HOSHIAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) Appellants, Hoshiare son of Partap Singh and Brahma Nand alias Babbar son of Partap Singh, were tried with their co-acused Yash Pal son of Hoshiare and Ajit Singh son of Dalip Singh, for having committed murder of one Mir Singh on the intervening night of 3/4 th March. 1990 at 11 p.m. in the area of village Siwana, Police Station Beri. The learned Sessions Judge, Rohtak, after resultant trial, held the appellants guilty of the charges framed against them vide judgement dated February, 1995. Yash Pal and Ajit Singh were, however, acquitted of the charges framed against them by giving them benefit of doubt. Appellant Hoshiare has been sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code. He has also been sentenced to undergo RI for one year under Section 324 read with Section 34, I.P.C. and for two years under Section 449, I.P.C. Brahma Nand appellant has been sentenced to undego life imprisonment under Section 302 read with Section 34, I.P.C. He has also been sentenced to undergo RI for one year under Section 324, I.P.C. and for two years under Section 449, I.P.C. All the substantive sentences have been ordered to run concurrently. It is against this order of conviction and sentence that the appellants have filed the present appeal, whereas Smt. Chhanno wife of deceased Mir Singh has filed Crl. Revision No. 744 of 1995 praying therein that Yash Pal and Ajit Singh, who have been acquitted by the learned Sessions Judge be also convicted like their co-accused Hoshiara and Brahma Nand and that the sentence awarded to the appellants be enhanced, We, thus, propose to decide both, Crl, Appeal No. 180-DB of 1995 and Crl. Revision No. 744 of 1995 by this common order.

(2.) Brief facts of the case reveal that Chhanno wife of deceased Mir Singh lodged the FIR, Ex. PK on March 4, 1990 at 1 p.m. at Police Station Beri, which was recorded by SI/SHO Ram Sarup, P.W. 10. A copy of the FIR aforesaid was received by the Judicial Magistrate First Class, Jhajjar at 5 p.m. on March 4, 1990. Chhanno stated that she was resident of village Siwana. Yesterday night at 11 p.m., she and her husband Mir Singh were talking to each other, when Babbar, Hoshiara sons of Partap Singh, Billu son of Hishara entered their house by removing the mat while one person remained standing outside. She saw in the light of lamp that Babbar and Billu were armed with knives whereas Hoshiara was armed with a pistol. Immediately after entering all the three lifted her husband and took him outside. She raised an alarm and tried to rescue her husband whereas Bannar left her husband and gave a knife blow to her which hit her on head and caused another scratch on her right hand. In the meantime, Hoshiars and Billu took her husband outside the door. They both raised an alarm and she saw in the moonlight that Billu and Babbar who were armed with knives, were giving knife blows to her husband on his head. Fourth person, who had caught hold of her when she came out, said that since some more personas were coming, Hoshiara should shot at her husband at once. Hoshiara then fired a pistol shot on the chest of her husband. In the meantime, her son Rajbir and husband's younger brother (DEVAR) Wadhawa also reached there from the thrashing floor of TORIA. On reaching there, they also raised an alarm. Thereafter, on seeing Them, Babbar etc. fled away towards the village threatening that if they dared to go to police station, they were sitting on the way. She further stated that all the four assailants had murdered her husband as Krishan, brother of Hoshiara was killed 8-9 years back in a quarrel with them. Due to that grudge, Hoshiara and others had killed her husband. Her son Rajbir and Devar Wadhawa had also witnessed the occurrence. Till now, they could not come out of fear. After leaving Tek Chand and Balwant to guard the dead body, she along with her son Dharam Pal had come to lodge the report. From the facts, as have been narrated above, it, thus, appears that Mir Singh was murdered at about 11 p.m. on March 3, 1990 whereas the FIR came to be recorded at Police Station Beri, which is situated at a distance of 14 Kms. from the place of occurrence at 1 p.m. on March 4, 1990 and that the special report with regard to the incident reached the Magistrate concerned at Jhajjar at 5 p.m. on the same day.

(3.) The prosecution, with a view to bring home the offence against the appellants and their co-accused Yash Pal and Ajit Singh, examined Dr. S. K. Bhutani as PW 1. He had conducted post mortem on the dead body of Mir Singh at 9 a.m. on March 5, 1990 and had found following injuries :-"1. Incised wound on left parietal, transverse 3 cm. x 0.5 cm. x 0.5 cm.2. Incised wound on left occipital, oblique, 3 cm. x .3 cm. x 0.75 cm.3. Incised wound on right parietal, vertical 2 cm. x 0.5 x 0.5 cm.