Prem Sagar
Vs. Dharambir & Ors [2003] Insc 537 (29 October 2003)
Doraiswamy
Raju & Arijit Pasayat Arijit Pasayat, J.
Appeal (crl.) 242 of 2003
These
two appeals are interlinked being directed against the same judgment of the Punjab and Haryana High Court. While
Criminal Appeal no.242/2003 is by the convicted persons, Criminal Appeal
no.243/2003 is by the informant. The three appellants in Criminal Appeal
No.242/2003 have been found guilty of offence punishable under Section 302 read
with Section 34 and 120-B of the Indian Penal Code, 1860 (for short the 'IPC').
While accused-appellants Dharambir and Joginder were awarded death sentence by
learned Sessions Judge, Hisar, appellant-Karambir was sentenced to undergo
imprisonment for life. Each of the accused persons was asked to pay a fine of
Rs.25,000/-each . In appeal before the High Court, the death sentence was
commuted to life sentence in case of accused-Dharambir and Joginder. The
convictions, however, were maintained. It is to be noted that accused-Joginder,
as per the information given to this Court by learned counsel for the
appellants, has died during pendency of the appeal and, therefore, the appeal
so far he is concerned, has abated.
The
backgrounds facts are as under:
Appellants
(Dharambir, Joginder Singh and Karambir) along with their two real brothers – Jagbir
Singh and Jasbir Singh and their mother Vanaspati, in all six accused, were
charged sheeted by the learned trial Court on the allegations that about 7-8
days prior to the date of occurrence i.e. 29.6.2000, in the area of village Mayyar,
resolved to do an illegal act to commit the murder of Dalbir, Vijender and Smt.
Kitabo and they murdered them in pursuance of the said agreement and thereby
committed offence under Section 120-B IPC. The second charge against the
appellants was that on 29.6.2000 at about 10.30 p.m. in the area of the said village and in pursuance of their conspiracy,
they murdered Dalbir, Vijender and Smt. Kitabo and thereby committed an offence
punishable under Section 302 read with Section 120-B IPC.
Thirdly,
on the same day, time and place, appellant-Dharambir in furtherance of common
intention of co-accused Joginder and Karambir committed murder by intentionally
causing the death of Dalbir and thereby he committed an offence punishable
under Section 302 IPC while his co-accused Joginder and Karambir committed an
offence punishable under Section 302/34 IPC. Fourthly, on the same day and in
the said area of village Mayyar and in furtherance of common intention Dharambir
and Joginder committed murder by intentionally causing the death of Kitabo and
thereby they committed an offence punishable under Section 302 read with
Section 34 IPC. Fifthly, on the same day, time and place and in furtherance of
their common intention, all the three appellants did commit murder by
intentionally causing the death of Vijender and thereby committed an offence
punishable under Section 302/34 IPC.
Interestingly,
in this case the first information report was lodged by accused-appellant Dharambir
before ASI Vinod Kumar (PW12) but during investigation he found that Dharambir
along with two others were the assailants and after investigation charge sheet
was placed.
During
trial and before the High Court, prosecution relied on the version of Prem Sagar
(PW15) who claimed to be an eyewitness. The trial court and the High Court
found his evidence to be credible, cogent and acting on it directed conviction
and imposed sentence as aforesaid. In view of the death sentence imposed on two
persons, reference was made to the High Court for confirmation under Section
366 of the Code of Criminal Procedure, 1973 (for short the 'Cr.P.C.'). As noted
above, the High Court converted the death sentence into life sentence. While
accused persons have questioned the correctness of the judgment so far as their
conviction and sentence are concerned, the informant has contended that the
High Court was not justified in altering the death sentence to life sentence.
It is accepted by the learned counsel for the State that no appeal has been
preferred by the State for alteration of death sentence to life sentence.
We
have heard learned counsel for the parties at length. Learned counsel for the
appellants submitted that the evidence of PW15 does not inspire confidence, and
is highly doubtful. His conduct after the occurrence, when he is supposed to
have travelled his village side at great distance on foot, when transport
facilities were available, to have returned to the place of occurrence on foot
or by an inconvenience mode of transport is highly unusual and lacks
credibility. It is further submitted that so far as accused Karambir is
concerned, the prosecution has not established his role. He has been convicted
by application of Section 34 IPC. In fact, PW-15 has clearly stated that he was
not present when Kitabo and Dalbir were assaulted. He is supposed to have
followed deceased Vijender and to have prevented him while he was trying to run
away. PW-15 in his cross-examination has clearly accepted that it was accused-Dharambir
who caused his fall. It is also submitted that in the circumstances noticed by
the High Court there is no scope for interference with the life sentence
awarded. Learned counsel for the State submitted that Section 34 is clearly
applicable for the accused-Karambir. The slip of tongue committed by PW15 to
say that accused-Dharambir had caused fall of deceased-Vinod cannot be
magnified to such an extent as to rule out involvement of accused-Karambir.
Learned
counsel for the informant-appellant, Prem Sagar submitted that in a case of
such brutal murders where three person lost their lives death sentence had
rightly been awarded by the trial court and the High Court should not have
interfered.
We
have perused the judgment and the evidence on record. The evidence of PW15 has
been rightly acted upon by the trial court and the High Court. This witness is
relative of both the deceased and the accused. Therefore, there is no reason as
to why he would falsely implicate the accused persons. Added to that in spite
of the elaborate cross-examination nothing fragile in his testimony has
surfaced. His evidence is cogent, truthful and trustworthy. Therefore, the
conviction so far as accused-Dharambir is concerned, cannot be faulted.
Similarly, in the case of accused-Joginder in respect of whom the appeal has
abated because of his death. So far as accused-Karambir is concerned, in view
of the scenario as highlighted by learned counsel for the appellants, the
prosecution has not linked him with the occurrence in a manner as to attract
applicability of Section 34 IPC. When the eye-witness (PW-15) himself has
stated that it was accused-Dharambir who caused fall of deceased-Vijender it
was not for the High Court to say it was a slip of tongue. Had it really been
so, different course was to be adopted before the trial court, which the
prosecution did not do. That being so, the conviction of accused-appellant Karambir
cannot be maintained and is set aside. He be set at liberty forthwith if not
required in connection with any other case.
Coming
to the appeal filed by the informant we find that the High Court has taken note
of various decisions of this Court and the principles laid down as to when
death sentence would be appropriate.
Brutality
is inbuilt in every murder but in case of every murder death sentence is not
imposed. Life imprisonment is the rule and death sentence is the exception. The
latter sentence is imposed in rarest of rare cases. Taking note of the
mitigating circumstances indicated by the High Court, we do not find any scope
for interference with the life sentence awarded and to alter same to death
sentence.
In the
result, Criminal Appeal no.242/2003 is allowed to the extent of acquittal so
far as accused-Karambir is concerned, but conviction of accused-Dharambir is
affirmed. The Criminal Appeal no.243/2003 filed by the informant-Prem Sagar is
dismissed.
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