JUDGMENT
Mehtab S. Gill, J.
1. By this common judgment, we shall be disposing of Criminal Appeal bearing Nos. 78-DB, 146-DB of 1997 and Criminal Revision No. 219 of 1997 together.
2. Learned counsel for appellant-Het Ram has put on record certificate of births and deaths (Annexure A-1), wherein it has been stated that Het Ram son of Chuni Lal, resident of village Sadalpur, died on 8-2-200.5.
3. Appeal against Het Ram has abated.
4. This is an appeal against the judgment dated 19-11-1996/28-11-1996 passed by Additional Sessions Judge, Hisar, whereby the learned trial Court convicted the appellants under Section 302 read with Section. 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each. In default of payment of fine, they were directed to undergo rigorous imprisonment for a period of six months each. The appellants were further convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period Of two years each. Sentences awarded to each of the appellants were ordered to run concurrently.
5. Prosecution story has been unfolded by Satbir Singh (P.W. 3), the brother of the deceased. In his statement, Exhibit PH, recorded by Raunki Ram, Sub-Inspector (P.W. 8), he stated that he has five brothers, namely, Om Prakash, Balbir, Mohinder, Balwant Singh and Prabhu Dayal. Om Prakash is employed at Chandigarh, Balbir and Mohinder Singh are serving in Krishi Vigyan Kendra, Sadalpur on daily wages. Complainant and his brother Balwant Singh are looking after their agricultural land. Appellant-Het Ram is related to him. Het Ram along with his sons illegally encroached upon two kanals of land belonging to the complainant-party in village Sadalpur. Apart from this, they encroached upon one kjlla of land at village Kaimri. Panchayats were convened to compromise the matter, but of no effect. On 3-12-1991, a quarrel had taken place between the complainant-party, and appellant-Het Ram and his sons. Police challaned the complainant-party. Appellants nourished a grudge due to the land dispute.
6. On 28-6-1993 complainant along with his brothers Mohinder Singh and Prabhu Dayal went to Hisar. They wanted to enroll themselves in the Border Security Force. All the three brothers returned from Hisar. As they alighted from a Peter Rehra at about 3.00 p.m. at the Bus Stand of their village Sadalpur, appellants-Maan Singh, Radhey Sham, Bhal Singh, Ram Kanwar, Raja Ram, Mange Ram, Kirpa Ram and Prem all armed with lathis and Het Ram armed with a gun emerged from a kotha constructed at some distance from the Bus Stand. A lalkara was raised that the complainant-party should not be spared. All the accused then inflicted injuries on Prabhu Dayal with their lathis and the Butt of the gun. Prabhu Dayal tell down. Satbir Singh and Mahinder Singh, being empty handed ran away and stood by the side of a wall of the water djggi. Om Prakash from behind the kotha. came on a Eicher tractor and rolled it over Prabhu Dayal. Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7) raised an alarm. After inflicting injuries, appellants went away to the side of village Chhabarwal on the tractor. Satbir Singh and Mahinder Singh then went to see the condition of Prabhu Dayal and saw that Prabhu Dayal had sustained injuries on both his arms, legs, waist and head. Blood was oozing out from his legs and head. A Peter Rehra came from the side of village Chhabarwal and removed Prabhu Dayal to Government Hospital, Adampur. First-aid was given to Prabhu Dayal. Dr. P. L. Jindal (P.W. 4) was in the process of preparing the Medico Legal report that Prabhu Dayal died. Rufla, Exhibit PJ. was sent by the doctor to the Police Station, Adampur. Statement of Satbir Singh (P.W. 3) was recorded as Exhibit PH and a formal FIR, Exhibit PH/1 was registered.
7. Prosecution, to prove its case, brought into the witness-box Dr. Partap Singh (P.W. 1), Om Parkash (P.W. 2), Satbir Singh (P.W. 3). Dr. P. L. Jindal (P.W. 4), Basant Kumar, Photographer (P.W. 5), Ram Kumar, Assistant Sub-Inspector (P.W. 6), Mahinder Singh (P.W. 7) and Raunki Ram, Sub-Inspector/ Station House Officer (P.W. 8).
8. Learned counsel for the appellants has attacked the case of the prosecution on several counts. He.has stated that there is an unexplained delay in lodging of the First Information Report. Occurrence had taken place on 28-6-1993 at 3.00 p.m. Distance between the place of occurrence and Police Station, Adampur is 4 kms. FIR, Exhibit PH/1, was recorded on 28-6-1993 at 7.45 p.m. The Special Report was sent on 28-6-1993, which reached the Chief Judicial Magistrate, Hisar at 11.25 p.m. Distance between Police Station, Adampur and Hisar is 24 kms. Dr. P. L. Jindal (P.W. 4), who prepared the medico-legal report of Prabhu Dayal, has stated that on 28-6-1993 at 4.30 p.m., he examined Prabhu Dayal, patient was semi-conscious. He found 11 injuries on the person of Prabhu Dayal. Injuries 1, 2, 4, 5 and 8 were kept under observation. Injury No. 3 was declared grievous. Injuries 6, 7, 9, 10 and 11 were declared simple. The weapons used for inflicting these injuries were blunt. He has further stated that the patient expired at 5.50 p.m. on 28-6-1993. he sent ruqa. Exhibit PJ to the Station House Officer, Police Station, Adampur. Occurrence had taken place 4 kms. away from Police Station, Adampur. Government Hospital, Adampur, adjoins the Police Station at Adampur. Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7), in their testimony, have stated that they accompanied Prabhu Dayal to the Civil Hospital, Hisar. In Ruqa, Exhibit PJ, Doctor P. L. Jindal (P.W. 4) has referred Prabhu Dayal to Civil Hospital, Hisar. Further, in ruqa. Exhibit PJ, the actual time is 4.50 p.m., but there is a cutting and 04 has been made into 05. Ruqa has been tampered with, so that it could be shown that the medico-legal report was prepared not at 4.50 p.m. but at 5.50 p.m. This is to cover up the delay in recording of the First Information Report. The Special Report reached the Chief Judicial Magistrate, Hisar at 11.25 p.m. statement of Satbir Singh (P.W. 3) was recorded by Raunki Ram, Sub-Inspector/Station House Officer of Police Station, Adampur (P.W. 8). Distance between the place of occurrence and Police Station, Adampur and Government Hospital, Adampur is within a radius of 4 kms. The First Information Report and the medico-legal report did not come into existence, as per the time given in the First Information Report and the medico-legal report. In fact, the medico-legal report came into existence at 5.50 p.m. and the statement, Exhibit PH, of Satbir Singh (P.W. 3) was recorded not at 7.30 p.m., but after 7.30 p.m. Delay was being utilized by the complainant-party for consultations and confabulations to rope in as many persons as possible.
9. As per document, Exhibit PZ, Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7) were facing trial in FIR No. 132 dated 3-12-1991. Musanda Dakhan wife of Het Ram and mother of appellants-Kirpa Ram and Mange Ram, was the complainant in the FIR No. 132 dated 3-12-1991, Exhibit PZ. Civil and Criminal litigations was pending between the parties.
10. Natural and true version has not come out from the statement of Satbir Singh (P.W. 3). The two eye-witnesses Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7), are real brothers. They are interested witnesses. Occurrence had taken place on the road near the Bus Stand. Satbir Singh and Mahinder Singh are chance witnesses and not natural witnesses. If the occurrence had taken place in the house or in the fields of the com-plainant^party, the testimony of these two witnesses could have been believed, they then would have been natural witnesses. No evidence has come on record that Prabhu Dayal along with Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7) had gone to the recruitment centre of the Border of Security Force. A truthful account has not come forward.
11. Satbir Singh (P.W. 3) has, in his testimony, stated that on reaching the spot, the accused started be labouring his brother Prabhu Dayal with their weapons. He does not mention that a gun was in the hands of appellant-Het Ram. Specific injuries have not been attributed. There is no gun injury. Mahinder Singh (P.W. 7) has stated, in his examination-in-chief, that the appellants were nine in number, but as per the First Information Report, they were ten. He has further stated that he cannot indicate the precise number of blows given by each accused. Vague and ominous allegations have been made to falsely implicate Het Ram and his sons their staunch enemy. Statement of Satbir Singh (P.W. 3) does not corroborate the version put forward by him in the First Information Report.
12. Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7) have stated that Om Prakash came on Eicher Tractor and rolled it over their brother Prabhu Dayal. As per the statements and medico-legal report prepared by Dr. P. L. Jindal (P.W. 4), there are no tyre mark injuries of a tractor on the body of Prabhu Dayal. Mahinder Singh (P.W. 7) has stated in his testimony that he could not see, as to on which part of the body of Prabhu Dayal, the tractor ran over. Medical evidence was not only falsified this fact that a tractor has used, but also has also falsified that a gun was used.
13. Learned counsel for the appellants has stated that, the Investigating Officer Raunki Ram, Sub-Inspector/Stat.ion House Officer (P.W. 8) has stated in his testimony that during the course of his investigation, he found appellants-Het Ram, Mange Ram, Kirpa Ram, Prem and Bhal Singh to be innocent. They were shown in column No. 2 on presentation of the challan in the Court. Appellants-Prem and Kirpa Ram were sent in a Video Cassette attending a marriage on 28-6-1993 Investigation conducted by the Investigating Officer was verified by the Additional Superintendent of Police, who also came to the conclusion that five accused, named above, did not participate in the commission of the offence.
14. Learned counsel Shri Ajay Lambs, appearing for the appellants In Crl. Appeal No. 78-DB of 1997, reiterated the arguments put forward by his senior colleague Shri Baldev Singh, Senior Advocate. He stated that he adopts all arguments put forward by Shri Baldev Singh, Senior Advocate.
15. Learned counsel for the State has stated that no delay has occurred in lodg ing of the First Information Report and in delivering the Special Report to the Chief Judicial Magistrate, Hisar. Distance between Police Station, Adampur and Hisar is 24 kms. There has been no tampering with the ru.qa, Exhibit PJ. Dr. P. L. Jindal (P.W. 4) made an inadvertant mistake by changing; the time from 4.50 p.m. to 5.50 p.m. It does not falsify this fact that the deceased had died before 5.50 p.m. Occurrence had taken place at 3.00 p.m. and injured Prabhu Dayal along with two witnesses Satbir Singh (P.W 3) and Mahinder Singh (P.W. 7) had reached Government Hospital, Adampur op 28-6 1993 at 4.05 p.m. Dr. P. L. Jindal (P.W, 4) could not have completed the medico-legal; report within a span of 20 minutes, prabhu Dayal had 11 injuries on his person, out of which, five had to be stitched. Ruqa. Ex-hibit PJ, was sent at 5.50 p.m., after the medico-legal report came into existence. Dr. P. L. Jindal (P.W. 4) recommended that Prabhu Dayal be taken to Civil Hospital, Hisar. The complainant-party was naturally more interested in saving the life of Prabhu Dayal by taking him to Civil Hospital, Hisar, which was 24 kms. away. An ambulance was arranged, which took some time.
16. It is clear from the inquest report, Exhibit PB, that the police party reached Civil Hospital at 6.05 p.m. on 28-6-1993; Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7) are natural witnesses. They had gone along with Prabhu Dayal, deceased, to get recruited in the Border Security Force at Hisar. They, being not successful, were returning back from Hisar when they were attacked. Appellants knew that, the complainant-party was returning from Hisar and way laid them at the bus stand. Occurrence had taken place in the month of June at 3.00 p.m. Temperature in the month of June touches about 50 degree Celsius in this part of Haryana. People stay indoors under the shade due to the high temperature. Dr. P.L. Jindal (P.W. 4) has, in his report, Exhibit PK, opined that some of the injuries on the person of the deceased could be with a tractor.
17. The Investigating Officer has not been fair and nas wrongly created a plea of alibi for two of the appellants-Prem and Kirpa Ram. He has found the other three appel-lants-Het Ram, Mange Ram and Bhal Singh innocent also.
18. We have heard the learned counsel for the appellants, learned counsel for the State and perused the record with their assistance.
19. Occurrence had taken place on 28-6-1993 at 3.00 p.m. First Information Report was registered at 7.45 p.m. and the Special Report reached the Chief Judicial Magistrate at 11.25 p.m. As per the statement of Dr. P.L. Jindal (P.W. 4), Prabhu Dayal, who was accompanied by Mahinder Singh (P.W. 7), was medico-legally examined on 28-6-1993 at 4.30 p.m. Prabhu Dayal expired at 5.50 p.m. It was, after the death of Prabhu Dayal that ruqa. Exhibit PJ, was sent to Police Station, Adarnpur. The Investigating Officer Raunki Ram, Sub-Inspector/ Station House Officer reached the Hospital at 6.05 p.m. on receiving the ruga. Exhibit PJ. Statement, Exhibit PH, of Satbir Singh (P.W. 3) was recorded at 7.30 p.m. Formal FIR was recorded at 7.45 p.m. Distance between Police Station, Adampur and Civil Hospital, Hisar is 24 kms. The Special Report reached the safe hands of the Chief Judicial Magistrate at 11.25 p.m. on 28-6-1993 on the same day the occurrence had taken place.
20. Learned counsel for the appellants has laid much stress on the alleged cutting/ tampering in the ruga. Exhibit PJ. Facts of the case speak otherwise. Dr. P. L. Jindal (P.W. 4) has stated in his testimony that the patient was referred to Civil Hospital, Hisar, after completing the Medico-legal report and giving him treatment. Ambulance was arranged and Prabhu Dayal was taken. As he (Doctor) was preparing the ruqa, the dead body of Prabhu Dayal was brought back to him by an attendant. Instead of intimating the injuries in the ruqa. Exhibit PJ. he intimated the death of the patient to the police. He has further stated that the over-writing in the ruga was a routine correction, which is evident from the fact that in the above portion, where he recorded the time of despatch of ruga, he has expressly stated that the patient expired at 5.50 p.m. As the patient had not expired in front of him, he meant that the dead body was brought to him at 5.50 p.m. It is clear from the seguence of events, as explained above, we are of the considered opinion that there is no delay in lodging of the First Information Report. In fact, by putting the sequence of events in proper perspective, we find that the First Information Report has been lodged promptly and without any delay.
21. Motive is a double edged weapon. It is an admitted fact that Het Ram and his sons, Kirpa Ram and Mange Ram were in civil and criminal litigations with the complainant-party. Exhibit PY is FIR No. 65 dated 17-6-1990. Exhibit PZ is FIR No. 132 dated 10-12-1991. Exhibit PAA is FIR No. 135 dated 9-12-1991. Exhibit DC is a copy of judgment dated 24-10-1991. Exhibit DD is a copy of judgment dated 8 4-1993 and Exhibit DE is an election petition. All these civil and criminal cases were pending intra party between the complainants and the appellants. It was Just a matter of time, when this rivalry between both the parties would have resulted in the death of some person and that unfortunate person was Prabhu Dayal.
22. The two eye-witnesses Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7) are natural witnesses. Testimony of these witnesses cannot be discarded only on this score that the witnesses are related to the deceased. Learned counsel for the appellants has laid a lot of stress that the injuries in flicted have not been explained by the eyewitnesses. Prabhu Dayal was being attacked with lathis. Satbir Singh and Mahinder Singh could not have systematically or mechanically seen or counted, as to which lathi blow was being given by which appellant and to whom. All they could see that the appellants, who were armed with lathis, were inflicting injuries to Prabhu Dayal. In fact, a truthful version, has been stated by them.
23. Occurrence had taken place on 28 6-1993 at 3.00 p.m. Daily temperature in the month of June In this part of Haryana where the oecurrence had taken place is approximately 50 degree Celsius. People do not venture out in this heat and prefer to stay at home and come out only when the temperature cools down in the evening. This is the reason that no person was present at the bus stand.
24. The gun used by Het Ram, who during the pendency of this appeal, has died, was used from its butt side. The superfluous injuries on the person of the deceased are probably with the butt of the gun. Inquest report, Exhibit PB, which was prepared by the Investigating Officer on 28-6-1993 at 6.05 p.m. was witnessed by Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7). It is clear from the testimony of Dr. P. L. Jindal (P.W. 4) and the inquest report, Exhibit PB, that Satbir Singh (P.W. 3) and Mahinder Singh (P.W. 7) were present in the hospital before the First Information Report came into existence.
25. The Investigating Officer, Raunki Ram. Sub-Inspector (P.W. 8), in his statement, has stated that he did not write in Exhibit PB that there were tyre marks on the clothes of the deceased, but voluntarily, he has stated that there was darkness and he, at that time, could not notice the tyre marks. The Investigating Officer moved an application, Exhibit PK, before the Senior Medical Officer, Government Hospital, Adampur that opinion be given regarding the injuries on the waist, both legs and arms written in the Medico-legal Report of Prabhu Dayal, as to whether these injuries could be caused by a tractor wheel or not. The doctor in his opinion, Exhibit PK/A opined that injuries on both legs and arms on the person of Prabhu Dayal, can be by tractor wheels. Medical evidence has corroborated the ocular testimony put forward by the eyewitnesses.
26. Learned counsel for the appellants has laid much stress that the Investigating Officer, found appellants-Het Ram, Mange Ram, Kirpa Ram, Prem and Bhal Singh innocent and put them in column No. 2. This investigation was verified by Additional Superintendent of Police, who concurred with ¦the findings of the Investigatmg Officer. We are not satisfied with the investigation of the case in finding some appellants innocent. Plea of alibi is a plea, which Prem and Kirpa Ram should have taken in their statements under Section 313, Code of Criminal Procedure and substantiated it by producing the cassette and witnesses of the marriage to prove their innocence. In their statements recorded under Section 313 of the Code of Criminal Procedure appellants-Het Ram, Mange Ram, Kirpa Ram, Prem and Bhal Singh, have, in the last question, as to whether they wanted to say anything, have only stated that they are innocent. No defence witness was produced. The Investigating Agency, it seems, has tried to unduly help appellants-Het Ram, Mange Ram, Kirpa Ram, Prem and Bhal Singh. No investigative findings have come forward from the side of the Investigating Officer, giving the reasons as to how he has found these appellants innocent.
27. In view of the reasons recorded above, we do not find any infirmity in the judgment dated November 19, 1996/Novem-ber 28, 1996 passed by Additional Sessions Judge, Hisar. Both these appeal bearing Nos. 78-DB and 146-DB of 1997 are dismissed.
28. Crl. Revision No. 219 of 1997 As both the main criminal appeals filed by the appellants have been dismissed and sentences awarded by the learned trial Court to the appellants are just and proper, we do not find any substance in the revision filed by the complainant for enhancement of the sentence and, it is dismissed.