Punjab-Haryana High Court
Sat Naraian vs State Of Haryana on 25 April, 2011
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 908-DB of 2005
Date of decision: April 25, 2011
Sat Naraian
.. Appellant
Vs.
State of Haryana
.. Respondent
Criminal Appeal No. 959-DB of 2007 Jaibir .. Appellant Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice Hemant Gupta Hon'ble Mr. Justice A.N. Jindal Present: None for the appellant in Crl. Appeal No.908-DB of 2005.
Mr. H.P.S. Aulakh, Advocate for the appellant in Crl. Appeal No.959-DB of 2007.
Ms. Shubra Singh, DAG, Haryana.
A.N. Jindal, J This judgment shall dispose of two connected appeal Nos. 908-DB of 2005 and 959-DB of 2007 preferred by Sat Narain and Jaibir respectively for the murder of Hoshiar Singh, Sarpanch of the village Purkhas Dhiran.
On the murder of Hoshiar Singh on 2.3.2003, out of the three accused, Sat Narain was arrested on 4.3.2003. He was tried, convicted vide judgment dated 12/13.7.2005 passed by the learned Additional Sessions Judge, Sonepat, and sentenced to rigorous imprisonment for life and to pay fine of `5000/- under Section 302 IPC.
However, the accused Jaibir and Kishan had absconded, therefore, they could not be arrested, as such vide order dated 2.8.2003, they were declared as proclaimed offenders by the Illaqa Magistrate, but the accused Jaibir was arrested on 30.1.2006, therefore, supplementary challan was presented against him. Ultimately on completion of the investigation against him, he was challaned, charged, tried, convicted vide judgment Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -2- dated 22.9.2007 passed by the learned Additional Sessions Judge, Sonepat, and sentenced to undergo rigorous imprisonment for life and to pay fine of `50,000/- under Section 302 IPC. It was further ordered that the amount of fine, on realization was to be paid to the kins of the deceased on account of compensation as per provisions of Section 357 Cr.P.C.
In nutshell, the prosecution version is that Sat Narain a member Panchayat was nursing a grudge against Hoshiar Singh, Sarpanch (deceased) of the village. On 2.3.2003, at about 7.30 p.m. Sat Narain, member panchayat of the village (accused) came to the house of Hoshiar Singh, and on his asking, later accompanied the former to the well of Balmiki community in the village. Since Ran Singh complainant (his uncle) was suspecting foul in the mind of Sat Narain, therefore, he followed them. When the complainant was at a distance of 20 paces from the well, he saw Mahabir Singh coming from the side of bus stop. At that time, the complainant Ran Singh also saw that Sat Narain had caught hold of Hoshiar Singh from his backside, whereas accused Jaibir Singh while standing on the platform of the well (panghat) fired a shot, as a result of which Hoshiar Singh fell down. Jaibir also fired a shot at Mahabir Singh but he escaped. The complainant with the help of Mahabir Singh tried to catch him but in vain. Later on, they lifted Hoshiar Singh to take him to the hospital, but he succumbed to the injuries on the way.
On the basis of the aforesaid statement of Ran Singh, a case was registered. During investigation, Mahabir Singh named one other person namely Krishan son of Surja, but he could not be arrested. Jaibir Singh had also absconded. On completion of the investigation, challan against Sat Narain was presented in the Court and he was charged accordingly under Section 302/307 read with Section 34 IPC.
The prosecution in order to substantiate the charges against the accused Sat Narain examined Ran Singh (PW1), Raj Singh (PW2), Ranbir Singh (PW3), HC Mahabir Singh (PW4), C. Jogender Singh (PW5), HC Lehna Singh (PW6), C. Arun Kumar (PW7), ASI Dhanpat Rai (PW8), Dr. Rajiv Sethi (PW9), Rajesh Kumar Draftsman (PW10), SI Sant Kumar (PW11) and Inspector Prem Singh (PW12). After tendering into evidence certain documents, the prosecution closed its evidence. Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -3- It may be mentioned that after the decision of the case, on 12.7.2005 against Sat Narain, accused Jaibir Singh was arrested on 31.1.2006 by ASI Mahinder Singh (PW16). On 2.2.2006, during interrogation he made a disclosure statement Ex.PJ in the presence of HC Ram Phal (PW10) and Kamla wife of Hoshiar Singh. Then, the accused led the police party to the place of occurrence which was identified by the accused regarding which spot identification memo Ex.PJ/1 was prepared, site plan Ex.PJ/2 of the place of occurrence was prepared. Supplementary challan was prepared by SI Yash Pal (PW14). The accused Jaibir Singh was then charged on 1.5.2006 under Section 302/307 read with Section 34 IPC as also under Section 25 Arms Act.
In order to substantiate the charges against Jaibir, the prosecution examined Ranbir (PW1), Raj Singh (PW2), Dr. Rajiv Sethi (PW3), ASI Dhanpat Rai (PW4), HC Lehna Singh (PW5), C. Ashwani Kumar (PW6), ASI Mahabir (PW7), C. Rajesh (PW8), Mahabir (PW9), ASI Ramphal (PW10), Inspector Prem Singh since retired (PW11), Satish Kumar Criminal Ahlmad to the Court of SDJM, Gannaur, (PW12), ASI Balwan Singh(PW13), SI Yashpal (PW14), Silak Ram Reader to District Magistrate, Sonepat (PW15), ASI Mahinder Singh (PW16). EHC Joginder (PW17), Satish Ahlmad (PW18), ASI Kanwal Singh (PW19) and SI Sat Lal (PW20). The prosecution also tendered into evidence statement of Ran Singh (Ex.PT) who had died on 16.3.2005 at the time of evidence examined in Sessions Case No.21 of 2003 titled as State vs. Sat Narain.
Out of the aforesaid witnesses, two witnesses namely Mahabir Singh (PW9) and Ran Singh (PW1) since deceased are the eye witnesses of the occurrence. Mahabir Singh (PW9) did not support the prosecution case for the reasons best known to him. He has only stated that at about 6.30 p.m. When he was going towards his house, he had seen Hoshiar Singh Sarpanch lying in an injured condition near the well of Balmiki community. He had not seen as to who had caused him the gun shot injury. During cross examination, he has admitted that the police had met him on 3.3.2003. He did not deny but explained that the police might have recorded his statement Ex.P1. However, Ran Singh has supported the prosecution case in all minute details while specifying the time, place and the manner in which the Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -4- occurrence had taken place. Dr. Rajiv Sethi (PW3) who had conducted the autopsy on the body of Hoshiar Singh on 3.3.2003 being member of the team with Dr. Arun Garg, found the following injuries on his person :-
"1. There was a wound of entry present in the 4th inter costal space on left side of chest 2 cms from the mid-line measuring 2.5 x 1.5 cms Margins lacerated. Upper margins abraded. Lower margins blackened. Pin-point to pin head side black dots present around the wound extending up to lower part of neck, right side of upper side of chest, left side of upper side of chest and adjoining interior portion of left upper arm. The margins of the wound were inverted. Clotted blood was present around the wound. The corresponding portion of kameej and baniyan were torn.
2. A wound of exit with averted margins measuring 1 x 1 cm on the back of left side of chest at level of 10th vertebra 3 cms left to midline. Lower margins of the wound abraded. Clotted blood present.
3. A reddish abrasion 1 cm x 1 cm present on the back of left elbow joint.
4. A reddish abrasion 1 cm x 1 cm present in front of upper part of left leg."
Dr. Sethi has further testified that on exploration of the chest, the wound track started from injury No.1 was going downwards and backward injuring the 5th rib at its costochondral junction where it was fractured and then entering the right ventricle and then passing through left ventricle and then exiting at injury No.2 after injuring the back muscles. Blood was present on the surrounding tissues all around the back in pericardial cavity and left plural cavity. There was a fracture of 10th rib corresponding to injury No.2. Dr.Sethi further testified that he had also x- rayed the injuries before postmortem examination and in his opinion the cause of death was due to shock and heamorrhage as a result of the injury to Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -5- heart. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. The probable duration of the injuries and the death was within minutes. He also proved the postmortem report Ex.PF lying on the main file of the case titled as State vs. Sat Naraian and the true copy Ex.PB while placing on the record in the case State vs. Jaibir. Dr. Sethi has further proved banian Ex.P1, shirt Ex.P2, Paijama Ex.P3, underwear Ex.P4 and pagri Ex.P5 of the deceased. He also opined that the injuries suffered by Hoshiar Singh were of the fire arm. Raj Singh(PW2) had identified the dead body. HC Lehna Singh (PW5) proved the recovery memo vide which the clothes of the deceased were taken into possession. Ranbir Singh (PW1) is a witness to the recovery of the blood stained earth. ASI Mahabir (PW7), C. Rajesh (PW8), SI Yashpal (PW14), Silak Ram (PW15) and EHC Joginder (PW17) are formal witness. SI Sant Kumar (PW10) has corroborated C. Rajesh (PW8) draftsman. Inspector Prem Singh (PW11)) is the Investigating Officer. The record file of the original case State v. Sat Narain was also summoned through Satish Kumar Ahlmad (PW18). ASI Kanwal Singh (PW19) had proved the arrest of the accused and recovery of the pistol from him. Balwan Singh (PW13) is the Armourer. ASI Mahender Singh (PW16) had prepared the spot identification memo regarding the place of occurrence which was disclosed by Jaibir. ASI Ramphal has corroborated the statement of ASI Mahender Singh (PW16).
When examined under Section 313 Cr.P.C. the accused persons denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, no evidence was led in defence.
In both the cases, the accused were convicted and sentenced as such both the appeals are before us.
Arguments heard. Record perused.
The first attack of the learned counsel for the appellant is that Sat Narain has been attributed no injury, but he has alleged to have caught hold of the deceased from behind which is not probable as according to the prosecution if bullet had passed through the body of Hoshiar Singh it must have caused substantial damage to the body of Sat Narain also who is stated Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -6- to be standing behind the deceased catching hold of him. The other contention raised by him is that no statement under Section 299 Cr.P.C. has been recorded. However, his statement was recorded in the case State v. Sat Narain. Though Ran Singh had died, yet, without providing opportunity to Jaibir to cross examine Ran Singh, the same could not be used against him. At the same time, Mahabir Singh (PW9) has not supported the prosecution version. No other witness from the locality has been examined in order to prove if any occurrence had actually taken place and it was Jaibir, who had killed Hoshiar Singh. It was also urged that in the absence of any other evidence and if the statement of Ran Singh since deceased recorded in case State vs. Sat Narain (Ex.PT) proved in this case is ignored, then there is no other material connecting the accused with the crime.
As regards the complicity of Sat Narain, it may be observed that the allegations against him are that he caught hold of the deceased Hoshiar Singh from behind by his arms when the fire was shot at him by Jaibir. As regards catching hold of the deceased, doctor did not point out any injury on his arms which may confirm that fact. Even no scratches were noticed on the arms or any other part of the body of the deceased so as to connect the accused Sat Narain with the crime. Secondly, the medical evidence reveals that the shot, which was fired, pierced into the chest of Hoshiar Singh and then it passed out behind the back. It was .315 bore pistol which is alleged to have been fired. The fire was shot from very close range. There is also a categoric evidence that there was an entery and exit wound caused by the bullet. Had Sat Narain stood behind while catching the deceased, then the injury having caused from the close range, after passing through the body of Hoshiar Singh deceased would have hit Sat Narain also, but, no such evidence has been collected by the police if Sat Narain also had suffered any injury. Further more, even according to the doctor, injury No.3 and 4 being abrasions are the result of fall on a hard surface. The doctor has not stated if these injuries could be the result of grip put up by Sat Narain. The story with regard to involvement of Sat Narain appears to be improbable inasmuch as Sat Narain put himself to risk while standing behind the deceased facing towards Jaibir when he was firing from his .315 bore pistol attacking the deceased. Thus, the story with Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -7- regard to catching of the deceased at the hands of Sat Narain appears to be an exaggeration of the facts so as to involve him along with the main accused Jaibir.
So far as the case of Jaibir is concerned, that stands duly established on the record. The occurrence allegedly took place on 2.3.2003. After causing the injuries, he escaped and was ultimately declared as Proclaimed Offender by the Illaqa Magistrate on 2.8.2003 whereas challan against Sat Narain was prepared and presented on 7.9.2003. The accused Jaibir has failed to explain the reasons of his absconding, therefore, the fact that he remained missing for three years concealing himself and keeping himself away from the clutches of the police, indicates the circumstance against him which may point towards his involvement in the case. Any way, at the time of commitment of the challan, Additional Sessions Judge, Sonepat was aware of the fact that Jaibir has been declared as Proclaimed Offender.
Be that it may, out of the two witnesses namely Mahabir Singh and Ran Singh, unfortunately Mahabir Singh (PW9) did not support the prosecution case except stating that he had seen Hoshiar Singh lying in an injured condition with the gun shot injury near Balmiki community well. But, Ran Singh has made clean breast of the facts leading to the occurrence. No challenge could be made to the testimony of Ran Singh for holding him as unreliable. His testimony stands corroborated by the medical evidence. Ran Singh had also proved his statement Ex.PK made before the police. Statement Ex.PK has even been proved by Inspector Prem Singh (PW11) who disclosed that he had recorded his statement.
Now the major attack made by the learned counsel for the appellant is to the statement of Ran Singh (Ex.PT) is that the said statement is not admissible in evidence on the following grounds :-
1. It was not recorded under Section 299 Cr.P.C.
2. It was not recorded in the same case.
3. The statement made by the witness in the case against the co-accused cannot be taken into consideration against the absconder as it does not conform to the Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -8- provisions of Section 33 of the Evidence Act as well as under Section 299 Cr.P.C.
Before proceeding to determine the validity of the statement Ex.PT it needs to be observed that Ran Singh (PW) was alive at the time when he appeared before the court of Additional Sessions Judge, Sonepat in the case against Sat Narain co-accused. The trial in that case was concluded and resulted into conviction on 12.7.2005. Thereafter, the accused Jaibir was arrested and supplementary challan was presented against him. The statement of Ran Singh, who undoubtedly died at the time, when the accused Jaibir was tried, can certainly be said to be a statement recorded under Section 299 Cr.P.C. Section 299 Cr.P.C. reads as under :-
"299. Record of evidence in absence of accused: (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence, complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -9- giving evidence or beyond the limits of India."
On bare reading of sub-Section (1) of Section 299 of Cr.P.C. it transpires that the deposition of the witnesses produced on behalf of the prosecution in the absence of the accused when the accused had absconded could be recorded by the court competent to try or commit the case for trial whereas, sub-Section (2) of the said section provides for recording of evidence by the Magistrate if directed by the High Court or the court of sessions in cases where the offences are punishable for death or imprisonment for life but the section does not debar the High Court or the court of sessions for recording the evidence in such cases where the accused had been declared as Proclaimed Offenders. The general rule is that all evidence in the criminal trial shall be taken in the presence of the accused, except in cases where his personal attendance is dispensed with, in the presence of his pleader. The special rule of the evidence enacted by this section is an exception to the general rule and provides that where the accused is absconding or is un-known, the witnesses may be examined and their deposition recorded on behalf of the prosecution even in the absence of the accused, may be used as evidence against the accused when the proceedings against him are subsequently initiated after his arrest, he could be provided opportunity to cross examine such witnesses provided the deposition of such witnesses could be used in evidence if the accused had no opportunity to cross examine them at the time of evidence was taken when such witnesses had died; their presence could not be procured without any delay expenses or inconvenience or they are incapacitated to depose in the court for whatsoever reasons there may be. The reasons for this exception is that the courts always desire to have best evidence about any matter but in order to avoid a danger of such evidence being lost due to delay in recording it, the legislature in its wisdom thought it proper to empower the court to record the evidence against the person who by his own conduct had chosen to be absent for such evidence being recorded against him. Admittedly, the accused was declared as Proclaimed Offender then the argument that the prosecution did not prove the said order passed by the Committing Court is of no consequence, but there is clear recital in Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -10- the report under Section 173 Cr.P.C. that the accused Jaibir has been declared as Proclaimed Offender. The accused has also not disputed this fact that earlier he had been declared as Proclaimed Offender. Again the accused cannot derive any benefit of the fact that the court did not pass specific order that the statement of Ran Singh be recorded under Section 299 Cr.P.C. when section itself provides that when once the accused is declared as Proclaimed Offender then the court "competent to try the case"
could record evidence against him in his absence, if any produced on behalf of the prosecution and record their depositions. Section 299 Cr.P.C. further provides that such deposition could be used against the Proclaimed Offender if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any amount of delay, expenses or inconvenience which under the circumstances of the case would be unreasonable. As such, it may be mentioned here that even the order of Sub Divisional Judicial Magistrate, Gannaur dated 2.8.2003 is available on the file as per which the accused Jaibir and Krishan were declared as Proclaimed Offenders. In these circumstances, mere fact that the court did not mention that the statement was being recorded under Section 299 Cr.P.C. against Jaibir would hardly prejudice the cause of the accused. As a matter of fact, it is not the accused who is committed for the trial but the case is committed for the trial. In the instant case, the Committing Magistrate committed the case to the court of Sessions while particularly mentioning that Sat Narain was present to face trial whereas accused Krishan and Jaibir were declared Proclaimed Offenders by him on 2.8.2003.
The statement (Ex.PT) of Ran Singh stands on the better footing than that of the statement under Section 299 Cr.P.C. As unlike Section 299 Cr.P.C. Ran Singh was examined and cross examined, as such mere non mentioning of the fact that statement of Ran Singh was recorded under Section 299 Cr.P.C. accused Jaibir, who was absconding at that time cannot be given benefit of his wrong and of this technical irregularity. We agree with the observations made by the trial court that the statement Ex.PT of Ran Singh recorded on 13.10.2004, in the case against Sat Narain would be deemed to have been recorded under Section 299 Cr.P.C. qua the Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -11- absconding accused Jaibir as he was absconding at that time and was declared as Proclaimed Offender. The provisions of Section 299 Cr.P.C. are wider enough to cover the cases where the accused with a view to thwart the action of the State against them remain absconding and try to conceal themselves till the trial is over, the evidence vanishes or the witnesses are no more available to support the case. As such, the section provides to rely upon the testimonies of those witnesses which are recorded in the absence of the accused when the accused is declared as Proclaimed Offender, though such statements were not subjected to cross examination by him. Ran Singh had no axe to grind against the accused. He would be the last person to implicate Jaibir while leaving the real culprits. The accused being acquainted with each other and residents of the same village and Jaibir being the member Panchayat and the deceased being the Sarpanch of the village, the question of mistaken identity does not arise. The medical evidence fits in with the ocular version.
As regards the last contention raised by the learned counsel for the appellant that after the arrest of the accused, he is said to have got recovered the pistol on 30.1.2006 regarding which a separate case FIR No.26 of 2006 was registered against Jaibir, but the trial court acquitted him under Section 25 of Arms Act. It was, thus, contended that when the recovery of of weapon of offence is not proved from him, then it cannot be said that the accused had committed the crime with the said weapon. The said contention lacks merit in view of the direct evidence showing complicity of the accused with the commission of the crime. The accused was arrested after three years. The weapon so used remained in his custody. The judgment passed under the Arms Act has not been produced by the learned counsel for the appellant in order to disclose as to on what grounds he was acquitted. It may be on some technical grounds, the trial under Arms Act resulted into acquittal, but that has nothing to do with the commission of the crime by the accused on 2.3.2003 at 7.30 p.m. In any case, non recovery of the weapon, in the given circumstances of the case hardly effects the prosecution case.
No other argument has been advanced.
Criminal Appeal No. 908-DB of 2005 & Criminal Appeal No. 959-DB of 2007 -12- In the wake of the aforesaid discussions, the criminal appeal No.908-DB of 2005 preferred by Sat Narain is accepted, findings recorded by the trial court qua his complicity in the commission of the crime are set aside and he is acquitted of the charges framed against him, whereas the criminal appeal No.959-DB of 2007 preferred by Jaibir is dismissed.
(Hemant Gupta) (A.N. Jindal)
Judge Judge
April 25, 2011
deepak