Punjab-Haryana High Court
Sushil @ Sunil @ Sheelu vs State Of Haryana on 17 April, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 576-DB of 2004 (O&M), - 1-
Crl. Appeal No. 584-DB of 2004,
Crl. Appeal No. 627-DB of 2004,
Crl. Appeal No. 644-DB of 2004 and
Crl. Appeal No. 751-DB of 2004
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1) Criminal Appeal No. 576-DB of 2004 (O&M)
Date of Decision: 17.4.2012
Sushil @ Sunil @ Sheelu ........Appellants
Vs.
State of Haryana .......Respondent
(2) Criminal Appeal No. 584-DB of 2004
Surjit .........Appellant
Vs.
State of Haryana .......Respondent
(3) Criminal Appeal No. 627-DB of 2004
Gurmeet Singh .........Appellant
Vs.
State of Haryana .......Respondent
(4) Criminal Appeal No. 644-DB of 2004
Sandeep .........Appellant
Vs.
State of Haryana .......Respondent
(5) Criminal Appeal No. 751-DB of 2004
Naveen .........Appellant
Vs.
State of Haryana .......Respondent
Crl. Appeal No. 576-DB of 2004 (O&M), - 2-
Crl. Appeal No. 584-DB of 2004,
Crl. Appeal No. 627-DB of 2004,
Crl. Appeal No. 644-DB of 2004 and
Crl. Appeal No. 751-DB of 2004
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Vinod Ghai, Advocate and
Mr. Ashit Malik, Advocate
for the appellants.
Mr. G.S.Chahal, Addl. A.G., Haryana.
.....
SABINA, J.
Vide this judgment, the above mentioned five appeals as well as Criminal Miscellaneous No. 10373 of 2008 in Criminal Appeal No. 576-DB of 2004 would be disposed of as these have arisen out of the same judgment/incident.
Process of law was set in motion on the basis of the statement of complainant Nahar Singh. The complainant stated in his statement before Sub Inspector Naresh Kumar that on 26.11.2001, he had gone to the District Courts, Panipat to appear as a witness in FIR No. 181/2000 under Section 148, 149, 395, 364, 427, 448, 467, 468, 471,506, 120-B of the Indian Penal Code ('IPC' for short) and 25, 27 of the Arms Act, 1959 ('Act' for short) registered at Police Station Model Town, Panipat. The work in the courts was suspended at about 12.15 P.M. on account of death of an advocate. After marking his attendance, he came out of the court room and heard the noise of a fire shot from the advocates' chambers. He immediately ran towards the chambers and near the chamber of Satbir Singh Kundu, Advocate, he was told that a young boy, with round face, of average height, aged about 20/21 years, wearing white coloured trouser and shirt, had fired at Joginder Kaur, who was sitting in Crl. Appeal No. 576-DB of 2004 (O&M), - 3- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 his chamber. She had come to the court to depose in her case and had engaged him (Satbir Singh Kundu) as her lawyer. The young man after firing at Joginder Kaur had fled away. He ran after the young boy to apprehend him. Constable Ramesh, who was attached as Gunman with Joginder Kaur, also ran after the young boy but he could not be apprehended. The pistol fell at the spot from the young boy, who had succeeded in running away.
On the basis of the statement of the complainant, formal FIR No. 393 dated 26.11.2001 was registered at Police Station Model Town, Panipat under Section 452, 307 IPC and 25 of the Act.
Joginder Kaur injured was shifted to Dr. Madan Hospital, Panipat. From there, she was referred to Apolo Hospital, Delhi. However, she died on the way to the said hospital. Sub Inspector Naresh Kumar inspected the spot and prepared rough site plan. He also lifted one cloth bag, having bullet mark, from the spot. The said bag contained documents belonging to Joginder Kaur. The pistol dropped by the assailant was also lifted from the spot by Sub Inspector Naresh Kumar along with an empty cartridge. Thereafter, Sub Inspector Naresh Kumar went to Civil Hospital, Panipat and prepared inquest report qua the dead body of Joginder Kaur. The dead body was then sent for post mortem examination. The bullet recovered from the dead body of the deceased was taken in possession by Sub Inspector Naresh Kumar on the same day i.e. 27.11.2001.
On 29.11.2001, Sub Inspector Naresh Kumar got Crl. Appeal No. 576-DB of 2004 (O&M), - 4- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 issued the production warrants of accused Umed Singh, Dinesh Kumar, Mehtab Singh and Sher Singh who were confined in Ambala and Karnal Jails in case FIR No. 181/2000 from the court of Area Magistrate. On 30.11.2001, he interrogated accused Umed Singh and Dinesh Kumar. He also got issued production warrants qua accused Kuldip Kalwa. On 1.12.2001, he interrogated accused Sher Singh, Mehtab Singh and Kuldip Kalwa with the permission of the court and arrested them. Mehtab Singh accused during interrogation suffered a disclosure statement and offered to get recovered one agreement from Ambala Central Jail. Sher Singh accused also suffered a disclosure statement that he had kept concealed one agreement in Karnal Jail and offered to get the same recovered.
On 3.12.2001, Inspector Badan Singh recorded the disclosure statement of accused Umed Singh that he had kept concealed one agreement in Central Jail, Ambala and offered to get the same recovered.
On 1.1.2002, Inspector Badan Singh received a secret information that accused Sheelu and Surjit were using mobile phones with sim Card Nos. 98121-65890, 98121-46589 and 98121-26145. The details qua the said mobile phones were taken in possession. Statement of Subhash was recorded who stated that sim Card No. 98121-46589 belonged to accused Gurmeet Singh.
On 7.1.2002, accused Gurmeet Singh was arrested from his house along with Parveen. One mobile phone containing sim card No. 98121-46589 was recovered from Gurmet Singh. Crl. Appeal No. 576-DB of 2004 (O&M), - 5- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 One letter written by accused Naveen to accused Surjit was also taken in possession.
On the same day, Ekram, Sarpanch of Nawada, produced before Inspector Badan Singh accused Naveen and he was arrested. From his personal search one letter was recovered and the same was taken in possession. During interrogation, accused Naveen suffered a disclosure statement and on the basis of the same, he got recovered one country made pistol .315 bore from the disclosed place.
On 8.1.2002, confessional statements of accused Gurmeet, Naveen and Parveen were recorded. On 21.1.2002, accused Sandeep and Surjit were arrested and they demarcated the place of occurrence.
On 22.1.2002, accused Surjit got recovered one mobile phone with sim card and the same was taken in possession. On 26.1.2002, Inspector Badan Singh took in possession clippings of news items.
After completion of investigation and necessary formalities challan was presented against the accused.
In order to prove its case, prosecution examined 28 witnesses during trial.
After the close of prosecution evidence, appellants when examined under Section 313 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) pleaded that they were innocent and had been falsely involved in this case by the police with a view to solve the case of blind murder. Crl. Appeal No. 576-DB of 2004 (O&M), - 6- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 The accused did not examine any witness in their defence.
Learned counsel for appellants has submitted that it was a case of no evidence. PW-17 Satbir Kundu, Advocate who had witnessed the occurrence had failed to identify the assailant. The statement of PW-14 R.S.Bains, Advocate was not recorded immediately although he had taken the deceased to the hospital. His statement in writing came on record after one month of the occurrence. The country made pistol alleged to have been recovered on the basis of the disclosure statement of appellant Naveen had not been sent to the Forensic Science Laboratory to establish the fact that it was in a working order. The said pistol had allegedly not been used at the time of occurrence. The fingerprints on the pistol recovered from the spot had not been got matched with those of appellant Sandeep. The letters which were allegedly taken in possession from the house of appellant Gurmeet could not be relied upon to base the conviction of appellant Surjit and Sushil. The said letters were allegedly taken in possession on 7.1.2002 i.e. the date when appellant Naveen was arrested. The said letters might have been got written from appellant Naveen when he was in police custody. Further, appellant Sunil alias Sushil was described as Sheelu with no further details qua his parentage etc. The person, who had allegedly produced appellant Naveen before the police, had not supported the prosecution case.
Learned state counsel, on the other hand, has submitted that prosecution had been successful in proving its Crl. Appeal No. 576-DB of 2004 (O&M), - 7- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 case. In fact, the investigating agency had not properly investigated the case. Liberty was liable to be granted to the state to further investigate the matter as per law.
The present case rests on eye witness account. The complainant while appearing in the witness box as PW-3 has deposed as per the contents of the FIR. He has further stated that he had searched for the assailant in the court premises but could not locate him.
PW-17 Satbir Kundu, Advocate, in whose chamber the occurrence had taken place, has deposed that he was sitting on his chair whereas Joginder Kaur was sitting on a chair across his table. At about 12/12.30 P.M., a young boy of wheatish complexion, round face, medium sized, armed with a country made pistol, wearing white shirt and pant entered his chamber and immediately fired upon Joginder Kaur. He had informed the police qua the occurrence. The young boy who had fired upon Joginder Kaur was not present in the court as accused.
Thus, PW-17 who had witnessed the occurrence has failed to identify the assailant during trial although it is established on record that Joginder Kaur had suffered gun shot injuries. In this regard PW-17 has deposed that a young man had fired from his country made pistol on the person of Joginder Kaur.
PW-16 Dr. T.R.Madan has deposed that Joginder Kaur was brought to his hospital by some lawyers on 26.11.2001 and after giving her first aid, he had referred her to Delhi for further management.
Crl. Appeal No. 576-DB of 2004 (O&M), - 8-Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 PW-15 Dr. Deepak Vats has deposed that Joginder Kaur had been brought dead to Apolo Hospital on 26.11.2001 at about 3.25 P.M. PW-26 Dr. S.C.Nawal deposed that on 27.11.2001, he had conducted post mortem examination on the dead body of deceased Joginder Kaur along with Dr. S.K.Mahajan and Dr. J.P. Saluja and they had observed as under:-
1. There was a wound of size 3.5 cm x 1.2 cm present on left side of chest, it was three cm from left nipple and 13 cm from mid line. Wound was of oval shape.
Margins of wound was inverted and lacerated and partially blackened. Multiple tatooing was present on upper part of the wound. Surround skin was echymosed and on further dissection wound was going downward, backward and medially injuring the underlying breast tissue and piercing/injuring the 7th and 8th intercostal space of 7th and 8th ribs. Left thorisic cavity was full of blood. On further dissection the wound was piercing/injuring through diaphghrm and inter into abdomen. There was extension retroperitorial haemorrhage present with haemotoma present in right side of abdomen. There was injury on right kidney. Bleeding was present on right kidney. On further dissection, we found a metallic body at the level of L, L-II. This metallic body was found embaddied in subcutaneous tissue of Crl. Appeal No. 576-DB of 2004 (O&M), - 9- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 back of right side of abdomen. Metallic body was removed and sealed and sent for ballistic examination.
In their opinion, the cause of death was haemorrhage and shock due to fire arm injury.
Thus, it is established on record that the deceased had died due to fire arm injury but the question that requires consideration is as to whether the appellants were guilty of committing her murder.
After carefully going through the evidence on record, we are of the opinion that prosecution has miserably failed to prove its case against the appellants.
The star witness PW-17 who had witnessed the occurrence has failed to identify the assailant during trial. The country made pistol was recovered from the spot which had been used at the time of commission of crime. As per the report of Forensic Science Laboratory (Ex. PX), the fired bullet recovered from the body of deceased Joginder Kaur had been fired from the country made .315 bore pistol recovered from the spot. However, there is nothing further on record to substantiate that the said pistol had been used by appellant Sandeep. The case of the prosecution was that the shot had been fired by appellant Sandeep. However, no effort was made by the prosecution to get the fingerprints on the pistol tallied with the fingerprints of appellant Sandeep. PW-17, in whose presence the occurrence had taken place, has failed to identify appellant Sandeep. The complainant has also stated that he could not apprehend the Crl. Appeal No. 576-DB of 2004 (O&M), - 10- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 assailant. PW-14 R.S.Bains, Advocate reached the spot after the occurrence had taken place. PW-24 Constable Ramesh Kumar, who had been deputed as Gunman of Joginder Kaur, had also not witnessed the occurrence. As per this witness, he had followed the assailant who might have been 3-4 in number but he could not identify them. PW-25 Constable Rajpal deposed that he could not see anything after hearing the gun shot as there was rush at the spot. He did not notice anybody fleeing after the incident. Thus, appellant Sandeep is liable to be acquitted for want of his identification at the time of commission of crime.
So far as appellant Naveen is concerned, the prosecution case is that he was standing at some distance from the spot armed with a pistol and had accompanied his co-accused to the court premises. Thus, as per the prosecution case itself Naveen had not fired at the deceased. Since the identity of the person who had fired at Joginder Kaur has not been established during trial, the prosecution case against appellant Naveen is also rendered doubtful. As per PW-28 Deputy Superintendent of Police Badan Singh (Inspector at the relevant time), appellant Naveen had been produced before him by PW Ekram, Sarpanch of village Nawada. PW Ekram while appearing in the witness box as PW-13 has not supported the prosecution case. He has stated that he had neither produced Naveen before the police nor he ever confessed his guilt before him. Further Ex.PO is the memo vide which letter Ex. PFF, recovered from personal search of appellant Naveen was taken in possession. However, a perusal of Ex.PO reveals that Crl. Appeal No. 576-DB of 2004 (O&M), - 11- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 the same is not attested by PW-13. In case appellant Naveen had been produced by PW-13, the recovery memo Ex.PO should have been attested by him. The fact that one country made pistol was recovered on the basis of disclosure statement suffered by appellant Naveen also fails to advance the prosecution case as there is no expert opinion on record that the said pistol was, in fact, in a working order. Letter Ex. PEE dated 25.12.2001 allegedly written by appellant Naveen Kumar to Surjit Singh recovered from the house of appellant Gurmeet was taken in possession on 7.1.2002. Letter Ex. PFF dated 7.1.2002 was taken in possession at the time of arrest of appellant Naveen. The possibility that the said letters might have been got written from appellant Naveen when he was in police custody to involve him falsely in this case cannot be ruled out especially when the identity of the assailant who had fired at Joginder Kaur has not been established in this case. A perusal of Ex. PEE reveals that the same was written by Naveen Kumar to Surjit Singh but it has been recovered from the possession of appellant Gurmeet Singh. It is also mentioned in the letter that Naveen Kumar had been told by Gurmeet Singh that Surjit Singh and Sandeep along with Gurmeet Singh had gone to Sheelu or Kuldip Kalwa for receipt of money. He (Naveen Kumar) and Sandeep had committed the murder of Joginder Kaur at the instance of Surjit Singh. However, the letter Ex. PEE fails to advance the prosecution case as the identity of the main assailant who had fired at Joginder Kaur is not established in this case. Further the letter is although alleged to have been written on 25.12.2001 Crl. Appeal No. 576-DB of 2004 (O&M), - 12- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 but it was taken in possession on 7.1.2002 when appellant Naveen was arrested and the letter was written to Surjit Singh but the same has been recovered from the house of appellant Gurmeet Singh. Appellants Surjit Singh and Gurmeet Singh are residents of different villages. Hence, no reliance can be placed on letters Ex. PEE and Ex. PFF to base the conviction of appellant Surjit Singh, Naveen, Gurmeet Singh and Sushil alias Sheelu.
PW-8 Assistant Sub Inspector Ram Kumar had produced before Inspector Badan Singh the prints of mobile phone Nos. 98121-26145, 98121-46589 and 98121-65890. In his cross examination, he deposed that he had not been instructed by Inspector Badan Singh to verify qua the holders of the said phone numbers from the company. PW-28 Inspector Badan Singh had taken in possession mobile phone from Gurmeet Singh at the time of his arrest bearing sim card No. 98121-46589. The said witness further deposed that from accused Surjit on 22.1.2002 mobile phone with sim card was taken in possession. The prints of the said mobile phone proved on record by PW-8 fail to advance the prosecution case as no call details inter se the mobile phones recovered from appellants Naveen and Surjit at or around the time of occurrence have been proved on record. The prints qua call details of the said mobile phones are in the month of December 2001 whereas the occurrence had taken place on 26.11.2001.
Thus, the prosecution had failed to establish on record that the appellants were guilty of the crime. It is an Crl. Appeal No. 576-DB of 2004 (O&M), - 13- Crl. Appeal No. 584-DB of 2004, Crl. Appeal No. 627-DB of 2004, Crl. Appeal No. 644-DB of 2004 and Crl. Appeal No. 751-DB of 2004 established principle of law that an accused is presumed to be innocent till proved guilty. The prosecution is required to establish its case beyond the shadow of reasonable doubt against the accused. However, in the present case, the prosecution has failed to discharge its burden.
Accordingly, all the criminal appeals are allowed. The appellants are acquitted of the charges framed against them. Appellants Naveen and Surjit Singh, who are in custody, be set at liberty forthwith, if not required in any other case.
So far as Criminal Miscellaneous No. 10373 of 2008 moved by the State in Criminal Appeal No. 576-DB of 2004 under Section 482 Cr.P.C. praying for further investigation is concerned, the same is liable to be dismissed. The said application was moved at a belated stage in the year 2008. No application was moved by the prosecution during trial under Section 319 Cr.P.C for summoning any person as additional accused nor any application was moved before the trial court for further investigation. No effort was made by the prosecution to further investigate the case during trial. Hence, we are of the opinion that the present application is liable to be dismissed.
Accordingly, the application is dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
April 17, 2012
Gurpreet