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PETITIONER: RAM KUMAR

       Vs.

RESPONDENT: THE STATE OF HARYANA

DATE OF JUDGMENT:       12/04/1996

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) RAY, G.N. (J)

CITATION:  JT 1996 (5)   341        1996 SCALE  (3)443

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT S.B. Maimudar. J.      The appellant,  Ram Kumar.  along with  seven other co- accused was  tried for  the murder of deceased Balwant Singh at about  9.30 Ph  on the  night of  30th September. 1982 at village Shamgarh  near Nilokherii  in the  State of  Punjab. Five co-accused  were convicted  under section 302 read with section 148  while the appellant was convicted under section 302 of  The Indian-Panel  Code and  was sentenced  to suffer life imprisonment.  The appeal  before the High Court failed and in  the application for enhancement of sentence filed by the complainant the High Court imposed a fine of Rs.25,000/- on the  appellant. The rest of the co-accused were acquitted The appellant.  having obtained  special leave to appeal has preferred this criminal appeal.      We have heard learned counsel for the appellant as well as the  learned counsel  for the respondent-State in support of their  respective stands. It must be stated at the outset that there are concurrent findings of facts recorded by both the courts  below whereby it is found that the appellant was instrumental in giving pistol shot injury on the forehead of the deceased,  Balwant Singh  on  that  fateful  night.  For arriving at the said finding reliance was placed by both the courts on the eye-witness account of prosecution witness no. 4, Dalel  Singh, brother  of the  deceased who is said to be present with  the deceased  in the  bara. Reliance  is  also placed on  the evidence  of PW-S,Mansa  Ram, father  of  the deceased who  was also  sleeping nearby on his cot. In order to  appreciate   the  grievance  voiced  on  behalf  of  the appellant by  his learned counsel, it is necessary to note a few background facts.      Balwant Singh,  deceased was  the  younger  brother  of Dalel Singh PW-4. They had another brother Baldev Singh, who was youngest of them all. All three of them were married and used to  live separately. Their father, Mansa Ram, PW-5 used to reside  with Baldev  Singh, the  youngest son.  Near  the

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house of  Dalel Singh  PW-4, there was a vacant site of land which stood  in the name of Mansa Ram, father of Dalel Singh PW-4. This  bara was  the bone  of  contention  between  the complainant side and the side of the accused. Mansa Ram PW-5 claimed ownership  and possession  of this  bara  while  one Surta Ram,  son of  Chhaju Ram claimed ownership of the bara in himself.  Appellant, Ram  Kumar, is the son of Surta Ram. It  is  the  case  of  the  prosecution  that  a  litigation regarding this bara was pending in court since years and the trial court  had decided  the same  in favour  of Mansa Ram. Against that  decision an  appeal was  pending in  the  High Court on behalf of Surta Ram, father of appellant Ram Kumar. It is  the further case of the prosecution that pending this appeal, Ram  Kumar on behalf of his father was insisting the complainant’s side  to vacate  the bara. That two days prior to the incident, i.e. on 28.9.82 the appellant Ram Kumar and accused  Shamsher   Singh  came  to  the  bara,  abused  the complainant and  asked them  to vacate  the bara. They again came on  29.9.82, previous  day of the incident, abused them and asked them to vacate the bara. Because of these threats, the complainant-side convened a Panchayat meeting on the day of the  incident, i.e. 30.9.82 and although the accused were summoned  they  did  not  turn  up  in  the  Panchayat.  The Panchayat dispersed  after waiting  for two  hours and  then followed the fateful incident on the night of that very day. As deposed to by complainant PW-4, before the trial court at about 9.30 to 10 PM, the complainant, deceased Balwant Singh and also  their  father,  Mansa  Ram  were  lying  on  their respective cots  in front side of the bara. Mansa Ram was on his cot  in the  door of the bara. That at that time, a fiat car of  cream colour arrived there and the driver of the car brought it near the cots. Six persons alighted from the car. They included,  amongst others,  the appellant Ram Kumar and co-accused Shamsher  Singh and  started abusing  them.  They wanted to  know why  they had  not vacated the bara although they had  insisted for  two days.  When Balwant Singh was in the process  of getting  up, the  accused, except  Ram Kumar challenged that a lesson should be taught to the complainant for not  vacating the  bara. At that juncture the appellant, Ram Kumar  fired a  shot from  his pistol  which hit Balwant Singh.  Balwant   Singh  fell   down  on   the  ground.  The complainant and  his father,  Mansa Ram  raised an alarm. By that time, the accused persons bolted away in the said car.      In connection  with this  incident, a  police complaint was lodged.  The deceased  was, in  the meantime, removed to the Hospital  at Nilokheri  in injured condition. But within half an hour, he expired in the hospital. The case which was originally  registered  under  section  307  was  thereafter converted  to  section  302  IPC.  All  these  accused  were committed to  the court  of Sessions  to stand  their trial. After   recording evidence  offered by  the prosecution  and after hearing  the accused,  the learned Sessions Judge came go the  conclusion that  the appellant  and other  five  co- accused were  guilty of  the offences  with which  they were charged and convicted and sentenced them as aforesaid, it is thereafter, that  in their  appeal, the High court acquitted other co-accused  but maintained the conviction and sentence of the  appellant under section 302 IPC and on complainant’s application enhances  the punishment by imposing the fine of Rs 25,000/- in the appellant as noted earlier.      As this  is an  appeal on special leave, the concurrent findings reached  by both  the courts  on evidence cannot be lightly brushed  aside and  unless  it  is  shown  that  the findings are  against the  weight of evidence or vitiated by any error of law, normally this Court would not interfere as

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a matter  of course  with such findings. It is in that light that we  have to  consider the main contentions canvassed by the learned  counsel for  the appellant  in support  of this appeal.      Learned counsel  took us  through the relevant evidence of the  alleged eye-witnesses.  According to  him, this is a case of  blind murder  and the  so called eye witnesses were not present  in the  bars at  the  time  when  the  deceased suffered from  pistol injury. Nor supporting this contention he submitted  that the  bara in which the incident occurred, belonged to  deceased while  the eye  witnesses were staying separately. He  invited our  attention to  what PW-4.  Dalel Singh stated  in this  regard. The  witness had  stated that besides Balwant  Singh deceased,  Baldev is also his brother and all  of them  were residing  separately. However, in the very next line, he stated that there was a joint bara in the name of  his father  and that  bara was  allotted to them in consolidation proceedings  about 30 years back and that they had constructed  a cattle shed in that bara. The witness had further stated  that they  used to sleep in order to protect their cattle.  It is,  therefore, not possible to agree with the contention of the learned counsel for the appellant that there was  no occasion  for this witness or even his father, Mansa Ram  to sleep  in this bara. It has also to-be kept in view that  there was bitter litigation pending in connection with the  ownership of  this bara  between the complainant’s side and  the accused’s  side. The  complainant’s  side  had succeeded in  the District  Court and the appeal was pending in the High Court. Even apart from that, the evidence of PW- 4 shows that two days prior to the date of the incident, the appellant Ram  Kumar and  his supporters had abused them and asked them  to vacate  the bara and that attempt failed. The act was  also repeated  on the  previous day and even on the date of  the incident, a Panchayat had to be convened by the complainant’s side  where the accused did not remain present and in that sequence the incident that occurred on the night of that  very day  had to be appreciated. When such constant threats were  given by  the appellant  and his supporters in connection with  the bara, it would be quite natural for the witnesses to  sleep with  the deceased  in the  said bara to protect their  possession. Consequently,  it is not possible to agree  with the  contention of the learned senior counsel for the  appellant that  these witnesses would not have been present in the bara at the time of the incident.      It was next submitted that the first information report was filed  very late.  It is  difficult to  appreciate  this contention. The  High Court  was right when it took the view that the  evidence of ASI Vijender Singh PW-10, who recorded the statement  of PW-4 Dalel Singh by way of FIR, Ex. PE had done so  at about  12.20 A.h. on that very night. It is easy to visualize that when the incident occurred at bara between 9.30 and 10 PM at night and when effort was to be made first to remove the injured to the hospital at Nilokheri which was a couple  of kilometres  away and  when evidence  shows that they had  to requisition  the vehicle of one Sikh, as stated by the witness, Mansa Ram PW-5, it would naturally take some time. After  the injured  was removed to the hospital in the jeep brought  by Baldev who took the victim to the hospital, the witness  had proceeded towards the police station but at the  bus   stop  of  the  village  on  the  G.T.  Roads  ASI accompanied with  constables met him and then immediately on the bus  stop itself  the complaint was recorded. It is also in evidence  of ASI,  Singh Ram  PW-7, that  while he was on duty in  Control Room  on 30.9.82  at Karnal  at about 23.08 hours, during  the night intervening 30.9.82 and 1.10.82, he

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had received  a telephonic  message that  there  was  firing going on in village Shamgarh and on inquiry he was told that the name  of  the  informant  was  Kishan.  He  was  further informed that  telephone of Butana Police Station was out of order. He  then made entry in the log book and passed an the message to  Police Station  Butana for proceeding to village Siamgarh to  find out  as to  what had happened. That he had passed on  this message  to Police  Station Butana  at about 11.10 P.M.  and it is thereafter that the police could reach the village Shamgarh and record the statement of the witness PW-4 and an FIR. All this would naturally take some time. It could not,  therefore, be said that the recording of FIR was unduly delayed.      The learned  senior counsel  next submitted that if the information had  reached Sub Inspector, Vijender Singh PW-10 at about  11.10 PM  on 30.9.82 when he received the wireless message which  had stated  that firing  was taking  place at 11.08 PM,  it is not possible to believe that the firing had taken place  in the  bara between  9.30 to  10 PM  and  this showed that  the prosecution had ante-timed the incident- It is difficult to agree with this contention As noted earlier, Singh Ram  PW-7, himself  has stated  that he  had  received telephonic message  from village  Shamgarh by about 11.08 PM that firing  was going  on. Therefore, the message must have been flashed  after the  firing  had  taken  place.  In  the process of  receiving the said message, the witness was also informed that  earlier an attempt was made to telephone P.S. Butana but  it was  out of order and thereafter this message was sent  to Karnal Police Control Room. This process itself would take quite some time. Secondly, even if the firing had taken place  at about 10 PM its information would have taken some time  before it  could reach a stranger like Kishan and then Kishan  made unsuccessful  attempt to contact Butani PS and as  he could not do so then he contacted Control Room at Karnal. By  that times  it was  informed that the firing had taken place  at 11.08  P.M. Thus, the difference of one hour one way  or the other would not make any difference or would not necessarily falsify the prosecution case that firing had taken place in the bara of Balwant Singh situated at village Shamgarh on  that night or that the prosecution had tried to ante-time the  incident with  a view to make the presence of eye-witnesses available  on the  spot as  alleged.  In  this connection? it  may also  be noted  that the  High Court has rejected this  contention by  observing that when there were constant threats  to the  possession  of  the  bara  by  the complainants side  it would  be natural for the witnesses to remain present  in the  bara to protect the same and 10 P.M. or  so  was  not  a  time  when  the  witnesses  would  have necessarily gone  to sleep  under such circumstances or that they would  not keep  awake at  that hour.  We may also note that the  High Court  has rightly  placed  reliance  on  the evidence of PW-2 who stated that some semi-digested food was present in the stomach when he performed the post mortem and that if  the deceased  had died  at 10.40 AM on 1st October, 1982, then  he would have probably taken his food at 7 PM on the earlier  evening. That  it normally  took for  the  food eaten by  peasants in Haryana four to six hours to leave the stomach. After the deceased had been injured, the process of digestion had  probably slowed  down. When these factors are taken into  consideration, it  becomes obvious  that the two eye  witnesses   were  right   when  they  stated  that  the occurrence took  place at  about 9.30  to 10 PM on September 30, 1982  at village  Shamgarh and  that in  the  months  of summer, in  a well  populated village  like Shamgarh  people hardly go  to sleep  before 10  to 11  PM. In  our view, the

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aforesaid reasoning  of the  High Court is well sustained on evidence and therefore, it is not possible to agree with the submission of the learned counsel for the appellant that the incident was  tried to  be ante-timed  by the prosecution or that the  eye witnesses  would not  have been present and it was a blind murder.      It was  next submitted that the medical evidence showed that the  deceased had  received the bullet only on the left side of  his face  and that  would indicate  that he must be sleeping when  the pistol injury was given to him. Even this submission cannot  be of  any use  to the  appellant for the simple reason that being apprehensive of injury from pistol, the deceased  would naturally  have turned his face to avoid the injury  and in  the process  might have  been hit on the left side because only one shot was fired at the deceased.      It was next contended that the statement Ex. DL and DL- 1 made  in the  remand application  by the  police  did  not implicate  the   appellant.  This   submission  was  rightly rejected by  the High  Court which  has  observed  that  the English  translation   was  defective   and   the   original application in Hindi showed that Ram Kumar, appellant was in the company  of other  persons and had appeared on the scene and fired  the fatal  shot. Even  if some other persons were mentioned in  the remand  applications, once the appellant’s name  was   clearly  mentioned   in  the  applications,  his involvement in the incident does not get in any way lessened or obliterated.  It is  also  pertinent  to  note  that  the evidence given  by PW-4 in connection with what had happened on the  day of  the incident when Panchayat was convened and even  on   previous  two  days,  could  not  be  effectively challenged in the cross-examination.      It was  next contended  by the  learned counsel for the appellant that  the road  near the  bara was  a zig-zag  and narrow one  and the  car could  not have  come carrying  the appellant  and   the  other   accused  as   alleged  by  the prosecution. Even this contention cannot be accepted for the simple reason  that in  the cross-examination of the witness PW-4, it  has been brought out by the defence itself that on one side  of their  bara, agricultural land was situated and even in  further cross-examination  of the  same witness, it has been  brought out  that there  was  sufficient  electric light on  the vacant  place towards which their bara opened. It is  also further  pertinent to  note that  there  was  no cross-examination of  these witnesses  on the aspect whether the car  could have come or not on the spot or whether there was any  zig-zag road.  In fact,  such a  suggestion was not even put  to any  of the eye witnesses. Therefore, it is too late in  the day  for the learned counsel to submit that the car could  not have  come near  the  spot.  So  far  as  the presence of electric light is concerned, the witness had clearly stated that there were number of bulbs near the bara and they were burning.      Learned counsel  then submitted  that the witness Mansa Ram had  a weak eye-sight. Even this submission cannot be of any avail  for the  simple reason  that when cross-examined, the witness  Mansa Ram PW-5, stated his eye sight had become weak after  the death  of his younger son, Balwant Singh and that his long distance eye sight was all right.      It  was   next  submitted  that  if  according  to  the prosecution three persons were sleeping in the bara on their cots, how  only one  cot was  found by  the police.  In this connection  it  has  to  be  observed  that  in  the  cross- examination of  witness Manss  Ram, PW-5, it was brought out that a  number of  persons were  sitting on  their cots when they had  collected at  the spot  after the incident and the

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other cots  lying on  the spot were removed for that purpose and only  one cot  on which the deceased was sleeping at the time of  the incident  was not  removed from  the spot. This explanation, which  is accepted  by both  the courts  below, cannot be said to be in any way an unreasonable explanation.      It was  then contended  that the FIR itself appeared to be a  concocted one and as such detailed averments were made therein and  such detailed averments could not be written on the bus  stand as  alleged  by  PW-4,  Dalel  Singh.  It  is pertinent  to   note  that   nothing  substantial   in  this connection could  be taken out in the cross-examination. The statement of  the witness in respect of the recording of the FIR on  the bus  stand is fully corroborated by the evidence of  ASI,  Vijay  Singh.  Even  such  a  contention  was  not canvassed before the High Court in support of the appeal. It is, therefore, clearly an after-thought.      It was  also contended that according to the version of the eye  witnesses they  waited for  about one  or one and a half hour  at village  Shamgarh after  the  incident  before taking the  victim to  the hospital and this was improbable. We fail  to appreciate this submission. It has to be kept in view that between 9.30 to 10 PM the incident had happened at the village.  The accused who had come in car had thereafter fled. Villagers had gathered on the spot. The evidence shows that they  were in  search of a vehicle to take the deceased to  the   hospital  at  Nilokheri  which  was  a  couple  of kilometres away.  After procuring  the jeep, they could take the victim  to the hospital. That would naturally take quite some time. Therefore, one and a half hours cannot be said to be an unduly long period which had elapsed before the victim could be taken to the hospital.      It was  next  contended  that  when  the  investigating officer had  admitted that  he  had  recorded  statement  of several persons,  evidence at  the stage  of trial was given only by  the victim’s  close relatives  -  PW-4,  his  elder brother and  PW-5, his  father. In  our view  when  the  eye witnesses who were in company of the deceased at the time of the assault  and who had witnessed the assault were examined there remained  no occasion  to examine  other witnesses who obviously had  come on the spot after the incident and would not have  thrown any  light on  the actual  happening of the incident. It was not the case of any one that along with the deceased  and   the  eye  witnesses  there  were  any  other witnesses present  in the  bara when the assault was mounted by the  accused. Consequently,  this argument is of no avail to the appellant.      It was  lastly submitted  that the High Court ought not to have  imposed the fine of Rs. 25,000/- in the application filed by  the complainant.  In  our  view,  this  contention cannot be  of any  avail for the simple reason that when the High Court  found that  the deceased  was done  away with in such a  brutal manner  on the  night of  the  incident,  the accused should  bear the  fine of Rs. 25,000/-. It could not have been  said that  such a  discretionary  order  was  not justified in the facts and circumstances of the case.      These are  the only  submissions made  by  the  learned counsel for  the appellant.  We find  no substance in any of them. In  the result  the appeal fails and is dismissed. The appellant was released on bail pending this appeal. His bail bonds  are,  therefore,  ordered  to  be  cancelled.  He  is directed to  be taken  in custody to serve out the remaining part of the sentence imposed on him.