Punjab-Haryana High Court
Kuldeep Alias Kallu Alias Kallu And ... vs State Of Haryana on 7 May, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
CRA No. 411-DB of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRA No. 411-DB of 2008
Date of decision : 7.5.2012
Kuldeep alias Kallu alias Kallu and another
.......Appellants
Vs.
State of Haryana ..........Respondent
CORAM :Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
Present:- Mr. Vinod Ghai, Advocate
Mr. Brijendra Kaushik, Advocate
Mr. G.S. Chahal, Addl. AG, Haryana
---
Jasbir Singh, J.
Appellants Kuldeep alias Kallu and Ranbir alias Kaka have filed this appeal against judgment dated 20.10.2007 vide which they were convicted for commission of offences under Sections 302/34, 307/34 and 452 IPC. On 22.10.2007, besides other minor punishments, they were sentenced to undergo imprisonment for life and to pay a fine of ` 5,000/-each with a default clause under Section 302 IPC.
As per case of the prosecution, the above appellants along with Parveen Kumar (since acquitted) and Randeep alias Rana (a juvenile) were arrayed as accused in FIR No. 189 registered on 19.6.2004 for commission of offences as found mentioned in earlier part of this order.
CRA No. 411-DB of 2008 -2-
It was an allegation against them that they on 19.6.2004 in the area of Police Station Ambala Cantt., in furtherance of common intention, have committed murder of Rajinder alias Boby. It was further accusation against them that on the above date, they have also caused fire arm injuries to Ritu Sharma (PW-7) and Anoop Malhotra (PW-8). It was also allegation against them that both the appellants have committed criminal trespass in the house of Ritu Sharma (PW-7).
The process of law was initiated on a statement (Ex.PG) made by Ritu Sharma (PW-7). Her statement was recorded by Inspector Balbir Singh (PW-23) on 19.6.2004 at about 11.00 P.M. On the basis of above statement, FIR Ex.PH was registered in Police Station Ambala Cantt. at 11.15 P.M. on 19.6.2004. It has come on record that on account of fire arm injuries caused by the appellants, Rajinder alias Bobby died at the spot. Anoop Malhotra (PW-8) and Ritu Sharma (PW-7) were shifted to the hospital in an injured condition.
The trial Judge has noted following facts regarding case of the prosecution:-
"That on 19.6.2004 at about 9.30 P.M. Ritu Sharma (PW-7) along with her brother Rakesh (PW-20) besides Anoop Malhotra (PW-8) and Rajinder alias Bobby (now deceased) were standing in the corner of road, out side house of PW-7 Ritu Sharma. They were talking to each other. In the meanwhile accused Kuldeep alias Kallu, Ranbir alias Kaka and accused Randeep alias Rana (juvenile accused) came on a motor cycle. They were armed. They parked their CRA No. 411-DB of 2008 -3- motor cycle about 20-25 yards away from her house . Assailant Randeep remained near the motor cycle. Kuldeep alias Kallu and Ranbir alias Kaka advanced towards them and started indiscriminate firing. PW 7 Ritu Sharma and PW-20 Rakesh rushed to their house while Anup (PW-8) and Rajinder alias Bobby (deceased) ran towards other side of the road. Rajinder alias Bobby being hit by bullets fell down and Anup (PW-8) fell down after having suffered bullet injuries. Assailants then entered the house of PW-7 Ritu Sharma complainant and fired at Rakesh (PW-20). However, Rakesh by scaling the back wall escaped. However, pellets hit on the face of Ritu Sharma (PW-7). Alarm being raised, the assailants escaped on their motor cycle. Rajinder alias Bobby succumbed to injuries. Anup Malhotra (PW-8) and Ritu Sharma (PW-7) were taken to Civil Hospital, Ambala Cantt. The attack was stated to have been pursuance to an old enmity. Jeetu, Anup 'Sattebaaj' and Vikas, banana vendor, were stated to be behind the conspiracy."
On receipt of V.T. message, Inspector Balbir Singh (PW-23) came to the spot and after recording statement of Ritu Sharma (PW-7), he sent it for registration of an FIR. In the meantime, Satnam Kaur (PW-11) - mother of the deceased come at the spot. Inspector Balbir Singh (PW-23) took up the investigation, prepared inquest proceedings Ex.PHH on the dead body and sent it for post mortem examination, which is conducted by Dr. Arvinder Joshi (PW1) on 20.6.2004. This witness found 8 injuries on the person of the deceased at the time of post-mortem examination. 4 bullets were removed from the dead body. Anoop Malhotra (PW-8) and Ritu Sharma (PW-7) were medico legally examined by Dr. Bela Sharma CRA No. 411-DB of 2008 -4- (PW-2) at 9.20 P.M. and 10.10 P.M. on 19.6.2004. On the person of Anoop Malhotra (PW-8), 2 fire arm injuries were found and on the person of Ritu Sharma (PW-7), many pallets injuries were found.
The Investigating Officer Inspector Balbir Singh (PW-23) continued with the investigation, lifted blood stained earth and 4 empty cartridges from the place of occurrence, which were taken into possession against recovery memo (Ex.PJ). He got prepared a rough site plan Ex.PEE with correct marginal notes. The Investigating Officer also lifted one empty cartridge from inside the house of Ritu Sharma (PW-7), which was also taken into possession against a recovery memo. Medico legal reports of Ritu Sharma (PW7) and Anoop Malhotra (PW-8) were handed over to the Investigating Officer by SI Puran Chand (PW-19).
The Investigating Officer after recording statements of the witnesses, went in search of the accused. Parveen Kumar was arrested on 11.7.2004. Kuldeep alias Kallu was arrested on 16.7.2004, on interrogation, he made a disclosure statement which led to the recovery of one pistol of 1011 of Italian made. Appellant Randeep alias Rana was arrested on 28.7.2004. In the meantime, on a disclosure statement, made by Parveen Kumar, a country made pistol was recovered from near to Tangri Bridge River in the area of Mahesh Nagar. He also got recovered a motor cycle. On 17.7.2004 Kuldeep alias Kallu suffered disclosure statement indicating towards concealment of a country made pistol. However, in response to above statement, weapon could not be recovered. One country made pistol CRA No. 411-DB of 2008 -5- was got recovered by Randeep Singh alias Rana.
On completion of investigation, final report was put in Court. Copies of the documents were supplied to the accused as per norms. Case was committed to the competent Court for trial. The appellants along with Parveen Kumar were charge sheeted on 10.11.2005, to which they pleaded not guilty and claimed trial.
It is necessary to mention here that Randeep alias Rana was found to be a juvenile. His case was sent for trial to the Juvenile Justice Board. As per information supplied at the bar today, at the time of arguments, he after trial, was acquitted.
The prosecution produced 23 witnesses and also brought on record documentary evidence to prove its case. On completion of prosecution evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them which they denied, claimed innocence and false implication. However, they led no evidence in defence.
The trial Judge, on appraisal of evidence, found both the appellants guilty and, accordingly, vide the impugned judgment and order, they were convicted and sentenced as found mentioned in earlier part of this order. However, their co-accused namely Parveen Kumar was not found guilty, accordingly, he was exonerated. Hence, this appeal.
Counsel for the appellants has vehemently contended that identity, of the appellants as accused, is not proved on record. It is stated that they were identified by Ritu Sharma (PW-7). As per CRA No. 411-DB of 2008 -6- evidence on record, they were not known to her. She has only stated that when she went to meet his brother Rakesh Sharma alias Bobby (PW-20) in jail, she had seen the appellants-accused standing by his side. It was also brought to the notice of the Court that names of the accused was told to Anoop Malhotra (PW-8) by Ritu Sharma (PW-7). No identification parade was arranged in this case. Rakesh Sharma alias Bobby (PW-20) - brother of Ritu Sharma (PW-7), has failed to support case of the prosecution and was declared hostile. In view of above facts, it is stated that there is nothing on record to show that Ritu Sharma (PW-7) ever meet the accused in jail as alleged. It is further argued that the bullets recovered from the dead body and from the house of the injured Anoop Malhotra (PW-8), do not matched with the fire arms allegedly got recovered from the appellants- accused. There was no motive with the appellants to commit the crime. There is nothing on record to show that there was any enmity between the accused on one side and the injured/deceased on the other side. Counsel further argued that Rakesh Sharma alias Bobby (PW-20) has turned hostile and did not support case of the prosecution. It was an allegation of the prosecution that the appellants have come to kill him and not the deceased Rajinder Singh alias Bobby. He prayed that appeal be allowed, judgment and order under challenge be set aside and the appellants be acquitted of the charge framed against them.
The prayer made has vehemently been opposed by the State counsel by asserting that it was an eye witness account. Statements CRA No. 411-DB of 2008 -7- made by Ritu Sharma (PW-7) and Anoop Malhotra (PW-8), both injured witnesses, cannot be ignored. Both have identified the assailants in Court. Ritu Sharma (PW-7) has specifically stated that both the appellants and Randeep alias Rana were known to her before the date of occurrence. Counsel further argued that death has occurred on account of firing of shots by the appellants-accused upon the deceased. May be there are minor discrepancies in the statements made by the prosecution witnesses but those defects do not go to roots of the case. Counsel has further argued that recording of FIR was very prompt in this case. Names of both the appellants figured in the FIR as accused. Above fact rules out any possibility of false implication. He prayed that appeal, having no substance, be dismissed.
As per case of the prosecution, the appellants-accused caused fire arm injuries to Rajinder alias Bobby on 19.6.2004 at about 9.00/9.30 P.M. He died at the spot. Post mortem was conducted on 20.6.2004 by Dr. Arvinder Joshi (PW-1), who found the following injuries on his person:-
"1. An entry wound directed anteriorly on right cheek 1.2 x 0.8 x 11 cm deep.
2. Bleeding right ear and left side of the neck.
3. A lacerated wound in occipital region 2 x 0.5 x bone deep.
4. A entry wound on right lateral part of the chest 1.2 x 0.8 across the chest wall.
5. An entry wound on right side of back thoraco lumbar region, vertebra fractured.
6. An entry wound on right gluteal region 1.2 x 0.8 x pelvis CRA No. 411-DB of 2008 -8- sacrum fractured.
7. An entry wound on the nape of neck 1.2 x 0.8 x 6 cm deep.
8. A lacerated wound about 3 x 2 x 2 cm. deep on upper part of back thoracic region.
On opening the abdomen, we found peritoneal cavity full of blood. Right of lob of liver was lacerated."
Above injuries, were found to be the cause of death, which were ante mortem in nature and were sufficient to cause in ordinary course of death. At the time of post mortem examination, four bullets were also recovered from the dead body.
Injured Anoop Malhotra (PW-8) was medico legally examined by Dr. Bela Sharma (PW-2) on 19.6.2004 at 9.20 P.M. This witness found the following injuries on his person:-
"1. A gun shot wound 1.5 x 1.5 cm, edges were burnt. It was round in shape. Bleeding was present. Injury was present on right lumbar region. The patient complained of pain in whole of the area. Injury was kept under observation.
2. A bluish pink contusion 3 cm x 1 cm, on anterior abdominal wall. Some bullet or foreign body was pabpable subcutaneously. Patient complained of pain. Injury was kept under observation."
Above witness also medico legally examined Ritu Sharma (PW-7) on 19.6.2004 at 10.10 P.M. Following injuries were found at her person:-
"Multiple, minute, pin point burnt points on skin of face, neck and ears. She complained of burning sensation all over. She also complained of irritation in both her eyes. Conjuctivae were congested and watering from both the CRA No. 411-DB of 2008 -9- eyes was present."
This witness also sent ruqa Ex.PB to the Police Post Regiment Bazar, Ambala Cantt., regarding admission of Ritu Sharma (PW-7) and Anoop Malhotra (PW-8) in the hospital.
During trial, eye witness account of the occurrence was given by Ritu Sharma (PW-7). She has disclosed the mode and manner in which injuries were caused by the appellants and their co- accused to the deceased and to Anoop Malhotra (PW-8). She has further deposed regarding her receipt of injuries and also entering the appellants in her house, to kill her brother Rakesh Sharma alias Bobby (PW-20). This witness has specifically stated that both the appellants were known to her before the date of occurrence. Her brother was confined in Central Jail, Ambala and as and when she went to meet him, she saw the appellants, who were also confined in the said jail. There is nothing on record to show that the appellants were not confined in the jail at the same time when brother of Ritu Sharma (PW-7) was in jail. Even suggestion has not been put to the witness in that regard. During trial, this witness has recognized the appellants as the assailants. There are some minor discrepancies, so far as time of recording of her statement by the Investigating Officer and her medico legal examination by the doctors is concerned. However, those discrepancies are not fatal to the case of the prosecution.
The recording of FIR in this case is very prompt. Occurrence has taken place between 9.00 P.M. to 10.00 P.M. on CRA No. 411-DB of 2008 -10- 19.6.2004. Statement of injured Ritu Sharma (PW-7) was recorded at about 11.00 P.M., FIR Ex.PH was recorded at 11.15 P.M. On the above date, special report reached the Illaqua Magistrate at night at about 2.35 A.M. on 20.6.2004. The name of both the appellants is mentioned in the FIR Ex.PH as accused. Above facts clearly indicate that there was no chance of manipulation to falsely implicate the appellants as accused.
Anoop Malhotra (PW-8) has also deposed in Court regarding his receipt of injuries at the hands of the appellants. It is specifically stated that he along with the deceased Rajinder, Ritu Sharma and Rakesh Sharma alias Bobby (PW-20) were standing outside the house of Ritu Sharma. Three young boys came on a motor cycle and started firing upon them. They were identified as Kuldeep alias Kallu and Kaka resident of village Kardhan. This witness also identified both the accused in Court. Anoop Malhotra (PW-8) has given a clean picture as to how the injuries were received by him and the deceased.
The eye witnesses account of the prosecution is further strengthened with the statement of PW-9-Parkash Sharma (mother of Ritu Sharma). This witness has also deposed that the fire arm injuries were caused by the appellants to the deceased, Ritu Sharma (PW-7) and Anoop Malhotra (PW-8) in her presence. Merely because case of the prosecution was not supported by Rakesh Sharma alias Bobby (PW-20) - brother of Ritu Sharma (PW-7), the testimony made by the above witness cannot be discarded. Mother of the deceased CRA No. 411-DB of 2008 -11-
- Satnam Kaur (PW-11) has also appeared in the witness box to state that she was told that her son was killed by the appellants. During trial, an attempt was made by the appellants to say that Rajinder was killed by Rakesh Sharma alias Bobby (PW-20). However, with the connivance of the police, they were falsely named in this case. It was further averred that mother of the deceased has made a complaint naming Rakesh Sharma alias Bobby (PW-20) as an accused, to SSP, Ambala. No such complaint is available on record and further Satnam Kaur (PW-11) has not raised any suspicion regarding killing of her son against Rakesh Sharma alias Bobby (PW-20) or anybody else, except the appellants. Similarly, because Ritu Sharma (PW-7) was named as accused in some criminal cases, is not a ground to disbelieve her statement. It has come on record that she was acquitted in those criminal cases.
It is on record that about five empty cartridges were recovered from the spot. Four bullets were recovered from the dead body of Rajinder and one was recovered from the body of Anoop Malhotra (PW-8). Cartridges and bullets were sent to the Laboratory for examination. As per report Ex.PE, cartridges Ex. C1 to C 3 were fired from 7.65 mm pistol. One cartridge was fired from .315 mm country made pistol. Bullets were also of the cartridges fired from 7.65 mm pistol. Merely because the weapons recovered were not sent for examination, benefit of the same cannot be given to the appellants-accused. It has also come on record that the appellants- accused were involved in many criminal cases, they may have devise CRA No. 411-DB of 2008 -12- a plan to derail the investigation. It appears that they have got recovered some other weapons and not those used by them, at the time of alleged occurrence.
The process of investigation is also appears to be very fair. The Investigating Officer Inspector Balbir Singh (PW-23) has very clearly stated the mode and manner of investigation. The link evidence has been supplied by other official witnesses, who have seen the appellants making disclosure statements which led to the recoveries of offending articles. It has also come on record that special report was sent to the concerned Magistrate with a promptitude. Merely because the appellants were acquitted, in some other criminal cases, is not a ground to disbelieve the story of the prosecution in this case also.
In view of above, no case is made out for interference. Dismissed.
(JASBIR SINGH) JUDGE (SABINA) JUDGE 7.5.2012 Ashwani