Punjab-Haryana High Court
Parmod And Others vs State Of Haryana on 20 March, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.D-998-DB of 2009
Date of Decision: March 20, 2013
Parmod and others
...Appellants
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE INDERJIT SINGH
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Present: Mr.R.S.Rai, Senior Advocate with
Mr.Deepinder Brar, Advocate and
Mr.Jaibir Singh Yadav, Advocate
for the appellants.
Mr.G.S.Chahal, Addl. Advocate General, Haryana
for the respondent-State.
****
INDERJIT SINGH, J.
The present appeal has been filed by the appellants against the judgment of conviction dated 10.10.2009 and order of sentence dated 15.10.2009, passed by the Addl. Sessions Judge, Faridabad, whereby they were held guilty and convicted and sentenced to undergo imprisonment for life and to pay a fine of ` 5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months each, under Section 302 read with Section 34 IPC. They were further convicted and sentenced to undergo rigorous imprisonment for two years and to pay Crl. Appeal No.D-998-DB of 2009 -2- a fine of ` 2,500/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months each, under Section 452 read with Section 34 IPC. Both the sentences were ordered to run concurrently.
The brief facts of the prosecution case are that on 14.04.2002, SI/SHO Ajeet Singh along with other police officials, after receiving V.T. at police control room, reached at Indira Complex Tigaon Road where ASI Shri Pal, Incharge P.P along with other police officials, met him at Kheri bridge and told that injured and eye witness had not met at the spot. Then, after leaving ASI Shri Pal at the spot, SI/SHO Ajeet Singh along with other police officials reached at B.K.Hospital, where Gopi @ Gopal met and got recorded his statement. In his statement, Gopi @ Gopal, aged 19 years, stated that he is running Laxmi Cement Agency in Indira Complex at Plot No.126. His grandfather Risal Singh also lives with him. He had left his grandfather Risal Singh in the village Budhena as usual at 5.00 P.M. and in the morning they used to come at shop at 7.00 A.M. On that day in the morning at 7.00 A.M, Risal Singh had come from the village to shop on motorcycle and reached Indira Complex at about 7.15 A.M. and after preparing hukka, he sat on the cot in the gallery of the house. At that time, one white Maruti Zen car No.DL-4CG-3878 came from village Budhena side and passed in front of their shop, The complainant identified from vehicle number that it belonged to Brahamjit. Then complainant went to shop to call the police on telephone. At that time, that vehicle returned back and stopped in Crl. Appeal No.D-998-DB of 2009 -3- front of the shop. Four persons got down from the vehicle. Out of them, Beer Singh, Mukesh, Parmod, Jai Parkash were present there. Jai Parkash was sitting on the driver seat and the vehicle was in starting condition. Beer Singh, Mukesh and Parmod came outside with their pistols. They came towards Risal Singh. Mukesh and Parmod started using filthy language to his grandfather and said that they will teach a lesson to him for being a witness. Both of them caught hold Risal Singh, complainant's grandfather, and Beer Singh fired shot on the head of Risal Singh. When the complainant was running from the spot, Jai Parkash shot fire on him to kill him. At that time Satish @ Kalu had also come at the spot and seen all the occurrence with his own eyes. Beer Singh, Mukesh and Parmod ran towards Tigaon side after sitting in the Zen. The motive is that they were keeping grudge and Brahamjit and Beer Singh have killed their seven persons like this. Complainant further stated that his grandfather Risal Singh was a witness. They have fired shots to stop Risal Singh to be a witness. Risal Singh was brought to B.K. Hospital in a maruti van where he expired. This statement has been completed at 10.30 A.M. on 14.04.2002. Ruqa was sent to the police station, on the basis of which, FIR was registered. Then the Investigating Officer SI Ajeet Singh prepared inquest report Ex.PE on the dead body of Risal Singh. Dead body was sent for post-mortem examination. Then the Investigating Officer went to the spot along with complainant and eye witness Satish and prepared rough site plan Ex.PK. He also lifted blood-stained earth which was taken into police Crl. Appeal No.D-998-DB of 2009 -4- possession after preparing sealed parcel. Supplementary statement of Gopi @ Gopal and Satish were recorded. On 02.08.2002, accused Parmod and Jai Parkash were arrested. Two revolvers of 315 bore each were recovered from both of them. Two live cartridges and one missed cartridge were also recovered from Jai Parkash. On interrogation, Parmod got recovered one country made pistol and four cartridges of 315 bore, in pursuance of his disclosure statement. Jai Parkash demarcated the place where vehicle was parked. Statements of witnesses were recorded. After necessary investigation, challan was presented against the accused-appellants.
Finding prima facie case, the appellants were charge- sheeted under Sections 120-B, 302 read with Section 120-B and 216 IPC and, appellant Parmod was also charge-sheeted under Section 25 of Arms Act, to which they pleaded not guilty and claimed trial.
In support of its case, prosecution examined, PW-1 Gopi @ Gopal, eye witness, who mainly deposed as per prosecution version. PW-2 Satish is another eye witness. He also deposed as per prosecution version. PW-3 Sheela, wife of late Harpal mainly deposed that four persons of her family namely her husband Harpal, brother of husband Shyampal, nephew of husband Dhunni and her brother Raju had been murdered and in all these four cases of murder, her father-in-law Risal Singh was witness and used to pursue the case. In all the four cases, Beer Singh, Jai Parkash and Parmod were accused. Her father-in-law was pressurized to compromise the case but he refused to do so. They also threatened her father-in-law Crl. Appeal No.D-998-DB of 2009 -5- of dire consequences if he did not compromise. The house of accused Beer Singh, Jai Parkash, Parmod and Brahamjit are situated 300-400 yards from their house. PW-4 Dr.Ashok K. Sharma, who was the member of Board of Doctors, mainly deposed that on 14.04.2002 at 4.00 P.M., he conducted post-mortem examination on the dead body of Risal Singh and found following injuries:-
"1. Wound of size 1 inch x 2 inch on the vertex of skull just to the left side of mid-line. Blackening of the skin edges of wound present. Wound edges inverted. Brain matter coming out of the wound as skull bone was fractured. The bullet was traced downward and outward and found impacted in occipital bone with fracture of that bone in that area. Bullet taken out and sealed.
2. Wound of size 1-1/2 cm x 1-1/2 cm on dorsal of right hand between second and third metacarpal bone.
Wound edges inverted and blackened. Both
metacarpal bones fractured.
3. Wound of size 2-1/2 x 2-1/2 cms on palmer aspect
of right hand opposite to injury No.2. Skin of wound edges everted."
In the opinion of the Board, the death occurred due to coma resulting from the head injury described in the post-mortem report which was ante mortem in nature and sufficient to cause death in the ordinary course of nature. Duration between injuries and death was within few minutes and between death and post-mortem was within 24 hours.
PW-5 Rajinder Kumar, Ahlmad, office of District Magistrate, Faridabad mainly deposed regarding sanction order Ex.PG granted by the District Magistrate Ex.PG. PW-6 HC Hitender Kumar, Armour Police Line mainly deposed regarding his report Crl. Appeal No.D-998-DB of 2009 -6- Ex.PH and found the country made pistol of 315 bore in working order. PW-7 ASI Ram Kishan mainly deposed regarding getting conducted post-mortem examination on the dead body of Risal Singh. PW-8 Inspector Randhir Singh, CIA, mainly deposed regarding arrest of accused Satish, Rajpal and Jagdish. PW-9 SI Ajeet Singh, who is the Investigating Officer, mainly deposed regarding investigation conducted in the present case. PW-10 Manoj Kumar, Draftsman, mainly deposed regarding preparing of scaled site plan Ex.PQ. PW- 11 DSP Ramesh Kumar deposed regarding preparing of supplementary challan against accused Mukesh Kumar. PW-12 SI Nand Ram deposed regarding arrest of accused Mukesh Kumar on 31.01.2008. PW-13 Inspector/SHO Vinod Kumar deposed regarding investigation of the case as he was in the police party of SI/SHO Ajeet Singh. PW-14 Head Constable Krishan Kumar mainly deposed regarding statement of Jai Parkash and Parmod.
At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C. and the accused denied the correctness of the evidence and pleaded themselves as innocent. In defence, they have examined DW-1 Sanjeev Kumar, Asstt. Superintendent Central Jail, who mainly brought the record of Central Jail No.4, Tihar, New Delhi and as per register entry No.4786 dated 07.04.2002, one Mukesh Kumar s/o Braham Singh aged 30 years r/o village Budhena has come in jail under the order of Duty Metropolitan Magistrate, Delhi under Section 61 of Excise Act. In this case, Mukesh Kumar was released on bail on 17.04.2002. As per the Crl. Appeal No.D-998-DB of 2009 -7- above-said entry, Mukesh Kumar remained confined in jail from 07.04.2002 to 17.04.2002. DW-2 Sanjay Kumar Dubey, Ahlmad of the Court of Sh.Devinder Kumar Jangala mainly deposed that as per arrest memo dated 07.04.2002, one Babu Ram and accused Mukesh Kumar s/o Braham Singh r/o village Budhena, police station Old Faridabad was arrested on 07.04.2002. He also deposed regarding certified copy of the application for seeking judicial remand and the order passed by the court Ex.DX and Ex.DX/1 respectively. He further deposed regarding another application for further judicial remand and the order passed by court Ex.DX/2 and Ex.DX/3 respectively. He also stated that on 17.04.2002, bail bond of accused-appellant Mukesh Kumar was furnished, which was accepted by the Court of Sh.Sanjay Garg, the then Metropolitan Magistrate, Delhi.
On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced as stated above. Co-accused Shyam Singh was discharged vide this Court's order dated 02.04.2004 and co-accused Brahamjit was found not guilty and was acquitted by the learned trial Court. Co-accused Satish, Rajpal, Beer Singh and Jagdish were declared Proclaimed Offenders.
At the time of arguments, learned counsel for the appellants argued that accused-appellants are innocent and have been falsely implicated in the present case. The FIR is ante dated and there is delay in reporting the matter. No blood-stained clothes of PW-1 Gopi @ Gopal and PW-2 Satish Kumar were taken into police possession nor they produced the same to the police, which creates Crl. Appeal No.D-998-DB of 2009 -8- doubt regarding the presence of these PWs at the spot. He further argued that there is also discrepancy in the statement of PWs. One of the PWs stated that they reached at the spot at 11.30 A.M. whereas other stated that they reached at 1.30 P.M., which also creates doubt in the prosecution version. Learned counsel for the appellants further argued that Mukesh Kumar was in the jail as has been duly proved by DW-1 Sanjeev Kumar and DW-2 Sanjay Kumar Dubey. He further argued that there is injury on the hand of Risal Singh deceased, which also creates a doubt that when fire was shot on the hand of Risal Singh, how Mukesh Kumar can catch hold hand of Risal Singh. Learned counsel for the appellants, therefore, argued that appeal should be allowed and accused-appellants should be acquitted.
On the other hand, learned Addl. Advocate General, Haryana for the respondent-State has argued that there are no material contradictions or improvements in the statement of the eye witnesses. Their statements have been duly supported and corroborated by medical evidence and investigation of the case. There was motive for causing the occurrence. He further argued that the FIR is prompt one and there is no unnecessary delay. The discrepancy pointed out by the learned counsel for the appellants is minor discrepancy. Learned State counsel further argued that the fact that blood-stained clothes of the eye witnesses were not taken into police possession by the police, in no way can be held as fatal to the prosecution case. He further argued that when Mukesh Kumar has taken the plea that he was in jail, then he has to prove the same by Crl. Appeal No.D-998-DB of 2009 -9- bringing cogent evidence but he has not got compared his thumb impressions on the remand papers of Excise Act case. There was also no photograph in the record of Mukesh Kumar maintained in jail, therefore, he cannot be held to be in jail at the time of occurrence. Therefore, learned State counsel argued that there being no merit in the appeal, the same should be dismissed.
We have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellants and learned Addl. Advocate General, Haryana for the respondent- State.
From the evidence on record, we find that occurrence took place in the morning at about 7.30 A.M. and the injured was taken to B.K.Hospital. Message was given regarding the incident. Police firstly started for the place of occurrence where ASI Shri Pal told the Investigating Officer that there was no eye witness or the injured at the spot and they have gone to B.K.Hospital. Then the Investigating Officer reached B.K.Hospital, recorded and completed the statement of complainant Gopi @ Gopal at 10.30 A.M. Keeping in view all these facts and the fact that injured was to be first provided medical aid and to be shifted to hospital after arranging conveyance, the little delay whatever is, has been duly explained. The FIR in the present case has been registered at 11.10 A.M. and the Special Report was received at 2.00 P.M. by the Judicial Magistrate (Duty). There is nothing on the record to show that FIR was ante dated or ante timed. Therefore, this argument of the learned counsel for the appellants has Crl. Appeal No.D-998-DB of 2009 -10- no merit. As regarding discrepancy pointed out by learned counsel for the appellant that one PW has stated that he along with police party reached at the place of occurrence at 11.30 A.M. and other has given the time as 1.30 P.M., in no way can be held as material discrepancy, which may go to the root of the case. Such type of minor discrepancies use to occur in the case of truthful witnesses. Therefore, this discrepancy in no way creates any doubt in the prosecution version and this argument of learned counsel for the appellant has also no merit. Again the fact that blood-stained clothes of the eye witnesses were not taken into police possession also cannot be held as fatal to the prosecution case. Both these eye witnesses were not injured witnesses. Rather, they shifted Risal Singh to the hospital immediately and even statement of Gopi @ Gopal complainant was recorded in B.K.Hospital by the Investigating Officer. Therefore, on this ground also no reasonable doubt exists in the prosecution version. As regarding the defence version as given by DW-1 Sanjeev Kumar and DW-2 Sanjay Kumar Dubey regarding Mukesh Kumar, we find that both these DWs have duly proved the judicial record as well as the record of Central Jail No.4, Tihar. DW-1 Sanjeev Kumar has specifically stated that Mukesh Kumar S/o Braham Singh r/o Village Budhena entered the jail on 07.04.2002 as per order of Duty Metropolitan Magistrate, Delhi and he was released on bail on 17.04.2002 but the occurrence took place on 14.04.2002 therefore, at the time of occurrence, he was in the jail. DW-1 Sanjeev Kumar also stated that there are identification marks of said Mukesh Crl. Appeal No.D-998-DB of 2009 -11- Kumar mentioned in the register and he found similar marks on the person of Mukesh Kumar, who was present in the Court on that day. DW-2 Sanjay Kumar Dubey has brought the remand paper and the order of the Court sending Mukesh Kumar to judicial custody in Excise Act case. The statements of DW-1 Sanjeev Kumar and DW-2 Sanjay Kumar Dubey create a reasonable doubt regarding the presence of Mukesh Kumar at the time of occurrence. The accused-appellant Mukesh has only to show his defence version probable, by producing evidence or from the cross-examination of the PWs. From the statement of DW-1 Sanjeev Kumar and DW-2 Sanjay Kumar Dubey and in view of the documents placed on record i.e. Ex.D1, Ex.DX and Ex.DX/1 to DX/3, a reasonable doubt exists regarding presence of Mukesh Kumar on the spot at the time of occurrence. Further, it also looks improbable that Mukesh Kumar will catch hold hand of Risal Singh, specially when there is a fire arm injury on the hand of Risal Singh, as found by the PW-4 Dr.Ashok K.Sharma. Therefore, a reasonable doubt exists regarding involvement of Mukesh Kumar and benefit is to go to the accused. Hence, giving benefit of doubt, accused-appellant Mukesh Kumar is held not guilty and acquitted of the charges framed against him.
As regarding appellants Parmod and Jai Parkash, both the eye witnesses i.e. PW-1 Gopi @ Gopal, complainant and PW-2 Satish have consistently deposed regarding the occurrence and their active participation in the commission of offence. There is nothing in their cross-examination to disbelieve their statements. There are also no Crl. Appeal No.D-998-DB of 2009 -12- material contradictions or material improvements in their version given by them which may go to the root of the case. Their oral statements have been duly supported and corroborated by medical evidence and further there was motive to cause the occurrence. The FIR is prompt one. Therefore, we find that prosecution has duly proved its case against Parmod and Jai Parkash by leading cogent evidence beyond reasonable doubt. Therefore, conviction and sentence qua them is upheld.
From the above discussion, appeal qua appellant No.1 Parmod and appellant No.2 Jai Parkash is dismissed whereas appeal qua appellant No.3 Mukesh Kumar is allowed and he is acquitted of all the charges framed against him and as he is on bail, his bail bonds stand discharged.
(JASBIR SINGH ) (INDERJIT SINGH)
JUDGE JUDGE
March 20, 2013
Vgulati