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CASE NO.: Appeal (crl.)  1020 of 2007

PETITIONER: Silak Ram and Anr

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 06/08/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   1020           OF 2007                                            (Arising out of SLP (Crl.) No.794 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.   

        2.      Challenge in this appeal is to the judgment of the  Division Bench of the Punjab and Haryana High Court  dismissing the appeal filed by the accused-appellants.  Three  accused persons faced trial for alleged commission of offence  punishable under Section 302 read with Section 34 of the  Indian Penal Code, 1860 (in short the ’IPC’) for causing  homicidal death of Jagbir (hereinafter referred to as the  ’deceased’). They were convicted by Additional Sessions Judge  (First), Bhiwani, Haryana and each was sentenced to undergo  imprisonment for life and to pay a fine of Rs.2,000/- with  default stipulation.

3.      Prosecution version sans unnecessary details is as  follows:

       The accused and the deceased are residents of village  Dhanana. Mst. Bhulan had a son, namely, Jagbir, the  deceased, and a daughter, namely, Krishna. Both were  married. On account of floods in the village, 15 days prior to  the occurrence, Prem, wife of Jagbir had gone to her parental  house. Due to floods in the streets of the village, Mst. Bhulan  the complainant used to tether her cattle near Dharmashala  Brahmchari Ashram and Jagbir used to sleep near the cattle.  On 24.9.1995, at about 9/9.30 P.M., after taking meals, as  usual Jagbir went to the sitting room of accused Silak Ram  son of Ram Bhagat where Narotam alias Raja, Silak Ram and  Bijender alias Binder i.e. all the three accused were present.  During conversation Jagbir told one Narender who was  present there that Bijender Singh alias Binder was a cheap  person and he could commit crime at any time. Narotam had  also quarreled with Jagbir 15-20 days prior to the occurrence  over the turmoil created by buffalo of the former. There was  exchange of hot words between them and Jagbir, which  attracted Mst. Bhulan. She intervened and brought her son  back to the house and directed him to sleep aside the cattle.  Mst. Bhulan in her statement further submitted that during  night when she woke up to urinate, she heard cries of her son

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and, therefore, she ran towards Brahmchari Ashram where  her son was sleeping. Chater Singh (her husband’s brother)  and his son Ved Parkash also ran towards that side. They saw  in the light of Brahmchari Ashram that accused Narotam alias  Raja armed with gandasi, Bijjender alias Binder armed with  ’phali’ and Silak Ram armed with lathi were causing injuries to  Jagbir. In their presence, Narotam alias Raja gave gandasi  blow on the right temporal region of Jasbir, Bijender alias  Binder gave phali blow on the right side of his chest and Silak  Ram also gave lathi blow to him. On seeing the witnesses, the  accused ran away from the spot. When they reached near  Jagbir, then they saw that he had breathed his last. Due to  the flood water in the village and in the surrounding areas of  the village and also on account of fear, they could not go to the  Police Station immediately.

       Ultimately, when they were going to lodge the report, ASI  Nar Singh met Mst. Bhulan at the crossing of village Mandhal  where she got recorded her statement (Ex. P.A.) which was  completed at 9.40 A.M. on 25.9.1995, on the basis of which  FIR was recorded at the Police Station, Bhiwani Khera, on the  same day at 11.00 A.M. Special report was sent by SI Darshan  Lal through Constable Devinder Kumar No.579 to the Illaqa  Magistrate which was received by him on the same day at 7.00  P.M. The distance between the place of occurance and the  police station is 21 Kms. After sending ruqa, SI Darshan Lal  proceeded for the village, got the dead body photographed,  prepared inquest report, lifted bloodstained earth, a pair of  chappel and some pieces of rori on which he had noticed  blood. He also took into possession string of cot stained with  human blood. He also took into possession bloodstains from  thresher, trolley and took the same into possession vide  different memos. He also prepared rough site plan of the place  of occurrence and recorded statement of the witnesses. He  also got conducted autopsy on the dead body of Jagbir. On  30.5.1995, he arrested the accused from the bus stand of  village Dhanana. He got recovered the lathi, shirt-pajjama  from the room of a house in pursuance of the disclosure  statement made by the accused Silak Ram.

Similarly, in pursuance of the disclosure statement made  by accused Bijender alias Binder, he got recovered phalli, the  weapon of offence and the clothes from the different places  and took the same into possession.

He also got recovered gandasi under a heap of dung from  some inhabited place, shirt and pajama from different places  in pursuance to the disclosure statement made by Narotam  and took the same into possession through different parcels.

4.      On completion of the investigation, challan against the  accused was presented in the Court. On finding a prima facie  case against the accused, they were charge sheeted.

5.      To further the prosecution version 14 witnesses were  examined. The three witnesses, who were claimed to be eye-  witnesses were PWs.10, 11 and 14.  The trial court placed  reliance on the evidence of the prosecution witnesses and  directed conviction and imposed sentences as aforenoted.   Before the High Court, an appeal was preferred. Apart from  challenging the conclusions of guilt, it was contended that the  accused Bijender alias Binder was a Juvenile and was   therefore entitled to the protection given under the Juvenile  Justice Care and Protection of Children Act, 2000 (in short the  ’Juvenile Act’).  In this case the High Court while considering

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the various decisions of this Court held that at the time of the  commission of offence, accused Bijender was 16 years of age,  and at the time of High Court’s judgment was 29 years of age.   It was held that if he is allowed to be mixed with juveniles the  apprehension that he was likely to spoil the juveniles more in  comparison with his own reformation. Therefore, he was  sentenced to undergo imprisonment for ten years. The present  appeal has been filed by Silak Ram and Narotam alias Raja.   The High Court has confirmed the conviction and sentence so  far as these two accused persons are concerned.

6.      In support of the appeal learned counsel for the  appellants submitted that the evidence of PWs 10, 11 and 14  cannot be accepted.  In fact PW 10 had failed to identify all the  accused persons and had failed to identify one co-accused,  Raja.  It was pointed out that there was unexplained delay in  lodging the FIR and in dispatch of the copy of the report to the  Illaqua Magistrate.

7.      Learned counsel for the respondent on the other hand  supported the judgments of the courts below.   8.      It is to be noted that the trial court has placed reliance  on the evidence of eye witnesses PWs. 10, 11 and 14.  Even  though there was some confusion in identification by PW 10,  the High Court rightly noticed during examination-in-chief she  has correctly identified the accused persons.  But at the time  of cross-examination, she only identified one accused.  The  evidence of PW 11 has been analysed by the trial court and the  High Court and his version has been found to be cogent and  credible. Therefore, the trial court and the High Court were  justified in placing reliance on the evidence of eye witnesses  more, particularly, PW 11.   

9.      Coming to the stand that there was delay in lodging the  FIR and in dispatch of the report to the Illaqua Magistrate, this  also has been elaborately dealt with by the High Court.  Delay  in lodging FIR by itself would not be sufficient to discard the  prosecution version unless it is unexplained and such delay  coupled with the likelihood of concoction of evidence. There is  no hard and fast rule that delay in filing FIR in each and every  case is fatal and on account of such delay in prosecution  version should be discarded. The factum of delay requires the  court to scrutinize the evidence adduced with greater degree of  care and caution. In this case the eye witnesses have given a  vivid description of the events. The evidence of PW 11 as noted  above, is cogent and consistent and the version given by this  witness fits with medical evidence. It has come on record in  the evidence of the Investigating Officer (in short ’IO’) that the  distance between  Bawani Khera and Bhiwani is about 20 k.m.  and from Dhanana  to Bhiwani is about 18 k.m. and from  Dhanana to Mundhal is about 12 k.m.  Investigating Officer  has categorically stated that there was flood in the areas.  In  the FIR it was specifically stated that the occurrence took  place around mid night of 24/25.8.1995. The statement was  recorded at Mundhal Khurd Chowk on 25.9.1995 at 9.40 A.M.  and the same was dispatched to the police station of Bhiwani  Khera. The formal FIR indicates that it was recorded at 11 AM  and had reached the magistrate at 7 p.m.  It has been stated  that the late delivery was due to flood in the area and this has  been specifically noted by the Judicial Magistrate who has  reported as follows:

"Received from constable Devender Kumar at 7  p.m. on 25.9.1995.  Stated that due to the  flood, he reached late"

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10.     The trial court and the High Court rightly accepted the  stand of the prosecution that the delay was attributable to the  flood and there was no dispute raised at any stage that there  was in fact no flood in the areas in question.  The delay was  fully explained as held by the Trial Court and the High Court.   

11.     Above being the position, there is no merit in this appeal  which is dismissed.