Punjab-Haryana High Court

Siya Ram vs State Of Hry on 3 September, 2024

Bench: Sureshwar Thakur, Sudeepti Sharma

                             Neutral Citation No:=2024:PHHC:114237-DB

CRA-D-626-DB-2006 and connected cases                            -1-




            IN THE HIGH COURT OF PUNJAB & HARYANA
                     AT CHANDIGARH.

                                          Reserved on: 28.08.2024
                                          Pronounced on: 03.09.2024

                                          1. CRA-D-626-DB-2006


Deepak                                                       .....Appellant

                                 Versus

State of Haryana                                           .....Respondent

                                          2. CRA-D-738-DB-2006

Rajesh and another                                         .....Appellants

                                 Versus

State of Haryana                                           .....Respondent

                                          3. CRA-D-17-DB-2007

Raj Kumar                                                    .....Appellant

                                 Versus

State of Haryana                                           .....Respondent

                                          4. CRA-D-717-DB-2006

Sanjay @ Sanju                                               .....Appellant

                                 Versus

State of Haryana                                           .....Respondent

                                          5. CRA-D-675-DB-2006

Siya Ram                                                     .....Appellant

                                 Versus

State of Haryana                                           .....Respondent

                                          6. CRA-D-652-DB-2006

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Sudama                                                       .....Appellant

                                  Versus

State of Haryana                                            .....Respondent


CORAM:      HON'BLE MR. JUSTICE SURESHWAR THAKUR
            HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Argued by: Mr. P.S.Hundal, Senior Advocate with
           Mr. Ankush Chauhan, Advocate
           for the appellant (in CRA-D-626-DB-2006).

            Mr. Kapil Aggarwal, Advocate
            for the appellant (in CRA-D-675-DB-2006).

            Mr. Deepender Singh, Advocate and
            Mr. Harsh Jain, Advocate
            for the appellant (in CRA-D-652-DB-2006).

            Mr. Keshav Pratap Singh, Advocate
            Mr. Vishal Singh, Advocate
            Mr. Ankit, Advocate
            for the appellant (in CRA-D-717-DB-2006)

            Mr. Sarfraj Hussain, Advocate and
            Mr. Neeraj Jain, Advocate
            for the appellant(s)
            (in CRA-D-17-DB-2007 and CRA-D-738-DB-2006).

            Mr. Manish Dadwal, AAG, Haryana.

                                           ****
SURESHWAR THAKUR, J.

1. Since all the criminal appeals (supra) arise from a common

judgment, therefore, they are amenable for a common verdict becoming

recorded thereons.

2. The instant appeals are directed by the convicts-appellants,

against the verdict of conviction, as made on 18.08.2006, by the learned

Additional Sessions Judge, Narnaul, upon, Session Case No. 4 of 2006,

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wherethrough, in respect of charges drawn for offences punishable

under Sections 120-B, 302 read with Sections 120-B, 396 of IPC, he

made a finding of conviction against the accused.

3. Moreover, through a separate sentencing order drawn on

18.08.2006, the learned trial Judge concerned, proceeded to impose

upon the convicts (supra) both sentence(s) of imprisonment as well as

of fine, but in the hereinafter extracted manner :-

Offence Sentence Under Section 302 read with Rigorous Imprisonment for life Section 120-B IPC with fine of Rs. 5,000/- each. In default of payment of fine convicts shall further undergo R.I. for two months.

Under Section 120-B IPC Rigorous Imprisonment for life with fine of Rs. 5,000/- each. In default of payment of fine convicts shall further undergo R.I. for two months each.

Under Section 396 IPC Rigorous Imprisonment for 10 years with fine of Rs. 2,000/- each.

In default of payment of fine convicts shall further undergo R.I. for one month each.

4. All the sentence(s) were ordered to run concurrently. The

convicts become aggrieved from the verdict of conviction (supra),

besides become aggrieved from the above imposed sentence(s), thus,

they led to cast thereagainst separate appeals before this Court.

Factual background

5. The genesis of the prosecution case becomes encapsulated

in the appeal FIR, to which Exhibit PC is assigned.

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6. On 23-04-2002 at about 8.30 Ρ.Μ. the complainant

Narender Soni was returning to his house situated in Mohalla

Franshkhana, Narnaul from his shop and when he reached near the

house of Hem Chand, he heard a noise of fighting but he did not pay

any heed thinking that some drunkard persons were fighting but when

he turned his face back, he saw a young boy of height about 5' 4"

coming running from behind, who went towards the Rosewilla School.

The complainant moved his face back second time and saw another

young boy came running and he threw red chilly powder in his eyes.

The said young boy was having a knife in his hand and he also went

running towards Rosewilla School. He was a thin and lean boy of the

height of 5' 7" and was wearing a white bushirt. The complainant

followed him and raised noise 'Pakro, Pakro' to catch him but nobody

stopped him. A motor cycle was standing near the house of Kishan Lal

Sharaff and both of them ran away on the motor cycle towards Mohalla

Khatikan. They were seen fleeing by Mohan Naria Pan Biriwala, wife

of Dhara, Brahmin Halwai, Deepu son of Vijay Singh Mahajan and one

male member of Hem Chander Shraff's family. Hem Chand deceased

was in the lap of his sister in law, who sustained various injuries and

from those injuries blood was oozing. Hem Chand sustained blows

from knife and the said Hem Chand was taken in a rickshaw by his

nephew Parmod Kumar to hospital at Narnaul. If the above said persons

come in front of him (complainant) he could recognize them. The above

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said both young boys have caused injuries to Hem Chand by the knife

and owing to the said injuries he died.

7. PW-20 Inspector Rajender Singh received a telephonic

message regarding admission of injured in the hospital. On receipt of

this information, he reached in Government Hospital Narnaul and a

rukka was given to him by the duty doctor which is Ex.PA. Narender

son of Radhey Shyam resident of Mohalla Franshkhana met him and

got recorded his statement Ex. PB. PW-20 made his endorsement

Ex.PB/A and sent to the Police Station Narnaul through Constable

Rajbir Singh No. 370 for registration of a case. On this FIR Ex. PC was

recorded by Ajit Singh ASI who made his endorsement on the same as

Ex. PB/1. This witness also prepared inquest report Ex.A/3. The dead

body was identified by Sita Ram and Surender Kumar. After that this

witness moved an application for post mortem examination of the

deceased which is Ex. P/2. All the accused made disclosure statements

and got recovered the looted money and other articles in pursuance

thereof.

Investigation proceedings

8. After completion of investigations by the investigating

officer concerned, into the FIR (supra), he instituted an affirmative

report under Section 173 Cr.P.C., before the learned Committal Judge

concerned.

Committal proceedings

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9. Finding the offence punishable under Section 302 of the

IPC, to be exclusively triable by the Court of Session, thus the learned

committal Court vide order dated 22.07.2002, committed the case for

trial to the Court of the Session.

Trial Court Proceedings

10. On finding a prima facie case, charges under Sections 120-

B, 302 read with Section 120-B and Section 396 of the IPC became

framed, against the accused concerned, to which they pleaded not

guilty, and, claimed trial.

11. In support of the prosecution case, the prosecution

examined twenty four witnesses. After completion of recording of the

depositions of the prosecution witnesses, the learned Additional

Sessions Judge, Narnaul, drew proceedings under Section 313 of the

Cr.P.C., but thereins, the accused claimed false implication, and,

pleaded innocence. The accused did not examined any witness in their

defence.

12. After conclusion of the trial, as, became entered into the

FIR (supra), by the learned Additional Sessions Judge, Narnaul, the

latter proceeded to make the afore verdict of conviction, and, also made

the consequent therewith sentence(s) (supra), upon, the appellants.

Submissions of the learned counsel for the convicts-appellants.

13. The learned counsel for the aggrieved convicts-appellants

herein, have vigorously argued before this Court, that the contents of

the FIR have not been proven. The person who made a report to the

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police did not step into the witness box. Therefore, it is argued by the

counsel for the appellants that therebys the genesis of the prosecution

case remains under a cloud of doubt. Resultantly the charge drawn

against the accused are not proven.

14. Moreover, though the eye witness to the occurrence namely

one Parmod Jain, who is the real nephew of the deceased and who

stepped into the witness box as PW-10, though inculpated all the

accused but when during makings of cross examination(s), upon the

said eye witness, he became confronted with his earlier made statement

in writing, whereins, the names of the accused Rajesh, Sanjay, Jitender,

Deepak, Siya Ram did not find occurrence. Resultantly therebys when

gross improvements emerge, thus in his rendered testification before the

learned trial Judge vis-a-vis his previously made statement before the

police officer concerned, thereupon his testimony becomes bereft of

evidentiary vigor, and, thus is required to be discarded.

Submissions of the learned State Counsel

15. On the other hand, the learned State counsel has argued

that the appreciation of evidence, as made by the learned Convicting

Court, is merit-worthy, and, that it does not require any interference

being made by this Court.

Case dependent upon the testimony of eye witness PW-10.

16. For proving the charges (supra) drawn against the convicts,

the prosecution made reliance upon the deposition of the ocular witness

to the occurrence, who stepped into the witness box, as PW-10. The

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contents of the examination-in-chief, as rendered by PW-10 are ad

verbatim extracted hereinafter.

Hem chand Jain was my uncle. My family and the family of Hem Chand Jain reside in the same house situated at Mohalla Frashkhana Narnaul.

On 23.4.2002 at about 8.30/8.45 p.m. I was present at my house. I heard noise in the street. So, I came out of my house. I found that Sudama accused present in the court had caught hold of my uncle Hemchand Jain whereas Raj Kumar was giving him knife blows indiscriminately on the abdomen and chest. My uncle was having a bag in his hands. Raj Kumar snatched the bag from my uncle and ran towards Rojwila school. Sudama followed him. Raj Kumar was brandishing the knife. I followed both of them. However, on reaching Rojwila school both the accused sat on a motorcycle and sped away towards the mohalla Khatikan. When I returned to the spot I found that my mother had taken my uncle in her lap. I also found that the accused namely, Sanjay, Siya Ram, Rajesh, Jitender and Deepak were going towards the bazar. They were also present at the place of occurrence at the time Rajkumar and Sudama inflicting injuries to my uncle. In the meantime, Deepak and other inhabitants of the Mohalla also reached there. I took my uncle Hem Chand to GH Narnaul in a rickshaw where he was declared dead.

I returned to my house. At about 2.30/3 a.m. on the intervening night of 23/24.4.02 the police to my house. I pointed out the place of occurrence. Sita Ram PW and other inhabitants of the mohalla were also with me. The police party took bloodstained earth, and sheath (cover of the knife) from the place of occurrence. Both the articles

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were sealed separately with a seal having impression SR. After use the seal was handed over to Sita Ram PW. Both the articles were taken in possession vide memo Ex. PO which bears my signature (at this state, one sealed parcel bearing the intact seal of Director, FSL, Madhuban has been opened) It contains wooden cover of knife. It is the same which was recovered from the spot. It is Ex. P17.

My uncle was having the bahis (ledger), pan card and a sum of Rs. 3,75,000/-in his bag. There was also coloured photo of my uncle in the said bag.

On 13.5.2002 I received a telephonic message from police station city Narnaul intimating me about the arrest of the accused. I was also asked by the police officials to visit Mahendergarh Jail in order to identify the accused. Accordingly, I went to District Jail Mahendergarh. I reached the said Jail at about 11 A.M. after sometime Singhara Singh alongwith one Magistrate came there. Thereafter I was called inside the jail and was asked to identify the accused from amongst 11 persons. I identify Raj Kumar accused amongst them. I had identified the accused from amongst 11 persons. The said identification parade took place in the presence of the Magistrate. My statement was also recorded by the Magistrate, seeking my willingness to identify the accused which is Ex. PH/9. It bears my signatue at Ex.PH/10.

On 15.5.2002 at about 7 a.m. Surender Singh came to me and told me that he had received a telephonic message from police station city Narnaul to reach the said police station along with me. So accompanied Surender to the police station. We reached police station city Narnaul at about 7.15 a.m. We found Raj Kumar and Sudama accused present in the court were sitting there. Singhara

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Singh DSP, Vikram Singh SHO and other police officials were also present there. The police officials asked us to accompany them to Bijorawas at Rajashthan. So, myself and Surender accompanied the police party to the said village in police vehicles. The accused were also with the police. At a place near the temple the accused Sudama took us to approach road leading to village Maharajwas. After travelling some distance on the said road, he got the said jeep stopped and took us and the police party towards the back of his house and got recovered the ash from underneath a heap of dung. Sudama told us that the said ash was of the Bahis. The said ash was put in a polythene bag. It was made into a parcel and sealed with the seal having impression VP. Thereafter the accused took the police party a distance of about seven feet and dug out a bag EX. P13. It was the same bag which was snatched by the accused from my uncle Hem Chand. The name of my uncle was written on the bag (Hem chand Narnaul) a sum of Rs.120000/- one pan card Ex.P14 and coloured photo Ex. P15 were also in the said bag. The details of the currency notes recovered are as under:-

(a) Nine bundles were of currency notes of 100 denomination. Each bundles contain 100 notes.

(b) 56 currency notes of Rs.500/- denomination.

(c) Two currency notes of 1000/- in denomination.

All the said notes were wrapped in a white paper and all the articles mentioned above were again put in bag Ex. P13. The said bag was made into a parcel and was sealed with the seal having impression VP. The said bag and the parcel containing ashes were taken into possession vide recovery memo Ex. PN which bears my signature. I have seen bag Ex. P13, pan card Ex. P14, photo Ex.P15

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and currency notes. These are the same which were got recovered by Sudama accused.

Thereafter we again returned to the jeep. Then Raj Kumar took us to village Bijorawas and pointed out his house. Thereafter the said accused Raj Kumar led the police party to a room used for storing fodder. Thereafter the accused took out a mortorcycle which had been concealed underneath the fodder. He also took out a bag containing about Rs.1,40,000/-. The said notes were of hundred in denomination. They were 14 bundles of currency notes. Each bundles contain 100 currency notes of Rs. Hundred in demoniation. Out of them on 13 bundles letters HN were written. The said letters were in the hand of my uncle Hem Chand. I identify his handwriting as I have seen letters HN on bundles Ex. P19 to Ex. P31. These letters are in the hands of my uncle. I have seen the motorcycle standing outside the Court. It is the same motorcycle standing outside the Court. It is the same motorcycle which was got recovered by the accused from his house.

All the currency notes mentioned above i.e. 19 bundles were put in a bag which was made into a parcel and was sealed with the seal having impression VP. After use the seal was handed over to me. The said parcel containing currency notes and the motorcycle were taken in possession vide memo Ex. PN which bears my signature as attesting witness. My statement was recorded by the police. All the accused namely, Kajkumar, Sudama, Siya Ram, Sanjay, Rajesh, Jitender and Deepak are present in the court today."

17. PW-10 also suffered the ordeal of an exacting cross

examination, and, when during course thereof, he became confronted

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with his previous statement made in writing, whereins, rather with the

names of the accused Rajesh, Sanjay, Jitender, Deepak, Siya Ram, thus

not finding occurrence. The relevant part of the cross examination is

extracted hereinafter.

" xxxx I had told the names of Rajesh, Sanjay, Jitender,

Deepak, Siya Ram to the police and had told the police

that I had seen them going to Bazar. (confronted with

statement Ex. DC where the names of these persons are not

mentioned). I had told the police that I had seen the above

named persons going towards the bazar. (confronted with

Ex. DC where it is not so recorded). I had told the police

that at the time when injuries were being inflicted to Hem

Chand by Raj Kumar and Sudama the five persons named

above were also present (confronted with Ex.DC where it

is not so recorded) xxxx."

18. Therefore, the counsel for the appellants argues, that a

cloud of doubt seeps into the prosecution case and benefit thereof, is to

be assigned to the accused.

19. However, for the reasons to be assigned hereinafter the

above argument is rudderless. The reason being that even if assumingly

the above fact, as becomes testified by the eye witness PW-10 namely

Parmod Jain, wherebys he apart from inculpating accused Raj Kumar

and Sudama, but also inculpated Rajesh, Sanjay, Jitender, Deepak, Siya

Ram, thus is a purported improvement vis-a-vis his previously made

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statement, especially when in his previous statement made to the police

officer concerned, he has not thereins named (supra), but yet for the

reasons to be assigned hereinafter, it cannot be argued that the verdict

of conviction returned against the convicts-appellants requires any

interference.

20. Conspicuously so, since during the course of cross-

examination being made upon the witness (supra), he unrebuttedly

stated thereins that at the relevant time, he had chased the accused for

sometime and subsequently returned to the crime event to look after his

injured uncle. Therefore, the above speaking made by the witness

(supra) in his cross examination but exemplifies that therebys the

defence conceding to the incriminatory participation of the accused in

the crime event. Moreover, therebys the above purported improvement

or embellishment made by the eye witness PW-10, from his previously

made statement in writing rather not garnering any exculpatory effect.

Moreover, since the witness (supra) also identified the accused (supra)

in Court and when the said made identification of the accused in Court

remained unrepelled, thus on the ground that they were excepting Raj

Kumar, rather unknown to the witness (supra), thereupon, there was no

requirement of any prior thereto valid test identification parade being

conducted by the investigating officer concerned, nor therebys the first

time identification in Court of the accused, excepting accused Raj

Kumar, thus suffers from any pervasive infirmity.

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21. Reiteratedly, the omission (supra), but leads to a sequel

that the identification made in the Court of the accused was a well made

identification, besides when as stated (supra), the speakings (supra)

occurring in his cross examination but lead to an inference that therebys

the defence acquiescing to the incriminatory participation of the

accused in the crime event. In sequel, the (supra) improvement(s),

embellishment(s) made by PW-10 over his previously made statement

in writing but thus therebys becomes eclipsed.

22. Moreover, since one of the accused namely Raj Kumar was

not previously known to the witness (supra), whereby the investigating

officer concerned, was led to hold a test identification parade, whereins,

the witness (supra) identified the accused Raj Kumar. Resultantly since

the said identification of the accused concerned, in a Test Identification

Parade conducted by the investigating officer in the presence of the

Magistrate, when became preceded by a previous statement made by

the witness (Supra), to the police officer concerned, whereins, he

described the key characteristic features of the accused concerned. In

sequel, therebys when the said identification of the accused concerned

in a validly conducted test identification parade, became succeeded by

the said accused becoming also identified in the Court, by the witness

(supra). As such, when both the test identification parade, whereins, the

witness (supra), identified the accused concerned, and, also the

identification made by him in Court of the accused concerned, rather

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remaining unrebutted through cogent evidence becoming adduced by

the accused concerned.

23. In sequitur, the effect of the above but naturally, is that,

especially when the other co-accused also omit to exclusively assign

incriminatory participation to accused Raj Kumar, who became

identified in the manner (supra), therebys all the accused not only

accept the valid incrimination drawn against co-accused Raj Kumar but

also accept the incrimination drawn against them, by the witness

(supra) irrespective of the above purported embellishments or

improvements being made by him in his examination-in-chief, thus

from his previously made statement in writing.

24. The further fortifying reason for making the above

conclusion emanates from the factum that, unless evidence became

adduced that the disclosure statement(s) and consequent thereto

recoveries were vitiated, thereupons, the disclosure statement(s) and

consequent thereto recoveries are required to be assigned credit

worthiness, wherebys the inculpation drawn against the accused

becomes unflinchingly proved.

SIGNATURED DISCLOSURE STATEMENTS OF THE ACCUSED AND PURSUANT THERETO RECOVERIES.

25. During the course of investigations, being made into the

appeal FIR, convicts-appellants, made their respective signatured

disclosure statements, to which Exs. PR, PS, PW, PW/1, PW 18/1, PW

18/3 and PW 18/7 become respectively assigned.

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26. Pursuant to the above said signatured disclosure

statements, the accused ensured the effectuation of the recovery of the

relevant incriminatory items, which were taken into police possession

through the respectively made recovery memo(s), as detailed in the

hereinafter extracted manner.

  Name of the       Disclosure                      Recovery
    convict         Statement
Raj Kumar @             Ex.PR         He got recovered the weapon of
Raju                                  offence i.e. blood stained knife vide
                                      recovery memo Ex.PL.
                                      Further recovered motorcycle used
                                      in the commission of offence as
                                      well as currency notes amounting to
                                      Rs. 1,40,000/- vide recovery memo
                                      Ex.PN.
Sudama                 Ex. PS         He got recovered ashes of the ledger
                                      books, olive colour looted bag
                                      containing      currency       notes
                                      amounting to Rs. 1,20,000/-, Pan
                                      Card of the deceased and coloured
                                      passport photo vide recovery memo
                                      Ex.PM.
Siya Ram               Ex.PW          He got recovered Rs. 91,000/- vide
                                      recovery memo Ex.PU.
Jitender @ Jitu        Ex.PW/1        He got recovered Rs. 1000/-
                                      wrapping into a cloth parcel vide
                                      recovery memo Ex.PT.
Deepak             Ex. PW 18/1 He got recovered Rs. 10,000/- vide
                               recovery   memo      Ex.PQ     and
                               demarcated the place of occurrence
                               vide memo Ex. PW 18/2.
Rajesh @ Kalia     Ex. PW 18/3 He got recovered Rs. 5000/- vide
                               recovery memo Ex. PW18/4 and
                               demarcated the place of occurrence
                               vide memo Ex. PW18/6.
Sanjay @ Sanju      Ex. PW18/7        He got recovered Rs. 3000/- vide
                                      recovery memo Ex. PW 18/8 and
                                      demarcated the place of occurrence




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INFERENCES DRAWN FROM THE DISCLOSURE STATEMENT(S) AND RECOVERY MEMO(S).

27. A reading of the respectively made disclosure statements,

does reveal, that not only all the accused confessed their participation,

in the crime event, but also reveal qua theirs' evincing their readiness to

cause recoveries of the relevant incriminatory items, to the

investigating officer concerned, thus from their respective place(s) of

their hiding and keeping by them, and which place(s) were but known

exclusively to them, and whereafters, also they through recovery

memo(s) (supra), also respectively did cause the relevant recoveries, to

the investigating officer concerned. The above drawn disclosure

statements when become signatured by all the co-convicts, and, also

when they led to the making of the apposite recoveries at their

respective instances, to the investigating officer concerned. In

consequence, sanctity is to be meted to the above drawn memo(s).

. 28. Though the assigning of sanctity thereto would become

waned only, when they had ably denied, the existence of their

respective signatures thereons, and or, had efficaciously proven that the

relevant recoveries, were engineered, or, contrived thus through a

clever strategem being deployed by the investigating officer concerned,

but yet a reading of the deposition of PWs concerned, does not reveal,

that the above possible exculpatory pleas, hence for negating the

evidentiary worth of the above drawn memo(s), rather becoming either

raised or becoming efficaciously proven.

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FURTHER ARGUMENTS RAISED BY THE COUNSEL FOR THE APPELLANTS.

29. Though the counsel for the convicts-appellants argue that

since no identification marks were carried on the currency notes,

therebys the seizure(s) of the currency notes, as made through recovery

memo(s) (supra) remains unconnected with the crime event. In addition,

though the counsels also argue that since the recovered currency notes,

rather remained un-enclosed in sealed cloth parcels, therebys there was

a possibility of the apposite seizure(s), being planted on to the accused

and/or qua the recovery memo(s) being fictitiously drawn.

30. However, the above pleas loose their vigor. The reason

being, that the recoveries of currency notes respectively, at the instance

of the accused concerned, to the investigating officer concerned, thus

were made from the respective places known exclusively to them. If so,

the recoveries of the currency notes become(s) ipso facto connected

with the crime event, irrespective of no identification marks being made

on the currency notes.

31. Further, a perusal of the recovery memo(s) (supra) reveals

that after the effectuation of recoveries of currency notes by the accused

concerned, thus at their respective instances, to the investigating officer

concerned, rather the same becoming inserted in sealed parcels, thereby

the argument that the recovered currency notes, thus remained

unenclosed in sealed cloth parcels, rather looses its vigor, especially

when there remains un-adduced any cogent evidence hence

exemplifying that the said sealed parcels became tampered with.

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32. Furthermore, even if the currency notes respectively

comprised in a sum of Rs. 10,000/- and Rs. 5000/- were reflected in the

recovery memo(s) Ex.PQ and in Ex. PW18/4 to become seized at the

respective instances of the accused, but subsequently to a validly drawn

disclosure statements, as made by the accused concerned, thereupon,

even if the said currency notes remained unenclosed in sealed cloth

parcels, yet the non enclosure of the said seized currency notes in

sealed cloth parcels, rather does not detract from the evidentiary

efficacy of either the disclosure statements or the consequent thereto

recovery memo(s).

33. The reason for so concluding becomes grooved in the

factum that there remains unadduced any cogent evidence exemplifying

that the said drawn disclosure statements or the consequent thereto

recovery memo(s) thus were respectively vitiated. The non adduction of

the said evidence assigns credence to both (supra) but irrespective of

the currency notes respectively comprised in a sum of Rs. 10,000/- and

Rs. 5000/-, remaining unenclosed in sealed cloth parcels.

34. In addition, the argument as to the non examination of the

informant/complainant, thus rendering the prosecution version to

become ingrained with a pervasive doubt, but is rudderless. The reason

for making the above conclusion spurs from the factum that the

Investigating officer ably proved the signatures of the informant, as

carried on his statement Ex.PB. If the ably proven signatures of the

informant, as carried on his statement Ex.PB, thus did lead to the

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registration of the appeal-FIR, rather were forged thereby, it was open

for the accused in their defence to ask for the leadings into the witness

box, vis-a-vis the complainant/informant, rather to prove that his

signatures on the statement Ex.PB, which led to the registration of the

appeal/FIR, thus were forged. However, the said was omitted to be done

by the accused. Therefore, the investigating officer, who proved that the

informant/complainant made his signatures on Ex. PB in his presence,

and, which resulted in the registration of the appeal/FIR, thereupon,

with the informant/complainant, signing the statement Ex.PB, in the

presence of the police officials, therebys the investigating officer

became well enabled to prove the statement of the

informant/complainant, as borne in Exhibit PB, statement whereof, led

to the registration of the FIR.

35. Even otherwise, the proven Exhibit PB, whereons, for the

above reasons, the authentic signatures of the informant/complainant

hence existed, thus naturally therebys, even if the said witness stepped

into the witness box, thus estopped him from resiling from contents

thereof. The said reason becomes embanked upon the provisions

engrafted in Section 92 of the Evidence Act, provisions whereof are

extracted hereinafter, wherebys upon valid signatures of the author of

any scribed document existing thereons, thereupon, the author of any

scribed document becomes barred from leading parole evidence rather

detracting from the contents thereof.

Section 92 - Exclusion of evidence of oral agreement.

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When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Proviso(1). -- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.

Proviso(2). -- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.

Proviso (3). -- The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

Proviso (4). -- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.

Proviso (6). -- Any fact may be proved which shows in what manner the language of a document is related to existing facts.

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36. Since there is no rebuttal evidence thereto, therebys, it

cannot erode the efficacy of the statement Ex.PB, as made by the

informant/complainant. Moreover, since there is no evidence, thus

rebutting the authenticity of the signatures of the informant, as carried

in his statement Ex. PB, besides when the said signatures, for reason

(supra), became well proven by the investigating officer concerned.

Reiteratedly the non stepping into the witness box of the informant

becomes completely in consequential.

Medical Evidence

37. The doctor who conducted an autopsy on the body of the

deceased, stepped into the witness box as PW-11. During the course of

his examination-in-chief, he proved the post mortem report, as became

authored by him. He also proved the existence thereons of his valid

signatures and of his co-authors Dr. Piyush Sharma and Dr. Rakesh

Sharma. The post mortem report is assigned Exhibit PP. The relevant

observations, as become narrated in Exhibit (supra) are extracted

hereinafter.

1. Incised wound of 1.5 x 1 cm size vertically placed spindle shaped on the left side of chest wall about 12 cm below the axılla in anterior axillary line. Clotted blood was present. On cut section extravasation of blood in surrounding tissue. Underlying intercostal muscles were divided. Pleura divided and lung was injured and blood in pleura cavity (left) was present.

2. Incised wound of 3 x 1 cm in size spindle shaped tranversally placed below and medial to left nipple. On cut section there was extravasation of blood in surrounding tissue underlying intercostal muscles were cut including pericardium involving left atrium upto chamber.

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3. Incised wound of 2 x 1 cm in size spindle shaped transversally placed just medial to right nipple. On cut section there was extravasation of blood in surrounding tissue underlying intercostal muscles were cut and the blood was present in the right pleural cavity.

4. Incised wound of 3 x 1 cm in size spindle shaped obliquely placed in the midline on the lower part of sternum. On cut section there was extravasation of blood in the surrounding tissue.

5. Incised wound of 2 x 5 cm in size spindle shape obliquely placed on the right side of abdomen, below and lateral to the umbilicus. On cut section there was extravasation of blood in surrounding tissue and underlying muscles were cut and blood was present in peritoneum cavity.

6. Incised wound of 1 x.5 cm spindle shape obliquely placed on the right side of abdomen (30 cms below right nipple). On cut section there was extravasation of blood in surrounding tissue and cutting of abdominal muscles and peritoneum muscle.

7. Incised wound of 2 x 5 cm size on the left forearm vertically placed spindle shape in the middle of vertical aspect of left forearm. On cut section there was extravasation of blood in surrounding tissue and muscle was cut."

38. Further, the doctor concerned opined that the cause of

death of deceased was owing to shock and hemorrhage as a result of

injuries (supra) to the vital organs. All the injuries were declared to be

ante mortem in nature and also were declared to be sufficient to cause

death in the ordinary course in nature.

39. Since the medical account but corroborates eye witness

account besides also lends corroboration to the memo(s) (supra)

therebys the charge against the accused is concluded to be efficaciously

proven.

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