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PETITIONER: PREM

       Vs.

RESPONDENT: DAULA & ORS.

DATE OF JUDGMENT:       16/01/1997

BENCH: M.K. MUKHERJEE, S.P. KURDKAR

ACT:

HEADNOTE:

JUDGMENT:                THE 16TH DAY OF JANUARY, 1996 Present:              Hon’ble Mr. Justice M. K. Mukherjee              Hon’ble Mr. Justice S.P. Kurdukar      R.C. Kohli, Adv. for the appellant      R.S. Bhatia,  B.S. Gupta  (Ajay, Siwach)  Adv. for Prem Malhotra, Advs. for the Respondents.                       J U D G M E N T      The following Judgments of the Court was delivered:      S.P. KURDUKAR, J.      This  criminal   appeal  is   at  the   behest  of  the complainant-appellant   challenging    the   legality    and correctness of  the judgment  and order  dated  October  29, 1986, passed by the Punjab & Haryana High Court, Chandigarh, acquitting the  respondents Nos. 1 to 4 (accused) of all the charges.  The  Addl.  Sessions  Judge  II,  Rohtak,  by  his judgment and  order dated October 24/26, 1985, convicted the first respondent (A-1) under Section 302 IPC and respondents Nos. 2  to 4 (A-2 to A-4) under Section 302/34 of the Indian Penal Code  for committing  the murder of Ishwar son of Budh Ram  and   each  one   of  them   was  sentenced  to  suffer imprisonment for life and to pay a fine of Rs. 5,000/- or in default to undergo further RI for six months. 2.   Briefly stated  the prosecution case as unfolded at the trial is as under:-      The marriage  of the  daughter of Malha, pot maker, was to  be   celebrated  on   December  9,  1984,  and  in  that connection, Halwais  from Rohtak  were engaged for preparing the sweets  on December  8,  1984.  The  sweets  were  being prepared in  the house  of Giani which is situated in Silara Mohalla, Rohtak.  Ishwar (since  deceased) and  Rajinder (PW 14) were  present at the place of Giani. At about 6.00 p.m., Daula (A-1)  and Jai  Singh (A-2) came there and picked up a quarrel with  Rajinder over  money. A-2 gave a lathi blow on Rajinder (PW  14) and  Prem (PW  9). Ishwar  intervened  and saved his  colleagues  from  further  assault.  Ishwar  then pushed out  A-1 and A-2 from the house of Giani. The quarrel then ended  and they  left to  their respective houses. Prem and Ishwar  thereafter came  to the  house  of  the  latter. Krishan and  Ude were  sitting on the cot outside the house.

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When all  of them are talking, Daula (A-1), Jai Singh (A-2), Balraj (A-3)  and Baljit (A-4) came there at about 6.30 p.m. A-1 was  carrying Ranpi  (sharp edged cutting weapon used by cobblers) whereas  A-2 and  A-4 were  armed with lathis. A-3 was however  not having  any weapon.  All the  four  accused forcibly entered  into the  house of  Ishwar  whereupon  A-1 shouted at Ishwar and challenged as to why he had pushed him out of the house of Giani. It was alleged by the prosecution that Baljit  (A-4) and  Balraj (A-3)  caught hold  of Ishwar whereupon Daula (A-1) assaulted him with Ranipi on his back. Jai Singh  (A-2) gave  a lathi  blow on  the  left  hand  of Ishwar. Daula again struck a Ranpi blow on the right hand of Ishwar.  Dhan  Kaur  (PW  11)  mother  of  Ishwar  tried  to intervene during  the assault but she was also given a lathi blow by  Jai Singh  (A-2). Krishan,  Ude  and  Prem  (PW  9) intervened in the quarrel and saved Ishwar from the assault. In the meantime, all the accused fled away. Since Ishwar had sustained bleeding  injuries, he  was taken  to the  Medical College, Rohtak,  in a  rickshaw but before any medical help could be given to him, he succumbed to his injuries. 3.   The doctor on duty sent a ruqqa to the Incharge, police post attached  to the Medical College at about 8.20 p.m. and also informed  police  station,  City  Rohtak  on  telephone regarding the arrival of the dead body. S.I. Ram Chander (PW 17) after  making an  entry in  the daily diary proceeded to the Medical  College where  he recorded  the statement  (Ex. PJ/1) of  Prem Singh (PW 9) which was treated as the FIR. SI Ram Chander  held the  inquest on  the dead  body of  Ishwar (Ex.PF). The  dead  body  was  then  sent  for  post  mortem examination. Dr.  Rohtas Yadav  (PW 3)  carried out the post mortem examination  and his  report  is  at  Ex.PD.  SI  Ram Chander then  recorded the  statements of  various witnesses including that  of Rajinder  Singh (PW 14) and Dhan Kaur (PW 11) who were injured during the assault and were sent to the Medical  College  for  necessary  treatment.  All  the  four accused  were   arrested  during  the  investigation.  After completing the  necessary investigation, a charge sheet came to be  submitted against  all the  four accused for offences punishable under  Sections 302, 302/34 and 449 of the Indian Penal Code. 4.   The accused  denied the  allegations  levelled  against them and  pleaded that  they  are  innocent  and  they  have committed no  offence. They  have been falsely implicated in the present crime. They prayed that they be acquitted. 5.   The prosecution  in  order  to  bring  home  the  quilt against the  accused examined Prem Singh (PW 9), Krishan (PW 10), Dhan Kaur (PW 11) and Rajinder (PW 14) as the witnesses of fact  and also  to prove  motive.  The  prosecution  also examined formal  witnesses including  three  doctors,  panch witnesses and the investigating officer. The accused did not lead any evidence. 6.   The learned  trial judge  after careful scrutiny of the oral and  documentary evidence on record by his detailed and well reasoned judgment found A-1 guilty of committing murder of Ishwar  whereas A-2  to A-4 were held guilty with the aid of Section 34 PIC for the substantive offence of murder. A-1 was accordingly  convicted under  Section 302  IPC  and  was sentenced to  undergo life imprisonment and to pay a fine of Rs. 5,000/- in default to undergo further RI for six months. A-2 to  A-4 were convicted under Section 302/34 IPC and were sentenced to  suffer imprisonment for life and to pay a fine of Rs.500/- each or in default to undergo further RI for six months. 7.   The respondents  Nos. 1  to 4  accused aggrieved by the order of conviction and sentence preferred a criminal appeal

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to the  High Court  and the  High Court  reversed  the  well reasoned judgment  of the  trial court and acquitted all the accused.  It   is  against  this  order  of  acquittal,  the complainant has  filed the  present Criminal  Appeal to this Court. 8.   Mr.  R.C.Kohli,  learned  Advocate  appearing  for  the appellants assailed  the impugned  judgment firstly  on  the ground that the High Court had committed a grave error while rejecting the  evidence of eye witnesses on the premise that the medical evidence did not support their evidence. He then urged that  the High  Court had also committed a grave error while doubting  the credibility  of the eye witnesses solely on the ground that they are close relatives of the deceased. He then  urged that  the High Court erroneously assumed that the injuries  to Ishwar (since deceased) could not have been caused by  Ranpi having  regard to its measurement and size. He, therefore,  urged that  each reason  given by  the  High Court in  support of its order of acquittal is unsustainable and prayed  that the  impugned order  be set  aside and  the order passed by the trial court be restored. 9.   Mr. R.S.Bhatia,  learned  Advocate  appearing  for  the accused  supported   the  impugned   order  and   tried   to demonstrate how  the order  of acquittal  is sustainable. He urged that  no case  for interference  is made  out  by  the appellant and, therefore, the appeal being devoid of merits, be dismissed. 10.  We have  gone through the judgments of the courts below as well  as the relevant materials on record. Before we deal with the  rival contentions  raised before  us, we  deem  it proper to  first find  out as  to whether  impugned order is based on cogent and satisfactory objective assessment of the evidence on  record. In  our considered view, the High court has dealt  with the  criminal appeal in a very causal manner and the  reasons recorded  for acquittal are contrary to the evidence on  record. We  may hasten to reproduce some of the reasons in the impugned order which read as under:-      "It was conceded by PW 3 Dr. Yadav,      during the  course  of  his  cross-      examination that the blade of Ranpi      Ex.P6, is 4 c.m. wide and 11.5 c.m.      in length. We have checked up these      measurements in court and find them      to be correct. In the light of this      what  is   not  explained   by  the      prosecution is as to how this Ranpi      could  cause   the   fatal   injury      (no.1),  which  is  14  c.m.  deep.      Similarly    what     is    further      unexplainable is  that the  maximum      width of the blade of this Ranpi is      4 c.m.  but against this, the width      of the  above noted  injury is only      3.5 c.m. It is thus patent that the      depth  and   width  of  this  fatal      injury (No.1)  found on the body of      the  deceased   Ishwar  could   not      possibly be caused by Ranpi Ex.P6."      While entertaining  the doubt  as mentioned  above, the High Court went on to observe:_      "This,  to   our  mind,  completely      knocks  out   the  bottom   of  the      prosecution case." 11.  The High  Court then  observed that  having come to the conclusion that Ranpi Ex.P6 could not have caused the injury No.1 to  Ishwar, its recovery is meaningless. The High Court

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then observed:-      "It has  repeatedly been  held that      if the  version of  the prosecution      is   inherently    improbable   and      intrinsically     incredible     in      material     and      intrinsically      incredible in  material particulars      then  it   has  essentially  to  be      discredited as a whole." 12.  The High  court then  set out  the pedigree to show how the prosecution  witnesses are closely related to Ishwar and held  that   since  the  prosecution  has  not  examined  by independent witness,  it was  not possible  to  sustain  the conviction on  the basis  of  such  evidence  of  interested witnesses. As  regards the injury sustained by Dhan Kaur (PW 11), the mother of Ishwar, the High Court observed:-      "She appears  to have  been brought      in later  as an  eye witness.  Even      the two  simple injuries  found  on      her person  do not authenticate her      presence at the time of occurrence.      This is  again by  itself,  to  our      mind, good  enough to discredit the      prosecution version." 13.  As against  this, we  find that  the  judgment  of  the learned Addl.  Sessions Judge  (II), Rohtak,  was based on a very correct  objective assessment of the evidence on record and had rightly held that the accused persons were guilty of murder of Ishwar. 14.  As far  as the first incident at the place of Giani was concerned, the  evidence of  Rajinder (PW 14) is quite clear that A-1 and A-2 had come to that place where there was some quarrel when  Ishwar pushed  out both  these accused. It was this incident which motivated the accused persons to assault Ishwar in  the same  evening at about 8.30 p.m. Rajinder (PW 14) had  himself sustained  a lathi  blow given by Jai Singh (A-2) and  the injury  certificate  (Ex.PA)  issued  by  Dr. Ravinder Kumar  (PW 2)  clearly borne  out  the  said  fact. Coming to the actual assault on Ishwar, the evidence of Prem Singh (PW  9), Krishan  (PW 10)  and Dhan  Kaur (PW  11)  is absolutely unimpeachable  and each one of them had testified how all  the four  accused came  to the  house of Ishwar and assaulted him  with weapons  in their hands. All these three witnesses were  searchingly cross-examined  on behalf of the defence but  hardly any material could be brought out during their cross-examination  to discredit  their evidence. It is true that  Dr. Rohtas  Yadav (PW  3) who  conducted the post mortem  examination   on  the  dead  body  of  Ishwar  while referring  to   injury  No.1  during  the  cross-examination admitted that  such an  injury may  not be possible by Ranpi (Ex.6). The measurements of the said Ranpi (Ex.6) which were referred to by the High Court in its impugned judgment could not persuade  us to  disbelieve the  evidence  of  three  ye witnesses as regards the assault on Ishwar by A-1 with Ranpi (Ex.6). We  have no  hesitation in  saying that  Dr.  Rohtas Yadav (PW 3) has given the evidence in a very causal manner. His evidence  being the  opinion evidence  in the  facts and circumstances of  this case  cannot nullify  the evidence of Prem Singh (PW 9), Krishan (PW 10) and Dhan Kaur (PW 11) who have testified that A-2 and !-3 were holding Ishwar and when he bent  a little,  A-1 gave Ranpi blow on his back. One has to only  visualise the  assault and  if one  does so,  it is quite apparent  that Ishwar was made to bend a little as his hands were  caught by  A-2 and  A-3  whereupon  A-1  gave  a powerful blow  with that Ranpi on his back. The depth of the

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injury was 14 cms which was no doubt more than the length of the blade of the weapon but since it was a forceful blow, we see no  improbability of  such a  deep  injury  having  been caused by  the said weapon. It is also relevant to note that the incident  in question  had taken  place at  the house of Ishwar where  the presence  of these three eye witnesses was proved.  Apart  from  this,  Dhan  Kuar  (PW  11)  had  also sustained an  injury which was proved by Dr. Mohar Singh (PW 4) who  issued the  injury certificate (Ex.PG). We prefer to believe the  evidence of these eye witnesses notwithstanding the fact  that Dr.  Rohtas Yadav  (PW 3)  had expressed some doubt as regards the injury No.1 having been caused by Ranpi (Ex.6). We  accept the evidence of these three eye witnesses and hold  that the  Ranpi (Ex.P6)  was the weapon of assault used by  A-1 and  had caused  the injuries  on the person of Ishwar which  were proved  to be  fatal. The trial court was also right in convicting accused Nos. 2 to 4 with the aid of Section 34  PIC as  it is  quite clear  from the evidence on record that  all the  four accused  came together  and  were armed with  weapons except A-4; trespassed into the house of Ishwar and  thereafter assaulted  him. This evidence, in our opinion, is  quite sufficient  to prove  the  complicity  of accused Nos.  2 to  4 with the aid of Section 34 IPC for the substantive offence of committing murder of Ishwar. 15.  In the result, criminal appeal is allowed. The impugned judgment and  order dated  October 29,  1986, passed  by the High Court  acquitting respondents  Nos. 1 to 4 (A-1 to A-4) is quashed  and set  aside and  the judgment  and  order  of conviction dated  October 24/26,  985, passed by the learned Addl. Sessions Judge (II), Rohtak, is restored, If A-1 to A- 4 are  on bail,  they shall  surrender  to  their  bailbonds forthwith  to   serve  out   the  remaining  part  of  their respective sentences.