Punjab-Haryana High Court
Krishan @ Gatha vs State Of Haryana on 23 September, 2022
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
CRA-D-479-DB-2012 (O&M) -1-
CRA-D-50-DB-2016 (O&M)
In the High Court of Punjab and Haryana at Chandigarh
1. CRA-D-479-DB-2012 (O&M)
Reserved on: 16.9.2022
Date of Decision: 23.9.2022
Krishan @ Gatha ......Appellant
Versus
State of Haryana ......Respondent
2. CRA-D-50-DB-2016 (O&M)
Sanjeet @ Sanjay ......Appellant
Versus
State of Haryana ......Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present: Mr. Robin Hooda, Advocate
for the appellant (in CRA-D-479-DB-2012).
Mr. R.S.Mamli, Advocate
for the appellant (in CRA-D-50-DB-2016).
Mr. Pardeep Prakash Chahar, DAG, Haryana.
****
SURESHWAR THAKUR, J.
1. Criminal Appeal bearing No. CRA-D-479-DB-2012 is directed, by appellant Krishan alias Gatha, against the impugned verdict, as made on 31.3.2012, by the learned Additional Sessions Judge, Sonipat, upon Sessions Case (RBT) No. 14 of 12.1.2012, wherethrough, in respect of charges drawn for offences punishable under Sections 148, 302 read with Section 149, and, under Section 120-B of the IPC, he proceeded to make a verdict of acquittal qua accused Sunil alias Chun, Sunil alias Pehalwan, Basant, Manoj, and, Ashok. However, through the above made verdict, he 1 of 20 ::: Downloaded on - 27-09-2022 05:28:03 ::: CRA-D-479-DB-2012 (O&M) -2- CRA-D-50-DB-2016 (O&M) proceeded to record a finding of conviction qua accused Krishan alias Gatha, in respect of offences punishable under Sections 148 and 302 of the IPC. Moreover, vide a separate sentencing order, drawn on 3.4.2012, he proceeded to impose, upon the convict (supra) the consequent therewith sentence, as become extracted hereinafter.
Name of Offence Period of Fine Period of
accused U/s sentence (RI) imposed sentence in
default of
payment of fine
Krishan 302 IPC Life imprisonment Rs. 10,000/- Six months
148 IPC Two years Rs. 2,000/- Two months
2. Since the learned State counsel is unable to intimate this Court, that the State has constituted an appeal, before this Court, against the verdict of acquittal, as made by the learned trial Judge concerned, qua the acquitted persons (supra). Thus, the verdict of acquittal, as made in respect of the acquitted accused, does acquire a conclusive, and, binding effect.
3. However, co-accused Sanjeet @ Sanjay remained under absconsion, and, obviously he did not face trial along with the appearing accused (supra). However, after his surrendering before the learned trial Judge concerned, the latter after meteing compliance with the provisions of Section 299 of the Cr.P.C., proceeded to, on 4.8.2015 make a verdict of conviction, upon Sessions Case No. 20 of 2012, qua accused Sanjeet @ Sanjay, in respect of charges, as drawn qua offences punishable under Sections 148, 302 read with Section 149 and, under Section 120-B of the IPC. Moreover, through a separate sentencing order, as drawn on 5.8.2015, the learned trial Judge concerned, proceeded to impose, upon the convict Sanjeet @ Sanjay, the sentence of rigorous imprisonment, extending upto a period of three years for an offence punishable under Section 148 of the 2 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -3- CRA-D-50-DB-2016 (O&M) IPC, besides imposed, upon him a sentence of fine, as comprised in a sum of Rs. 5,000/-. Moreover, the learned trial Judge concerned, also sentenced the convict Sanjeet @ Sanjay to undergo life imprisonment qua an offence punishable under Section 302 of the IPC, besides in respect thereof, imposed a sentence of fine, as comprised in a sum of Rs. 10,000/-. Moreover, he also sentenced the convict to undergo life imprisonment qua an offence punishable under Section 120-B of the IPC, besides in respect thereof, imposed a sentence of fine, as comprised in a sum of Rs. 5,000/-. All the sentences were ordered to run concurrently, and, in default of payment of fine amount, the convict became sentenced to undergo rigorous imprisonment for a term extending upto a period of one month.
4. However, in Sessions Case No. 14 of 12.1.2012, a verdict became recorded on 31.3.2012, but as above stated though Sanjeet @ Sanjay was also mentioned as an accused in the relevant FIR, but since he remained under absconsion, thus on his surrendering before the learned trial Judge concerned, the trial against him opened, and, after closure of evidence, the learned Additional Sessions Judge, Sonipat, on 4.1.2015, made a verdict of conviction (supra) against him.
5. Both the convicts, namely Krishan @ Gatha, and, Sanjeet @ Sanjay become aggrieved from the above recorded verdict(s) of conviction, and, also, from the consequent therewith sentence(s) of imprisonment, and, of fine as became imposed, upon them, and, hence become led to constitute thereagainst the instant appeals before this Court.
6. Though, separate verdicts of conviction have been recorded qua convict Krishan @ Gatha, and, qua convict Sanjeet @ Sanjay but since the verdicts of conviction arise from a common FIR, registered against them, 3 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -4- CRA-D-50-DB-2016 (O&M) besides when the evidence against them, is also common, thus, Criminal Appeal bearing No. CRA-D-479-DB-2012, as instituted before this Court at the instance of convict Krishan @ Gatha, as also, Criminal Appeal bearing No. CRA-D-50-DB-2016, as instituted before this Court at the instance of convict Sanjeet @ Sanjay, are amenable for a common verdict becoming recorded thereons.
Factual Background and Investigation proceedings
7. The genesis of the prosecution case becomes embodied in the appeal FIR, to which Ex. P-16/A is assigned, whereins it is mentioned that complainant Ramphal made a statement, that they are two brothers, his younger brother is Om Parkash. That they have got 20/21 acres of land at village Butana. That land of Rameshwar son of his uncle was purchased by Jagbir son of Hukmi. The said purchase was objected by complainant, and his brother, however, the panchayat got the said matter compromised. The complainant, and, his brother were told to pay Rs. 60,000/- as price of said land. However, the purchaser had not accepted the decision of panchayat, and, demanded their money along with interest, and, on this account, they started having grudge against them. It is further alleged, that Sanjay, Om Parkash, and, Krishan sons of Hukmi had killed Azad son of Om Parkash in the year 1995. On account of statement made by the complainant, and, his brother, the said persons were convicted for life imprisonment. On 18.3.1996, Sanjay, and, Vijay had fired upon Phool Kanwar alias Banta, however, he was escaped. It is further alleged that on 26 th of April, 1996, Sanjay son of Hukmi, Vijaypal, and, one more person had fired upon complainant. In the said case only Sanjay could be arrested, and, others could not be arrested. Sanjay was convicted to undergo imprisonment for 4 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -5- CRA-D-50-DB-2016 (O&M) 10 years. On 27.12.1997, his nephew Satyawan was killed in the fields of village Butana by Sanjay and his brother Krishan along with one more person. Only Sanjay was arrested, and, convicted in the year 2006. A panchayat was held in the year 2006, and, in the said panchayat, complainant, and, his brother had agreed not to keep any grudge. However, the offer was not accepted by Sanjay as his appeal was pending in High Court, and, he wanted statement in his favour. However, in view of fear of Court, proposal of Sanjay was not accepted. It is further submitted that they had left their village on 13.1.1998 on account of fear, and, had started living at Kasandi, where they were provided police guard for their safety. On account of fear, they were not cultivating the land at village Butana. He further alleged that at about 5.45 A.M., his nephew Phoola son of Om Parkash had gone for morning walk in the High School village Kasandi. That after some time, he had heard gun shot noise. On hearing gun shot keeping in view old enmity, he along with his brother Om Parkash ran towards school and, found that Krishan son of Hukmi having pistol, Sunil son of Ramphal having revolver, were firing upon his nephew Banta blindly. They were accompanied by son of Krishan whose name is not known and two young boys, who were not known to him. One of them was wrapped in check bed sheet. Complainant stated that he can identify the accused persons. Number of other persons had also gathered there. On seeing them accused fled away along with their respective weapons by threatening to kill. The boy who was wearing bed sheet could not take his bed sheet as same got entangled in the barbed wire. Thereafter, he took his nephew to Civil Hospital, Gohana where he was declared dead.
8. After registration of the FIR (supra), the investigating officer 5 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -6- CRA-D-50-DB-2016 (O&M) concerned, launched investigations into the appeal FIR, and after conclusion of investigations thereinto, he proceeded to institute a report under Section 173 of the Cr.P.C., before the learned committal Court concerned.
Committal Proceedings
9. The learned committal Court concerned, through a committal order made on 24.9.2009, qua convict Krishan @ Gatha, and, other accused, proceeded to commit the case for trial to the Court of Session.
10. The learned committal Court concerned, also through a committal order made on 26.7.2011, qua convict Sanjeet @ Sanjay, proceeded to commit the case for trial to the Court of Session.
Trial Proceedings
11. Consequently, the learned Sessions Judge concerned, proceeded to draw charges against the accused, for the offences punishable under Sections 148, 302 read with Section 149 and under Section 120-B of the IPC, and, also put the afore charge to the accused, to which they pleaded not guilty, and, claimed trial.
12. In proof of its case, the prosecution examined several witnesses, and, thereafter the learned Public Prosecutor concerned, closed the prosecution evidence. Consequently, the learned trial Judge concerned, proceeded to draw proceedings, under Section 313 of the Cr.P.C., but thereins, the accused pleaded innocence, and, claimed false implication. Though, the accused claimed the granting of leave to them, for leading defence evidence, but the above granted leave never became availed by them.
Submissions of the learned counsel for the appellants
13. The learned counsel for the aggrieved convicts-appellants 6 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -7- CRA-D-50-DB-2016 (O&M) herein, has vigorously argued before this Court, that the impugned verdicts of conviction, and, consequent therewith sentence (supra), as imposed, upon the convicts-appellants, both become ridden with a gross infirmity of gross misappreciation, and, non-appreciation of the evidence, as exists on record. Therefore, they have argued that both the appeals be accepted, and, the verdicts, as challenged before this Court, be quashed and set aside.
Submissions of the learned State counsel
14. On the other hand, the learned State counsel has argued before this Court, that the judgments, as challenged before this Court, are well merited, and, do not warrant any interference.
Common eye witness account comprised in the testification of Ramphal who stepped into the witness box as PW-1, in both the cases.
15. PW-1 in his deposition, as comprised in his examination-in- chief, has made an articulation, that at the crime site, he had witnessed accused Sanjeet to be wielding a revolver in his hand, whereas, accused Krishan was witnessed by him to wield a danda. He also identified both the accused in Court. Though, in his examination-in-chief, he has not attributed to the convicts, the imperative incriminatory role of theirs, through wielding the above weapons of offence, inflicting wounds on the person of the deceased. However, during the course of PW-1 being put to cross- examination, though a suggestion was made to him, that he was not an eye witness to the occurrence, but the above suggestion became denied by him. Furthermore, though he had conceded in his cross-examination, that the relevant occurrence happened inside the school premises, which is separated by a wall with a height about 4-6 feet, besides he also conceded, that nothing was visible from outside, about the happenings inside the school premises, as located behind the boundary wall of the school. However, yet 7 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -8- CRA-D-50-DB-2016 (O&M) in his cross-examination, he had voluntarily stated that he had seen over the wall, that all the accused were firing at the deceased. Therefore, it appears that PW-1 had stated that somehow he scaled to the top of the wall to sight therefrom the crime incident, which occurred inside the school premises, which was separated by a boundary wall of about 4-6 feet. Despite PW-1 deposing, that he had yet through inching to the top of the wall, seen the occurrence, which took place inside the school, but the defence has not been able to thereafter repel the above fact through adducing evidence, suggestive that the height of the wall separating the place where PW-1 was standing, was more than 4-6 feet, nor also has been able to adduce any evidence, that the said wall separating the place where PW-1 was standing at the site of occurrence, was not amenable for being scaled upto the top, for enabling PW-1 to then see, the crime occurrence taking place, at the crime site. Thus, it has to be concluded that PW-1 may have scaled the wall with a height of 4-6 feet, besides may have viewed the crime occurrence, happening at the crime site. However, since in his cross-examination, he could not, with specificity attribute to any of the accused, an incriminatory role of theirs firing from the weapons of offence concerned, but has yet voluntarily stated that he had seen all the accused firing at the deceased from their respective weapons. Thus, the above lack of specificity qua the relevant incriminatory roles to the accused, is but shaky, besides when in his cross-examination, he does not, except co-convict Sanjeet, attribute to others the incriminatory role of theirs also wielding fire-arms. Thus, the above made attribution of guilt to the accused concerned, does contradict the version, as spelt in his examination-in-chief.
16. Reiteratedly, it appears that in PW-1 attributing to both the 8 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -9- CRA-D-50-DB-2016 (O&M) convicts the incriminatory role of each wielding fire arms, wherethrough each fired shots at the deceased, is but uncreditworthy. The reason being that, in his examination-in-chief, PW-1 has attributed to accused Krishan the incriminatory role of his wielding a danda. Resultantly, PW-1 could not thereafter, in his cross-examination depose, that the convict Krishan was wielding a fire arm, wherefrom he allegedly fired shots at the deceased. Thus, his deposition, insofar as the incriminatory role, as becomes assigned to Krishan is concerned, is not credible. However, the above conclusion is subject to this Court hereafter drawing inferences from the signatured disclosure statement, as made by convict Krishan, besides is subject to this Court drawing an inference to consequent therewith recoveries, as became effected at the instance of convict Krishan.
17. Though, in his examination-in-chief, PW-1 assigned to convict Sanjeet, the incriminatory role of his wielding a revolver in his hand, but rather the defence permitting him to, even in his cross-examination make unrebutted echoings, that he had, after scaling to the top of the relevant boundary wall, rather sighting the crime occurrence happening at the crime site, besides it also permitting him to unrebuttedly depose that he had seen all the accused to fire shots from their respectively wielded firearms. Though, insofar as convict Krishan is concerned, the above deposition has been concluded to be lacking in credence. Nonetheless, there appears to be an intra se harmony intra se the examination-in-chief, and, cross- examination of PW-1 qua his assigning an incriminatory role to co-convict Sanjeet. The reason is but simple, that he has consistently deposed that the convict concerned, through wielding a revolver taking to fire shots therefrom, at the deceased one Phul Kanwar. Thus, it leads to a further 9 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -10- CRA-D-50-DB-2016 (O&M) inference, that the defence concedes the firing(s), at the deceased of revolver shots, from the revolver, as became wielded by convict Sanjeet. Conspicuously, when the factum of his wielding a revolver, as deposed by PW-1 in his examination-in-chief, has not been adequately rebutted nor repelled, thus prima facie it acquires evidentiary vigour.
Disclosure statement of accused Krishan
18. During the course of the custodial interrogation of convict Krishan, the latter made a signatured disclosure statement, to which Ex. PT is assigned, contents whereof are extracted hereinafter.
"In presence of witnesses accused Krishan @ Gathu s/o Ramphal, above in police custody without any fear, threat or greed according to his own will disclosed that the country made revolver 32 bore which was used by me at the time committing murder of Banta @ Phool Kumwar has been concealed by me inside the bed kept in the lobby of my residential house in Uttam Nagar, Gohana. I can get it recovered after demarcation and the yellow coloured car was left near Lakhan Majra and I can demarcate the place. At the time of committing murder of Banta @ Phhol Kunwar, Sunil Pahalwan was having 9 mm pistol. We both had fired shots and Sunil @ Chun and Basant were on vigilance. Sunil @ Chun was having 38 bore country made pistol. Basant was car driver. Manoj Butania had arranged our meeting with Sanjay Butania in Ambala jail and on the dates of hearing in Sonepat. After committing murder Manoj had arranged house of us in Jharoda and used to arrange money for our expenses time to time. 38 bore revolver of Sunil @ Chun, three live cartridges and two empty fired cases have been recovered from me in Sampla police station. Disclosure statement of the accused is reduced into writing separately and the same got signed by the accused as well as the witnesses."
19. A reading of the disclosure statement, as made by convict Krishan to the police officer, inasmuch as to the Inspector/Incharge, SIT, Gohana, reveals qua the declarant concerned, confessing his incriminatory participation in the crime event, besides its perusal reveals qua his evincing his readiness, and, willingness to cause to the investigating officer concerned, the recovery of .32 bore revolver, which became used by him in 10 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -11- CRA-D-50-DB-2016 (O&M) the commission of the murder of Phul Kanwar @ Banta. In consequence therewith, through a recovery memo, to which Ex. PT/1 is assigned, the recovery of the above weapon of offence became effected. Prima facie, in the absence of the convict not ably denying his signatures, as made in the disclosure statement Ex. PT, nor his ably proving the denial, thus results in an inference that all the recitals made thereins, rather become admitted by him to be correct. Moreover, though prima facie, a valid incrimination can be drawn on anvil of disclosure statement Ex. PT, besides on anvil of recovery memo Ex. PT/1.
20. However, for the reasons to be assigned hereafter, yet no valid inculpation can be drawn on the basis of the above memos, insofar as convict Krishan is concerned. The prime reason is comprised in the factum, that the above memos became drawn by Inspector/Incharge, SIT, Gohana. Therefore, it became incumbent, upon the prosecution to, unless dead, ensure the stepping into the witness box of the Inspector/Incharge, SIT, Gohana, who had drawn both the above memos. However, PW-2, the SHO of the Police Station concerned, deposed, that though both the above memos became drawn by Babu Lal Inspector, who was posted as Incharge, SIT, Gohana in the month of March 2009. However, a closest reading of his deposition does not disclose that the drawer of the above memos, inasmuch as Inspector Babu Lal, had expired, at the relevant stage, as such was disabled to step into the witness box to prove the drawings of the above memos, besides to make himself available for his becoming subjected to cross-examination. Even if PW-20 has identified the handwriting(s) of Inspector Babu Lal, and, has proven his signatures, as made on the above memos. Nonetheless in the face of Inspector Babu Lal not stepping into the 11 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -12- CRA-D-50-DB-2016 (O&M) witness box to prove the memos, more especially for his being subjected to cross-examination by the defence, especially when only on his cross- examination, the defence could avail an opportunity to raise all possible exculpatory pleas, that the drawings of memos (supra), was completely invented or engineered stratagems deployed by the Investigating Officer concerned, to falsely implicate the convict, or to then raise a further exculpatory plea that the signatures, as made thereons by the convict, had been procured under threat or coercion, becoming exercised by him, upon the convict (supra). However, since Inspector Babu Lal did not step into the witness box, thus the defence became completely precluded to raise the exculpatory pleas (supra), rather to denude the evidentiary vigour of the above memos. If so, a conclusion has to be formed, that irrespective of PW- 20 proving the signatures of Inspector Babu Lal, as occur on the memos, but since the author thereof, yet did not step into the witness box to face cross- examination to negate the above exculpatory pleas. Thus, proof, in respect of the signatures of Inspector Babu Lal on Ex. PT, and, on Ex. PT/1, as adduced by PW-20, does not yet to the hilt prove the charges, as drawn against convict Krishan. The further reason for strengthening the above inference is comprised in the factum that even PW-1, a purported ocular witness to the occurrence, has in his examination-in-chief attributed to convict Krishan the role of his wielding a danda, at the crime site. Therefore, on above ground also, the recovery of a .32 bore revolver, at the instance of convict Krishan, to the investigating officer concerned, becomes completely falsified.
FSL Report
21. Through memo bearing No. 7245-DSP/G, 2121-DSP/G, 12 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -13- CRA-D-50-DB-2016 (O&M) 2250/Gohana, respectively on 7.12.85, 30.3.09 and 02.04.09, sealed cloth parcels became sent for their respective examination(s) to the FSL Madhuban. A reading of the report of the FSL, to which Ex. PF is assigned, as, appertains to the examination(s) being made on the fired cartridge cases, as also appertains to the examination(s) being made on fired bullets, besides also, upon the examination(s), as made on the relevant firearms, reveals that, country made pistols W/1, and, W/2 were the weapons, wherefrom bullets/cartridges became fired. Therefore, the report of the FSL is extracted hereinafter.
" x x x x x
Results
1. Countrymade pistols marked W/1 (Chambered for 7.65 mm cartridges) and W/2 (Chambered for 9 mm cartrides) are firearms as defined in Arms Act 54 of 1959. Their firing mechanism were found in working order.
2. 9 mm fired cartridge cases marked C/1 to C/3 and 9mm fired bullets marked BC/3 and BC/4 have been fired from countrymade pistol marked W/2 (Chambered for 9mm cartridges) and not from any other firearm even of the same make and bore/caliber, because every firearm has got its individual characteristic marks.
3. 7.65mm fired cartridge cases marked C/4 to C/8 have been fired from countryumade pistol marked W/1 (Chambered for 7.65 mm cartridges) and not from any other firearm even of same make and bore/caliber, because every firearm has got its individual characteristic marks.
4. 7.65mm fired bulled marked BC/8 and the pieces of jacket of 7.65mm fired bullets marked BC/1, BC/2, BC/6, BC/7, BC/9, BC/10 and pieces of bullet marked BC/12 have been fired from countrymade pistol marked W/1 and not from any other firearm even of same make and bore/caliber, because every firearm has got its individual characteristic marks.
5. No definite opinion could be formed regarding the linkage of pieces of 7.65 mm bullets marked BC/5 and BC/11 in respect of countrymade pistol W/1 (Chambered for 7.65 mm cartridges) due to lack of sufficient comparable individual characteristic marks.
6. Safety lever of pistol contained in parcel No. IV was found to be the safety lever of countrymade pistol 13 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -14- CRA-D-50-DB-2016 (O&M) marked W/1.
7. Extra magazine of pistol contained in parcel No. IX was found to be of countrymade pistol marked W/2 (Chambered for 9mm cartridges).
8. The report in original from Serology Division is enclosed herewith."
22. Though, from a reading of the report of the above extracted report of the FSL, it is apparent that two pistols became sent for examination to the ballistic expert concerned, besides fired bullet shots/ cartridges also became sent thereto, but yet since there is a reference of W/1, and, W/2 being country made pistols, whereas, the recovery as revealed in memos (supra), is of .32 bore pistol. Therefore, it was incumbent, upon the investigating officer concerned, to send the above recovered revolver to the FSL concerned. However, he has not done so, contrarily has sent pistols W/1, and, W/2 to the FSL concerned. The effect of non-sending of the afore weapon(s) of offence, as became recovered through memo Ex. PT/1, from convict Krishan, is that, the above inference about falsity of drawings of above memos rather becoming fully fortified.
23. An additional reason for giving the impetus to the above inference becomes comprised in the factum, that the investigating officer concerned, though did draw the sketch/khaka of the revolver. However, if the above was drawn, but yet it was also required to be sent along with W/1, and, W/2, to the forensic expert concerned, to enable the latter to therefrom gauge the dimensions of .32 bore revolver, as became purportedly recovered through recovery memo Ex. PT/1, at the instance of convict Krishan. However, apparently sketch/khaka of the revolver was not sent to the FSL concerned, along with W/1, and, W/2. Thus, a conclusion can be made that the dimensions of the fire-arms, examined at the FSL concerned, became not matched with the khaka/sketch, as became drawn in respect thereof, by the 14 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -15- CRA-D-50-DB-2016 (O&M) investigating officer concerned. Thus, the examination(s) of the relevant revolver, whose recovery became effected purportedly at the instance of convict Krishan, does not become connected with the above forensic evidence. As but a natural corollary, the above omission also leads this Court to draw a further inference, that the recovery of .32 bore revolver, at the instance of convict Krishan, was a fake recovery, moreso when, even the purported eye witness to the occurrence, has not, in his examination-in- chief, spoken about the co-convict Krishan wielding the same at the relevant time.
Post-mortem report
24. The post-mortem report, as drawn in respect of deceased Phool Kumar @ Banta, is embodied in Ex. PC/1, which has been proven by PW-3. The ante mortem injuries, as found to be existing on the body of deceased Phool Kumar @ Banta, are extracted hereinafter.
1. Punctured lacerated wound of size 0.8 x 0.8 cm present in the upper part of sternum near sternal notch.
Margins were inverted and contusion collor was present.
2. Punctured lacerated wound of size 0.8 x 0.8 cms present in the upper part of sternum just near injury No. 1. Margins were inverted and contusion collor was present.
3. Punctured lacerated wound of size 0.8 x 0.8 cms present on the left size of chest just below left nipple. Margins were inverted and contusion collor was present.
4. Punctured lacerated wound of size 0.8 x 0.8 cms present on the left size of chest in the sixth left intercostals space at midclavicular line. Margins were inverted and contusion collor was present.
5. Punctured lacerated wound of size 0.8 x 0.8 cms present 15 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -16- CRA-D-50-DB-2016 (O&M) on the left size of chest in the eighth left intercostals space at axillary line. Margins were inverted and contusion collor was present.
6. Punctured lacerated wound of size 0.8 x 0.8 cms present on the left para umbilical area 3 cms away from mid line. Margins were inverted and contusion collor was present.
7. Punctured lacerated wound of size 0.8 x 0.8 cms present on the pubic area just at base of panis. Margins were inverted and contusion collor was present.
8. Punctured lacerated wound of size 0.8 x 0.8 cms present in the pubic area just 2 cms to the left of injury No. 7. Margins were inverted and contusion collor was present.
9. Punctured lacerated wound of size 1.2 x 1.2 cms present on the back in the left infrascapular area. Margins were everted and blood was coming out (exit wound).
10.Punctured lacerated wound of size 1 x 1 cm present on the back in the left infrascapular area near injury No. 9. Margins were everted (exit wound).
11.Punctured lacerated wound of size 0.8 x 0.8 cms present on the posterio medial side of left upper arm in the middle 1/3rd. Margins were inverted and contusion collor was present. The track was going backward through muscles of left upper arm upto an exit wound of size 1.5 x 1.5 cm on posterior side of left upper arm in the middle 1/3rd, after a distance of 2.5 cms. Margins were everted at this place.
12.Lacerated wound of size 2 x 2 cms on extensor side of left index finger at its distel 1/3rd part. Underlying muscles tendons were lacerated and bone exposed. Clotted blood was present.
25. The cause of demise of deceased Phool Kumar, has been opined by PW-3 to ensue from shock, and, hemorrhage, as a a result of ante-
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mortem fire-arm injuries, as became narrated thereins. Though, the post mortem report Ex. PC/1, proves the cause of demise of deceased, to arise from the ante mortem fire-arm injuries, but yet for reasons (supra), the above cause of demise of deceased cannot be attributed to convict Krishan firing any bullets/cartridges from .32 bore revolver.
Disclosure statement of accused Sanjeet @ Sanjay
26. During the course of the custodial interrogation of convict Sanjeet @ Sanjay, the latter made a signatured disclosure statement, to which Ex. PW9/A is assigned, contents whereof are extracted hereinafter.
"In the presence of the following witnesses above accused Sanjeet in police custody without any fear, greed or inducement disclosed that we and Ramdhan S/o Tek Chand R/o Butana at present Kasandi are having grudge previously. On 26.10.08 on asking of Sanjay and Om Parkash Jat R/o Butana I along with Krishan @ Gatha S/o Ramphal Jat, R/o Ahulana, at present Uttam Nagar, Gohana, Sunil S/o Suresh Bairagi R/o Uttam Nagar, Gohana, Basant S/o Ved Parkash Jat, R/o Kasandi at present Uttam Nagar, Gohana and Sunil @ Pahalwan s/o Ramphal Khata R/o Kathura Uttam Nagar, Gohana had committed murder of Banta on 26.10.2008 at morning by causing fire arm injuries in the ground of school at village Kasandi. Arm was arranged by Manoj S/o Mahabeer Jat R/o Butana. Revolver was with me which I had kept concealed in a rented room at Jaipur. I can get demarcated the place. Krishan s/o Hukami Jat is also residing at Jaipur. I can get arrested him. Disclosure statements of accused has been reduced into writing and same has been got signed by the accused and witness respectively."
27. Though, a reading of the signatured disclosure statement, as made before the police officer, by convict Sanjeet, does disclose, that he had confessed his incriminatory participation in the relevant crime incident, and, also had shown his willingness to cause recovery of the crime revolver, to the investigating officer concerned, from the place of his hiding, and, keeping it. However, the above confession of guilt, as made by the convict, becomes a bald simpliciter confession, thus, is hit by Section 25 of the 17 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -18- CRA-D-50-DB-2016 (O&M) Indian Evidence Act. The reason for making the above inference become comprised in the factum, that though he had revealed thereins his willingness to cause effectuation of recovery of the crime revolver to the investigating officer concerned, but yet the latter not making any recovery of the crime revolver, at the instance of the convict. Consequently, when the recovery of the crime revolver, did not become caused to the investigating officer concerned, by the convict, whereas its recovery through a validly drawn memo, besides its production in Court, was extremely imperative for proving the charge to the hilt. Moreover, when upon its recovery, and, production in Court, would have enabled this Court to draw a firm conclusion, that the report of the FSL (as comprised in Ex. PF in Sessions case No. 14 of 12.1.2012), relates to the relevant weapon of offence.
28. It appears that the investigating officer concerned, despite ensuring the recording of disclosure statement of convict Sanjeet, in the presence of the Judicial Magistrate concerned, did not cause any recoveries, at his instance, of the crime weapon, as on the subsequent date, in the absence of the Judicial Magistrate concerned, he permitted the convict Sanjeet to make a statement, that the earlier made signatured disclosure statement by him, in the presence of the Judicial Magistrate concerned, was made under a threat or coercion. The above subsequently made statement by the convict concerned, and, as carried in Ex. PW-10/A, whereins he resiled from his earlier made disclosure statement, may not have been made, unless the learned Judicial Magistrate concerned, was also associated in the relevant proceedings, rather for ensuring that whether the earlier made signatured disclosure statement by the convict concerned, in his presence, 18 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -19- CRA-D-50-DB-2016 (O&M) and, to which Ex. PW-9/A is assigned, was really under some duress or compulsion becoming exercised, upon him. However, since at the stage of the recording of the subsequent disclosure statement, whereins the declarant expressed that his earlier disclosure statement was made under some threat or duress, purportedly exerted, upon him by the investigating officer concerned, the latter did not associate the Magistrate concerned. Thus, it appears that the investigating officer concerned, in tacit collusion with the convict, permitting him to resile from his earlier made signatured disclosure statement, which but obviously leads this Court to draw a verdict of acquittal, even qua convict Sanjeet.
29. It appears that the investigating officer concerned, has committed deep pervasive flaws in making fair, and, objective investigations, into the crime event. Apart therefrom, despite the other co-acquitted accused also causing recoveries of the crime weapons, to the investigating officer concerned, yet a verdict of acquittal, being prima facie untenably pronounced qua the co-acquitted accused concerned, but yet thereafter the prosecution also yet omitting to challenge the verdict of acquittal, as became pronounced, in respect of those acquitted accused, rather at whose instance, certain material relevant recoveries, especially of fire-arms, became caused to the investigating officer concerned. Only if a challenge to the verdict of acquittal was made by the prosecution, thereupon, this Court may have been able to ably connect the relevant disclosure statements of the acquitted accused concerned, not only with the consequent therewith recoveries, as made through the respectively drawn recovery memos, but also may have been able to connect the said memos with the report of the FSL concerned. It is only because no appeal became 19 of 20 ::: Downloaded on - 27-09-2022 05:28:04 ::: CRA-D-479-DB-2012 (O&M) -20- CRA-D-50-DB-2016 (O&M) filed by the State, against the verdict of acquittal, as made qua the above acquitted accused concerned, that this Court cannot reverse the verdict of acquittal, which otherwise it may have done.
Final order
30. The result of the above discussion, is that, this Court finds merit in both the appeals, and, is constrained to allow them. Consequently, both the appeals are allowed. The impugned judgments convicting, and, sentencing the appellants, and, as recorded by the learned trial Judge, concerned, are quashed, and, set aside. Appellants Krishan @ Gatha, and, appellant Sanjeet @ Sanjay are acquitted of the charges framed against them. The fine amount, if any, deposited by them, be, in accordance with law, refunded to them. The personal, and, surety bonds of the accused shall stand forthwith cancelled, and, discharged. The case property be dealt with, in accordance with law, but after the expiry of the period of limitation for the filing of an appeal. The appellants, if in custody, and, if not required in any other case, be forthwith set at liberty. Release warrants be prepared accordingly.
31. Records be sent down forthwith.
32. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR) JUDGE (N.S.SHEKHAWAT) JUDGE September 23, 2022 Gurpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 20 of 20 ::: Downloaded on - 27-09-2022 05:28:04 :::