Punjab And Haryana High Court · 2010

Judgment

1. Appellant Wazir Chand was tried by the court of Sessions Judge, Hisar, for the offences under Sections 302 IPC and 25/54/59 of the Arms Act, for committing the murder of his elder brother Amir Chand, aged about 56 years. The trial court, vide its judgment dated 23.1.2004, convicted the appellant under Sections 302 IPC and 25 of the Arms Act, and vide order dated 28.1.2004, he has been sentenced to undergo imprisonment for life and to pay a fine of ` 2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for a period of three months, under Section 302 IPC; and to undergo imprisonment for a period of one year under Section 25 of the Arms Act. Both the sentences have been ordered to run Crl. A. No. 397-DB of 2004 -2- concurrently.

2. As per the prosecution version, which is based upon the statement (Ex.P19) of Kamal (PW.7) son of the deceased, both the brothers, i.e. the appellant and the deceased, were residing in their ancestral house, situated in Mohalla Dogran, Hisar. The deceased Amir Chand was in occupation of two rooms, whereas appellant Wazir Chand was in possession of one room. The appellant under the influence of liquor used to pick up quarrel frequently with the deceased on the ground that he had been given one room less to his share. On the day of occurrence, i.e. on 29.10.2001, at about 2.30 PM, complainant Kamal was informed by his neighbour Krishan Kumar at his shop that his uncle (appellant Wazir Chand) and his father (Amir Chand) were quarreling with each other. Then he along with said Krishan Kumar came to his house. At that time, his uncle Wazir Chand and aunt Pushpa Devi had received minor injuries. After the quarrel, they were standing distantly. He persuaded both of them. Thereafter, his uncle Wazir Chand along with his two children and wife Pushpa went away. Then after taking his meals, he went to sleep in a room. At about 5 PM, his mother Biro Devi (PW.8) was preparing tea in the verandah and his father Amir Chand was lying outside on a cot. Then his mother cried and asked to get up, as Wazir Chand had been inflicting injuries to Amir Chand with a knife. He got up and went in the verandah. He saw that his uncle Wazir Chand was inflicting injuries with knife on the chest of his father Amir Chand, who was lying. He tried to caught hold Wazir Chand, but he ran away from Crl. A. No. 397-DB of 2004 -3- the spot along with his knife. Thereafter, in order to save the life of his father and to shift him to the Hospital, complainant Kamal went to Surender, a neighbourer, for taking his car. After about ten minutes, when he along with Surender returned to the spot, by that time, his father had succumbed to the injuries. In the meanwhile, police came on the spot and he made the aforesaid statement to the police. On the basis of the said

statement, the formal FIR (Ex.P19/A) was registered against the appellant at

8.30 PM and the special report was sent to the Ilaqa Magistrate, which was received by him on the same day at 10.35 PM.

3. On 30.10.2001, Dr. V.K. Kawatra, Medical Officer, General Hospital, Hisar (PW.5), conducted autopsy of the deceased. He found 11 incised wounds on the body of the deceased. All the injuries were ante- mortem in nature and injury No.10 was found to be sufficient to cause death in the ordinary course of nature. According to his opinion, death of the deceased had occurred due to shock and haemorrhage as a result of injury No. 10.

4. On 30.10.2001, the appellant was arrested, when he was found present in front of the fruit shop on Thandi Sarak, Hisar and a spring actuated knife (Ex.P14) was recovered from his possession, which was taken into possession vide recovery memo Ex.P22/A. On 7.11.2001, the knife was shown to Dr. V.K. Kawatra (PW.5), who vide his opinion (Ex.P13/A) opined that the possibility of injuries on the body of the deceased being caused by the said knife cannot be ruled out. Crl. A. No. 397-DB of 2004 -4-

5. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offence under Section 302 IPC and for having violated the Haryana Govt. Notification No. SO- 127/CA/54/59/S.4/78 dated 15.9.1978, which is punishable under Section 25 of the Arms Act. The appellant did not plead guilty and claimed trial.

7. In support of its case, the prosecution examined 11 witnesses. PW.1 Subhash Chander, Draftsman, PW.2 HC Miya Singh, PW.3 HC Tribhuwan, PW.4 HC Om Parkash, PW.6 Constable Ram Singh, PW.9 SI Prem Singh and PW.11 HC Karan Pal are the formal witnesses.

8. PW.5 Dr. V.K. Kawatra, who conducted the post mortem examination on the dead body of deceased Amar Chand, proved the Post Mortem Report (Ex.P12) and the diagram showing the seats of injuries (Ex.P12/A). He also proved the application (Ex.P13) dated 7.11.2001 moved by the police and his opinion (Ex.P13/A) that the injuries on the body of the deceased are possible with the knife (Ex.P14).

9. PW.7 Kamal is the complainant and the eye witness to the alleged occurrence and he reiterated the entire version, as stated by him to the police in his initial statement (Ex.P19).

10. PW.8 Biro Devi, mother of the complainant and widow of deceased Amir Chand, is the another eye witness and she also has supported the case of the prosecution.

11. PW.10 Inspector Balram is the Investigating Officer of the case, who recorded the statement (Ex.P19) of the complainant, conducted Crl. A. No. 397-DB of 2004 -5- the investigation in the matter and arrested the appellant. He has proved all the material documents.

12. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence and false implication in the case. He took the plea that he had no dispute with his deceased brother regarding the unequal partition of their ancestral house. In fact, deceased Amir Chand was keeping an evil eye upon his wife Pushpa and he used to outrage her modesty on a number of occasions, whenever he got a chance. This fact was brought to the notice of the elders, but in spite of the all out efforts, the deceased did not mend himself. On 29.10.2001, in the noon time, when the appellant came to his house, he found his wife Pushpa struggling with deceased Amir Chand to get out of his clutches. She was lying half dressed and Amir Chand was trying to over-power her. On seeing this, the appellant immediately grappled with Amir Chand and thereupon, he (Amir Chand) started hitting the appellant and his wife Pushpa with a heavy stick, due to which both of them received injuries. In that hit of moment, in order to save the modesty of Pushpa and their lives, they with the help of kitchen knife caused some injuries to Amir Chand till they were freed from him. Thereafter, they along with their children went to the General Hospital, Hisar and got themselves medico legally examined. Thereupon, the police was called, who took them to the Police Station and the appellant was implicated in this case. Crl. A. No. 397-DB of 2004 -6-

13. In support of his defence, the appellant examined three witnesses.

14. DW.1 Dr. R.J. Bishnoi, Medical Officer, General Hospital, Hisar, stated that on 29.10.2001 at 3.00 PM, he medico legally examined the appellant and found four injuries on his person, out of which three were lacerated wounds and teeth in his upper jaw in right quadrant were found missing. He proved the MLR of the appellant as Ex.DC. On the same day, at

3.15 PM, he also medico legally examined Pushpa wife of the appellant and found two injuries on her person. Both the injuries were kept under observation. This witness also proved the MLR of Pushpa as Ex.DD.

15. DW.2 Suresh Kumar Chakarvarti is the real brother of the appellant Wazir Chand and deceased Amir Chand. He stated that the appellant and the deceased used to reside jointly in the ancestral house situated in Mohalla Dogran, Hisar. There was no quarrel between them with regard to partition of the house. However, they used to quarrel on account of the fact that Amir Chand was having an evil eye on the wife of Wazir Chand. In that context, on earlier occasion, this witness and his father had patched up the dispute and Amir Chand was persuaded not to do such act. He further stated that on 29.10.2001 at 8.30 PM, he came to know that Amir Chand was killed. His nephew Kamal (complainant) did not inform him about the death of Amir Chand. Rather, he came to know about this fact from third source. In the cross-examination, he stated that the deceased had never teased wife of the appellant in his presence. However, he was Crl. A. No. 397-DB of 2004 -7- receiving complaints about the teasing.

16. DW.3 Pushpa is wife of the appellant. She has stated that her husband was having no dispute with Amir Chand with regard to partition of the house. However, Amir Chand used to have an evil eye on her. In this regard, she had made complaints to her in-laws. On the day of occurrence, when she was alone in her house, at about 1.30/2.00 PM, Amir Chand tried to molest her forcibly. In the meanwhile, her husband reached there and tried to save her. He grappled with Amir Chand. Then Amir Chand gave a Sota blow on the forehead and head of her husband. He also inflicted injuries on her head. He made another attempt on her. Then her husband Wazir Chand (appellant) lifted a kitchen knife and inflicted injuries on the person of Amir Chand, who was trying to molest her. She further stated that had her husband not inflicted knife blow to Amir Chand, then he would have given more injuries to them. She further stated that thereafter, both of them along with their children went to the Hospital, where they were medico legally examined.

17. Thus, as per the defence version, the occurrence has taken place on 29.10.2001 at about 2.15 PM in the house, where the appellant inflicted knife blow injuries to the deceased, in order to save the honour of his wife and in self defence. However, as per the prosecution version, the occurrence had taken place on 29.10.2001 at about 5 PM, the appellant came in the house with a knife and inflicted many knife blows on his person, when he was lying on a cot in the verandah. It is specifically mentioned here that Crl. A. No. 397-DB of 2004 -8- DW.1 Dr. R.J. Bishnoi, in his cross-examination, has specifically stated that as per the bed head tickets of appellant Wazir Chand and his wife Pushpa, Wazir Chand was admitted in the Hospital on 29.10.2001 at 3 PM and he absconded from the Hospital at 4.00 PM. His wife was admitted at 3.15 PM and absconded at 6 PM on the same day. The trial court, while accepting the prosecution version and rejecting the defence version, convicted and sentenced the appellant, as indicated above.

18. We have heard the arguments of learned counsel for the parties and have gone through the trial court record.

19. Shri Gorakh Nath, Advocate, learned counsel for the appellant, argued that in the present case, the trial court has committed grave illegality, while accepting the prosecution version, particularly when the same has not been proved beyond reasonable doubt, and while rejecting the defence version, which has been established by the cogent and convincing evidence, led by the appellant. Learned counsel argued that the prosecution version entirely rests upon the statements of PW.7 Kamal and PW.8 Biro Devi, who are highly interested witnesses. He argued that neither Krishan Kumar, who had allegedly informed the complainant about the incident, nor Surender, who allegedly lateron came on the spot, has been examined by the prosecution to corroborate the version of the two eye witnesses. Learned counsel further argued that the appellant was taken into custody from the Hospital on the day of occurrence and he was wrongly shown to have been arrested on the next day. The recovery of knife was also planted on him. He Crl. A. No. 397-DB of 2004 -9- further argued that in the present case, by leading cogent evidence, the appellant has clearly established his defence that he had caused injuries to the deceased in order to save the honour of his wife and in self defence. However, the trial court has committed grave illegality, while not relying upon the defence version, as proved by the appellant. Therefore, conviction of the appellant is not sustainable.

20. On the other hand, Shri S.S. Randhawa, learned Additional Advocate General, Haryana, supported the judgment of conviction and the order of sentence, passed by the trial court and submitted that the appellant has been rightly convicted and sentenced, on the basis of the evidence, available on the record.

21. From the medical evidence led by the prosecution, it has been proved on record that Amir Chand had died due to the knife injuries received by him, particularly injury No.10, which were ante-mortem in nature. According to PW.5 Dr. V.K. Kawatra, the probable time between the injuries and death was variable and between death and post mortem was within 24 hours. In his opinion (Ex.P13/A), the possibility of those injuries on the body of the deceased being caused by the knife, which was recovered from the appellant, cannot be ruled out. The appellant, in his defence, has admitted to have caused injuries to the deceased with knife, though according to him, he had caused those injuries at 2.15 PM in order to save the honour of his wife and in the self defence. According to the prosecution, appellant Wazir Chand caused those injuries on 29.10.2001 at about 5 PM Crl. A. No. 397-DB of 2004 -10- in the house, when the deceased was lying on a cot in the verandah, and PW.7 Kamal as well as PW.8 Biro Devi had seen the appellant causing injuries to the deceased at that time. In our opinion, the trial court, after appreciating the evidence led by both the sides, has rightly come to the conclusion that the occurrence has taken place at about 5 PM in the house, where the appellant caused injuries to the deceased, when he was lying on a cot in the verandah of his house, and the defence version that those injuries were caused at about 2.15 PM has been rightly disbelieved. The prosecution version has been proved by PW.7 Kamal (complainant) and his mother Biro Devi (PW.8), who are son and wife of the deceased. Their presence at the time of the occurrence in the house was natural. They have categorically stated that there was a dispute between the appellant and the deceased about the partition of their ancestral house and the appellant used to pick up quarrel with the deceased on that account under the influence of liquor. They have also stated that on the day of occurrence, at about 2.15 PM, the appellant quarreled with the deceased under the influence of liquor and in that incident, the appellant and his wife Pushpa received minor injuries and later on, at about 5 PM, when the deceased was lying on a cot in the verandah of his house, the appellant came there and inflicted many knife blows upon him, due to which he had died. It has come in defence evidence that on the day of occurrence, the appellant and his wife Pushpa were admitted in the Hospital at about 3.00 PM and they were medico legally examined by Dr. R.J. Bishnoi (DW.1). Four injuries on the person of the Crl. A. No. 397-DB of 2004 -11- appellant and two injuries on the person of his wife Pushpa were noticed. It has also been stated that at the time of medical examination of the appellant, smell of alcohol was coming. These facts prove that in an incident at about

2.00/2.30 PM, the appellant along with his wife Pushpa quarreled with Amir Chand (deceased) and received injuries. Dr. R.J. Bishnoi (DW.1), in his cross-examination, has completely demolished the defence version. He has stated that appellant Wazir Chand was admitted in the Hospital on

29.10.2001 at 3 PM and he absconded from the Hospital on the same day at

4.00 PM, i.e., about one hour before the incident, which had taken place at about 5.00 PM, where he caused injuries to the deceased. This is one aspect of the matter. The other aspect of the case is that as per the defence of the appellant, his elder brother Amir Chand, aged about 56 years, tried to outrage the modesty of the wife of the appellant, as he was having an evil eye on her. This version does not appear to be probable and reliable. It is an admitted position that the appellant along with his wife and two children, aged about 13 years and 15 years, were residing in the same house. It has also come in the evidence that parents of the appellant and the deceased were also residing in that house. Thus, it is not probable that Amir Chand, who was aged about 56 years and was having 25 years old son, will try to outrage the modesty of the wife of his younger brother in the house, where the aforesaid family members were residing. Further, Dr. R.J. Bishnoi (DW.1) has specifically stated that at the time of medico legal examination of the appellant on 29.10.2001 at 3.00 PM, he was having smell of alcohol Crl. A. No. 397-DB of 2004 -12- in his breath. This fact also corroborates the version given by PW.7 Kamal and PW.8 Biro Devi that on that day at about 2.00/2.30 PM, the appellant under the influence of liquor quarreled with the deceased on account of partition of their ancestral house. It is not the case of the appellant that at that time, he was not under the influence of liquor. Further, there are various contradictions in the defence taken by the appellant and the statement of his wife Pushpa (DW.3), which have been noticed by the trial court in para 9 of its judgment. As per the version of DW.3 Pushpa, when Amir Chand tried to molest her modesty, her husband reached there and grappled with Amir Chand, who gave a danda blow. She has also stated that after causing injuries, Amir Chand made another attempt on her, but the appellant in his statement under Section 313 Cr.P.C., is absolutely silent about another attempt made by Amir Chand. Further, the appellant has stated that Pushpa was lying on the ground half dressed, regarding which Pushpa does not say anything and she has only stated that her clothes were torn. Her statement to the effect that she went to the hospital with the same clothes after putting a pin also negates the plea of the appellant that she was half dressed. Even the statement of DW.2 Suresh Kumar Chakarvarti, who is brother of the appellant and the deceased, is also not credible. Thus, in our opinion, the trial court has rightly discarded the defence version, which appears to be concocted. It is highly improbable that in order to save the honour of his wife and in self defence, the appellant would inflict as many as 11 injuries on the person of the deceased, particularly in view of the plea taken by the Crl. A. No. 397-DB of 2004 -13- appellant in his statement under Section 313 Cr.P.C., that he caused some injuries to the deceased till he and his wife were freed from him. It has been fully proved on record beyond reasonable doubt that deceased Amir Chand has died in the occurrence, which had taken place on 29.10.2001 at about 5 PM in the house. Once it has been established, then the other arguments raised by learned counsel for the appellant i.e. there was delay in lodging the FIR, both the witnesses are interested, the knife was planted and the arrest was dramatic do not survive, because the appellant has admitted to have caused injuries with knife to the deceased.

22. In view of the above, the impugned judgment of conviction as well as the order of sentence is upheld and the appeal is, accordingly, dismissed. ( SATISH KUMAR MITTAL ) JUDGE August 24, 2010 ( MOHINDER PAL ) JUDGE