ANIL@ BAWAversusSTATE OF HARYANA

                            [2016] 3 S.C.R. 508



A                             ANIL@ BAWA
                                     v.
                          STATE OF HARYANA
                     (Criminal Appeal No. 894of2011)
B                          FEBRUARY 25, 2016
           [V. GOPALA GOWDA AND ARUN MISHRA, JJ.]
            Penal Code, 1860: s.302 r/w s.149 - Prosecution case was
    that victim-deceased, son of complainant was assaulted by the
    appellants and other accused with lathis and sword resulting in his
c   death on the spot itself - Incident witnessed by father-complainant
    - Conviction by courts below - Challenged on the ground of delayed
    lodging of FIR and plea of false implication - Held: The ocular
    version that the accused persons had inflicted the injuries with
    weapons due to which the victim died was corroborated by medical
D   evidence - The doctor clearly stated that injury Nos.I to 10 were
    caused by sharp-edged weapon and the contusion in the form of a
    lathi mark on the back, right side and multiple bruises and contusions
    in the for.111 of lathi marks on the front chest and both arms were
    caused by blunt object like lathi - Thus, the version of the
    complainant was quite reliable - He would be the last person to
E
    spare the actual assailant and would not implicate the accused
    falsely - He had no enmity with accused persons - Delay in lodging
    the FIR was sati5factorily explained, being father of deceased he
    became unwell for two hours after death of his son - Reading of
    the entire statement of complainant inspired confidence and both
F   the courts below accepted the version after ji1ll appreciation of the
    evidence and there were no inherent improbabilities in the version
    unfolded by witness - Thus, conviction was rightly recorded by the
    i::ourts below which called for 110 interference in the appeals.
          The State of U.P. & Anr. 1' Jaggo alias Jagdish & Ors.
G         AIR 1971 SC 1586; Bahal Singh v. State of Haryana
          AIR 1976 SC 2032 - referred to.
                              Case Law Reference
          AIR 1971 SC 1586          referred to     Para8

H         AIR 1976 SC 2032          referred to     Para9
                                  508
              ANIL@ BAWA v. STATE OF HARYANA                                     509



      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                          A
No. 894 of201 I.
      From the Judgment and Order dated 06.08.2009 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Appeal No. 279-DB
of 2006
                               WITH                                               B
      Crl. A. Nos. 895 and 898 of201 I
      Pushpinder Singh, Kumar Km1ikay, Aruneshwar Gupta, Ama1j it
Singh Bedi,Advs. for the Appellant.
      S.U.K. Sagar, Vishwa Pal Singh, Ms. Naresh Bakshi, Rao Ranjit,
Advs. for the Respondent.                                                         c
      The following Order of the Court was delivered
                            ORDER
       I. 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                D
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 of3 months and under section
148 read with section 302 to undergo RI for one year.
                                                                                  E
       2. In the inciclent dated 4.7.2003 Pm1ap son of Anand Singh
PW5 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                 F
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, Sushi! 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
                                                                                  G
accused. Sushi I and Pinda inflicted injuric,; on the hands, stomach, waist
and chest of Partap. Sushi I 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 ofPartap. After
beating Partap accused fled away. Pm1ap succumbed to l1is injuries at
the place of incident itself.                                                     H
510            SUPREME COURT REPORTS                         [2016] 3 S.C.R.



A             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. The
      accused were not present at the place of occurrence. They have been
      falsely implicated in the case. Defence also examined 8 witnesses. The
B
      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
c     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
D
      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
E     drawn against the prosecution. The guilt has not been established beyond
       periphery of doubt by the 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
F     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
G     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
H     Singh-PW5, that the deceased Partap was given beating by accused
             ANIL@ BAWA v. STATE OF HARYANA                                  511 .



Sushi!, Anil alias Bawa and Roop Chand. Sushi! had inflicted injuries A
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 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
                                                                             B
Nos. I to I 0 were caused bysharp-edged weapon and th.e contusion in
the form of a Lathi mark on the back,-right side and multiple bruises and
contusions in the form ofLathi 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 relia~l~\ He would be the last
person to spare the actual assailant and would not implicate the accused . c
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
                                                                             D
lodged by Savitri wife of accused Roop Chand. The trial court as well as
the High Court have found thatthe 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 t~at deceased Partap was given
beating on the allegation that he had an evil eye on the women-folk of        E
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    F
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 UP. & Am: v. Jaggo alias
                                                                              G
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 accus~d falsely and appears to be a truthful witness.                     H
512             SUPREME COURT REPORTS                            [2016] 3 S.C.R.



A             9. Learned counsel has also placed reliance on Rahal 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 Rahal Singh (supra), the best evidence was
      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
B
      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-PWS,
c     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 cou11s below which
      cal Is for no interference in the appeals. It cannot be said that the accused
      have not received fair trial in the instant case.
D
            l 0. We find no ground to interfere in the appeals. The appeals
      being devoid of merit, deserve to be and are hereby dismissed.


      Devika Gujral                                              Appeals dismissed.