ANIL @ BAWA vs. STATE OF HARYANA

ITEM NO.102 COURT NO.9 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 894/2011 ANIL @ BAWA Appellant(s) VERSUS STATE OF HARYANA Respondent(s) (with office report) WITH Crl.A. No. 895/2011 (With Office Report) Crl.A. No. 898/2011 Date : 25/02/2016 These appeals were called on for hearing today. CORAM : HON'BLE MR. JUSTICE V. GOPALA GOWDA HON'BLE MR. JUSTICE ARUN MISHRA For Appellant(s) Mr. Pushpinder Singh,Adv. Mr. Kumar Kartikay,Adv. Mr. Aruneshwar Gupta,Adv. Mr. Amarjit Singh Bedi,Adv.(NP) For Respondent(s) Mr. S.U.K.Sagar,Adv.for State. Mr. Vishwa Pal Singh,Adv.(NP) Ms. Naresh Bakshi,Adv.(NP) Mr. Rao Ranjit,Adv.(NP) UPON hearing the counsel the Court made the following O R D E R The appeals are dismissed in terms of the signed Reportable order. Signature Not Verified Digitally signed by Suman Wadhwa Date: 2016.03.03 12:59:08 IST Reason: (SUMAN WADHWA) AR-cum-PS (MALA KUMARI SHARMA) COURT MASTER Signed Reportable order is placed on the file. 2 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.894 OF 2011 Anil @ Bawa … Appellant Vs. State of Haryana … Respondent with CRIMINAL APPEAL NO.895 OF 2011 Roop Chand … Appellant Vs. State of Haryana … Respondent with CRIMINAL APPEAL NO.898 OF 2011 Sushil … Appellant Vs. State of Haryana … Respondent O R D E R 1. The appeals have been preferred by the accused appellants against the judgment of conviction and order of sentence dated 6.8.2009 passed by the High Court of Punjab & Haryana at Chandigarh thereby affirming the conviction recorded by the trial court as against the appellants under section 302 read with section 149 sentencing them to undergo life imprisonment and to pay fine of Rs.5,000 each; in default to undergo further simple imprisonment for a period of 3 months and under section 148 read with section 302 to undergo RI for one year. 2. In the incident dated 4.7.2003 Partap son of Anand Singh PW5 3 died. Anand Singh lodged the First Information Report at 4.30 a.m. on 5.7.2003. The incident took place at about 8.30 p.m. It was mentioned in the FIR that Partap had gone to Akhara of the village. As he did not come back, he along with two others Lakhmi Chand and Ramesh went towards Akhara in search of Partap. When they reached near veterinary hospital, they saw Ran Singh and Pinda were quarrelling with Partap. Ran Singh was armed with a Lathi and Pinda with a sword, Roop Chand with a Lathi, Sushil with sword and Anil alias Bawa also armed with a Lathi joined them. They shouted that Partap be taught a lesson for having an evil eye on the lady members of the family of the accused. Sushil and Pinda inflicted injuries on the hands, stomach, waist and chest of Partap. Sushil gave blows of sword to Partap on the head, right hand and on the left of the face of the deceased. Roop Chand and Anil alias Bawa inflicted Lathi blows on the person of Partap. After beating Partap accused fled away. Partap succumbed to his injuries at the place of incident itself. 3. The prosecution examined in all 11 witnesses. Anand Singh PW5 is the complainant. The accused abjured their guilt and contended that as Partap had tried to outrage the modesty of Monika, villagers assembled and gave a beating to Partap due to which he died. 4 The accused were not present at the place of occurrence. They have been falsely implicated in the case. Defence also examined 8 witnesses. The trial court convicted all the 6 accused persons. However, the High Court has acquitted Sandeep as his name was not mentioned in the FIR. He has been given the benefit of doubt. Relying upon the ocular evidence furnished by Anand Singh-PW5, and the medical evidence of Dr. Naresh Dahiya-PW7, and other witnesses related to the investigation it has convicted the remaining 5 accused persons. Three of them are before us in the appeals. 4. It was submitted on behalf of the appellant that accused-appellants have been falsely implicated in the case. Deceased Partap had tried to outrage the modesty of Monika due to which he was beaten by the villagers. The FIR is belated. The house of the accused was set on fire on the same day. Savitri, wife of accused Roop Chand has filed a complaint under sections 323, 325, 436, 427, 307, 148, 149 and 452 of IPC against family members of deceased Partap. The witnesses Lakhmi Chand and Ramesh have not been examined whereas they were named in the first information report as such adverse inference deserves to be drawn against the prosecution. The guilt has not been established beyond periphery of doubt by the 5 prosecution. 5. It was contended by learned counsel appearing for the State of Haryana that both the courts have appreciated the evidence and concurred with the finding that the deceased Partap was mercilessly beaten and murdered by the accused appellants. Considering the number of injuries which were sustained by deceased Partap and the ocular version is supported by the medical evidence. Conviction has been rightly recorded. Other two witnesses were not examined as they were won over by the accused. The statement of the complainant Anand Singh PW5 who was an eye witness to the incident has been found to be worthy of reliance. Defence evidence has also been taken into consideration. The conviction and sentence is absolutely proper and does not call for interference. 6. We have gone through the judgment as well as the evidence placed on record. It is apparent from statement of eye-witness Anand Singh-PW5, that the deceased Partap was given beating by accused Sushil, Anil alias Bawa and Roop Chand. Sushil had inflicted injuries with the help of a sword on the person of deceased Partap on various parts of the body. Roop Chand and Bawa inflicted several Lathi blows. The ocular version that the aforesaid persons had inflicted the 6 injuries with weapons in question due to which Partap died has been corroborated medically by Dr. Naresh Dahiya-PW7. He has clearly stated that injury Nos.1 to 10 were caused bysharp-edged weapon and the contusion in the form of a Lathi mark on the back, right side and multiple bruises and contusions in the form of Lathi marks on the front chest and both arms were caused by blunt object like Lathi. Thus the version of Anand Singh-PW5, being father of the deceased is quite reliable. He would be the last person to spare the actual assailant and would not implicate the accused falsely. He had no enmity with accused persons. It has been found that the delay in lodging the FIR has been satisfactorily explained, being father of deceased he became unwell for two hours after death of his son. It also appears that another incident of setting fire to the house of accused had taken place in the same night with respect to which report had been lodged by Savitri wife of accused Roop Chand. The trial court as well as the High Court have found that the outcome of the murder of the deceased Partap at the hands of accused persons was that house of accused was set ablaze for which report had been lodged by Savitri. 7. In the FIR it was mentioned that deceased Partap was given beating on the allegation that he had an evil eye on the women-folk of 7 the family of the accused. In the circumstances, the accused persons came armed with swords and Lathis and had caused large number of injuries on the person of the deceased Partap due to which he succumbed to death on the spot itself. The accused persons had no right to take law into their hands and to beat Partap mercilessly and intentionally to cause his death. 8. The prosecution had not examined the two witnesses namely Ramesh and Lakhmi Chand. However in the instant case the version of Anand Singh PW5 is found to be reliable. Learned counsel for the appellants has relied upon The State of U.P. & Anr. v. Jaggo alias Jagdish & Ors . [AIR 1971 SC 1586] to draw an adverse inference against the prosecution for non-examination of the aforesaid witnesses. Drawing of an adverse inference is dependent upon the facts and circumstances of each case. In the instant case the version of the father of the deceased is found to be reliable and he had no motive to implicate the accused falsely and appears to be a truthful witness. 9. Learned counsel has also placed reliance on Bahal Singh v. State of Haryana [AIR 1976 SC 2032] so as to contend that being related and chance witness, the version of Anand Singh PW5 is not acceptable. In the case of Bahal Singh (supra), the best evidence was 8 kept behind and it was held that same had prejudiced a fair trial. Certain circumstances were also not put to the accused which was also considered to be a grave irregularity. In our opinion, it would depend upon the facts of each case whether the accused has received a fair trial. As Anand Singh had gone towards Akhara in search of his son along with others could not be said to be unusual as he had to water the fields along with Partap, his son. Reading of the entire statement of Anand Singh-PW5, inspires confidence and both the courts below have accepted the version after full appreciation of the evidence and there are no inherent improbabilities in the version unfolded by witness. Thus, in our considered opinion, conviction has rightly been recorded by the courts below which calls for no interference in the appeals. It cannot be said that the accused have not received fair trial in the instant case. 10. We find no ground to interfere in the appeals. The appeals being devoid of merit, deserve to be and are hereby dismissed. ……………………..J. (V. Gopala Gowda) New Delhi; …………………….J. February 25, 2016. (Arun Mishra)