.

9.    PW-1 Ajit Pal Singh has proved the injuries found  on  the  person  of
accused Fatta Ram. The same are being reproduced below:-

“1. A lacerated wound 1.3 cm. x 2.5 cm x bone deep on left  parietal  region
4 cm from mid line of skull and 18 cm. from frontal hair  line.  Advised  X-
ray.

2. Lacerated wound 1 cm. x 1 cm. x bone deep on mid line of skull and 19  cm
from frontal hair line. Advised X-ray.

3. Lacerated wound 3cm. x 1.5cm x bone deep on  right  parietal  region  2cm
from mid line of skull and 19 cm. from frontal hair line. Advised X-ray.

4. Lacerated wound on right temporal region 6 cm. from mid line of skull,  5
cm. from right ear pinna and 9 cm. from frontal hair line, measuring  4.5  x
1.6 cm. x bone deep. Advised X-ray

5. Contused swelling on  right  fore-arm  3  cm.  below  right  elbow  joint
measuring 3 cm. x 4 cm. Advised X-ray.

6. Swelling 3 cm. x 2 cm. on right  side  of  back,  6  cm.  from  vertebral
colon, corresponding to L.4. X-ray was advised.”


      In view of the above evidence,  the  prosecution  story  further  gets
corroborated that after the incident Fatta Ram was  apprehended  and  beaten
by villagers.  As such, we find no error in the conviction recorded  against
him and the Special Leave Petition filed by him is liable to be dismissed.

10. Learned counsel for the special leave  petitioner  submitted  that  DW-1
Ajmer Singh (Sarpanch of the village) has not  corroborated  the  fact  that
the villagers caught Fatta Ram after the incident. We  have  carefully  gone
through the statement of DW-1 Ajmer Singh. What he has stated is  that  when
he saw many persons gathered at the place of incident where  the  dead  body
was lying, telephone call was given to the police. Since  this  witness  has
reached after the incident, as such, his statement does not throw  light  as
to the fact that whether Fatta Ram was caught or not by the villagers.

11.   Our attention is also drawn on behalf of the Special Leave  Petitioner
to the cross-examination of PW-1 Dr. Ajit Pal  Singh  who  has  stated  that
injuries No. 1 to 3 could  not  have  been  suffered  due  to  fall  from  a
motorcycle. On scrutinizing the statement of PW-1 Dr.  Ajit  Pal  Singh,  we
find that he has clarified  that  injuries  no.  4  to  6  could  have  been
suffered by the  accused  (Fatta  Ram)  by  falling  down.  Since  villagers
apprehended the said accused, other injuries could have  been  caused  while
he was caught by the villagers.

12.   On behalf of the State of Haryana (appellant), it is argued  that  the
High Court has erred in law in disbelieving the  testimony  of  injured  eye
witness (PW-8) and that of Tehla Ram (PW-7) as against Bira @ Bhira.  It  is
contended  that  the  evidence  of  the  prosecution  witnesses  is  equally
reliable as against Bira & Bhira, as it was reliable against the  two  other
accused.
13.   We have carefully gone through the impugned order passed by  the  High
Court. The High Court has taken note of the fact that  Atma  Ram  (in  whose
murder case Vakil Singh was accused) was father of accused  Sant  Lal.  Role
of Sant Lal in commission of crime to take revenge after  the  acquittal  of
the deceased, cannot be doubted. Involvement of Fatta, as he was  caught  by
the villagers immediately after the incident, can also not  to  be  doubted.
But the presence of accused Bira @ Bhira who was  Son-in-law  of  Atma  Ram,
and belonged to a separate village appears to be doubtful and it  cannot  be
ruled out if his name was added due to enmity. We  do  not  find  sufficient
reason to disagree with the above view taken by the High  Court.  Therefore,
we are not inclined  to  interfere  with  the  acquittal  of  Bira  @  Bhira
recorded by the High Court.

14.   For the reasons as discussed above, we find no  force  in  the  appeal
filed by the State of Haryana, and the Special Leave Petition filed  by  the
Fatta Ram. Accordingly, the Criminal Appeal and the Special  Leave  Petition
are hereby dismissed.

                                                            ………………………..…….J.
                                                               [N.V. Ramana]



                                                            ………………………..…….J.
                                                          [Prafulla C. Pant]
New Delhi;
April 24, 2017.

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