Puran Massi vs State
1997 Latest Caselaw 54 Del

JUDGMENT

K.S. Gupta, J.

(1) This appeal by Puran Massi is directed against the judgment dated September 28, 1993 of an Additional Sessions Judge whereby he was convicted under Section 302 Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000.00 . In default of payment of fine he was to further undergo rigorous imprisonment for six months.

(2) Case of the prosecution, in brief, is that on April 23, 1990 information in regard to Chhedi Ram having been brought dead to Gtb Hospital by Krishan Pal, Duty Constable Public Witness 16 was recorded in Daily Diary No. 30-A at Police Station Seelam Pur and a copy thereof Ex. Public Witness 8/A was made over to Si Brij Mohan Public Witness 8 for necessary action. Public Witness 8 alongwith Inspector Surjit Singh, Public Witness 18 and Constable Bhagwati Prasad Public Witness 19 reached House NO. D-61, New Seelam Put. There Smt. Bimla Devi Public Witness 2 met Public Witness 18 and he recorded her statement Ex. Public Witness 1/A to the effect that her husband is a rickshaw- puller. Her brother-in-law (Jeth) Puran Maasi and her husband were having strained relations with each other. Her brother-in-law Puran Maasi had threatened to kill her husband as he also claimed share in the domestic goods. That night she alongwith the children was sleeping inside the room. Her husband was sleeping on a cot on the chabutara outside the room. Her uncle too was sleeping on the chabutara. Electric bulb fitted outside the room was on. At about 1.45 A.M. on hearing some sound outside, she woke up and saw her brother in law Puran Maasi having a gandasi in his hand. He gave blows with that gandasi on the neck of her husband Cheedi Ram. He gave one two more blows with that gandasi to him and thereafter fled away alongwith the gandasi towards his house. Her husband cried. She also cried. Her husband started bleeding profusely from the neck. On hearing the cries her uncle Chinkant got up. Her neighbors Gorakh Sonar, Amar Nath and others also reached there. Her uncle Chinkat too saw her brother-in-law Puran Massi running towards his house. Amar Nath, Gorakh Sonar and her uncle Chinkant took her husband to Gtb Hospital.

(3) After making endorsement Ex. Public Witness 18/A statement Ex. Public Witness 1/A was sent by Public Witness 18 through Public Witness 19 for registration of the case at 3.45 A.M.and on the basis thereof Fir (Carbon copy Ex. Public Witness 13/A) was recorded by Hc Ramji Lal Public Witness 13. Blood stained earth, control earth and hair lifted from the spot after converting into separate parcels and sealing with the seal of "SS" were taken into possession vide seizure memo Ex. Public Witness 18/B by Public Witness 18. Mlc of Chhedi Ram Ex. Public Witness 5/A was collected from Gtb Hospital by Public Witness 8.

(4) Puran Massi was arrested from his House No. D-81, New Seelam Pur at about 3:00 A.M. on April 23, 1990 itself and pursuant to the disclosure statement Ex. Public Witness 8/C made by him on April 23, 1990 he got recovered gandasi Ex. P1 from the loft of his house on April 24, 1990. Gandasi was taken into possession after converting into a parcel and sealing with the seal of "SS" vide seizure memo Ex. Public Witness 17/A.

(5) After completing inquest proceedings body of Chhedi Ram was sent by Public Witness 18 for the post mortem. Dr. L.T. Ramani Public Witness 12, who conducted post mortem on April 23, 1990, opined that all the five injuries on the body of the deceased were ante mortem and the injuries to the neck structure were sufficient to cause death of the deceased in the ordinary course of nature. Death was due to shock and haemorrhage consequent to the injuries. Ex.PW12/A is the post mortem report in the hand of Dr. L.T. Ramai Public Witness 12.

(6) Material exhibits including gandasi were sent to CFSL. On receipt of Cfsl reports Ex. Public Witness 18/H and Public Witness 18/J and completion of investigation, chargesheet was filed against the accused.

(7) In the statement under Section 313 Criminal Procedure Code . plea taken by accused Puran Massi is of total denial.

(8) Contention advanced by Sh. Rajiv Awasthi appearing for the accused was that neither Smt. Bimla Devi Public Witness 2 nor Chin Kant Public Witness 9 actually saw the accused infliction injuries on the person of the deceased with gandasi Ex. P1 and the alleged recovery of gandasi at the behest of the accused is bogus. Public Witness 2 who alleged to be an eye-witness of the occurrence, deposed that about two years back on the night of 22/23.4.90 her husband was sleeping outside alongwith her uncle Chin Kant. She was sleeping inside the room. Bulb outside the room was on. At about 2.00 or 2.30 A.M. on hearing cries of her husband and the uncle, she came out and witnessed the accused hitting her husband with a gandasi on his neck. She also cried for held and Amar Nath and Gorakh Sonar came there. Her husband was removed by them to hospital where he was declared dead. In cross-examination she has denied the suggestion that someone else having intimacy with her had attacked her husband. Chin Kant Public Witness 9, whose testimony is also material, has deposed that Chhedi Ram was his son-in-law and about three years back around 2:00 A.M. he was sleeping at the house of his son in law on the chabutara. His son-in-law was also sleeping on a cot on that chabutara. On hearing the cries of Chhedi Ram he got up and saw the accused running having a gandasi in his hand. Chhedi Ram received injuries on his neck and the hand. In cross examination he has stated that it was a dark night and his face was covered with an angochha while he was asleep. He got up all of a sudden and saw Chhedi Ram bleeding. Smt. Bimla was sleeping inside the room and he called her.

(9) Fate of this appeal obviously hinges on the statements said Public Witness s 2 and 9. From the depositions of both these witnesses it is manifest that at the time the occurrence took place Public Witness 2 was sleeping alongwith the children inside the room while Public Witness 9 and the deceased were sleeping on the chabutara outside the room. Therefore, it could be only Public Witness 9 who may have first reached the deceased on hearing the cries raised by him on receiving the injuries. As is evident from the examination in Chief of Public Witness 9 he did not see the accused actually inflicting injuries to the deceased with a gandasi. According to him he only saw the accused running with a gandasi in his hand and thereafter having called Public Witness 2 from the room where she was sleeping to the chabutara. Obviously, Public Witness 9 excludes the witness presence of Public Witness 2 at the spot at the time the occurrence took place. That being so, how could Public Witness 2 the accused actually giving blows with gandasi Ex. P1 as deposed to by her. Thus the testimony of Public Witness 2, who claims to be an eye-witness of the occurrence, has to be discarded being totally unreliable.

(10) This brings us to the recovery part of gandasi Ex. P1 allegedly found out on the pointing out of the accused from the loft of House No. D-81, New Seelam Pur, on April, 24, 1990. Ex. Public Witness 8/C is the disclosure statement stated to have been made by the accused on April 23, 1990 to Inspector Surjit Singh Public Witness 18. Si Brij Mohan Public Witness 8 is shown to be the only witness to this disclosure statement Ex. Public Witness 8/C. It is in the deposition of Public Witness 8 that the accused was arrested at about 3:00 A.M. from his house No. D-81, New Seelam Pur, and the disclosure statement Ex. Public Witness 8/C was made by him thereafter on interrogation at the place of occurrence and also the Police Station. Vide seizure memo Ex. Public Witness 17/A gandasi Ex. P1 was taken into possession on April 24, 1990 by Inspector Surjit Singh Public Witness 18. Yog Raj Chawla Public Witness 17 from public is shown to be the only witness of recovery of gandasi on memo Ex. Public Witness 17/A. It is in the deposition of Public Witness 17 that on March 24, 1990 at about 10:00 or 11:00 A.M. On the back side of Police Station Seelam Pur, Inspector Surjit Singh alongwith one Constable met him; that the accused was in their custody and he was joined in investigation by Inspector Surjit Singh. Accused took them to his house on the first floor in `D' block and he took out a gandasa' form the loft. Accused alongwith the gandasi was thereafter taken to the police station and there gandasi was converted into a parcel and sealed. In cross examination he stated that he had signed the memo Ex. Public Witness 17/A at the police station. It is further in his cross-examination that he is facing trial in two cases under Section 420/120 Indian Penal Code of Ps Bhajanpura and a case under section 448 Indian Penal Code of Ps Shahdara. He also appeared as a witness in an Excise case of Ps Vivek Vihar and the house of the accused was at a distance of about half kilometre from the place where the Police met him. Inspector Surjit Singh Public Witness 18 while supporting the prosecution case in regard to recovery of gandasi Ex. P1 at the pointing out of the accused in cross examination has stated that the gandasi was sealed at the house of the accused and not at the Police Station. From the deposition discussed earlier of Si Brij Mohan Public Witness 8, it is manifest that the disclosure statement Ex. Public Witness 8/C was made by the accused on April 23, 1990 immediately after 3:00 A.M. but recovery pursuant thereto as per the depositions of Public Witness s 17 and 18 was made on April 24, 1990 some time after 11:00 A.M. As gandasi was a weapon of offence, Public Witness 18 should have proceeded to recover it immediately after the disclosure statement Ex. Public Witness 8/C was made by the accused. In his deposition Public Witness 18 has not furnished any explanation whatsoever why did he wait to get that recovery effected for the entire day of April 23 and upto noon time on April 24, 1990. In the face of admission made by Public Witness 17, the only alleged witness of recovery in question regarding his involvement in three criminal cases of Police Stations Bhajanpura and Shahdara and also his having appeared as a witness for the prosecution in an excise case pertaining to Police Station, Vivek Vihar no credence can be placed on the testimony of Public Witness 17 in regard to the alleged recovery of gandasi. Further, both Public Witness s 17 and 18 have contradicted each other as to the place gandasi Ex. P1 was converted into a parcel and taken into possession by Public Witness 18, We are, thus, inclined to accept the submission advanced by Sh. Awasthi that the recovery of said gandasi attributed to the accused too is suspicious. Moreover, this gandasi was neither shown to Dr. L.T. Ramani Public Witness 12 for eliciting his opinion nor has it been connected as a weapon of offence by the Cfsl reports Exs. Public Witness 18/H and Public Witness 18/J.

(11) From the foregoing discussion it must follow that finding of guilt under section 302 Indian Penal Code recorded against the accused cannot be legally sustained.

(12) Appeal is, therefore, accepted. Impugned judgment is set aside and the appellant is acquitted of the charge under Section 302 Indian Penal Code Appellant, who is in custody, be set at liberty forthwith if his detention is not required in any other case.