Punjab-Haryana High Court
Sandeep @ Mirchi And Another vs State Of Haryana on 24 January, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 386-DB of 2008 - 1-
Crl. Appeal No. 518-DB of 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1) Criminal Appeal No. 386-DB of 2008
Date of Decision: 24.1.2012.
Sandeep @ Mirchi and another .......Appellants
Vs.
State of Haryana ......Respondent
(2) Criminal Appeal No. 518-DB of 2008
Sukhwinder @ Shoki .......Appellant
Vs.
State of Haryana ......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Vikram Hooda, Advocate
for the appellants.
Mr. Pardeep Singh Poonia, Addl. A.G., Haryana.
.....
SABINA, J.
Vide this judgment, the above mentioned two appeals would be disposed of as these have arisen out of the common incident/judgment.
Prosecution story, in brief, is that complainant Manphool had three sons and three daughters. All his children were married. On 15.5.2000, Anil, Rohtash, Durga and Chand Crl. Appeal No. 386-DB of 2008 - 2- Crl. Appeal No. 518-DB of 2008 Singh had committed murder of Surender son of Daya Ram, brother of the complainant. Anil had been released on parole in the month of November but had not surrendered back in jail, thereafter. Anil had threatened the complainant after his release on parole that he would finish his family. Pappu son of Sahib Singh, who was cousin brother of Anil and mother of Anil, were also threatening the complainant that they would finish his family as he had deposed against Anil. On 15.2.2004, at about 6.30 A.M., the complainant was sleeping in the room on the first floor of his house and he heard noise of fire shots. When the complainant looked through the window of his room, he saw that Anil along with 8/10 persons had entered in the room on the first floor of his nephew Naresh and had started firing indiscriminately on Naresh. When they came out, complainant saw that Anil and his companions were armed with pistols. Thereafter, Anil told his companions that Krishan had gone to the plot situated near the road to tether buffalos and he would also be killed. The assailants then came down and started walking towards the plot where Krishan had gone. The complainant rushed towards the plot from the other street in order to inform his son Krishan but when he reached his plot, he saw that Anil and his accomplices had already reached there. Anil and his companions fired indiscriminately at Krishan and as a result of this, Krishan fell on the ground. Anill along with his companions fled away from the spot in a four wheeler along with their respective weapons. The complainant further stated in his statement before the police that he had come to know that on the previous night, at about 8.00 P.M., the four wheeler of Anil had Crl. Appeal No. 386-DB of 2008 - 3- Crl. Appeal No. 518-DB of 2008 got stuck in mud in front of the house of Pale Ram. Thereafter, companions of Anil had stayed in his house. They had also fired shots at Raje son of Lakshmi.
On the basis of the statement of the complainant, formal FIR No. 27 dated 15.2.2004 was registered at Police Station Sadar Sonepat under Section 302, 303, 307, 449, 120-B of the Indian Penal Code ('IPC' for short) and 25 of the Arms Act, 1959 ('Act' for short).
After completion of investigation and necessary formalities challan was presented against accused Murti Devi, Sandeep alias Mirchi, Krishan alias Actor, Bijender alias Kala and Lakshmi Narain. Supplementary challan was presented against accused Siri Bhagwan. Thereafter, supplementary challan was presented against accused Vinod and Sukhwinder. Thereafter, supplementary challan was presented against accused Ravinder. It transpired during the course of arguments that accused Bijender had died during trial whereas accused Anil was not arrested as he had died.
In order to prove its case, prosecution examined 24 witnesses during trial.
After the close of prosecution evidence, appellants when examined under Section 313 of the Code of Criminal Procedure, 1973, prayed that they were innocent and had been falsely involved in the case. Appellants Sandeep and Krishan further stated that no recovery had been effected from them.
The appellants did not examine any witness in their defence.
The trial court vide judgment dated 28.4.2008 Crl. Appeal No. 386-DB of 2008 - 4- Crl. Appeal No. 518-DB of 2008 acquitted accused Lakshmi Narain, Murti Devi, Vinod and Ravinder of the charges framed against them. Appellants Sukhwinder alias Shoki, Krishan alias Actor and Sandeep alias Mirchi were convicted and sentenced vide judgment/order dated 28.4.2008/30.4.2008 for commission of offence under Section 148, 302, 449 read with Section 149 IPC. Appellants Krishan alias Actor and Sandeep alias Mirchi were also convicted and sentenced for commission of offence under Section 25 of the Act along with appellant Siri Bhagwan. Appellant Siri Bhagwan has not preferred any appeal against his conviction and sentence.
Learned counsel for the appellants has submitted that prosecution had failed to prove its case. No identification parade was got conducted to establish the identity of the appellants. All the appellants were not known to the complainant and had been falsely involved in the case on the basis of suspicion. Recovery of pistols had been falsely foisted on appellants Sandeep and Krishan. Injured Rajpal had not supported the prosecution case.
Learned State counsel, on the other hand, has submitted that prosecution had been successful in proving its case. Appellant Sukhwinder alias Shoki had been duly identified by PW-15 Bijender. So far as appellants Sandeep and Krishan are concerned, the pistols were got recovered by them on the basis of their disclosure statements. As per the Forensic Science Laboratory's report, the empties recovered from the spot had been fired from the said pistols.
The present case rests on the statement of the complainant and report of Forensic Science Laboratory. The son of the complainant Krishan and his nephew Naresh were Crl. Appeal No. 386-DB of 2008 - 5- Crl. Appeal No. 518-DB of 2008 murdered in the occurrence. As per the complainant, Naresh was murdered by Anil and his companions in his (Naresh) Chaubara (room on the first floor). Krishan, son of the complainant, was murdered in his plot by Anil and his companions. The complainant did not know the assailants, who had accompanied Anil at the time of occurrence and apparently, due to this reason, the names of the other assailants were not mentioned in the FIR. However, while appearing in the witness box, he identified the appellants as assailants who had accompanied Anil on the date of occurrence and had murdered Naresh and Krishan. Sub Inspector Mehar Singh had died before he could be examined during trial and his signatures, on various memos prepared during investigation, were exhibited on record on identification by PW-16 Assistant Sub Inspector Satyavir Singh.
On 11.3.2004, appellant Sandeep suffered a disclosure statement during interrogation and on the basis of the same, he got recovered one pistol Ex. P-1 from the disclosed place. On the same day, appellant Krishan suffered a disclosure statement and on the basis of the same, he got recovered one pistol Ex. P-2 from the disclosed place. The pistols were taken in possession. In this regard, prosecution has examined PW-9 Assistant Sub Inspector Balbir Singh.
PW-1 Dr. Jai Kishore deposed that on 15.2.2004, he along with Dr. J.S.Punia, had got conducted post mortem examination on the dead body of Krishan and they had found following injuries on his person:-
(1) A lacerated wound above 1.5 cm x 1.5 cm irregular Crl. Appeal No. 386-DB of 2008 - 6- Crl. Appeal No. 518-DB of 2008 shape just blow and posterior to left ear. Clotted blood was present. Margins inverted. Blackening of margins were present.
(2) An irregular about 8x8 cm lacerated wound on upper part of right ear and right temporal region of scalp. Margins everted Brain matter protuding.
Blood was present. On exploration track is through the base of the brain. Slightly upward and posterior from injury No.1. Multiple fractures of the skull was present and brain was lacerated.
(3) A lacerated wound .75 cm diameter about 8 cm below inferior angle of right scapula, 9 cm posterior to spine. Margins were inverted. Surrounding blackish abraded area about 5 cm in diameter. (4) A lacerated wound .75 cm in diameter on left half of chest on its back 15 cm below the inferior angle of scapula and 10 cm lateral to thoracic spine. Margins inverted.
(5) A lacerated wound 5 cm x 1.5 cm horizontally placed 10 cm below and posterior to right nipple in anterior axillery line. Margins everted. Blood was present.
(6) A lacerated wound 3 x 1.5 cm horizontally placed about 15 cm below the right nipple, 4 cm anterior to anterior axillary line.
(7) A lacerated wound 1.5 cm x .75 cm 10 cm below the right nipple and 5 cm lateral to midline, on front Crl. Appeal No. 386-DB of 2008 - 7- Crl. Appeal No. 518-DB of 2008 of chest on its right arm. On exploration track from injury No.3 is connected with injury No.5 and through the left lung. On posterior surface towards the right arm through the rt. Lung. Collection of blood was present in bialateral plural cavity. Injury No.4 having track connected with injury No.6 going anteriorly and right laterally to the lungs. Injury No.7 on exploration a bullet was found embedded in the liver. Liver lacerated having clotted blood present Bullet retrieved and sealed in a vial an handed over to the police. Scalp and rest of the organs were healthy.
In their opinion, the cause of death was due to shock and haemorrhage, as a result of fire-arm injuries to vital organs. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. The time that had elapsed between injuries and death was immediate and between death and post mortem was from 6 to 36 hours.
He further deposed that on the same day, they also had conducted post mortem examination on the dead body of Naresh and found following injuries on his person:-
(1) A lacerated wound .5 cm x .5 cm through the lobule of right ear and its junction with the face.
Margins inverted and the track was slightly anterior but horizontal anterior to the left ear and making an exit of injury No. 2 of size 7.5 x 2.5 cm vertical margins everted through the roof of oropharynx causing fracutre of the bone and left Crl. Appeal No. 386-DB of 2008 - 8- Crl. Appeal No. 518-DB of 2008 mendible.
(3) A lacerated wound 1.5 cm circular with black inverted margins about 2 cm above and rt. lateral going backward and downward and bullet was retrieved just rt. lateral to vertiberal column at the level of C-7 damaging larynx, cesophageus and spinal cord and fracture of the vertibera.
(4) A lacerated wound .75 x .75 cm with inverted black margins, about 3 cm below the umbilicus and left lateral to midline through the gut loops and mesenteric vessels. Peritoneal cavity was full of blood. Bullet was retrieved from posterior wall of abdomen, tip of the bullet just projecting from the posterior surface about 8 cm above the superior border of iliac bone and above 10 cm rt. lateral on right half of abdomen to the spine. (5) A lacerated wound 3 cm x 1 cm vertical on front of left thigh at junction of middle and lower 1/3 track going upwards and bullet was retrieved about 5 cm above the wound in the muscle anterior of femur.
In their opinion, the cause of death was due to shock and haemorrhage, as a result of fire-arm injuries. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. The time that had elapsed between injuries and death, was immediate and between death and post mortem was from 6 to 36 hours.
Thus, as per the ocular as well as medical evidence, Crl. Appeal No. 386-DB of 2008 - 9- Crl. Appeal No. 518-DB of 2008 the deceased had died due to fire-arm injuries. So far as injured Rajpal is concerned, he did not support the prosecution case, while appearing in the witness box as PW-3. Lakhmi Chand, father of PW-3, while appearing in the witness box as PW-2, also did not support the prosecution case. In these circumstances, it would not be necessary to reproduce the injuries suffered by injured Rajpal as examined by PW-5 Dr. Manju Arora.
So far as appellant Sukhwinder alias Shoki is concerned, we are of the opinion that prosecution has failed to prove its case against him. The said appellant was not known to the complainant and was identified by the complainant in the court. No test identification parade was got conducted qua the said appellant. The said appellant was arrested on 11.7.2005. No recovery was effected from him. As per PW-17 Head Constable Ajaib Singh, on 15.7.2005, appellant Sukhwinder had demarcated the place of occurrence. In the present case, demarcation of the place of occurrence by the appellant is of no consequence. PW-15 Bijender identified appellant Sukhwinder alias Shoki as one of the assailants. The said witness deposed that no identification parade was conducted before him. The said witness was serving in Delhi Police and was staying at Police Station Delhi. As per this witness, he had seen the assailants going from the room of Naresh towards the road. He had also heard Anil saying that Naresh had been murdered and now Krishan would be murdered. The said witness is the real brother of deceased Krishan but he did not bother to go to the spot, where his brother Krishan was present, to save him. Rather, he went to the room of Naresh after hearing Anil saying that now Crl. Appeal No. 386-DB of 2008 - 10- Crl. Appeal No. 518-DB of 2008 they were going to kill Krishan. In view of the conduct of this witness, no reliance can be placed on his testimony qua identification of appellant Sukhwinder. In view of above facts, possibility that appellant Sukhwinder alias Shoki has been falsely involved in this case, cannot be ruled out and, hence, we are of the opinion that the said appellant is entitled for acquittal.
So far as appellants Sandeep and Krishan are concerned, their case is on a different footing. Although, the complainant did not know the said appellants but the complainant has categorically deposed that Anil was accompanied by some other persons when murder of Naresh and Krishan had been committed. Although, no test identification parade was got conducted from the complainant qua appellants Sandeep and Krishan but there is an important circumstance which incriminates them qua commission of crime. On the basis of the disclosure statements suffered by the said appellants, .315 bore pistols Ex. P-1 and Ex. P-2 were got recovered by them. The .315 bore pistols, recovered from appellants Sandeep and Krishan, were sent to Forensic Science Laboratory along with the empties recovered from the spot. In this regard, report of the Forensic Science Laboratory, Haryana, Madhuban, Karnal Ex. PE is very relevant. A perusal of the same reveals that .315 bore fired cartridge cases marked C/4, C/7, C/9 and .315 fired bullet marked BC/4 had been fired from country made pistol W/2 and not from any other fire-arm even of the same make and bore/calibre, because every fire-arm has got its own individual characteristic marks. .315 bore pistol W/2 i.e. Ex. P-2 was recovered from appellant Krishan on the basis of his disclosure Crl. Appeal No. 386-DB of 2008 - 11- Crl. Appeal No. 518-DB of 2008 statement. .315 bore fired cartridge case C/4 and fired bullet BC/4 were recovered from the place of occurrence near dead body of Krishan. .315 bore fired cartridge cases C/7 and C/9 were recovered from the place of occurrence near the dead body of Naresh.
Further, as per the report Ex. PE, .315 bore fired bullet marked BC/5 had been fired from country made pistol W/1 and not from any other firearm even of the same make and bore/calibre, because every firearm has got its own individual characteristic marks. .315 bore fired bullet BC/5 was recovered from the place of occurrence near the dead body of Krishan. W/1 .315 bore country made pistol was recovered on the basis of disclosure statement, suffered by appellant Sandeep alias Mirchi.
Thus, the country made pistols, which were recovered from appellants Sandeep and Krishan, were sent for examination to Forensic Science Laboratory along with the fired cartridge cases and fired bullets, recovered from the spot. As per the report of the expert, three fired cartridge cases and one fired bullet had been fired from the country made pistol, recovered from appellant Krishan and one fired bullet, recovered from the spot, had been fired from the country made pistol, recovered from appellant Sandeep. The firing mechanism of the country made pistols, recovered from appellants Sandeep and Krishan, were found to be in working order. This circumstance strongly establishes the presence and participation of appellant Sandeep and Krishan in the crime.
In these circumstances, learned trial court had rightly held that the presence and involvement of appellants Sandeep Crl. Appeal No. 386-DB of 2008 - 12- Crl. Appeal No. 518-DB of 2008 alias Mirchi and Krishan alias Actor in the crime was duly established. Accordingly, Criminal Appeal No. 386-DB of 2008 is dismissed.
Criminal Appeal No. 518-DB of 2008 is allowed. Appellant Sukhwinder alias Shoki is acquitted of the charges framed against him. The said appellant, who is in custody, be set at liberty forthwith, if not required in any other case.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
January 24, 2012
Gurpreet