Punjab-Haryana High Court
Sudhir vs State Of Haryana on 14 November, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.40-DB of 2007 1
Criminal Appeal No.592-DB of 2007
Criminal Revision No.713 of 2007
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:November 14, 2011
Criminal Appeal No.40-DB of 2007
Sudhir ......Appellant
Versus
State of Haryana .......Respondent
Criminal Appeal No.592-DB of 2007
State of Haryana ......Appellant
Versus
Kuldeep Singh .......Respondent
Criminal Revision No.713 of 2007
Mangat Ram ......petitioner
Versus
Kuldeep Singh .......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vinod Ghai, Advocate,
for the appellant.
Mr.Pardeep Singh Poonia, Addl.A.G.Haryana.
Mr.D.N.Ganeriwala, Advocate,
for the complainant.
Mr.J.S.Thind, Advocate,
for Kashmiri Lal and Rawal Singh accused.
****
Criminal Appeal No.40-DB of 2007 2
Criminal Appeal No.592-DB of 2007
Criminal Revision No.713 of 2007
JUDGMENT
SABINA, J.
Vide this judgment above mentioned criminal appeals and criminal revision would be disposed of.
Trial Court vide judgment dated 20.12.2006 convicted accused Sudhir for commission of offence under Section 302 of the Indian Penal Code, 1860 (IPC for short) and the remaining accused were acquitted of the charge framed against them. Vide order dated 23.12.2006 accused Sudhir was sentenced to undergo imprisonment for life and fine of ` 10,000/- for offence under Section 302 IPC. Hence, accused Sudhir has filed Criminal Appeal No.40-DB of 2007. State of Haryana has filed Criminal Appeal No.592-DB of 2007 and complainant Mangat Ram has filed Criminal Revision No.713 of 2007 challenging part of the judgment, whereby accused Kuldeep Singh, Jagdish, Krishan, Mahbir, Ravel Singh and Kashmiri Lal were acquitted of the charge framed against them.
Prosecution case was set in motion on the basis of the statement of complainant Mangat Ram. Complainant stated before Sub Inspector Sher Singh that on 4.2.1999 at about 5 pm, he was present with his uncle Baldev Singh, Darshan Singh and Banwari Lal on a platform constructed near the house of Ram Karan. He was playing cards with his uncle Baldev Singh and Banwari Lal, whereas, Darshan Singh was sitting near them. In the meantime, Krishan Jaduda, Sudhir Kumar, Mahabir, Kuldeep and Jagdish came from the side of Harijan Mohalla. Krishan and his sons raised a lalkara that Criminal Appeal No.40-DB of 2007 3 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 they would teach a lesson to Baldev Singh for helping the sons of Siya Ram. Thereafter, Krishan came near them and fired two shots on the neck of Baldev Singh from his pistol. On account of this Baldev Singh fell on the ground. Kuldeep, Jagdish and Mahabir, who were also armed with pistols caught hold of Baldev Singh, while he was lying on the ground with his face downwards. Sudhir Kumar, who was armed with a kappa, gave number of blows on the person of Baldev Singh including neck, head and ear. A pellet also hit right thigh of Banwari Lal. Thereafter, the assailants, except Sudhir, fled away from the spot along with their respective weapons. Sudhir left his kappa at the spot and fled away. Baldev Singh succumbed to his injuries at the spot. Thereafter, he left Darshan Singh and Banwari Lal near the dead body and left to report the matter to the police. On the basis of the statement of the complainant formal FIR No.26 was registered on 4.2.1999 at police station Sadar Dabwali under Sections 302, 307, 148, 149 IPC and Section 25 of the Arms Act, 1959 (the Act for short).
During trial, prosecution, in order to prove its case, examined 43 witnesses.
The appellants, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), after the close of prosecution evidence, prayed that they were innocent and had been falsely involved in this case. Accused Krishan further pleaded that he had been falsely involved in this case due to party faction in the village. In fact, on 4.2.1999 at about 3 pm, he was nabbed by Criminal Appeal No.40-DB of 2007 4 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 ASI Ravel Singh along with other police officials in a case under the Excise Act. The said case has ended in conviction. Accused examined two witnesses in their defence.
Learned counsel for the accused has submitted that the investigation in the present case was a tainted one. In fact, it was a case of blind murder and all the accused had been falsely involved in the case. The entire proceedings had been carried out on 7.2.1999 by involving the accused falsely in this case. The finger prints on the kappa, alleged to have been recovered from the spot, have not been got compared from any expert. Banwari Lal had not suffered any firearm injury as alleged. Similarly, there was no firearm injury on the person of the deceased.
Learned State counsel, who is assisted by the counsel for the complainant, on the other hand, has submitted that the investigating agency, in fact, had tried to help the accused party. A false FIR had been got registered against Krishan to enable him to take the plea of alibi. In fact, the complainant had given true version qua the occurrence and his statement was liable to be believed.
Present case rests on an eye witness account.
Complainant, while appearing in the witness box, has deposed as per the contents of the FIR. PW-3 Darshan Singh, another eye witness to the occurrence, did not support the prosecution case and was declared hostile. Banwari Lal had allegedly suffered pellet injury in the occurrence. The said injured was not examined by the prosecution during trial.
Criminal Appeal No.40-DB of 2007 5Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 PW-1 Dr.N.K.Mittal deposed that on 5.2.1999, he had medico legally examined Banwari Lal at 8.40 am. The injured was brought by the police with an alleged history of firearm injury. There was an oval shape abrasion of size 2.5 cm x 2 cm on medial aspect of right thigh with soft scab formation with tenderness. The injury was a result of blunt weapon and had been caused within a duration of 12 to 24 hours. In his cross-examination, he deposed that he did not mention the particulars of the case in the MLR. There was no corresponding hole or mark on the clothes of the injured at the time of examination. Injured did not give any history of change of clothes. The clothes of Banwari Lal were not blood stained. There was no sign of firearm injury. Since there was a soft scab on the injury, there was possibility that it could have been suffered within 12 hours. The injury was simple and superficial. The possibility that the injury having been suffered by friendly hand could not be ruled out. Thus, from the medical evidence, it is apparent that Banwari Lal had not suffered any pellet injury as alleged by the complainant. The doctor had clearly stated in his cross-examination that there was no sign of any firearm injury. Banwari Lal was examined by the doctor at 8.40 am on 5.2.1999, whereas, the occurrence had taken place at 5 pm on 4.2.1999. As per the medical opinion, the injury could have been suffered by the injured within 12 hours of his examination. This leads to the inference that the injury had not been suffered by Banwari Lal in the occurrence in question. Moreover, if the said injured had actually suffered any injury, he would have been removed to the Criminal Appeal No.40-DB of 2007 6 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 hospital by the complainant and would not have been left to guard the dead body with Darshan Singh. In these circumstances, the learned trial Court rightly held that the prosecution had failed to prove its case so far as injury on the person of Banwari Lal was concerned.
So far as deceased Baldev Singh is concerned, as per the eye witness account, accused Krishan had fired two shots on his neck from a close range and thereafter, accused Kuldeep, Jagdish, Mahabir had caught hold of the deceased, while he had fallen down and accused Sudhir had inflicted a number of kappa blows on his person. Let us examine the medical evidence on record in this regard.
PW-2 Dr.Joginder Singh deposed that on 5.2.1999 at about 11 am, he received the police request qua postmortem examination on the dead body of Baldev Singh. A board of doctors was constituted. However, the dead body was referred to PGIMS, Rohtak for postmortem examination for detection of cause of death and kind of weapon used as the case was complicated.
PW-8 Dr.Basant Lal deposed that on 5.2.1999, he conducted the postmortem examination on the dead body of Baldev Singh and belongings of the deceased were, " one sweater brownish whitish having blood stains over it; one kameej whitish, blood stained spurting type present at places on both shoulder regions and showing a cut in the collar area; one whitish baniyan having blood stains; one whitish tehmad; one underwear pattedar, and hand made nara and one pair of socks in the foot".
Criminal Appeal No.40-DB of 2007 7Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 He found following injuries on the dead body of Baldev Singh:-
"1. Incised wound 9 x 1x 2.5 cm situated on the middle aspect of left ear and cutting the pinna through and through reaching upto bones. Margins were clear, and angles were acute. Blood stains were present around left neck and face area.
2. Multiple incised wounds in an area of 20 x 8 x bone deep area of the left upper back aspect of the neck on the head, occipital region transversely placed, multiple flaps with clear margins and slicing effect present at the places. Bones were cut underneath occipital left side starting from left mastoid process upto the right occipital bone lower aspect 7 cm back to the right pinna.
3. Incised sliced wound 9 x 0.5 cm x bone deep situated on the upper back of head, morose on left side 9 cm above the upper border of left pinna in coronal plan margins were clear and bone was sliced.
4. Incised wound 8 x 0.5 cm x 2.5 cm bone deep, bone was cut situated on the top of the head and 5 cm interior to injury No.3 slightly obliquely placed. Margins were clear.
5. Incised wound 8 x 0.5 cm x bone deep situated Criminal Appeal No.40-DB of 2007 8 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 on the top of the head on frontal aspect of the injury No.4 obliquely placed.
6. There were tattooing present on the left side of upper outer aspect of the neck in an area 8 x 5 cm with blackening around and reddish in colour."
On internal examination he found that the neck structure of the deceased was intact. Collar bone and ribs did not show fracture. Trachea and larynx were normal. In his opinion, the cause of death was crania cerebral damage as a result of head injury via injury No.2. All the injuries were ante mortem in nature and had been caused by heavy sharp cutting weapon except injury No.6 which was caused by burning effect of gun powder from firearm. Injury No.2 was sufficient to cause death in the ordinary course of nature. In his cross-examination, he deposed that there was no evidence of any bullet or pellet in the dead body. There was no entry or exit wound except the blackening and tattooing on the neck. He did not find any abrasion or contusion on the neck. He washed the blackening from the head area (injury No.6) but did not send the swab to the Forensic Science Laboratory for chemical examination to get the opinion of the ballistic expert regarding the origin of the blackening. He also washed the tattooing but it did not wash off. He did not send the swab of tattooing to Forensic Science Laboratory to seek opinion, if it was a result of firearm injury. He was confirmed in his opinion that it was a firearm injury.
Ex.PFF is the report of the Forensic Science Laboratory, Criminal Appeal No.40-DB of 2007 9 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 Haryana, Madhuban, Karnal, wherein the clothes of the deceased were sent for examination. As per the said report, no firearm discharge residue could be detected in the margins of the hole of the kurta contained in parcel No.4. Thus, there is a conflict in the eye witness account and the medical evidence qua firearm injury on the person of the deceased. As per the complainant, two shots had been fired by Krishan on the neck of the deceased. However, the doctor, who had conducted postmortem examination on the dead body of the deceased, had found only tattooing with blackening on the left side of the upper aspect of the neck. The doctor had not found any internal injury on the neck of the deceased. In case the deceased had suffered a firearm injury, there would have been entry wound. There could have also been an entry and exit wound. The pellet or the bullet could have been removed from the dead body. The shirt which was recovered from the deceased had a cut in the collar area. The expert did not find any residue of gun powder on the shirt. Although there is tattooing with burning on the neck area of the deceased but the same cannot be inferred as a firearm injury in the absence of any further internal injury. In these circumstances, we are of the opinion that the prosecution has failed to establish that the deceased had suffered a firearm injury on his neck. However, the prosecution has been successful in establishing that the deceased had suffered incised wounds. The said injuries are attributed to accused Sudhir. Thus, so far as the eye witness account and medical evidence qua accused Sudhir is concerned, prosecution Criminal Appeal No.40-DB of 2007 10 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 has been successful in establishing its case. Merely because the finger prints were not lifted from the kappa, which was recovered from the spot, would be fatal to the prosecution case so far as accused Sudhir is concerned. In case the investigating agency has committed some lapse in this regard, the same is not a ground to disbelieve the ocular version which is trustworthy so far as involvement of accused Sudhir is concerned. Thus, the eye witness account qua accused Sudhir is duly corroborated by the medical evidence.
Accused Krishan took up the plea of alibi during trial that he was not present at the spot as he had been arrested by the police in a case under the Excise Act before the occurrence in question. In order to substantiate the presence of accused Krishan along with his sons at the spot, the prosecution has led evidence in this regard.
PW-4 Sanjeev Kumar, Excise Inspector, deposed that on 4.2.1999, he had checked all the English liquor vends of circle Dabwali and he found only 35 bottles of English liquor of 'Red night' had been sold.
PW-17 Ajit Singh deposed that in the year 1999, he was facing a criminal trial for an offence under Section 326 IPC in the Court at Dabwali. On 4.2.1999, he had visited judicial complex to enquire about his case from his counsel. On the same day at 3.30 pm., he saw Krishan and his sons present in the judicial complex with Ram Kishan. The said persons were talking to each other. Accused Krishan was already known to him, so he went forward to Criminal Appeal No.40-DB of 2007 11 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 greet him. Accused Krishan told Ram Kishan, Sarpanch, that Baldev Singh, who was related to him (Ram Kishan) should be made to understand otherwise he would kill him (Baldev Singh). Then, after meeting his counsel, he returned to Rania to meet his sister. He returned from Rania on 6.2.1999. On 7.2.1999 he was summoned by Mangat Ram to bus stand of village Abubshahar. His statement was recorded by the police. In his cross-examination, the said witness deposed that his case was not fixed for 4.2.1999. In fact, the date of hearing of his case was 7th but he could not tell the month. He was a co-accused with Mangat Ram in a case under Section 376 IPC registered at Police Station Rai Singh Nagar District Ganga Nagar. He had a telephone connection at his house. Mangat Ram also had a telephone connection at his house. Presently, he was in judicial custody in a case relating to dacoity.
The statement of PW-17, thus, fails to inspire confidence. The said witness is a friend of the complainant and was a co- accused with the complainant in a rape case. The said witness is also involved in a dacoity case. Although, he knew that the complainant has a telephone connection in his house but he did not bother to inform the complainant qua the talk between accused Krishan and Ram Kishan. The statement of the said witness was recorded on 7.2.1999. It appears that this witness has been joined during investigation to advance the prosecution case against accused Krishan and his sons. Hence, no reliance can be placed on his testimony.
Criminal Appeal No.40-DB of 2007 12Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 PW-18 Devi Lal deposed that accused Krishan was his uncle. On 6.2.1999, he had gone to the house of Het Ram resident of village Nehrana. He returned to his village Abubshahar at 6 pm on the same day. While he was present at the bus stand, accused Krishan, Mahabir, Kuldeep, Sudhir and Jagdish came in a jeep from Dabwali side. He told accused Krishan that he had committed a blunder by murdering Baldev Singh and police was after them. Thereafter, Krishan told him that he had got himself booked in a case under the Excise Act. The said witness has been joined during investigation to negative the plea of alibi taken by accused Krishan. However, accused Krishan had been convicted in a case under the Excise Act registered against him on 4.2.1999. DW-1 ASI Mohan Lal has deposed that on 4.2.1999, FIR No.12 was registered against accused Krishan Lal under Section 61 of the Excise Act at police Station Lambi. As per the FIR, recovery was effected at 3.30 pm. The accused was convicted by the trial Court vide judgment dated 31.1.2003. Accused Krishan Lal was produced before the Area Magistrate on 5.2.1999 and till then he remained in the lock up. Hence, PW-18 also fails to advance the prosecution case qua accused Krishan.
PW-29 Ranbir Singh deposed that on 4.2.1999, he was returning from village Haripura to village Godikan via village Juttanwali and Lehogarh. At about 4.15 pm they reached Lohogarh regulator head and in the meantime accused Krishan came driving a jeep from Abubshahar side accompanied Kuldeep, Sudhir, Jagdish Criminal Appeal No.40-DB of 2007 13 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 and others. The statement of the said witness was recorded by the police on 7.2.1999 at bus stand Abubshahar. The said witness is a relative of the deceased and had attended cremation ceremony of Baldev Singh. However, he did not make any statement before the police immediately after the murder of Baldev Singh. The statement of the said witness was recorded on 7.2.1999. It appears that the said witness being a relative of the deceased had been later introduced as a witness to strengthen the prosecution case against accused Krishan and his sons. Hence, no reliance can be placed on the testimony of the said witness.
So far as accused Krishan is concerned, his presence at the spot is doubtful as he had been apprehended in a case under the Excise Act. Even otherwise, the prosecution case qua the involvement of the other accused, except accused Sudhir, fails to inspire confidence. The complainant, while deposing qua the eye witness account, has stated that accused Krishan had given two pistol shots on the neck of the deceased. However, from the medical evidence it does not transpire that the deceased had suffered any firearm injury. The complainant has further deposed that after the deceased had fallen down on account of firearm injuries suffered by him, accused Jagdish, Kuldeep and Mahabir had caught hold of him and thereafter, injuries were inflicted by accused Sudhir on the person of the deceased with his kappa. Had the deceased actually suffered firearm shots on his neck, there was no occasion for the other accused to catch hold of him while he had fallen on the ground Criminal Appeal No.40-DB of 2007 14 Criminal Appeal No.592-DB of 2007 Criminal Revision No.713 of 2007 as the fire shots suffered by him would have been sufficient to immobilise him. Moreover, in case two fire shots had been actually fired on the neck of the deceased from close range, the said injuries would have been quite fatal. Both the sides are facing number of criminal cases. The complainant, in his cross-examination, has admitted registration of number of criminal cases against him. The possibility that due to enmity accused Krishan and his sons have been falsely involved in this case cannot be ruled out. In these circumstances, the learned trial Court rightly acquitted accused Kuldeep, Jagdish, Krishan, Mahabir, Ravel Singh and Kashmiri Lal of the charges framed against them. Learned State counsel, who is assisted by the counsel for the complainant, has failed to convince us to disagree with the said view taken by the trial Court.
Consequently, both the criminal appeals as well as criminal revision are dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
November 14, 2011
anita