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CASE NO.: Appeal (crl.)  243 of 2003 Appeal (crl.)  242 of 2003

PETITIONER: Prem Sagar                                                               

RESPONDENT: Dharambir and Ors.                                               

DATE OF JUDGMENT: 29/10/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       These two appeals are interlinked being directed against the same  judgment of the Punjab and Haryana High Court. While Criminal Appeal  no.242/2003 is by the convicted persons, Criminal Appeal no.243/2003 is  by the informant.  The three appellants in Criminal Appeal No.242/2003  have been found guilty of offence punishable under Section 302 read with  Section 34 and 120-B of the Indian Penal Code, 1860 (for short the  ’IPC’). While accused-appellants Dharambir and Joginder were awarded  death sentence by learned Sessions Judge, Hisar, appellant-Karambir was  sentenced to undergo imprisonment for life. Each of the accused persons  was asked to pay a fine of Rs.25,000/-each . In appeal before the High  Court, the death sentence was commuted to life sentence in case of  accused-Dharambir and Joginder. The convictions, however, were  maintained. It is to be noted that accused-Joginder, as per the  information given to this Court by learned counsel for the appellants,  has died during pendency of the appeal and, therefore, the appeal so far  he is concerned, has abated.

The backgrounds facts are as under:         Appellants (Dharambir, Joginder Singh and Karambir)  along with  their two real brothers â\200\223 Jagbir Singh and Jasbir Singh and their mother  Vanaspati, in all six accused, were charged sheeted by the learned trial  Court on the allegations that about 7-8 days prior to the date of  occurrence i.e. 29.6.2000, in the area of village Mayyar,  resolved to  do an illegal act to commit the murder of Dalbir, Vijender and Smt.  Kitabo and they murdered them in pursuance of the said agreement and  thereby committed offence under Section 120-B IPC.  The second charge  against the appellants was that on 29.6.2000 at about 10.30 p.m. in the  area of the said village and in pursuance of their conspiracy, they  murdered Dalbir, Vijender and Smt. Kitabo and thereby committed an  offence punishable under Section 302 read with Section 120-B IPC.   Thirdly, on the same day, time and place, appellant-Dharambir in  furtherance of common intention of co-accused Joginder and Karambir  committed murder by intentionally causing the death of Dalbir and  thereby he committed an offence punishable under Section 302 IPC while  his co-accused Joginder and Karambir committed an offence punishable  under Section 302/34 IPC.  Fourthly, on the same day and in the said  area of village Mayyar and in furtherance of common intention Dharambir  and Joginder committed murder by intentionally causing the death of  Kitabo and thereby they committed an offence punishable under Section  302 read with Section 34 IPC.  Fifthly, on the same day, time and place

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and in furtherance of their common intention, all the three appellants  did commit murder by intentionally causing the death of Vijender and  thereby committed an offence punishable under Section 302/34 IPC.

       Interestingly, in this case the first information report was  lodged by accused-appellant Dharambir before ASI Vinod Kumar (PW12) but  during investigation he found that Dharambir along with two others were  the assailants and after investigation charge sheet was placed.

       During trial and before the High Court, prosecution relied on the  version of Prem Sagar (PW15) who claimed to be an eyewitness.  The trial  court and the High Court found his evidence to be credible, cogent and  acting on it directed conviction and imposed sentence as aforesaid. In  view of the death sentence imposed on two persons, reference  was made  to the High Court for confirmation under Section 366 of the Code of  Criminal Procedure, 1973 (for short the ’Cr.P.C.’). As noted above, the  High Court converted the death sentence into life sentence. While  accused persons have questioned the correctness of the judgment so far  as their conviction and sentence are concerned, the informant has  contended that the High Court was not justified in altering the death  sentence to life sentence.  It is accepted by the learned counsel for  the State that no appeal has been preferred by the State for alteration  of death sentence to life sentence.

       We have heard learned counsel for the parties at length. Learned  counsel for the appellants submitted that the evidence of PW15 does not  inspire confidence, and is highly doubtful. His conduct after the  occurrence, when he is supposed to have travelled his village side at  great distance on foot, when transport facilities were available, to  have returned to the place of occurrence on foot or by an inconvenience  mode of transport is highly unusual and lacks credibility.  It is  further submitted that so far as accused Karambir is concerned, the  prosecution has not established his role. He has been convicted by  application of Section 34 IPC. In fact, PW-15 has clearly stated that he  was not present when Kitabo and Dalbir were assaulted. He is supposed to  have followed deceased Vijender and to have prevented him while he was  trying to run away.  PW-15 in his cross-examination has clearly accepted  that it was accused-Dharambir who caused his fall. It is also submitted  that in the circumstances noticed by the High Court there is no scope  for interference with the life sentence awarded.  Learned counsel for  the State submitted that Section 34 is clearly applicable for the  accused-Karambir. The slip of tongue committed by PW15 to say that  accused-Dharambir had caused fall of deceased-Vinod cannot be magnified  to such an extent as to rule out involvement of accused-Karambir.  Learned counsel for the informant-appellant, Prem Sagar  submitted that  in a case of such brutal murders where three person lost their lives  death sentence had rightly been awarded by the trial court and the High  Court should not have  interfered.   

       We have perused the judgment and the evidence on record. The  evidence of PW15 has been rightly acted upon by the trial court and the  High Court. This witness is relative of both the deceased and the  accused. Therefore, there is no reason as to why he would falsely  implicate the accused persons. Added to that in spite of the elaborate  cross-examination nothing fragile in his testimony has surfaced. His  evidence is cogent, truthful and trustworthy. Therefore, the conviction  so far as accused-Dharambir is concerned, cannot be faulted. Similarly,  in the case of accused-Joginder in respect of whom the appeal has abated  because of his death.  So far as accused-Karambir is concerned, in view  of the scenario as highlighted by learned counsel for the appellants,  the prosecution has not linked him with the occurrence in a manner as to  attract applicability of Section 34 IPC. When the eye-witness (PW-15)  himself has stated that it was accused-Dharambir who caused fall of   deceased-Vijender it was not for the High Court to say it was a slip of  tongue.  Had it really been so, different course was to be adopted

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before the trial court, which the prosecution did not do. That being so,  the conviction of accused-appellant Karambir cannot be maintained and is  set aside. He be set at liberty forthwith if not required in connection  with any other case.

       Coming to the appeal filed by the informant we find that the High  Court has taken note of various decisions of this Court and the  principles laid down as to when death sentence would be appropriate.  Brutality is inbuilt in every murder but in case of every murder death  sentence is not imposed.  Life imprisonment is the rule and death  sentence is the exception. The latter sentence is imposed in rarest of  rare cases. Taking note of the mitigating circumstances indicated by the  High Court, we do not find any scope for interference with the life  sentence awarded and to alter same to death sentence.   

       In the result, Criminal Appeal no.242/2003 is allowed to the  extent of acquittal so far as accused-Karambir is concerned, but  conviction of accused-Dharambir is affirmed. The Criminal Appeal  no.243/2003 filed by the informant-Prem Sagar is dismissed.