Punjab-Haryana High Court
Sunil Kumar @ Shally vs State Of Haryana on 3 March, 2010
Author: Hemant Gupta
Bench: Hemant Gupta, Jaswant Singh
Crl. Appeal No.678-DB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : March 03, 2010
Crl. Appeal No.678-DB of 2002
Sunil Kumar @ Shally ...Appellant
Versus
State of Haryana ...Respondent
Present: Ms. Monika Jalota, Amicus Curaie, for the appellant.
Mr. S.S.Patter, Sr. DAG, Haryana, for the respondent.
Crl. Appeal No.1149-SB of 2002
Amar Nath @ Bittu ...Appellant
Versus
State of Haryana ...Respondent
Present: Mr. B.S.Saroha, Advocate, for the appellant.
Mr. S.S.Patter, Sr. DAG, Haryana, for the respondent.
Crl. Appeal No.1215-SB of 2002
Rajinder Singh ...Appellant
Versus
State of Haryana ...Respondent
Present: Mr. Rahul Rathore, Advocate, for the appellant.
Mr. S.S.Patter, Sr. DAG, Haryana, for the respondent.
Crl. Appeal No.217-DBA of 2003
State of Haryana ...Appellant
Versus
Narinder Singh and others ...Respondents
Present: Mr. S.S.Patter, Sr. DAG, Haryana, for the appellant.
Crl. Appeal No.678-DB of 2002 2
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JASWANT SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
This order shall dispose aforesaid four appeals arising out of judgment of conviction dated 12.7.2002 and order of sentence dated 15.7.2002 passed by the learned Addl. Sessions Judge (Ad hoc), Karnal, convicting and sentencing Sunil Kumar @ Shally (for short referred as Sunil), appellant in Criminal Appeal Nos.678-DB of 2002, for life imprisonment for the offence punishable under Sections 302 IPC and to undergo rigorous imprisonment for a period 10 years for the offence punishable under Section 307 IPC, whereas Amar Nath @ Bittu and Rajinder Singh, appellants in Criminal Appeal Nos.1149-SB of 2002 and 1215-SB of 2002 are convicted and sentenced to undergo rigorous imprisonment for a period of 7 years each for the offence punishable under Section 307 read with 34 IPC. Apart from these three appeals, Criminal Appeal No.217-DBA of 2003 was filed by the State of Haryana against the order of acquittal of ten other accused.
On 4.2.2010, when the case was taken up for hearing, Mr. Ashit Malik, Advocate, counsel for Sunil, appellant stated that the appellant has absconded while availing parole and that he has collected the papers as well as no objection certificate to engage another counsel. In view of the said fact, Ms. Monika Jalota, Advocate, was appointed as Amicus Curaie to assist this Court on behalf of Sunil.
The prosecution case was set in motion on the basis of complaint (Ex.PA) made by Dharamvir son of Khazan Singh. He has Crl. Appeal No.678-DB of 2002 3 stated that he is resident of village Staundi and studying in 10+2 in Rising Sun Public School, Sector-6, Karnal. On 20.8.1999, he alongwith Davinder Singh son of Hari Singh Ror, Jasbir son of Man Singh Ror, Shalinder @ Gokal son of Dalip Singh, all residents of village Staundi, Paveen son of Baldev Raj, resident of village Bastar and Satpal son of Ram Sarup, resident of village Chochra, came to Karnal to attend the rally on the occasion of visit of Prime Minister of India, but after reaching Karnal, they decided to see the movie "Arjun Pandit" from 10.00 AM to 1.00 PM, being screened in K.R.Theatre. After purchasing tickets, they went inside the hall and occupied the front seats. After 15 minutes of start of the movie, number of boys having Musla, Lathies, Sword and Sunil resident of Naru Kheri having knife in his hand entered the cinema hall and shouted that Jassi @ Jasbir come out. Jassi @ Jasbir told them that Sunil alongwith his companions has arrived there and he would kill him. A short while later, Sunil noticing Jassi @ Jasbir occupying the seat, attacked upon him and within his (Dharamvir) sight, stabbed the knife into the chest of Jassi @ Jasbir, as a result of which Jassi @ Jasbir fell down. When Davinder got up to intervene, Sunil also stabbed him in the left side of his stomach and his companions inflicted lathies and sword blows on him. There was commotion in the hall. He does not know that whether somebody else was also inflicted injuries. Then Sunil and others fled away from the spot. Thereafter, they saw Jassi @ Jasbir succumbed to the injuries. Cause of grudge is that a quarrel took place between Jasbir and Sunil some days earlier and due to the grudge, Sunil along with his companions in furtherance of their common intention has caused this incident. Davinder was shifted to Miglani Hospital, Karnal, whereas the dead body of Jassi @ Jasbir lying in the cinema hall was shifted to the hospital with the expectation that he may have some breath, but Doctor on Crl. Appeal No.678-DB of 2002 4 arrival in the Civil Hospital, declared him dead. He further stated that Amar Singh and Bittu, resident of Saidpura were also amongst the assailants. On the basis of said statement, Inspector/SHO Pardeep Singh, sent ruqa from General Hospital, Karnal at 11.30 AM. On the basis of such ruqa, an FIR was lodged at 11.45 AM. The special report was received by the Magistrate at 4.45 PM.
After completion of investigation, the prosecution in its report under Section 173 Cr.P.C. claimed commission of offence by accused mentioned at Sr.Nos.1 to 6 and sought discharge of accused mentioned at Sr.Nos.7 to 13. The discharge of accused mentioned at Sr.Nos.7 to 13 was objected to by the complainant. The complainant has also filed a complaint for summoning the accused for the offences punishable under Sections 302/307/323/148/149 IPC and sought clubbing of the complaint with criminal challan on the basis of police investigation. The learned trial Court on 24.5.2000 passed an order that the Court can frame charge against the accused, who have been challaned and not against the persons, who have not been committed to the Court of Sessions and that the Court is not competent to give any direction to the investigation agency for re-investigation of the case. Consequently, it was decided to frame charge against accused Sunil etc. mentioned at Sr. No.1 to 6 of the commitment order for the offences punishable under Sections 302/307/323/148/149 IPC. The application for re-investigation of the complainant was dismissed. Subsequently, on 14.9.2000, an application for clubbing the police case with the criminal complaint was not pressed. The charge was framed on 15.9.2000. Subsequently, on 21.11.2000 on an application under Section 319 Cr.P.C. moved by the learned Public Prosecutor, seven accused mentioned at serial number 7-13 were ordered to be summoned. The said order passed in proceedings under Section 319 Crl. Appeal No.678-DB of 2002 5 Cr.P.C. was challenged before this Court and after dismissal of the revision on 4.4.2001, the charges were ordered to be framed on 18.5.2001.
Ex.PK is the inquest report with day and hour of discovery of death at 11.30 AM on 20.8.1999. Ex.PE is the medico-legal report in respect of Davinder Singh. Injury No.1 is incised wound of 3 x 2 cm, whereas injury No.2 is lacerated wound in the left scalp 3 x 1 cm. The Doctor has also seen abrasions in chest and thigh etc. Such medical examination was conducted at 11.40 AM. Ex.PH is the post-mortem report of deceased Jasbir @ Jassi. The following injuries were found on the person of deceased Jasbir @ Jassi :
"Incised wound 3 x 1 cm, 3 cm below the left nipple in the intercotal (sixth) space.
On discection cutting intercostal muscle puncturing left ventricle and left lung.
Left plura was also punctured and puncturing of the left lung with blood in the thoracic cavity.
Left ventricle was punctured."
The cause of death was shock and haemorrhage because of injuries.
After trial, the learned trial Court convicted and sentenced Sunil, Amar Nath @ Bittu and Rajinder Singh. All other accused, as stated above, stand acquitted.
PW-7 Dr. O.P.Miglani has proved the medico-legal report Ex.PE in respect of injured Davinder Singh. He has deposed that the patient remained admitted till 7.00 PM and was referred to Delhi for Crl. Appeal No.678-DB of 2002 6 further treatment, as the condition of the patient was deteriorating. He further deposed that on police application Ex.PF, he has opined that injury No.1 was dangerous to life vide his report Ex.PF/1.
PW-9 is Dr. I.S.Virdi, Chief Surgeon, Appolo Hospital, Delhi, who treated patient Davinder Singh admitted in Indraprastha Appolo Hospital, Delhi on 21.8.1999. He has not ruled out the possibility of injury as having been caused by the knife taken out from a parcel sealed with seals of FSL. Report Ex.PJ was produced by him.
PW-8 is Dr. R.M.Singh, who has conducted the post-
mortem examination on the dead body of Jasbir @ Jassi. In his cross- examination, he has deposed that the particulars of the persons bringing the dead body are asked by the doctor from them and the same are mentioned in the ruqa.
Ex.PZ is the report of Forensic Science Laboratory (Madhuban), Karnal. Khokhari/knife was extensively stained with blood stains; Pants and Banian were stained with numerous large and small blood stains; whereas shoes were stained with several medium and small blood stains. Human blood was found on khokhari, blood lifted from the spot, pants and banian, whereas stains on the shoes were found to be disintegrated.
The case against the accused is sought to be proved by prosecution by examining Dharamvir as PW-10, Satpal son of Ram Sarup as PW-11, Ram Singh as PW-12 and Inspector Pardeep Singh, the Investigating Officer as PW-17 apart from other witnesses. Crl. Appeal No.678-DB of 2002 7
Dharamvir while appearing as PW-10, has supported the version given in his statement Ex.PA, on the basis of which FIR was lodged. He has stated that the knife carried by Sunil fell down at the spot and then he snatched a lathi from somebody in the hall and gave a lathi blow on the head of Davinder. Bittu gave a fatti blow on the back of Davinder. Rajinder was raising lalkara that any person, who gets up would be killed by his sword. In his cross-examination, he has deposed that the tickets were not checked and none of them had been issued any tickets for a specific seat. He, Jasbir, Davinder and Satpal had sat in one row on one side of the cinema hall in the front row, while Shalinder, Parveen and Rajesh had sat on the other side of the cinema hall in the front row. He has also stated in his cross-examination, that blood was fallen at both the places, where injuries were sustained by Jasbir @ Jassi and Davinder Singh and that Doctor in the emergency room has not obtained their signatures about bringing the dead body in the hospital, as they were standing outside. He has also deposed that he was not present at the time of first incident between Jasbir @ Jassi and Sunil and he came to know about the dispute between Jasbir @ Jassi and Sunil around 15.8.1999. It was Jasbir @ Jassi, who told him about this fact. Jasbir @ Jassi has told him that the first incident has taken place 4-5 days earlier. He has denied the suggestion that he, Jasbir, Davinder, Shalinder and Parveen belong to one family, though he admitted that Satpal PW-11 is the son of maternal uncle of Jasbir Singh. In cross-examination by Mr. Sat Pal Chopra, Advocate, representing the other accused other than Sunil, he denied the suggestion that he never saw the occurrence at all and he has been introduced as a false witness by the police, because of his relations with the deceased. He admitted that the deceased belongs to his Biradari and known to him since his child-hood. He was not his class fellow as he was Crl. Appeal No.678-DB of 2002 8 senior to him by one year and he was not on visiting terms with the deceased. The deceased was studying in first year in Dayal Singh College, whereas he was studying in 10+2 in Rising Sun Public School. He has admitted that he does not know the father's name of Amar Nath or any of his family members and father's name of remaining other accused. He has admitted that he does know as to in which school 12 accused have studied and nor he has seen 12 accused playing any match for any team.
Satpal while appearing as PW-11 has also supported the prosecution version. He has stated that village Chochra is at a distance of 45 kms from Karnal, whereas from another route via Nissing, it is 50 kms. In his lengthy cross-examination, the prosecution case as set up, could not be demolished in material aspects.
Inspector Pardeep Kumar, the Investigating Officer, while appearing as PW-17 has deposed that when he reached General Hospital, Karnal, large number of persons including Devinder Singh, Dharmvir, Mann Singh father of Jasbir Singh and others were present. He recorded the statement of Dharmvir Ex.PA and sent to the Police Station. He sent ASI Mahavir to K.R.Theatre along with few other police officials for guarding the place of occurrence. FSL team and expert from Finger Print Bureau were also called to the spot. He prepared inquest report Ex.PK and directed the post-mortem of the dead body to be conducted. When he reached at the spot i.e. K.R.Theatre, he found FSL team and the photographer present there. He took up khukhri like knife from the spot, which was sealed and taken into possession vide recovery memo Ex.PO. He also picked up blood from the spot by removing it with the aid of a cloth and sealed the same in a parcel. Then he went to the private clinic of Dr. Miglani and after seeking opinion Ex.PG/1 on application Ex.PG of Crl. Appeal No.678-DB of 2002 9 the Doctor, he recorded the statement of Davinder. He arrested Sunil accused on 23.8.1999 and recorded his disclosure statement, but no recovery could be affected. On his interrogation again on 25.8.1999, Sunil made a disclosure statement Ex.PJ to the effect that he had kept a lathi in the church and a motor cycle at the dera of his uncle near village Umri, which was attested by ASI Mahavir Singh & Ram Singh PW. In pursuance of such disclosure statement, lathi Ex.P5 was recovered from the church, which was taken into possession vide recovery memo Ex.PH and Kawasaki Bajaj motor-cycle was recovered from the dera by the side of village Umri, which was taken into possession vide recovery memo Ex.PK. Rajinder accused was arrested on 28.8.1999 and on his disclosure statement, no recovery was effected. PW-12 is Ram Singh, the attesting witness of the disclosure statements and the recovery memos.
The presence of Dharmvir (PW-10) at the time of occurrence is probable and natural. He belongs to the same village as that of deceased Jasbir Singh @ Jassi. They are almost of the same age. Therefore, the statement that they went to Karnal to attend the rally on the occasion of visit of Prime Minister of India, cannot be said to be untrue. It is also seems plausible that the youngsters instead of attending rally of the Prime Minister, went to watch movie, which had a first show at 10.00 AM. His statement that Jasbir @ Jassi has told about his enmity with Sunil is again plausible. He has disclosed that Jasbir @ Jassi told him about the enmity 4-5 days prior i.e. 15.8.1999. Though Sunil is not of the same village, but is resident of a village, which is not very far from the village of the deceased and the witness. Village of both are very close to Karnal. The incident has taken place around 10.15 AM, whereas the ruqa for recording of FIR has been sent to the Police Station at 11.30 AM, which is soon after the incident. Though the special report is received by the Magistrate at Crl. Appeal No.678-DB of 2002 10 4.45 PM and the Magistrate is at the close proximity of the place of occurrence, but that fact alone is not sufficient to doubt the prosecution story. Firstly, there is no such gross delay in sending the special report to the Magistrate at 4.45 PM on the date of occurrence itself. Still further, once the presence of the witness is proved to be natural, probable and reasonable and in the lengthy cross-examination, the testimony of Dharmvir could not be shattered in any manner, the said evidence is sufficient to prove the prosecution case of murderous assault by Sunil on Jasbir @ Jassi. The argument that the witness has not helped his friend Jasbir @ Jassi, when he was being allegedly attacked by Sunil, therefore, the presence of the witness is doubtful, is based on surmises and conjectures. Davinder has tried to help Jasbir @ Jassi, but he was stabbed. The stabbing of Davinder was sufficient deterrence for all other persons present to come forward and to apprehend Sunil from fleeing from the spot. The knife was recovered from the spot i.e. within the hall. The blood from the earth was removed from the place of occurrence i.e. within the hall.
The presence of Dharmvir is sought to be disputed for the reason that the name of Dharmvir is not reflected in the ruqa sent by the Doctor to the Police. The said ruqa sent by the Doctor to the Police has not been produced in evidence. Neither the Investigating Officer nor the Doctor have been called upon to produce such ruqa. Still further, even if the name of the witness is not mentioned in the ruqa, it does not prove the absence of the witness at the time of occurrence. It was not necessary to mention the names of all the persons, who are accompanying the injured/dead body of the deceased to the Hospital. Therefore, we do not find that there is any probability of absence of Dharmvir at the time of occurrence and in hospital. Therefore, we find that there is no illegality in Crl. Appeal No.678-DB of 2002 11 the findings recorded by the learned trial Court holding Sunil guilty for the offences punishable under Section 302 IPC.
However, the name of Rajinder Singh is not mentioned in the statement, which led to lodging of FIR. Amar Singh and Bittu residents of Village Saidpura, were said to be amongst the assailants. Inspector Pardeep Kumar, the Investigating Officer (PW-17) has not recovered any weapon of offence from Rajinder. Dharmvir (PW-10) in his statement has also deposed that only one person was armed with knife i.e. Sunil, whereas one person had a sword. Subsequently, volunteered that Rajinder had sword in his hand. Bittu was said to be armed with fatti fixed with nails, but such fact is not part of statement Ex.PA. Therefore, the weapons allegedly in possession of Rajinder and Bittu were not disclosed in the first version soon after the incident at 11.30 AM. Thus, the witness has improved his version in Court than what was his version in the First Information Report. Rajinder and Amar Nath @ Bittu have purportedly given injuries on the person of Davinder, but Davinder has not appeared as a witness and supported the prosecution case. Though from the medical evidence, it can be inferred that Davinder received injuries, but whether such injuries were inflicted by Rajinder and Bittu remain uncorroborated.
Since neither the sword nor the fatti have been recovered and Dharmvir (PW-10) has improved his version from that given in the First Information Report, therefore, Rajinder and Amar Nath @ Bittu are entitled to benefit of doubt, as the prosecution has failed to prove the commission of offence of Section 307 of causing injuries on the person of injured Davinder with the intention of causing death is not proved beyond reasonable doubt.
Crl. Appeal No.678-DB of 2002 12
In view of the above, we do not find any merit in the Criminal Appeal No.678-DB of 2002 filed by Sunil Kumar @ Shally and the same is dismissed. Whereas, we accept Criminal Appeal Nos.1149-SB of 2002 and 1215-SB of 2002 filed by Amar Nath @ Bittu and Rajinder Singh respectively and acquit the appellants-Rajinder Singh and Amar Nath @ Bittu of the charges framed against them by granting benefit of doubt.
Since there is no evidence of culpability in respect of the ten accused in the appeal filed by the State, the State's appeal is also dismissed.
(HEMANT GUPTA)
JUDGE
March 03, 2010 (JASWANT SINGH)
Vimal JUDGE