Punjab-Haryana High Court
Gopal S/O Shiv Dutt vs State Of Haryana on 4 October, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA-D-900-DB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-900-DB of 2009
Date of Decision: 04.10.2013
Gopal S/o Shiv Dutt ....Appellant
Versus
State of Haryana ..Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Bijender Dhankar, Advocate
for the appellant.
Mr. Pardeep Singh Poonia, Additional Advocate General,
Haryana.
FATEH DEEP SINGH, J.
This is an appeal by the convict-appellant Gopal, wherein, he has challenged judgment and order of sentence dated 09.10.2009/10.10.2009 of the Court of learned Additional Sessions Judge, (Fast Track Court) Faridabad. The reasons for this challenge have been squarely spelled out in the grounds of appeal.
It was on 26th November, 2008 at around 8.30 p.m. in Kisan Mazdur Colony, old Faridabad, complainant Nepal Singh PW8 who worked in a dairy was walking on the bypass road outside the dairy and saw Chhabila Chaudhry (now deceased) along with three persons across the road in front of Government tubewell quarrelling. He identified accused as Gopal, present appellant who was armed with sua/poker hitting the weapon on the chest of Chhabila Chaudhary whereas, his accomplices Deepak and Dalip were kicking Chhabila Chaudhary and when the complainant Nepal Singh PW8 tried to rescue the deceased he was also attacked by accused Gopal. During the melee accused Gopal Sharma Aarti 2013.12.12 12:35 I attest to the accuracy and integrity of this document CRA-D-900-DB of 2009 -2- ran away followed by the complainant Nepal Singh at which Deepak who was armed with brick gave brick blow hitting on the waist of the complainant. After entering their room the complainant saw Chhabila Chaudhary lying on the cot and apparently had died. The motive behind this occurrence was that accused Gopal, Deepak and Dalip used to consume liquor and gamble and deceased Chhabila Chaudhary often used to stop them for doing so for which these persons nurtured a grudge. On the basis of written complaint Ex.P11 made by Nepal Singh PW8, FIR Ex.P6 was recorded by Inspector Ranbir Singh PW9.
The Investigating Officer after visiting the spot prepared inquest report Ex.P9 and rough site plan of the place of occurrence Ex.P19. Thereafter, the Investigating Officer recorded statements of the witnesses and sent the dead body along with police request Ex.P24 for post mortem examination, on the basis of which PW10 Dr. R.K. Sharma gave his report Ex.P23. The belongings of the dead body were taken into police possession through memo Ex.P21 Meanwhile, injured Nepal Singh was medically examined by PW14 Dr. S.K. Ahlawat and PW15 Dr. Harmit Kaur Sodhi on the basis of Ex.P24, Ex.P27 and Ex.P28.
Accused were arrested by Inspector Ranbir Singh, PW9 on 27.11.2008. On the basis of disclosure statement Ex.P14 accused Gopal got recovered sua/poker Ex.P15 which was taken into police possession through memo Ex.P16, whose rough sketch Ex.P17 was prepared. Rough site plan of this place of occurrence Ex.P19 was prepared. After recording statements of the witnesses and getting prepared scaled site plan of the place Ex.P5 the articles of the dead body and the weapon were sent to Forensic Science Laboratory, Sharma Aarti 2013.12.12 12:35 I attest to the accuracy and integrity of this document CRA-D-900-DB of 2009 -3- whereupon, the Laboratory gave its report Ex.P18.
After the usual formalities in submission of challan and commitment and on the claim of the accused for trial the prosecution examined 15 witnesses and tendered 28 documents to prove its case. Accused in their stand under Section 313 Cr.P.C. denied the allegations but did not lead any evidence in their defence. Finding no evidence against accused Deepak and Dalip, they were acquitted and upholding the evidence against accused- appellant Gopal, he was convicted under Sections 302/323 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of `50,000/- and in default of payment of fine to further undergo simple imprisonment for six months under Section 320 IPC. Under Section 323 IPC he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of `1,000/ and in default of payment of fine to further undergo simple imprisonment for one month.
The contentions of Mr. Bijender Dhankar, learned counsel for the appellant that there is no cogent evidence to link the appellant with the commission of the offence and that even the complainant an eye-witness Nepal Singh PW8 has not supported the prosecution's story and so is the case of another witness Jagdish PW7 entails acquittal of the accused-appellant. The same has been stoutly opposed by Mr. P.S. Poonia, learned State counsel arguing that the documentary as well as oral evidence certainly shows involvement of the appellant and the judgment of the conviction has been rightly passed. No doubt, by now it is settled position of law as has been held in a catena of case law reference of which can be taken note from ratio Koli Lakhmanbhai Sharma Aarti 2013.12.12 12:35 I attest to the accuracy and integrity of this document CRA-D-900-DB of 2009 -4- Chanabhai vs.. State of Gujarat, (1999) 8 SCC 624 that evidence of a hostile witness cannot be thrown overboard, if found corroboration and truthful, can form basis of conviction. In this case irrefutably it stands established by the statements of PW10 Dr. R.K. Sharma and PW11 Dr. Vivek Yadav that the deceased Chhabila Chaudhary has died a homicidal death and it is well elaborated in the post mortem report Ex.P23 and in the testimony of the doctor that it was on account of a circular wound on the left side of the chest in middle part on left border of sternum in fourth inter costal space 3" extending through right atrium of heart puncturing it which has led to this death. Though, complainant Nepal Singh, PW8 had sought to wriggle out of his earlier stand and has been declared hostile but in his examination-in-chief accepts that accused Gopal and deceased Chabbila Chaudhary had a quarrel and Chhabila Chaudhary ran away towards the room followed by accused Gopal, who also gave this witness a sua/poker blow and when the witness entered in the room saw deceased was lying on the cot having injury of sua/poker and has died. Though, he has given an explanation that police has obtained his signature on blank papers but further details that accused Gopal has confessed in his presence and on basis of his disclosure statement Ex.P14 the police party has got recovered a sua/poker Ex.P15 which was taken into police possession through memo Ex.P16 and accepts his signature on Ex.P17. He has also identified this accused irrefutably and beyond any doubt and there is an admission by him that it was accused Gopal who has murdered the deceased. What is enumerated from his stand is that this witness is trying to protect the accused for obvious reasons. Sharma Aarti 2013.12.12 12:35 I attest to the accuracy and integrity of this document CRA-D-900-DB of 2009 -5-
The other witness is PW7 Jagdish, who has also been declared hostile and has denied having made statement Ex.P10 before the police. There is no worthwhile questions put to him by the State counsel certainly is a distressing feature. However, having regard to the fact that it was while in the police custody the appellant was interrogated by PW9 Inspector Ranbir Singh and he had suffered disclosure statement Ex.P14 and it was on the basis of information provided by him that has led to the recovery of the weapon. The contention of the appellant's counsel that Forensic Science Laboratory's report Ex.P18 does not opines the weapon to be stained with human blood does not cuts much ice as it is a matter of common knowledge that while weapon like sua/poker which pierced through the muscle of the body when is taken out the blood is likely to be wiped out on account of constriction of muscles and together with the passage of time and during the packing of the weapon the traces of blood might have been wiped out, when the articles of the dead body have been well established to be stained with human blood certainly is a strong corroborative evidence in this case.
The incident is further lent credence that even the complainant Nepal Singh PW8 has been injured in this occurrence which is well elaborated by PW11 Dr. Vivek Yadav, PW14 Dr. S.K. Ahlawat and PW15 Dr. Harmit Kaur Sodhi on the basis of their examination by way of MLR Ex.P27 which was undertaken on police application Ex.P24 and Radiology report Ex.P28. Thus, the presence of the complainant at the time of the occurrence and his written complaint Ex.P11 cannot be erased off the record by any means. Moreover to a material extent this witness has testified Sharma Aarti 2013.12.12 12:35 I attest to the accuracy and integrity of this document CRA-D-900-DB of 2009 -6- against the appellant. The complainant Nepal Singh PW8 had admitted the occurrence and the disclosure statement of this accused leading to recovery of the weapon. Testimonies of PW1 Constable Jaivir by way of Ex.P1; PW2 HC Om Parkash by way of Ex.P4; PW3 Sharwan Kumar, Draftsman who prepared scaled site plan Ex.P5; PW4 EHC Mahavir Singh by way of Ex.P6 and photographs Ex.P7 and Ex.P8 are formal in nature and only illustrates the death of the deceased. Disclosure statements of accused Dalip Ex.P12 and Deepak Ex.P13 do not come to the aid of the prosecution as nothing has been recovered on the basis of such information.
The testimony of Investigating Officer, Ranbir Singh PW9 has been duly corroborated by ASI Om Parkash PW12 including the recovery of sua/poker on the basis of information provided by accused Gopal from his exclusive possession. Accused had failed to give any satisfactory explanation regarding oral as well as documentary evidence so proved on the record.
We do not find any misinterpretation of evidence in the impugned judgment and thus, are not inclined to interfere. The instant appeal, as such stands dismissed.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) JUDGE 04.10.2013 aarti Sharma Aarti 2013.12.12 12:35 I attest to the accuracy and integrity of this document