Punjab-Haryana High Court
Cra No.D-1049-Db Of 2009 vs State Of Haryana on 12 March, 2014
Author: Kuldip Singh
Bench: Satish Kumar Mittal, Kuldip Singh
CRA No.D-1049-DB of 2009 and -1-
CRA No.D-1087-DB of 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. CRA No.D-1049-DB of 2009
Suryavir .... Appellant
vs.
State of Haryana .... Respondent
2. CRA No.D-1087-DB of 2009
Date of Decision: March 12, 2014
Devender @ Dhola .... Appellant
vs.
State of Haryana .... Respondent
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE KULDIP SINGH
Present: Mr. Ramesh Hooda, Advocate for the appellant
(in CRA No.D-1049-DB of 2009).
Mr. Deepak Balyan, Advocate for
Mr. M.S. Sindhu, Advocate for the appellant
(in CRA No.D-1087-DB of 2009).
Mr. Dharuv Dayal, Addl. Advocate General, Haryana.
***
Kuldip Singh J.
This order shall dispose of CRA No.D-1049-DB of 2009 filed by accused Suryavir and CRA No.D-1087-DB of 2009 filed by accused Devender @ Dhola. In both the appeals accused Suryavir and Devender @ Dhola have challenged the judgment and order dated 15.10.2009 passed by learned Sessions Judge, Jind, whereby they were convicted under Section 302/34 IPC and sentenced to Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and -2- CRA No.D-1087-DB of 2009 undergo imprisonment for life and to pay a fine of `10,000/- each and in default thereof to further undergo rigorous imprisonment for two years each. They were further convicted under Section 25 of the Arms Act,1959 and sentenced to undergo rigorous imprisonment for 1-1/2 years and to pay a fine of `2,000/- each and in default thereof to further undergo rigorous imprisonment for six months each.
In CRA No.D-1087-DB of 2009, Mr. Deepak Balyan, Advocate has appeared as proxy counsel for Mr. M.S. Sindhu, Advocate for the appellant and stated that the arguing counsel cannot come present. However, Mr. Ramesh Hooda, Advocate for accused-appellant Suryavir in CRA No.D-1049-DB of 2009 has stated that he has prepared the appeal. On the request of the Court, he has agreed to argue the case on behalf of both the accused- appellants.
As per prosecution case, Om Parkash @ Talu (complainant), resident of Ved Nagar, Jind had two children. Elder one is his daughter and younger to her was his son Rajinder @ Raju (since deceased). He was living in the rented house of Kuldeep and Kamaljeet sons of Megh Raj Punjabi, residents of Ved Nagar, Jind. A civil suit was pending between him and Kuldeep and Kamaljeet with regard to said house. Om Parkash @ Talu used to deposit the rent in the court. On 30.09.2008, Om Parkash @ Talu had gone to Delhi for purchasing goods. On his return at about 5.30 p.m., his wife Janki Devi told him that Kuldeep and Kamaljeet had sent two youngsters at Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and -3- CRA No.D-1087-DB of 2009 their home pretending to see the house. They had forcibly entered the house and asked about their son Rajinder @ Raju, who was not present in the house at that time. They were sent out by Janki Devi. Janki Devi can identify those persons. On 01.10.2008 at about 6.00 p.m., Om Parkash @ Talu accompanied by his wife Janki Devi was going to the market to purchase household goods. When they reached on the main road, near 'Gurudawara', they saw their son Rajinder @ Raju coming from Bharat Cinema side. A white car came from his back side. It was occupied by three youngsters. Car suddenly stopped by the side of Rajinder @ Raju. Two boys alighted from it. One of the boy fired from his pistol at Rajinder @ Raju's neck. Rajinder @ Raju fell down on the ground. The duo fled away towards the canal in the said car. Later on, he came to know their names as Suryavir son of Balram, Brahman, resident of Aggarwal Market, Jind; Pardeep son of Balwan, Jat, resident of Bhiwani Road, Jind and Devender @ Dhola son of Umed Singh, Jat, resident of Sharma Nagar, Bhiwani Road, Jind. Om Parkash @ Talu (complainant) and his wife started taking care of their son, who was smeared with blood. They removed their son Rajinder @ Raju to the General Hospital in a three-wheeler but he succumbed to the injuries on the way. Om Parkash @ Talu suspected that Kuldeep and Kamaldeep sons of Megh Raj Punjabi hatched a conspiracy to get his son killed through Suryavir, Pardeep and Devender @ Dhola due to the grudge of not vacating their house.
Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and -4- CRA No.D-1087-DB of 2009 Inspector Rakam Singh, the then S.H.O., P.S. City Jind, was present at M.C. Chowk in connection with investigation of case FIR No.564/08 under Section 283/304-A IPC. A wireless message was received by him from the Control Room that firing has taken place near Bharat Cinema. Inspector Rakam Singh then reached the spot, where he came to know that injured has been removed to the General Hospital by his parents. A plenty of blood was lying at the spot. After leaving ASI Dilawar Singh to guard the place of occurrence, Inspector Rakam Singh proceeded to General Hospital, Jind. On reaching General Hospital, Jind, he received a medical ruqa regarding the receipt of dead body of Rajinder @ Raju in the hospital. Then near the mortuary, Om Parkash @ Talu (complainant) was found present but he was under shock due to the death of his son. After some time, when Om Parkash @ Talu composed, he made the statement (Ex.PH) to Inspector Rakam Singh, who after recording the statement sent the same to police station, where FIR (Ex.PI) was recorded. Inquest report (Ex.PE) was prepared. Rough site plan (Ex.PP) of the place of occurrence was also prepared. Photographer was called and photographs were got clicked. Postmortem of the dead body was got conducted, on which one bullet was recovered from the thigh of the deceased and was handed over to the police along with the clothes of the deceased.
The police then started search of the accused. On 24.10.2008, the police after receiving a secret information about the accused, conducted nakabandi at Hansi Branch Canal Bridge near Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and -5- CRA No.D-1087-DB of 2009 the 'Beed', where Om Parkash @ Talu (complainant) was also joined in the investigation. Accused Suryavir and Devender @ Dhola came there on a motor cycle make CBZ. Om Parkash @ Talu identified them to be the killers of his son. Therefore, both the accused Suryavir and Devender @ Dhola were arrested. On 25.10.2008, both the accused were interrogated, on which they suffered disclosure statements Ex.PZ and PAA about the concealment of the weapons used in the crime, which were later on found to be false. Thereafter, accused were again interrogated on 26.10.2008. Devender @ Dhola suffered a disclosure statement (Ex.PS) to Rakam Singh to the effect that he had kept concealed the pistol and cartridges underneath the earth near the electric pole installed near the deserted office of Forest Department in the 'Beed' on Hansi Road, Jind and he can get the same recovered. Similarly, accused Suryavir also suffered a disclosure statement (Ex.PT) that he had kept concealed the pistol and the cartridges at the same place and can get the same recovered. Accused then led the police party to the said place. Accused Devender @ Dhola got recovered countrymade pistol of .32 bore along with five live cartridges and accused Suryavir got recovered .315 bore countrymade pistol along with one empty cartridge. The same were taken into possession through memo (Ex.PU). Rough sketches of both the pistols were prepared.
On 16.11.2008, accused Pardeep was also arrested along with his motor cycle bearing No.HR-12E-8349. During the course of investigation, the report of FSL (Ex.PR) received to the Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and -6- CRA No.D-1087-DB of 2009 effect that the bullet recovered from the dead body of the deceased was fired from the countrymade pistol W1, which is stated to have been recovered from accused Devender @ Dhola. Regarding the other countrymade pistol of .315 bore, it was stated that it was used for firing. Though the time of last firing cannot be given.
After completion of the investigation, the challan was presented in the court. Accused were charge sheeted under Sections 120-B, 302 IPC and 25 of the Arms Act. On recording pleas, they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined Dr. Ashwani Kumar as PW1, Dr. Rajesh Gandhi as PW2, Umed Singh as PW3, SI Hukam Singh as PW4, H.C. Deva Nand as PW5, EHC Rajinder Singh as PW6, ASI Dilawar Singh as PW7, Constable Rajesh Kumar as PW8, Sandeep as PW9, H.C./Draftsman Dilbag Singh as PW10, H.C. Balraj Singh as PW11, Complainant Om Parkash as PW12, Inspector Rakam Singh as PW13, ASI Baljeet Sing has PW14, Smt. Janki Devi as PW15 and Constable Sajjan Kumar as PW16.
When examined under Section 313 Cr.P.C., accused pleaded innocence and examined Raman, Addl. Ahlmad in the court of CJM, Jind as DW1.
After hearing the prosecution and the defence and going through the evidence, the learned Sessions Judge, Jind held the accused Suryavir and Devender @ Dhola guilty under Section 302 read with Section 34 IPC and 25 of the Arms Act. However, they were Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and -7- CRA No.D-1087-DB of 2009 acquitted of the charge under Section 120-B IPC. Accused Pardeep was given the benefit of doubt and acquitted of the charges framed against him. The accused/appellants were sentenced as stated above.
We have heard learned counsel for the parties and have also perused the file.
The statement of Dr. Rajesh Gandhi, PW2, who had conducted the postmortem on the dead body of deceased Rajinder @ Raju would show that the doctor found the following injuries on the person of the deceased:
"(A) A lacerated wound of size 1 centimeter x 0.9 cm x depth (?) on nape of neck, placed 1 cm below posterior hairline and 2 cm lateral to midline on left side. Margins are inverted & tattooing present around the wound Clotted blood was present around the wound. (B) Lacerated wound of size 1.8 x 1.1 cm x depth (?) was present on neck, 9 cm above to upper end of sternum and 1.5 cm lateral to midline on left side. Horizontally placed. Margins everted Clotted blood was present around the wound. On dissection of injury no.A, subcutaneous tissue and muscles were lacerated. On further dissection, there is laceration of left wall of trachea. Major blood vessel on left side were lacerated. Collection of blood was present in trachea and larynx. On further dissection injury no.A communicates with injury no.B. Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and -8- CRA No.D-1087-DB of 2009 (C) A lacerated wound of size 1x1 cm x depth (?) was present on anterior surface of left thigh. 9 cm below anterior superior iliac spine. Margins are inverted and tattooing was present. Clotted blood was present. On dissection of injury no.C there is laceration of subcutaneous soft tissue and muscles. On further dissection by going upwards and medially, there was fracture of pelvie girdle (anterior margin) just above left acetabulum and bullet was found Embedded in the muscles between L4 & L5 vertebrae on left side."
The doctor also found bullet embedded in the muscles of the thigh. After retrieving the same, it was handed over to the police. The time between death and postmortem was within four hours to thirty six hours. All the injuries were ante-mortem in nature. The examination of injuries shows that two shots of different calibre were fired at the deceased. One injury of 1 cm x 0.9 cm dimension hit the neck and proved fatal. The other injury was of 1 cm x 1 cm dimension on the left thigh. Injury no.B is the exit wound of the shot fired on the neck showing that the bullet passed through the neck and the said bullet could not be recovered. However, the bullet, which had hit the left thigh, was recovered from the dead body. Therefore, it establishes that two fire arms were used in the crime, which are of different calibre.
In order to prove the case, Om Parkash @ Talu, PW12 appeared in the court and stated that when he returned on Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and -9- CRA No.D-1087-DB of 2009 30.09.2008 from Delhi, his wife had informed him that two young boys had come to their house. They had entered the house forcibly and told that their landlord had sent them. She further told him that they were asking about their son Rajinder @ Raju. On the next day i.e. 01.10.2008, he along with his wife went to the market to purchase some household articles. When he reached the main road of the market, he saw his son Rajinder @ Raju coming from the side of Bharat Cinema. In the meantime, two-three persons came from the Bharat Cinema's side and fired at his son Rajinder @ Raju. Thereafter, they lost their senses. Thereafter, they removed their son in auto-rikshaw to General Hospital, Jind. Rajinder @ Raju died on the way. There was a rumour in the mohalla that Suryavir, Devender @ Dhola and Pardeep had fired at his son Rajinder @ Raju. The witness identified all the three accused persons in the court and stated that they had killed his son Rajinder @ Raju. He stated that police had called him and told him that Suryavir and Devender @ Dhola were the assailants. He was called for identification of the accused and he had identified the accused as killers. He further proved the disclosure statements Exs.PS and PT and also proved the recovery of weapons from the accused in pursuance to their disclosure statements. He also identified the pistol (Ex.P9) and empty cartridge (Ex.P10) got recovered by the accused. He also identified the pistol (Ex.P11) and five live cartridges (Ex.P12 to P14) and empty cartridge cases (Exs. P15 and P16), which were got recovered by the accused. He further stated that the accused- Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and - 10 - CRA No.D-1087-DB of 2009 appellants were arrested at the nakabandi at Hansi Road, Jind, when they were on motorcycle.
Janki Devi, mother of the deceased appeared as PW15 and stated that all the three accused present in the court had committed the murder of his son Rajinder @ Raju on 01.10.2008 at 6.00 p.m. She asserted that at that time, she along with her husband were going from their house to the market. When they covered short distance towards the road, they saw their son coming from the side of Bharat Cinema. When they were at the distance of 15-20 yards from her son Rajinder @ Raju, all the three accused present in the court, were standing near her son. They were armed with pistols and fired shots at her son. Thereafter, the witness broke down and started wailing and crying in the court. Her examination was deferred for some time. In the resume examination-in-chief, she stated that all the accused after firing the shots, ran away on the motorcycle towards the canal.
The next material witness is Inspector Rakam Singh, S.H.O, PW13, who proved his investigation and stated that on 01.10.2008, on receiving the wireless message regarding the firing incident near Bharat Cinema, Jind, he had reached the spot. He was told that injured Rajinder @ Raju had been shifted to General Hospital by his parents. He also stated that on reaching the gate of the hospital, he had received ruqa (Ex.PA) that Rajinder @ Raju has been brought dead in the hospital. He further stated that when he met Om Parkash @ Talu (complainant), he was mentally disturbed Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and - 11 - CRA No.D-1087-DB of 2009 and was not in a position to make statement. After 1-1/2 hours, when Om Parkash @ Talu became 'somewhat' normal, he recorded his statement (Ex.PH). Thereafter, he made other formalities of the investigation. He stated that after the postmortem of the dead body, the bullet recovered from it was handed over to him in a parcel. He proved arrest of the accused on 24.10.2008 in the presence and on the identification of Om Parkash @ Talu (complainant) at a naka. He also proved the interrogation of the accused on 26.10.2008 and recovery of the cartridges and pistols from the accused.
Learned counsel for the appellant has argued that Om Parkash @ Talu and Janki Devi were not present at the time of the occurrence. They have been planted as witness. He has referred to the statement of Ex.PH made by Om Parkash @ Talu, wherein he has stated that three youngsters came on a car and two of them came out and fired at his son and one of the boy fired from his pistol on Rajinder @ Raju's neck. Rajinder @ Raju fell down and the said boys fled away towards the canal in the said car. However, during investigation, it came out that the accused allegedly fled away on the motorcycle. In his statement before the court, Om Parkash @ Talu has not stated about the vehicle on which the accused arrived. However, his wife Janki Devi clearly stated that accused fled away on the motorcycle.
We are of the view that the said discrepancy is immaterial. The house of Om Parkash @ Talu is only 40-45 yards away from the market. The occurrence took place in the busy market, Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and - 12 - CRA No.D-1087-DB of 2009 where Cinema is also situated. Therefore, the visit of the complainant and his wife to the market around 6.00 p.m. to purchase household goods is natural. It is to be noted that the deceased was the only son of his parents. During the cross-examination, Om Parkash @ Talu started weeping and stated that he is in shock. Thereafter, he was offered water in the court and further cross-examination was deferred for five minutes. Similarly, Janki Devi, mother of the deceased also broke down in the Court and her examination-in-chief had to be deferred. It shows that both the witnesses were under shock even after about six months of the occurrence. Therefore, it is natural that when their only son was being killed in front of them, they went under shock. Many vehicles are present in the busy market. Therefore, if they had described a wrong vehicle in the first statement to the police, it hardly matters. The fact remains that the accused- appellants were identified by them in the court to be the same assailants, who had murdered their son. Accused-appellants Suryavir and Devender @ Dhola were arrested at a naka on the identification of Om Parkash @ Talu (complainant). Therefore, there is no question of any identification parade.
It is to be further noted that in this case, FIR Was recorded promptly. Inspector Rakam Singh, PW13, immediately received the information regarding the firing incident and reached the spot at 6.30 p.m. There he was told that the injured had been taken to the hospital by his parents. It shows that parents of Rajinder @ Raju were present at the spot when the occurrence took place that is Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and - 13 - CRA No.D-1087-DB of 2009 why they immediately removed their injured son to the hospital. However, Rajinder @ Raju succumbed to the injuries on the way. Inspector Rakam Singh has further stated that on reaching the gate of the hospital, he received the intimation regarding the death of Rajinder @ Raju. Then he went to mortuary, where Om Parkash @ Talu met him. He was under shock and was not in a position to make the statement. It was only after 1-1/2 hours that when Om Parkash @ Talu became 'somewhat' normal, Inspector Rakam Singh recorded the statement of Om Parkash @ Talu. Therefore, some error in the first statement (Ex.PH) made to the police is to be ignored. In this case, as per the cross-examination of Inspector Rakam Singh, the statement of Om Parkash @ Talu was recorded at 8.30 p.m. i.e. after two hours of the occurrence. The delay of two hours in recording the statement of Om Parkash is natural and has been explained above. The ruqa was sent to the police station at 9.30 p.m. In the first statement (Ex.PH), Om Parkash @ Talu had named the assailants along with their parentage. It appears that in the market, so many people saw the accused-appellants committing the crime. Apparently, they did not come forward to become witnesses out of the fear of the accused-appellants, who are stated to be gangsters and had executed Rajinder @ Raju in a professional way. Therefore, the identity of the accused-appellants was established at the time of crime.
In addition to this, there is a scientific evidence in the form of report of FSL, which shows that the bullet recovered from the Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and - 14 - CRA No.D-1087-DB of 2009 thigh of the deceased was fired from the pistol recovered from accused-appellant Devender @ Dhola. In this case, two bullets of different bore were fired. One empty was also recovered in pursuance to the disclosure statement of accused Devender @ Dhola. Accused-appellants had not explained as to how the pistol and the empty came in their possession.
Learned counsel for the accused-appellants has further argued that the recovery of the weapon in this case is not reliable. Accused-appellants had suffered two disclosure statements each. First statement was found to be incorrect and the recovery was effected only in pursuance of the second disclosure statements. It comes out that accused-appellants are hard criminals. They are also facing many criminal cases of serious nature. Therefore, it is quite possible that at the first instance, they tried to mislead the police but later on during interrogation made the correct statement leading to the discovery of the weapon used in the crime along with cartridges. The mere fact that the FSL report mentions that it cannot be ascertained when the weapons were last fired, does not mean that the weapons were not fired on the day of crime.
Learned counsel for the accused-appellants has further argued that motive in this case is missing. In the statement (Ex.PH), it was alleged that accused had committed the crime at the instance of Kuldeep and Kamaljeet, landlord. However, it was not established during investigation.
Rani Sarita 2014.03.26 15:19 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1049-DB of 2009 and - 15 - CRA No.D-1087-DB of 2009 We are of the view that it is not necessary in every case that motive to commit the crime must be proved. The facts and circumstances show that accused-appellants are professional killers. It appears to be a case of contract killing. On account of slackness or negligence, police failed to go into the depth of the case to find out the person, who had hired the accused-appellants. But that will not absolve the accused-appellants of the crime committed by them.
In this way, from the foregoing discussion, it comes out that involvement of accused-appellants Suryavir and Devender @ Dhola in the crime has been proved by the testimony of the eye witnesses i.e. Om Parkash @ Talu (complainant) and Janki Devi. It is further supported by the medical and forensic evidence. The identity of the accused-appellants is also established as they were named in the FIR and later on, they were arrested on the identification of the complainant Om Parkash @ Talu. Therefore, we are of the view that accused-appellants were rightly convicted and sentenced under Section 302 read with Section 34 IPC and 25 of the Arms Act. We do not find any merit in both appeals. Accordingly, the same are dismissed.
(SATISH KUMAR MITTAL) (KULDIP SINGH)
JUDGE JUDGE
March 12, 2014
sarita
Rani Sarita
2014.03.26 15:19
I attest to the accuracy and
integrity of this document
Chandigarh