After she and her soil Rajinder, PW 4 received bullet injuries they saved their lives by taking shelter in the house of one Chhabila, There was numberother major male member in her family except her two minor sons and the only male member in the family was the accused Nanu since deceased.
Ranbir, CW 3 admits his presence at the place of occurrence as Well as the presence of deceased Om and Mahinder but stated that he had number seen the assailants.
The appellant Ram Kumar was carrying a pistol P 23 and 2 live cartridges Ext.
In the opinion of the doctor the probable duration of the injury was within 24 hours caused by a firearm.
The learned companynsel appearing for the appellant was unable to point out any possible prejudice that may have been caused to the appellant par ticularly when the statement of Kamla was recorded at 10.30 AM and on the basis of which First Information Report was also reduced into writing at 11.30 AM on 24.12.83.
On the companytrary he admits the presence of the deceased Mahinder and Om in the field of Kamla, PW 3.
The accused persons had also examined Advocate Sethi as DW 3 who had filed a criminal companyplaint in the Court of Magistrate, Hissar under Sections 302, 148, 149 and 104 of the Penal Code on behalf of Ram Partap, the father of deceased Om.
The doctor also found a companyresponding tear in the shirt and jersy.
On 24.12.83 at 10.30 AM Dr. J.M. Gandhi, PW 2 medically examined Rajender, PW 4 and found the following injuries on his person Lacerated wound 1.5cm x 1cm x bone deep on the interior aspect of left foot, fresh bleeding and margins were inverted.
After X ray fracture of 8th rib was detected and foreign body was present on the left side chest.
As stated earlier the occurrence took place in the evening of 23.12.83 in the out skirts of village Dhand and the Police Station, Adampur is at a distance of about 18 kms.
He admitted that he was cultivating the land of the accused Nanu which he had obtained on lease from Panchayat.
When he reached Hisar he found the house of Chief Judicial Magistrate locked.
It was submitted that in fact it bad become dark at the time When the occurrence took place and there being numbersource of light it was number possible for the said witnesses to identify the assailants and they had falsely implicated the accused persons including the appellant.
There was laceration of the left Lung.
In the opinion of the doctor the time that elapsed between the injury and death was instantaneous and the time between the death and post mortem was within 48 hours.
Nanu Ram raised a lalkara that he would teach her a lesson in getting the land cultivated with the help of Other persons.
One bullet hit the left side of the back of chest of Kamla, PW 3 as a result of which she fell down.
Director, Forensic Science Laboratory is number of any assistance in this case particularly in view of the fact that the weapons which he examined were companyntry made pistols which are number standard weapons while in cross examination he based his statement on standard weapons.
The appellant has been further companyvicted under Section 307/34 of the Penal Code on two companynts for causing injuries to Kamla, PW 3 and her son Rajinder, PW 4 for which he has been sentenced to undergo rigorous imprisonment for three years on each companynt.
Ram Kumar executed a will in respect of 50 killas of land in favour of his parents in equal shares, the companyaccused Nanu being his father.
A lacerated wound 2cm x 2cm x bone deep on the posterior aspect of left big toe just below the nail and fresh bleeding.
80/48 A/1985 decided on 7.1.1986 whereby the appellant and the other three companyaccused namely, Nanu, Razari and Saatlal were acquitted.
PA/3 of deceased Om.
The father of Nanu Ram owned and possessed 76 killas of land which he had transferred in favour of his grand son Ram Kumar, the husband of Kamla.
After the occurrence the accused persons companyld number be apprehended and it was only on 27.9.84 after about 9 months that the Inspector Om Prakash, DSP Kirpal Singh and ASI Krishan Chand apprehended the accused Nanu, the appellant Ram Kumar and Hazari while going to Bhatookala from Adampur.
She further deposed that she herself and Mahinder were hit by bullet from a distance of about 1 or 2 karam only.
Dr. R. P. Shingal, PW 1 performed an autopsy on the dead body of Om on 24.12.83 at 11.30 AM and found the following injuries on his person Lacerated wound 1cm x 1cm with inverted margins on the right parietal region.
Dr. Gandhi who ex amined Kamla PW 3 found a lacerated wound on back of her left side chest and margins of wound were inverted.
When the tractor reached near the doul boundary of the land belonging to Kamla, she saw in tractor light the companyaccused Nanu Ram her father in law and Santlal who is the husband of daughter of Nanu Ram armed with pistols and the appellant Ram Kumar who is the brother of the wife of Nanu Ram armed with gun.
Dr. Gandhi sent information Ext.
The learned Trial Judge, however, preferred to examine these four persons as CW 1, CW 2, CW 3 and CW 4.
She was thus forced by the circumstances number to hazard to go and make the report same night in order to avoid the delay.
Later on by an application dated 14.2.85 filed by the companyplainant Kamla, PW 3, 4th accused Santlal was also summoned by the Sessions Judge by his order dated 28.2.85 to stand the trial alongwith the above named accused per sons.
13, On evaluation of the entire evidence and the material on record the learned Trial Judge acquitted the appellant as well as the three company accused, namely, Nanu, Hazari Lal and Santlal holding that the state ment Ext.
Deceased Om Prakash was working with her as a labourer who had also gone to the land alongwith them.
They also adduced evidence in defence vide DW 1, Parmanand, DSP Fatehabad who had inspected the spot on 25.12.83 and L.A, Kumar, DW 2, Assistant Director Ballistics, S.L. Madhuban, Karnai.
There they left the tractor and all of them rushed for hiding themselves to save their lives.
They then proceeded towards the village hiding themselves in the Field and when they reached near the Bus Stand Nanu and the other two accused, namely the appellant Ram Kumar and Santlal again raised a lalkara and all the three started firing.
Their presence is even accepted by four persons who were examined as Court witnesses.
After a shortwhile Kamla, PW 3 managed to get up and she alongwith her two sons went to a nearby house of one Chhabila where she took shelter during the night.
He then proceeded towards the place where the dead body of Om was lying and prepared the inquest report Ext.
The rest of 26 killas of land remained with Ram Kumar and on his death about four and a half years before the occurrence the said land came under the cultivation of his wife Smt.
The State of Haryana preferred an appeal against the judgment and order of acquittal The companyaccused Nanu Ram died during the pen dency of the appeal before the High Court and, therefore, the appeal against him abated.
Admittedly the injured Smt.
Doctor Shingal also performed an autopsy over the dead body of Mahinder on 25.12.83 at 1230 PM and found the following injury Lacerated wound with inverted margins measuring 1cm x 3/4cm on the back of left side of chest.
Thereafter ASI Bhana Ram proceeded to the place of occurrence and found the dead body of Mahender lying near the bus stand of village Dhand.
She received the bullet injury on back on the left side and Mahinder was hit on the back.
Blackening and scorching was present around the wound alongwith tattooing.
Mahinder was hit by a bullet as a result of which he also fell down in a pit on the road side.
On dissection the doctor found a big haematoma on right and left parietal region of the skull in sub cutaneous tissues.
Kamla, her two sons and the driver Mahender got down from the tractor and hid themselves in companyton crop standing in a nearby field.
Similarly Dr. Shingal PW 1 also found lacerated wound with inverted margins on back of left side chest of deceased Mahinder with tattooing marks around the margins of wound.
He deposed that he did number know as to who had fired the shots and the reason for declining to make the companyrect statement is obvious.
Tatooing was present around the margins of the wound.
He deposed that he was number aware of the fact as to who had fired shots as a result of which Om and Mahinder died.
The appellants were again given an opportunity to adduce further evidence in defence and the accused persons examined Shri J.C. Sethi, DW 3, an advocate who had filed a criminal companyplaint on behalf of Ram Pratap, the father of deceased Mahinder against Harchand and others under Sections 302/148, 149 and 304 of the Penal Code.
On removing the haematoma fracture of right parietal bone, frontal bone and left parietal bone was found.
Their evidence is companysistent and companyroborated by the First Information Report and the medical evidence which has been discussed in the early part of this judgment Smt.
He admitted that he was engaged by the accused of the instant case.
All the injuries were simple in nature.
After giving a careful companysideration to the submissions made by the learned companynsel for the appellant and after making a dose and careful scrutiny of the evidence of Smt.
The accused Nanu Ram and Santlal as well as the appellant Ram Kumar fired three shots at them after they had gone into the hiding place but numbere of them was hurt.
Both these witnesses have stated that it was Mahinder who was driving the tractor and number Dalip as asserted by the learned companynsel for the appellant, Learned Trial Judge rejected the evidence of these two eye wit nesses PW 3 and PW 4 mainly on the ground that neither Smt.
These injuries were Caused within 24 hours by firearm.
Mahinder succumbed to his injuries on the spot.
Oh receiving the Information the ASI Bhana Ram, PW6 alongwith some Constables reached the Civil Hospital, Adampur and recorded the statement Ext.
In such circumstances it companyld number be expected from a widow and injured lady Kamla without risk to her life to proceed to Police Station in the dead of night and that too in the winter season to lodge the report.
While returning to the village Kamla alongwith her two sons named above sat on the left mud guard of the tractor while Om Prakash was sitting on the right mud guard of the tractor driven by Mahender.
At the trial the appellant as well as the other accused persons adjured their guilt and pleaded false implication.
PG said to have been made by Kamla, PW 3 in the hospital to ASI Bhana Ram, PW 6 was ante timed, there was unexplained delay of 32 hours in sending the report to the Magistrate companycerned, the inquest reports were also number prepared at the alleged time, ASI Bhana Ram, PW 6 did number mention in the inquest reports the location of the empties found lying by the side of the dead bodies and that the deceased Om would number have been fired from close range as deposed by Kamla, PW 3.
It is clear from the evidence of PW 3 and PW 4 discussed above that they saw the appellant and the other two companyaccused in the tractor light.
The learned Trial Judge totally oblivious of all these facts and circumstances which led to the delay in making the First Information Report, took a very hyper technical and unrealistic view in holding that the delay Was number explained ignoring the relevant reasons and attending circumstances by reason of which the report was delayed.
It is against these companyvictions and sentences that the appellant Ram Kumar has preferred this appeal before this Court.
1994 Suppl 4 SCR 335 The Judgment of the Court was delivered by FAIZAN UDDIN, J. This is an appeal under Section 379 of the Code of Criminal Procedure preferred by the appellant Ram Kumar challenging the judgment and order of the High Court of Punjab Haryana passed in Criminal Appeal No.
She received the bullet injury on the back On the left side chest and fell down.
One empty cartridge lying near the dead body of Mahinder was also seized vide memo Ext.
Dr. Shingal PW 1 who performed autopsy of dead body of Om found lacerated wound with inverted margins in the right parietal region.
After a shortwhile they rushed towards the bus stand of the village Dhand to a distance of about 19 20 Julias and the accused Nanu Ram, Sandal and the appellant Ram Kumar chased them and again fired three shots at them.
The deceased Mahinder was driving the tractor.
Kamla, PW 3 in her statement has given a graphic picture and the sequence of events which took place in which Om and Mahinder lost their lives by gun shot injuries fired by deceased accused Nanu and the appellant as well as the bullet injuries sustained by her and her son Rajinder at the hands of deceased accused Nanu and the appellant.
Blackening scorching and tattooing was also found around the wound which indicated that Om was shot at from a point Blank range as deposed by Kamla.
After receiving the reports of the Ballistic Expert and Serologist charge sheet against the accused Nanu, the appellant Ram Kumar and Hazari was put up to stand the trial under Sections 302, 302/34 and 307/34 of the Penal Code as well as under Section 25/27 of the Arms Act.
Kamla, PW 3 is a widow having four minor children one of whom was also injured in the occurrence.
She herself and her two sons were seated on the left mud guard of the tractor while deceased Om was seated on the right mud guard of the tractor.
The margins of the wound were inverted.
Similar is the statement made by Rajinder, PW4.
Thereafter the land had to be left uncultivated for one year.
At the time of arrest the companyaccused Nanu was carrying a 12 bore licensed gun seized as per Ext.
The medical evidence thus fully companyroborated the statement of Kamla PW 3.
Under these facts and circumstances it companyld number be said that the sending of the report was unduly delayed.
Reading of their statement will go to show that they are number truthful witnesses and, therefore, they were rightly given up by the prosecution oh the ground that they were won over, Pappu, CW 1 while admitting the presence of Kamla, PW 3 and her sons and also the presence of deceased Om and Mahinder made a false statement that the tractor was driven by Dalip.
Nanu fired at Om who fell down from the tractor and then the tractor driver Mahinder took the tractor towards the field of Mukha Harijan.
No blackening and charring was found.
Rajinder, PW 4 the son of Kamla sustained a bullet injury on his left foot.
On the same day Dr. Gandhi had examined Kamla, PW 3 at 11 AM and found the following injury on her person A lacerated wound 2cm x 2cm x cavity deep over chest back of left side, just below the lower and of scapula with irregular margins.
He prepared the inquest report Ext.
On 7.5.85 the Public Prosecutor gave up some of the prosecution witnesses including Pappu, Dalip, Ranbir and Sohanial as according to the prosecution they were won over.
He then went to the Police Station, Sadar where he learnt that Mrs. Snehlata Sharma was the Duty Magistrate and, therefore, he reached her residence at 2.30 AM and delivered the report.
After ploughing 2 killas of land it started becoming dark and, therefore, the ploughing was stopped at about 7.00 PM.
It may also be numbericed here that the weapons of offence were number recovered and as such the evidence of Ballistic expert L.A. Kumar, Asstt.
In the morning at about 8/830 AM Kamla, PW 3 hired a Jeep of one Hazari and she along with her injured son Rajinder reached Civil Hospital Adampur at about 9.45 AM where Dr. J.M. Gandhi, PW 2 examined Kamla and her son Rajinder on 24.12.83 at 10.30 AM and 11 AM respectively.
Nanu Ram was a source of trouble to her and often created problems in her way in the cultivation of the land for which Kamla reported the matter to the Police as a result of which proceedings under Section 107/151 of the Code of Criminal Procedure were initiated against him and produce of land was given to Kamla.
P 17 and P 18 The tractor standing at some distance from the dead body of Om was also seized.
P 26 and 3 live cartridges Exts.
All the sentences had been directed to run companycurrently.
He then proceeded to Hissar from Fatehabad to deliver the report to the Magistrate companycerned.
On these findings the learned Trial Judge took the view that the prosecution had failed to bring home the guilt against any of the accused persons including the appellant and, therefore, acquitted them all from the offences they were charged with.
Kamla was cultivating land with the help of labourers and used to go out for household work against the wishes of her father in law, Nanu Ram.
On dissection the doctor found that the left pleura opposite the wound was torn, left pleural cavity was full of blood.
A metallic piece was found at site of fracture in second rib.
She deposed that she had hired the tractor of Ram Partap of village Dhand on 23.12.83 and went to the field alongwith the deceased Om and her two sons Rajinder and Dharam bir to plough the land.
Kamla, PW 3 and her son Rajinder, PW 4 besides other evidence available on record, we find that all the aforementioned submissions advanced by the learned companynsel for the appellant are without any substance or merit.
418 DBA of 1986 companyvicting the appellant under Section 302/34 for causing the murder of Mahinder and sentencing him to life imprisonment as well as under Section 307/34 for attempt to companymit murder of Kamla, PW 3 and her son Rajinder, PW 4 sentencing him to undergo rigorous imprisonment for three years on each companynt directing all the sentences to run companycurrently, after reversing the judgment and order of the Session Judge, Hissar in Sessions Trial No.
The High Court took into companysideration all these factors and took a realistic view that the delay was sufficiently explained and, in our opinion rightly so.
She further deposed that Mahinder driver and her son Rajinder were also hit and thereafter the accused persons ran away.
Om who had gone with her for ploughing the land and Mahinder the driver of the tractor, both were killed in the occurrence.
She has two sons, namely Dharambir and Rajinder, PW 4 and two daughters.
PB/3 of the dead body of Mahinder.
The companyplainant Smt.
Learned companynsel for the appellant next companytended that the learned Trial Judge had rejected the evidence of Smt.
Kamla started living separate from her in laws alongwith her husband.
Even if we assume that there was some delay it was on account of companystable Satya Pal, PW 7.
Kamla, the daughter in law of the companyaccused Nanu Ram.
In sub cutaneous tissue there was sub cutaneous haemotoms opposite site of fracture of rib on left side of the front of chest.
ASI Bhana Ram companylected medico legal reports to the injured witnesses and alongwith the statement of PW 3 forwarded the same to the Police Station, Adampur where FIR PG/2 was registered at 11.40 AM on 24.12.83.
This statement finds companyplete companyroboration from the medical evidence.
During the life time of her husband Ram Kumar, Smt.
Kamla, PW 3 next day i.e. 24.12.83 at 10.30 AM to ASI Bhana Ram, PW 6 while she was in Civil Hospital, Adampur.
But after the close of the evidence when arguments were heard the learned Trial Judge found it expedient to examine the aforementioned persons given up by prosecution as according t6 the learned Trial Judge they were the eye witnesses to the incident and companyld throw light on the prosecution case and, therefore, Pappu, CW 1, Dalip, CW 2, Ranbir, CW 3 and Sohanial, CW 4 were examined as Court witnesses.
P 27, P 28 and P 29.
A lacerated wound 2cm x 2cm x bone deep on the left foot near the heel with irregular margins, crushed tissues.
PG of Smt.
Overall assessment of the evidence of all these CWs goes to show that they did number companye forward with the true version of the incident and were out to help the deceased accused Nanu as they were closely associated and interested with him as they were cultivating his land.
This companyplaint appears to have been filed at the instance of the accused of the instant case against Harchand and others to show that they were number involved in the occurrence in question but Harchand and others were the persons responsible for the same.
The cause of death was shock and harneorrhage as a result of injury described above which was ante mortem in nature and sufficient in the ordinary companyrse of nature to cause death.
After ploughing the land they started going back home on the tractor at about 7/7.30 PM.
Saying so Nanu Rain from a point blank distance fired a shot from his pistol at Om who fell down from the tractor and died.
The tractor Was driven by the driver Mahender.
He also picked up the blood stained earth from near the dead body of Om and also two empty cartridges from the spot which were seized vide Ext.
Next morning, however, at about 8/8.30 AM she hired the jeep and proceeded from the village alongwith her injured son Rajinder, PW 4 and the other son Dharambir and reached the Primary Health Centre, Adampur at about 10.30 AM where Kamla, PW 3 and her injured son Rajinder, PW 4 were medically examined by Dr. J.M. Gandhi, PW 2 at 10.30 and 11 AM respectively.
In cross examination he admitted that he was cultivating the land of Nanu, the deceased.
The learned Trial Judge on these reasonings took the view that in fact these two eye witnesses were number sure about their assailants and it was for this reason that they did riot inform anyone in the village.
P 24 and P 25, while acquitted accused Hazari was carrying a pistol Ext.
Kamla, PW 3 was wedded to Ram Kumar, son of company accused Nanu Ram since deceased about 14 years before the occurrence.
Kamla, PW 3 hired a tractor of one Ram Prasad for ploughing her land and went to the land alongwith her two sons Dharambir aged 91/2 years and Rajinder, PW4 aged about 8 years.
Kamla PW 3 deposed in cross examination that the deceased Nanu had fired at Om from a distance of one hand and touching the barrel of his pistol with the head of Om.
They all hid in the companyton crop when three shots were fired towards them but numberone was hit.
She along with her two sons, Rajinder and Dharambir took shelter in the night in the house of one chhabila and then next morning proceeded on a jeep to the hospital, Adampur.
The cause of death was shock and hemorrhage as a result of injury described above which was ante mortem in nature and sufficient to cause death in the ordinary companyrse of nature.
Smt, Kamla, PW 3 and Rajinder, PW 4 both sustained bullet injuries in the same occurrence and, therefore, their presence at the time of occurrence cannot be doubted at all.
from village Dhand.
He delivered the special report to the Superintendent of Police at 8.00 AM as Superintendent of Police was number available before 8.00 AM and, therefore, he had to wait till then.
When they reached at the boundary of her field she saw in the tractor light the deceased accused Nanu, the appellant Ram Kumar and the acquitted accused Santlal standing there armed with pistols and gun.
Kamla herself number through Chhabila informed the Sarpanch of Panch of the Village Same night about the occurrence that two persons have been killed and they have been injured number sent any intimation to the father of deceased Om whose house was nearby.
P 20 with two cartridges Ext.
Kamla, PW 3 at 11.30 AM on the basis of which First Information Report Ext, PG/2 was recorded in the Police Station and offence was registered.
He also found foreign body em bedded on her left side chest.
In response to the intimation sent by Dr. Gandhi to the Station House Officer, Adampur, the ASI Bhana Ram, PW 6 arrived at the Health Centre at about 10.30 AM on 24.12.83 and recorded the statement Ext.
A metallic piece was also found embedded in his second rib.
Learned companynsel further urged that in any case there were independent witness who were withheld by the prosecution and who were ultimately examined as Court witnesses and thus prosecution preferred only to examine the partisan witnesses who had a clear motive to falsely implicate the appellant and, therefore, the Trial Court was justified in rejecting their evidence.
On 23,12.83 Smt.
After preparing the site plan the two dead bodies were sent for post mortem examination.
Nanu raised a lalkara that he would teach them a lesson for getting the land cultivated by others.
In the opinion of the doctor the time that elapsed between injury and death was within a few minutes and between death and post mortem 48 hours.
The reasons which weighed with the learned Trial Judge in holding that the report was ante timed are that the maker of the report Kamla, PW 3 did number know that Om and Mahinder had died as she made numberinquiries as to what had happened to them after the firing and whether they were dead or alive yet she stated in the report Ext, PG that Om and Mahinder had died.
This according to the prosecution provided motive to companymit the crime.
But it may be numbered that the incident had occurred at about 730 PM on 23.12.83 and the report Ext, PG was made by Smt.
The learned Trial Judge was wholly unjustified and unreasonable in acquitting the accused appellant.PG of Kamla, PW 3 after obtaining the opinion of the doctor the she was fit to make the statement.
Kamla, PW 3 and her son Rajinder, PW 4 having found the same companytradictory to each other having companycealed the true version from the Court and their testimony was inconsistent with the medical evidence and Ballistic Expert but the High Court companymitted a grave error in accepting their version as truthful in basing the companyvictions of the appellant.
There was also company responding hole over the sweater, shirt and banian with blood stains.
P 21 and P 22.
PE to the Police Station, Adampur at 10.15 AM on 24.12.83 stating that Kamla and Rajinder had fire arm injuries on their person.
On removing the vault of skull there was track from right parietal region of brain to opposite parietal region through the brain matter.
The ASI Bhana Ram, PW 6 had reached the place of occurrence and the inquest report of both the dead bodies were also prepared on 24.12.83 and seizure of incriminating articles were ef fected.
He also stated that Ranbir, CW 3 and Sohanlal CW 4 were also cultivating the land of the deceased accused Nanu.
There was a bum mark over the sweater in the hole.
Similar is the statement of Sohanlal, CW 4.
Dalip who according to the defence was driving the tractor was examined as CW 2 but interestingly enough he himself did number depose that he was driving the tractor.
There was a fracture of left zygomatic and maxillary bone.
A metallic piece was found in the sub cutaneous tissue in left zygomatic region which was sealed.
