PREM Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE four appellants Prem, Bansi Lal, Hanuman and Devi Lal, all sons of Maman, were sent up for trial under Section 302 read with section 34 of the Indian Penal Code on the following facts: -

(2.) ONE Rekha had a son by the name of Udmi the latter having died before the former. Mst. Surja is the window of Udmi whereas Mst. Chandra P.W.3 was bom to them. Mst. Surja a aforesaid owned about 23 Killas of land in village Balsmad and out of this area, she transferred 13 Killas of land in the name of Chandro vide a collusive court decree dated 24th October 1990 and mutation on this basis was also sanctioned by the Assistant Collector vide Ex.PCC on 21st December, 1990. Mst. Surja filed a civil suit on 10th June, 1991, against Chandro challenging the decree dated 24th October, 1990 and in that case a stay application was also filed and status quo on the point of possession was ordered by the trial Court order dated 10th June, 1991, Ex.DE. This stay order was further extended on 4th September 1991 up to 16th September, 1991. In this case Maman father of the appellants filed an application praying for a temporary injunction but the same was declined by the civil court with the observation that he was not a party to that suit. Chandra P.W.3 had also filed a suit on 12th June, 1991 against Maman and his three sons, Prem Kumar, Hanuman and Devi Lal as also against her mother vide which she had sought on injunction from forcible her dispossession from the land in dispute. Vide order of even date Ex.PAA the court had restrained the aforesaid persons from interfering in the possession of Chandro till 24th July, 1991 and this injunction order was later extended till 23rd August 1991. On the morning of 16th August, 1991 Banwari lal deceased, the husband of P.W.3 Chandro Devi and his brother P.W.4 Kanwar Singh who is the husband of the step sister or the accused went to the land in dispute. ' On reaching there they found all the four accused present at the spot and whereas Prem and Devi Lal were armed with a jaili each, Hanuman was armed with a rapri and Bansi lal was armed with a lathi. Banwari Lal deceased remonstrated with the accused as to why they were showing the land forcibly, whereupon Prem appellant gave a lalkara that the enemy had come and that he should he done away with. The prosecution story is that appellants thereafter be laboured Banwari Lal with their respective weapons and continued causing him serious injuries even after he had fallen down. This incident was witnessed by P.W.3 Chandro and P.W.4 Kanwar Singh, but out of fear they did not intervene in the incident. After the accused left the spot these two witnesses found that Banwari Lal was dead and while Kanwar Singh stayed at the spot Chandro P.W.3 went to village Bandaheri, the village of her husband and brought along his family members and some village functionaries and while she was on her way to the police station, met a police party at the bus stand of village Balsam and and made her statement Ex. PE at 12.45 P.M. and this formed the basis of the formal F.I.R. at 2.20 P.M. in Police Station Sadar Hissar, the special report also being delivered to the Ilaqa Magistrate at 3.35 Y.M. the same afternoon. The accused after being charged were sent up for trial before the Additional Sessions Judge, Hissar. The prosecution produced in evidence P.W.1 Dr. S.K. Goya], P.W.2 Om Parkash Constable, the two eye -witnesses P.W.3 and P.W.4 Chandro and Kanwar Singh respectively, P.W.5 Fateh Singh Patwan and P. W.6 Lalu Ram Inspector (Investigating Officer) in addition to certain other formal witnesses. The Prosecution case was thereafter put to the accused and the accused Prem made the following plea : "Rekha grand father of Chandro had adopted my father Maman and he had executed a separate will also in his favour. My father and we are in possession of the 23 killas of land belonging to Rekha since 1939, Kanwar Singh is annoyed with us because he wanted 1/2 share in the total land inherited from Rekha, but we denied. l am innocent, Kanwar Singh is my step sister's husband." The other accused also made a similar plea in their statements. The accused also produced in evidence various defence witnesses in order to prove certain documents in their favour, more particularly Exs. DD and DE (copies of civil court orders dated 10.6.1991 and 4.9.1991 respectively) in which an order of status quo had been made in the suit filed by Mst. Surja against Chandro, Exhibit -DJ an attested copy of the registered will dated 10th September 1941 said to have been executed by Rekha in favour of Maman, father of the appellants, was also produced in evidence. The trial -Court found that the ocular version given by the two eye -witnesses i.e. Chandro and Kanwar Singh was liable to be believed; There was ample motive for the commission of the crime and Chandro was in possession of 13 killas of agricultural land and that the defence version was not worthy of credence. Heaving held as above, the trial Court convicted all the accused under Section 302 read with Section 34 of the Indian Penal Code, and sentenced them imprisonment for life and also payment of fine. Hence this appeal.

(3.) MR . R.S. Cheema, learned Senior Advocate appearing for the appellants, has first and foremost argued that the case of the prosecution was that the murder had taken place at about 7 A,M. but this story was not worthy of credence as the advent of rigor mortis on the dead body indicated that the death had in fact taken place much earlier around 4 A.M. and in that situation the possibility of the two eye -witnesses being present at the spot was not likely. In this contention, he has referred to the Modi's Book on Forensic Medicines at Page 171 of the 21st Edition and the Photographs Ex.DV/4 to argue that ordinarily the rigor mortis would have taken about 12 hours to develop fully and as the doctor had opined that the death could 'lave been caused at 4 A.M. keeping in view the stage of rigor mortis, the did fact had taken place at that time. We have considered this argument of the learned counsel and find that it lacks merit. It is to be noticed that the advent of rigor mortis would at best be an indication and no final conclusion could he drawn either way and even the doctor was non -committal in answering questions that had been put to him. In this view of the matter, it cannot be held conclusively or even beyond doubt that in fact the incident took place at 4 A.M. and not at 7 A.M. as suggested by the prosecution.