Punjab-Haryana High Court
Sunny Son Of Dharampal & Others vs State Of Haryana on 18 September, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA-D-643-DB of 2009, CRA-D-558-DB of 2009
and CRA-S-1453-SB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-643-DB of 2009
Date of Decision: 18.09.2013
Sunny son of Dharampal & others ....Appellants
Versus
State of Haryana ...Respondent
CRA-D-558-DB of 2009
Date of Decision: 18.09.2013
Anil Kumar son of Rumal Singh ....Appellant
Versus
State of Haryana ...Respondent
CRA-S-1453-SB of 2009
Date of Decision: 18.09.2013
Sonu son of Ram Saran ....Appellant
Versus
State of Haryana ...Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Ashit Malik, Advocate, for the appellant.
(In CRA-D-558-DB of 2009).
Mr. Tejinder Pal Singh, Advocate for
Mr. S.S. Narula, Advocate for appellants.
(in CRA-D-643-DB of 2009 & CRA-S-1453-SB of 2009)
Ms. Shubhra Singh, Deputy Advocate General,
Haryana.
FATEH DEEP SINGH, J.
Since all the above detailed appeals have arisen as an Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -2- outcome of a common judgment and order of sentence dated 17th April, 2009 passed by learned Additional District and Sessions Judge, Panipat whereby, appellants/accused have been sentenced as follows:
Under Section 302/34 IPC Accused namely Mukesh, Pintu alias Ram Chander, Anil Kumar and Sunny were sentenced to undergo imprisonment for life and to pay a fine of `5000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each.
Under Section 25 Arms Act Accused Sunny and Sonu were sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1000/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each.
Besides this, the common questions of law and facts have also arisen, therefore, all these matters are being disposed off by this common judgment.
The brief allegations that culminated into this trial got impetus when on 26th November, 2006 around 12.15 a.m. a telephonic message was received from Police Post, Bus Stand Panipat, intimating that one Ashok Kumar (hereinafter referred as deceased) aged around 21 years has died as a consequence of knife injuries and his dead body is placed in the mortuary. Sub Inspector Suresh Kumar, PW11 acting on this information along with other police officials reached the place situated in Civil hospital, Panipat, where he met complainant Pawan Kumar PW6 brother of the deceased and recorded his statement Ex.PB/2.
As per the allegations, the deceased was running a motor repair shop and on the day of occurrence i.e. 26.11.2006 at about Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -3- 7.30 p.m. while the deceased and the complainant Pawan Kumar PW6 were present in front of the clinic of Dr. Khurshid, when at that juncture accused Sunny, Pintu @ Ram Chander, Mukesh and Anil came armed with shuras (daggers). On seeing the deceased all the accused remarked that since both had earlier inflicted injuries to the accused side, they be not spared, at which, Pawan Kumar complainant PW6 ran and hide himself in the street, while accused gave injuries with shuras/daggers to the deceased, who fell down and, thereafter, when accused ran away, the injured was rushed to the hospital, where he was declared as dead. The complainant Pawan Kumar PW6 claimed to have watched this occurrence while in hiding. The Investigating Officer made his endorsement Ex.PB on this statement and sent ruqa through C. Rajinder Singh leading to registration of the present FIR Ex.PB/1 by ASI Surat Singh PW2. Inquest proceedings Ex.PE/2 were made and an application Ex.PE/1 was moved for conducting post mortem examination of the dead body, which were handed over along with the police papers to HC Dharampal PW5. Dr. Rekha Verma PW7 conducted post mortem examination upon the dead body and gave her report Ex.PE.
The Investigating Officer, thereafter, visited the place of occurrence and on pointing out by the complainant lifted blood stained earth, plain earth by way of parcels through memo Ex.PD. He also prepared rough site plan Ex.PL of the place of occurrence and after the post mortem examination, the belongings of dead body viz pants Ex.P1, shirt Ex.P2, underwear Ex.P3 and baniyan Ex.P4 were taken into police possession by way of parcel through Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -4- memo Ex.PM. The doctor opined that all the injuries were caused by sharp edged weapon like a knife. Thereafter, the Investigations were taken over by Inspector Rajender Singh PW12, who arrested accused Sonu and Sunny on 27.11.2006. Accused Sunny while in police custody was interrogated, who suffered disclosure statement Ex.PG and got recovered self blood stained clothes Ex.P7 and Ex.P8 from the house of his relative Krishna, which were taken into police possession through recovery memo Ex.PJ after preparing its parcel. Rough site plan of this place of recovery Ex.PX was prepared. Similarly, accused Sonu while in police custody suffered disclosure statement Ex.PH and got recovered self blood stained clothes Ex.P9 and Ex.P10 from the house of his relative Vijay Kumar, which were prepared into parcel and taken into police possession by way of memo Ex.PK. Rough site plan of this place of recovery Ex.PY was prepared.
On 29th November, 2006 investigations were handed over to S.I. Suresh Kumar PW11, who again interrogated accused Sonu and Sunny. Accused Sonu during interrogation suffered disclosure statement Ex.PN that he has kept concealed the weapon near the Kacha Fatak, Raj Nagar in the bushes near railway line, of which only he knew and on the basis of disclosure statement got recovered knife Ex.P6 whose sketch Ex.PQ was prepared and, thereafter, the same was taken into police possession by way of parcel through memo Ex.PR regarding which recovery rough site plan Ex.PS was prepared. Similarly, accused Sunny made disclosure statement Ex.PO of having concealed the weapon in the wastage lying near the railway line culvert and got recovered the Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -5- knife Ex.P5, whose rough sketch Ex.PT was prepared and after preparing into parcel was taken into police possession through memo Ex.PU regarding which recovery rough site plan Ex.PV was prepared. Accused Anil was arrested on 25.5.2007 and so the other accused. The Investigating Officer recorded statements of the witnesses and on receipt of reports of Forensic Science Laboratory Ex.PA and Ex.PA/1 and on completion of investigations Inspector Hawa Singh PW10 presented challan in the Court. After usual formalities of commitment, framing of charges against all five accused, they were put to trial.
The prosecution in order to prove its case examined 13 witnesses including of S.S. Chandna, Senior Scientific Officer, ASI Surat Singh, C. Jaidrath, SI Partap Singh, HC Dharampal, complainant Pawan Kumar, C. Jagbir Singh, Dr. Rekha Verma, Gian Chand, Inspector Hawa Singh, SI Suresh Kumar, Inspector Rajender Singh and C. Sultan Singh. Accused when put to incriminating evidence oral as well as documentary proved at the trial denied the allegations taking the plea of false implication. In their defence accused examined DW1 Crl. Ahlmad Balwant Rai to prove criminal case pending against deceased and his brother. It is consequent thereupon, the impugned findings were recorded and hence these appeals.
Heard, learned counsel for the parties and perused the record with their invaluable assistance.
The contentions of Mr. Ashit Malik and Mr. Tejinder Pal Singh learned counsel for the appellants that accused Sonu has never been named in the FIR could not be controverted by Ms. Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -6- Shubhra Singh learned State counsel and on perusal of the statement of complainant Ex.PB/2 it is found to be so. No doubt, in the ocular version complainant Pawan Kumar PW6 has stated that all the accused were armed with knives and it is only from accused Sunny who has been named in the FIR and accused Sonu who has not been named the recovery of knives Ex.P5 and Ex.P6 have been proved to have been made as per the evidence of PW11 S.I. Suresh Kumar. Even in the examination-in-chief the complainant Pawan Kumar PW6 has not named accused Sonu as one of the assailant, therefore, presence of Sonu at the time of occurrence certainly becomes highly doubtful. About the recovery of knife, blood stained clothes at the behest of accused Sonu as has been brought on the record by PW11 S.I. Suresh Kumar and PW12 Inspector Rajender Singh by way of Ex.PN, Ex.PO, Ex.P6, Ex.PQ, Ex.PS, Ex.PR, Ex.P5, Ex.PT, Ex.PU, Ex.PV and the reports of the Forensic Science Laboratory Ex.PA and Ex.PA/1 though, bears out that the material on the knives so recovered have been disintegrated but this does not mean or can be conclusively deduced that they were not stained with human blood. Certainly blood is there, but was incapable of being put to test and it has been very well laid law that in such a situation Court can safely conclude that the articles were stained with human blood. Similar is the situation regarding pants and T-shirt of the deceased as well as accused got recovered at their behest. However, no such benefit can be derived by the appellants by such inconclusive determination by FSL qua these articles. Though, the articles of the deceased and the samples drawn from the place of occurrence Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -7- were found to be containing human blood of 'O' group certainly advances the case of the prosecution to much extent. Especially, when PW1 S.S. Chandana, Senior Scientific Officer of FSL has never been cross-examined, when he proved these reports. Deposition of PW2 ASI Surat Singh is formal, who has only proved having recorded FIR Ex.PB/2 after the receipt of the ruqa Ex.PB and similarly Ex.PW3 C. Jaidrath delivered special reports, whereas, PW4 S.I. Partap Singh, who partly investigated have recorded statements under Section 161 Cr.P.C. of the formal witnesses and PW5 HC Dharampal by his affidavit Ex.PC has established the safe custody of the parcels and their despatch and deposit through PW13 C. Sultan Singh, who has brought about so by his affidavit Ex.PZ. The testimony of PW8 C. Jagbir Singh, Draftsman has only established the place from where the blood stained earth was taken and the occurrence has taken place by way of site plan Ex.PF.
PW9 Gian Chand, father of the deceased is not an eye- witness to this occurrence and has only detailed the death of his younger son and the fact that it was in his presence accused Sonu and Sunny suffered disclosure statements and got recovered the articles, which have already been duly established to be stained with human blood.
It is not in any manner agitated by the appellants that it is not a homicidal death of the deceased when PW7 Dr. Rekha Verma has clearly elaborated that there was incised wound on the left side of the face and a punctured wound over the right cheek along with blue colour contusion below the right eye and a stab Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -8- wound on the left side of the chest below the clavicle leading to puncturing of left ventricle of heart. There was a stab wound on the abdominal wall communicating with peritoneal cavity and the other injuries are superficial wounds on the palmer aspect of base of middle and little finger. The doctor has emphatically opined that all these injuries were caused by sharp edged weapon probably a knife. Though, the learned counsel for the appellants has sought to point out that in his cross-examination the doctor has admitted that injury No.1 could be possible with an axe blow. Further the doctor in the suggestion that it could not be caused by knife has denied this fact. More so, it is well entrenched law that where the Court is to draw a conclusion as to the manner of the injury it has to interpret in a harmonious way the ocular version as well as the medical evidence and so is the case of injury No.2 whereby, the doctor accepts that the possibility cannot be ruled out that such an injury can be caused by screwdriver or a poker. Thus, not much to help in favour of the defence when the eye-witness account given by complainant Pawan Kumar PW6 irrefutably establishes that accused had assaulted deceased in his presence while he was in hiding. Since the inception, it is the case of the complainant that in order to save himself he ran away and hid in a street points Mark-A and Mark-B depicted on the site plans Ex.PL and Ex.PF corroborates the fact that a person can certainly watch such an occurrence from such a small distance when assailants are known to the complainant and there is admittedly as per DW1 Balwant Rai a history of previous enmity between them as complainant side had earlier assaulted them regarding which a Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -9- case has been registered against deceased and his brother Pawan Kumar PW6 and which trial they were facing by virtue of Ex.DX and Ex.DX/1 in which one of the accused Anil is a complainant rather furthers the case of the prosecution as to the motive behind this occurrence.
The mere averment that being a brother, the complainant Pawan Kumar PW6 could have come to the aid of his younger brother is only a hypothetical one. As such a reaction varies from person to person and cannot be applied as a universal principle besides, the fact self-preservation is always utmost in the mind of a human being. More so, it is there on the record that both deceased and the complainant were unarmed and accused were in number duly armed and the complainant might have thought it a futile effort to counter them and thought it prudent to run away. The mere submission of appellant's counsel that the occurrence having taken place in a street, no independent witness has been associated does not cuts much ice as it is not a mandatory requirement. More so, both the sides are apparently at loggerhead over certain issues and people rarely come forth to be a party to such an enmity. It is there in the cross-examination of PW6 complainant Pawan Kumar that it has become dark but electrical light was there at the road crossing puts the argument of the appellant's counsel in a bad light.
The testimony of official witnesses PW11 S.I. Suresh Kumar and PW12 Inspector Rajender Singh, who conducted investigations coupled with the eye-witness account which is duly corroborated by the medical evidence establishes beyond any Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document CRA-D-643-DB of 2009, CRA-D-558-DB of 2009 and CRA-S-1453-SB of 2009 -10- doubt that the version spelled out by PW6 complainant Pawan Kumar that all the four accused caught hold of deceased is a true version and only accused Sonu has not been attributed any role or presence.
Since the recovery of actuated knife from the exclusive and conscious possession of accused Sonu has not been rebutted on the record and there is no explanation that he was having any licence or authorisation to possess the same which is prohibited weapon, certainly is an offence which falls within the ambit of violation of provisions of the Arms Act.
The conclusion so drawn by the learned trial Court is apparently correct appreciation of evidence on record which need not to be disturbed. Thus, all the appeals being hopelessly without any merit, stand dismissed.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) JUDGE 18.09.2013 aarti Sharma Aarti 2014.02.18 14:19 I attest to the accuracy and integrity of this document