Punjab-Haryana High Court
Mahender And Others vs State Of Haryana on 25 March, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.D-951-DB of 2009
.....
Date of decision:25.3.2013
Mahender and others
...Appellants
v.
State of Haryana
...Respondent
....
(2) Criminal Appeal No.D-960-DB of 2009
.....
Mahadev and others
...Appellants
v.
State of Haryana
...Respondent
....
(3) Criminal Appeal No.D-1034-DB of 2009
.....
Johri Mal and others
...Appellants
v.
State of Haryana
...Respondent
....
(4) Criminal Revision No.586 of 2010
.....
Chhabil Dass
...Petitioner
v.
State of Haryana and others
...Respondents
....
Coram: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
.....
Cr. A Nos.D-951-DB of 2009 etc.
[2]
Present: Mr. Vinod Ghai, Senior Advocate with Mr. Mandeep Kaushik,
Advocate for appellants in Criminal Appeal No.D-951-DB
of 2009.
Mr. R.S. Cheema, Senior Advocate with Mr. A.S. Cheema,
Advocate for the appellants in Criminal Appeal No.D-960-DB
of 2009 and Criminal Appeal No.D-1034-DB of 2009.
Mr. Ram Niwas Kush, Advocate for the petitioner in Criminal
Revision No.586 of 2010.
Mr. G.S. Chahal, Additional Advocate General, Haryana
for the respondent-State.
......
Inderjit Singh, J.
This judgment will dispose of above three appeals i.e. Criminal Appeal No.D-951-DB of 2009 filed by Mahender, Bharat Singh, Jasram, Shiv Lal and Jagdish; Criminal Appeal No.D-960-DB of 2009 filed by Mahadev, Kuldeep, Hans Raj, Inder and Jai Dev and Criminal Appeal No.D- 1034-DB of 2009 filed by Johri Mal, Makhan, Surender, Virender and Ramesh Kumar and Criminal Revision No.586 of 2010 filed by Chhabil Dass as these arise out of the same judgment of conviction and order of sentence dated 3.10.2009/8.10.2009passed by the learned Additional Sessions Judge, Hisar.
The criminal appeals and criminal revision have been filed against the judgment of conviction and order of sentence dated 3.10.2009/8.10.2009 passed by the learned Additional Sessions Judge, Hisar, whereby all the accused-appellants, except Phoolpati and Rajbala, have been held guilty and convicted for the offences under Sections 148, 302 read with Section 149 of the Indian Penal Code (hereinafter referred to as `IPC') under three different heads and for the offences under Sections Cr. A Nos.D-951-DB of 2009 etc. [3] 307, 341 and 427 read with Section 149 IPC. Accused-appellants Kuldeep, Surender, Mahadev, Pappu alias Johri, Virender alias Molar, Inder, Ramesh and Mahender have also been held guilty and convicted for the offence under Section 25 of the Arms Act and accused-appellant Jagdish has also been held guilty and convicted for the offence under Section 27 of the Arms Act. Vide order dated 8.10.2009, all the accused-appellants have been sentenced to undergo rigorous imprisonment for two years and to pay a fine of `2,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each for the offence under Section 148 IPC. They have also been sentenced to undergo imprisonment for life and to pay a fine of `10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each for the offence under Section 302 read with Section 149 IPC. They have also been sentenced to undergo imprisonment for life and to pay a fine of `10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each for the offence under Section 302 read with Section 149 IPC, on three counts, for the murder of Rai Saheb, Jug Lal and Dholu. All the accused-appellants have also been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of `5,000/- each and in default of payment of fine to further undergo rigorous imprisonment for three months each for the offence under Section 307 read with Section 149 IPC. They have also been sentenced to undergo rigorous imprisonment for one year each for the offence under Section 427 read with Section 149 IPC and sentenced to undergo simple imprisonment for one year each for the offence under Section 341 read with Section 149 IPC. Accused-appellants, Cr. A Nos.D-951-DB of 2009 etc. [4] namely, Kuldeep, Surender, Mahadev, Pappu alias Johri, Virender alias Molar, Inder, Ramesh and Mahender only have also been sentenced to undergo rigorous imprisonment for two years and to pay a fine of `2,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each for the offence under Section 25 of the Arms Act. Accused-appellant, namely, Jagdish only has also been sentenced to undergo rigorous imprisonment for three years and to pay a fine of `2,000/- and in default of payment of fine to further undergo rigorous imprisonment for one month for the offence under Section 27 of the Arms Act. All the substantive sentences have been ordered to run concurrently. However, accused Phoolpati and Rajbala have been acquitted of all the charges framed against them. Ram Niwas and Sunder have been facing inquiry before Juvenile Justice Board.
The brief facts of the prosecution case are that on 19.1.2006 a medical `Ruqa' along with MLR of Surender alias Shalender son of Dholu Ram and MLR of Om Parkash son of Ghisa Ram regarding their admission in Medical College, Agroha on account of fire arm injuries was received in Police Station, Agroha, whereupon SI Kartar Singh, SHO along with other Police officials reached Medical College, Agroha and inquired about the injured persons. The doctor had already stated `fit for statement' in the `Ruqa', but due to injuries the injured were not able to give statements properly. Then statement of Chhabil Dass was recorded. In his statement Ex.P.85 Chhabil Dass-complainant stated that on that day i.e. 19.1.2006 at about 8.30 a.m. in the morning, he and his brother Rai Saheb aged 60 years, Dholu Ram aged 55 years, Juglal aged 40 years and Nehru alias Om Parkash Cr. A Nos.D-951-DB of 2009 etc. [5] aged 38 years and his nephew Jagdish son of Rai Saheb, Shalender son of Dholu Ram, were going to Hisar to attend the Court in a case under Section 307 IPC while boarding in a Bolero vehicle bearing No.HR-61 AU (HQ) T- 7874 driven by Sandeep alias Sheelu son of Satbir from their Dhani Khasa Mahajan. When they reached at the bridge of Kishangarh branch canal, Jagdish, Shiv Lal, Jasram, Bharat Singh sons of Hazari, Hans Raj, Makhan sons of Shanker Lal, Mahender son of Jagdish, Sunder son of Hanuman, Kuldeep son of Makhan, Inder son of Ram Kumar, Mahadev son of Makhan, Pappu son of Ram Kumar, Molar son of Teja Ram had blocked the way by parking Ford Tractor-trolley on the road near the bridge and were armed with weapons i.e. guns, rifles and pistols and were hiding themselves in a jeep parked on the side of the road. When their Bolero vehicle reached on the bridge, all the aforesaid persons alighted from the jeep and started firing indiscriminately upon their vehicle. On account of firing at the vehicle, the driver got frightened and the vehicle struck against the wall of the bridge and it turned turtle. They all got perplexed. Complainant's brothers Rai Saheb, Dholu Ram and Juglal opened the window of their side and alighted down. The aforesaid persons (accused) fired directly at them. Due to receipt of fire shots, Dholu Ram and Rai Saheb died at the spot and complainant's brother Juglal, out of fear, ran towards a nearby Tube-well `Kotha' of Bhaga Ram and in order to save his life tried to hide himself there. All the aforesaid persons reached there at the `Kotha' and fired shots at him and he died at the spot. Sandeep-driver also received fire arm shots, who rescued himself and fled away from the spot. Complainant's nephew Shalender while rescuing him also succeeded in running away from the Cr. A Nos.D-951-DB of 2009 etc. [6] spot. The complainant and his brother Nehru alias Om Parkash due to turn turtle of the vehicle remained struck in the vehicle. His nephew Jagdish son of Rai Saheb also ran away from the spot. The complainant further stated that he did not know anything about him. Thereafter, all the aforesaid assailants taking all of them to be finished left the place of occurrence with their respective weapons and vehicles proclaiming that all the enemies had been wiped off. Thereafter, persons from nearby fields turned up at the spot and made their vehicle Bolero straight and extracted him and his brother Nehru alias Om Parkash from the vehicle and took them in a Maruti car to Medical College, Agroha, where Om Parkash was got admitted. After sometime, his nephew Shalender also came there for treatment. The cause of grievance was that about ten years ago complainant's brother Nehru alias Om Parkash had murdered Hanuman son of Shanker Lal. During the previous Panchayat elections Pappu and Jagdish had fired at them in Dhani Khasa Mahajan on account of which a case under Section 307 IPC was registered against them. They were going to the Court in connection with that case. After recording the statement of the complainant, `Ruqa' was sent to the Police Station for registration of FIR, on the basis of which formal FIR was registered.
Then the Investigating Officer SI Kartar Singh, SHO reached the place of occurrence along with Photographer. After they reached the spot, team of scene of crime also reached there. Place of occurrence were two places. Therefore, HC Balwan and EHC Ram Chander were sent to other spot that was field of Bhaga Ram. The Investigating Officer inspected the dead bodies of Rai Saheb and Dholu Ram. Two live cartridges of .315 Cr. A Nos.D-951-DB of 2009 etc. [7] bore, 20 empties of .315 bore, five cartridges of .12 bore, 4 wads of .12 bore, four led of bullet, blood stained earth lying near dead body of Rai Saheb and Dholu Ram, blood lying on the seat of the vehicle Bolero and pieces of glasses were lifted from the spot and were converted into separate sealed parcels and were taken into Police possession vide separate recovery memos. The Investigating Officer conducted inquest proceedings and prepared inquest reports Ex.P.77 of Rai Saheb, Ex.P.52 of Dholu Ram, Bolero vehicle was also taken into Police possession vide separate recovery memo Ex.P.88. Rough site plan Ex.P.186 was also prepared. The dead bodies were sent for conducting post-mortem examination.
Thereafter, the Investigating Officer reached the second spot where dead body of Jug Lal was lying. He inspected the dead body and the place of occurrence. He lifted one led pellet lying in the `Kotha' and one led piece was lifted from outside the `Kotha'. Blood stained earth from the `Kotha' was also lifted. All these things were converted into sealed parcel. Inquest proceedings Ex.P.65 in respect of dead body of Jug Lal were conducted. Rough site plan Ex.P.87 of the second place of occurrence was prepared. The dead body of Jug Lal was also sent for conducting post- mortem examination. The clothes of the deceased and the pellets extricated from the dead bodies of Rai Saheb and Dholu Ram were also taken into Police possession. On 20.1.2006, the Investigating Officer went to CMC Hospital and statements of Surender alias Shalender and Om Parkash were recorded. Thereafter, statement of Sandeep was recorded in Sapra Hospital and statement of Jagdish was recorded in the Dhani Khasa Mahajan. On 22.1.2006, Ram Kishan, Ex-Sarpanch of Village Boda produced accused Cr. A Nos.D-951-DB of 2009 etc. [8] Mahadev, Kuldeep, Sunder and Teja. During investigation, country made pistols of 12 bore were recovered from Mahadev (Marked as W/1 in FSL Report), Johri Mal alias Pappu (Marked as W/4 in FSL Report) and Jagdish (Marked as W/11 in FSL Report) respectively. Country made pistols of .315 bore were recovered from Kuldeep (Marked as W/2 in FSL Report), Virender alias Molar (Marked as W/5 in FSL Report), Surender (Marked as W/6 in FSL Report), Inder (Marked as W/7 in FSL Report), Mahender (Marked as W/10 in FSL Report) respectively. Double barrel rifle (Marked as W/12 in FSL Report) was also recovered from Jagdish. The accused were arrested. The statements of the witnesses were recorded. After necessary investigation, challan was presented in Court.
On presentation of challan, the trial Court finding prima facie case against the accused-appellants Mahadev, Kuldeep, Pappu alias Johri Mal, Inder, Ramesh, Surender, Virender alias Molar, Jagdish, Mahender, Teja Ram, Shiv Lal, Hans Raj, Makhan Lal, Jasram, Bharat Singh and Jai Dev, framed charges for the offences under Sections 120-B, 148 and 302 read with Section 149 IPC (for committing murders of Dholu Ram, Jug Lal and Rai Saheb) and Sections 307 read with Section 149 IPC, 341 read with Section 149 IPC and 427 IPC. In addition, charges were framed against accused-appellants Kuldeep, Surender, Mahadev, Pappu alias Johri Mal, Virender alias Molar, Inder, Ramesh and Mahender for the offence under Section 25 of the Arms Act and against accused-appellant Jagdish for the offence under Section 27 of the Arms Act. The accused pleaded not guilty to above charges and claimed trial.
In support of its case, the prosecution examined PW-1 Cr. A Nos.D-951-DB of 2009 etc. [9] Constable Amrik Singh, who mainly deposed regarding mechanically examining jeep bearing No.HR-61 -AV(HQ)T-7874 on 28.1.2006 and proved his report. PW-2 Suresh Kumar, Revenue Patwari mainly deposed regarding preparing of scaled site plans Ex.P.2 and Ex.P.3. PW-3 Shanti Swaroop, Photographer mainly deposed regarding photographs Ex.P.4 to P.13 and their negatives Ex.P.14 to P.23. PW-4 Dr. Rajiv Joshi, Assistant Professor, Forensic Medicines, Agroha Medical College, Agroha has been partly examined on 25.8.2007 and thereafter, he was not examined. He had brought the post-mortem reports of Juglal, Dholu Ram and Rai Saheb. PW- 5 Constable Sajjan Singh mainly deposed regarding disclosure statements of Virender alias Molar Ex.P.24 regarding keeping one mobile phone and also regarding recovery of that mobile phone in pursuance of his disclosure statement. PW-6 ASI Ram Kishan mainly deposed regarding disclosure statement made by accused Jai Dev regarding mobile phone which was taken into Police possession. He also deposed about disclosure statement made by accused Ramesh Kumar regarding keeping concealed country made pistol of 12 bore and two live cartridges and he also got recovered the same in pursuance of his disclosure statement. PW-7 HC Balwan Singh, deposed regarding disclosure statement of Inder-accused regarding keeping concealed pistol of .315 bore and regarding the recovery of the same in pursuance of his disclosure statement. PW-8 HC Chandi Ram is a formal witness, who tendered in evidence his affidavit Ex.P.38.
Dr. Rajiv Joshi again examined as PW-9 mainly deposed that on 19.1.2006 he medico-legally examined injured Surender alias Shalender at 9.05 a.m. and found the following injuries:-
Cr. A Nos.D-951-DB of 2009 etc. [10] "1. .1 x .1 cm lacerated puncture wound present on left side of forehead 1 cm above middle of left eye brow. Margins were irregular. Fresh bleeding was present.
2. .1 x .1 cm lacerated puncture wound present on right side of forehead 5 cm above mid of right eye brow. Margins were irregular. Fresh bleeding was present.
3. .1 x .1 cm lacerated puncture wound present on right side of head 3 cm above injury No.2.
4. .1 x .1 cm lacerated puncture wound present on mastoid area.
5. .1 x .1 cm lacerated wound present on upper part of right ear pinna.
6. .1 x .1 cm lacerated puncture wound present one cm below right eyelid on lower aspect.
7. .1 x .1 cm lacerated wound present on inner aspect of lower right eyelid. Margins were irregular. Fresh bleeding was present.
8. .1 x .1 cm lacerated wound present on dorsum of left hand 8 cm distal to left wrist.
9. 6.5 x .5 cm lacerated wound present on back of right forearm 5 cm below tip of elbow.
10. 6 x .2 cm reddish bruise present on back of right forearm 9 cm below tip of elbow.
11. 1 x .2 cm lacerated wound present on right forearm 9 cm below tip of elbow."
Cr. A Nos.D-951-DB of 2009 etc. [11] He stated that probable duration of injuries was fresh.
On the same day at 9.15 a.m. he also medico-legally examined injure d Om Parkash and found the following injuries:-
"1. 3.5 x 1.5 cm lacerated puncture wound over posterior lateral aspect of left chest 28 cm above tip of iliac rest. Margins were irregular. Fresh bleeding was present. Wound had inverted margins. Clothes were torn.
2. 3 x .2 cm lacerated wound present on back of left side of abdomen. Margins were inverted and irregular. Wound was 10 cm above tip of iliac rest.
3. 4 x 2 cm lacerated puncture wound present on dorsum of left hand 4.5 cm below wrist. Margins were inverted in nature.
4. 3 x 1 cm lacerated wound present on tip of left ring finger.
5. 3 x 1 cm lacerated wound present on tip of left middle finger.
6. 1.7 x 5 cm lacerated wound present on Palmer aspect of left hand 5 cm below wrist joint.
7. 9 x 2 cm abrasion present on dorsum of left foot. Swelling was paustive."
He further deposed regarding medico-legal examination of Sandeep at 11.05 a.m. on that day and found the following injuries:-
"1. 6 x 4 x 4 cm lacerated wound present on front of right wrist. Margins were inverted and irregular. Fresh bleeding was present. Wound was muscle deep. Tattooing was present.
Cr. A Nos.D-951-DB of 2009 etc. [12] There was no blackening.
2. 7 x 1.5 cm lacerated wound present on thenar eminence of right hand. Margins were irregular and everted. Wound was muscle deep. Fresh bleeding was present. Tattooing was absent.
3. 3 x 1.6 cm lacerated wound present on Palmer aspect of right thumb. Fresh bleeding was present. Margins were irregular.
4. 5 x 3 cm lacerated wound involving right middle finger, terminal phalanx was found fractured. Fresh bleeding was present.
5. 3.5 x 3 cm reddish bruise present on right side of the chest 8 cm below and medial to right nipple at 5.00 O'clock position."
PW-9 Dr. Rajiv Joshi further deposed regarding conducting of post- mortem examination on the dead body of Dholu Ram and found the following injury:-
"1. 3 x 2 cm lacerated wound with inverted margins present on middle of upper trunk 25 cm below posterior hair line. Blackening was present. Corresponding cut was present in cloth. On dissection ribs number 4th, 5th and 6th rib were found fractured and laceration of left lung at its base was present. 2 Litre blood was found in pleural cavity. 2 pellets (projectile) were recovered from left side of chest. Tears were present in arch of aorta."
Cr. A Nos.D-951-DB of 2009 etc. [13] The injury was ante-mortem in nature. The cause of death in this case was laceration of lung, which was on vital organ and it was sufficient to cause death in ordinary course of nature.
The doctor further deposed regarding conducting of post- mortem examination on the dead body of Jug Lal and found the following injuries:-
"1. 3 x 1 cm lacerated puncture wound present 0.2 cm below mid clavicle around left side of chest. Margins were inverted, blackening was present. On dissection underlying ribs i.e. 3rd and 4th ribs were found fractured, laceration of left lung positive, plural cavity contained about one litre blood, corresponding tears were present in clothes.
2. 3 x .8 cm lacerated puncture wound with everted margins was present at the back of left chest, 18 cm below nape of neck, margins were irregular, corresponding tears were present at the back of shirt and banian.
3. 4 x 3 cm lacerated punctured wound with inverted margins was present at upper one third of right upper arm about 5 cm below tip of shoulder. Blackening was present. On dissection infiltration of blood in muscle was present, head of the humerus bone was found fractured. Right clavicle was found fractured at its middle. Laceration of Trachea was present. Corresponding tears were present on clothes.
4. 3 x 2.5 cm lacerated punctured wound with everted margins was present at upper one third of left arm, 6 cm below tip of Cr. A Nos.D-951-DB of 2009 etc. [14] shoulder. Infiltration of blood in muscle was present. Comminuted fracture of humerus as its upper part was present. Corresponding tears were present in clothes.
5. 2 x .5 cm lacerated punctured wound was present at middle one third of upper left arm. Margins were inverted and blackening was present. Wound was 8 cm from injury No.4.
6. 1 x 4 cm lacerated puncture wound was present at medial aspect of upper one third of left forearm. 15 cm from injury No.5. Corresponding tears were present in clothes. Infiltration of blood in muscles were present.
7. 6.5 x 4 cm lacerated punctured wound with inverted margins involving left ear, laceration of ear was present, blackening was present, temporal bone was found fractured. There was laceration of brain on left lobe was found present.
8. 2 x 1.8 cm lacerated puncture wound with inverted margins was present on left side of skull, 1.3 cm above injury No.7. Underlying bone was found fractured. Laceration of left lob of brain was present. Deformed projectile were recovered.
9. 8 x 5 cm lacerated wound with everted margins with avulsion of scalp was present, underlying frontal and parietal bone was found fractured. Laceration of brain was present and brain tissue was lying outside and exposed.
10. 2.5 x 1 cm lacerated punctured wound with inverted margins was present at right leg 13 cm below knee, deformed projectile recovered. Corresponding fracture of the bone was Cr. A Nos.D-951-DB of 2009 etc. [15] present.
11. 3 x 1.2 cm lacerated punctured wound with everted margins was present 10 cm below right popliteal fossa."
The cause of death in this case, in the opinion of the doctor, was laceration of brain, a vital organ which was sufficient to cause death in ordinary course of nature.
He further deposed regarding conducting of post-mortem examination on the dead body of Rai Saheb and found the following injuries:-
"1. 3 x 1.5 cm lacerated punctured wound with inverted margins was present on right side of chest, 15 cm below right nipple at 5.00 O'clock position. Corresponding cuts were present in clothes . Blackening was present. On dissection xiphisternum (Lower part of sternum bone) was found fractured. Infiltration of blood was found in muscles. Laceration of heart was present at its base, pericardial cavity was full of blood. There was laceration of left lung, pleural cavity was full of blood.
2. 7 x 3 cm lacerated punctured wound with everted margins was present on back of left chest, 14 cm below tip of shoulder, corresponding cuts were present in clothes, 5th, 6th and 7th rib were found fractured.
3. 3 x 2 cm lacerated punctured wound with inverted margins was present on right flank, 6 cm above iliac crest. Blackening was present. Bruising of ileum was present.
Cr. A Nos.D-951-DB of 2009 etc. [16] Mesenteric tear was present. Peritoneal cavity was full of blood. It was approx. 2 litre of blood. On dissection one projectile was recovered from left side of flank which was scaled.
4. Multiple lacerated wound about six in number in dimension about 1 x 1 cm were present on left buttock in an area of 15 x 10 cm. On dissection pellets about four in number were recovered and sealed in plastic container. On dissection infiltration of blood was present in muscles. Corresponding tears were present in clothes.
5. .1 x .1 cm lacerated punctured wound with inverted margins was present on middle of left cuboital fossa. On dissection infiltration of blood in muscles was present."
He also deposed that all the injuries were ante-mortem in nature. The cause of death in this case was due to laceration of lung and heart vital organs which were sufficient to cause death in ordinary course of nature.
PW-10 Chhabil Dass-complainant deposed as per prosecution version. He also deposed that tractor trolley was parked in middle of road by Teja Ram accused. He also named accused Surender, Ramesh Kumar, Jai Dev and Ram Niwas, who were not named in the FIR. Teja Ram was armed with pistol. Ram Niwas and Sunder were facing inquiry before Juvenile Justice Board. PW-11 Jagdish is also eye witness to the occurrence. He did not receive any injury. He also deposed as per prosecution version. PW-12 Shalender alias Surender is the injured witness. He also deposed as per prosecution version. PW-13 Nihal Singh, Reader to DM, Hisar mainly Cr. A Nos.D-951-DB of 2009 etc. [17] deposed regarding the sanction order passed by District Magistrate, Hisar. PW-14 ASI Om Parkash is a formal witness, who tendered in evidence his affidavit Ex.P.97. PW-15 ASI Ganga Dutt is a formal witness, who tendered in evidence his affidavit Ex.P.98. PW-16 Constable Pritam Lal mainly deposed regarding delivery of special report. PW-17 Dr. N.C. Varma deposed that on 19.1.2006 Om Parkash and Shalender were admitted in CMC, Hospital with history of gun shot injuries. The injuries were sustained in the morning at about 8.00 a.m. The information was sent to Police as per `Ruqa' Ex.P.100. The doctor also deposed regarding bed head tickets of the patients and regarding treatment etc. PW-18 Constable Kulwant Singh is a formal witness, who tendered in evidence his affidavit Ex.P.127. PW-19 HC Baldev Singh deposed regarding the investigation conducted in this case and stated that Pappu, Surender, Virender, Hans Raj got recovered the arms on 26.1.2006. PW-20 ASI Bhanwar Lal mainly deposed regarding joining the investigation with ASI Kartar Singh on 19.1.2006 and mainly deposed regarding getting conducted post-mortem examination at Medical College, Agroha. He was present during the interrogation of the accused on 23.1.2006. He deposed regarding the investigation conducted by the Investigating Officer in this case as he joined the Police party. PW-21 Jyotish Chander Moharana of Vodafone Essar Limited, Karnal brought the record pertaining to call details between Mobile No.98133-26849 in the name of Virender Kumar and Mobile No.98133- 26528 in the name of Ram Kishan. He deposed regarding call details Mark- A. PW-22 Nihal Singh is retired SI and he deposed regarding FIR No.274 dated 23.10.1996 under Section 302 IPC and Section 25 of the Arms Act.
Cr. A Nos.D-951-DB of 2009 etc. [18] PW-23 SI Ram Roop, SHO mainly deposed regarding FIR No.35 dated 16.3.2000 under Sections 307, 285, 188 and 34 IPC. That FIR was registered on the statement of Mahadev against Jagdish son of Rai Saheb and Surender son of Dholu Ram. PW-24 ASI Vishvajeet Singh mainly deposed regarding the investigation conducted as he joined the Police party. PW-25 SI Ram Pal also joined investigation in this case on 23.1.2006 with Kartar Singh and deposed regarding disclosure statements made by Mahadev and Kuldeep. PW-26 Dr. Archana, Radiologist, Sukhda Hospital, Hisar mainly proved the X-ray reports of Shalender, Sandeep and Om Parkash and also deposed regarding the X-ray films. PW-27 Raj Kumar, Retired Sub Inspector also brought the FIR register in respect of FIR No.36 dated 13.2.2003 registered on the statement of Rai Saheb under Sections 285, 506 and 34 IPC and Section 25 of the Arms Act against Jaidev, Johri Mal and Mahadev. PW-28 Ajmer Singh, Arms Licence Clerk office of SDM, Fatehabad deposed regarding original licence of Jagdish son of Hazari Ram regarding SBBL Gun and rifle along with 25 cartridges. PW-29 Kartar Singh, Retired Inspector was the Investigating Officer. He mainly deposed regarding the investigation conducted by him in the present case. PW-30 ASI Jagdish Prasad also deposed regarding FIR No.243 dated 21.8.1997 under Sections 307, 148, 149 IPC registered on the statement of Shiv Lal. PW-31 Dr. Sandeep Makan, Radiologist, Fortis Hospital, Noida mainly deposed regarding CT scan of head, eyes, chest and abdomen of Surender and Om Parkash. He stated that on CT scale of head of Surender, he found pellets in scalp with pellet in right orbital globe. Brain study was within normal limits. In CT scan of Om Parkash, he found metallic artifact Cr. A Nos.D-951-DB of 2009 etc. [19] and contusion left lower lobe with pneumothorax left thorax with fracture left tenth rib.
At the close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and were confronted with the evidence of the prosecution. They denied the correctness of the evidence and pleaded themselves as innocent. Accused-appellants stated that they are innocent and had been falsely implicated in this case.
In defence, no evidence has been produced.
After going through the evidence and material on record, the learned trial Court vide impugned judgment and order convicted and sentenced the accused-appellants for the offences as mentioned above. However, accused Phoolpati and Rajbala were acquitted of the charges framed against them.
At the time of arguments, learned senior counsel appearing for the appellants argued that 13 persons were named in the FIR and the complainant in his statement added five more persons. The total 20 persons were tried in the present case and all the family members and near relatives have been implicated in this case. They further argued that it is otherwise improbable that more than 18 persons could sit in a jeep. Learned senior counsel further argued that the FIR was not recorded on the statement of injured though in the MLRs they were stated to be conscious. They further argued that in the present case general statement has been made that all the accused have fired on the complainant party without specifically attributing the role to any of the accused. Therefore, in the alternative they argued that in such a case the Court is to scrutinize the evidence and to find out the Cr. A Nos.D-951-DB of 2009 etc. [20] persons involved in the occurrence on the basis of medical evidence, FSL reports etc. Therefore, learned senior counsel argued that the appeals should be accepted accordingly.
On the other hand, learned Additional Advocate General appearing for the respondent-State and learned counsel for the revision petitioner argued that the accused-appellants have been correctly convicted. There is no merit in the appeals. Rather, they should be given capital punishment and compensation be also granted to the legal representatives of the deceased by accepting the criminal revision. They argued that the appeals having no merit should be dismissed.
We have heard learned senior counsel appearing for the appellants, learned counsel for the revision petitioner and learned Additional Advocate General, appearing for the respondent-State and with their assistance have gone through the evidence on record minutely and carefully.
From the evidence on record, we find that it is a case of direct evidence. PW-10 Chhabil Dass is the complainant and eye witness in the case. PW-11 Jagdish is also an eye witness in the present case. PW-12 Shalender is injured eye witness in the present case. They have consistently deposed regarding the occurrence. Surender alias Shalender as per MLR had received 11 injuries on his person and mostly these injuries were with fire arm. The other injured Om Parkash alias Nehru, who died after 3-4 months of the occurrence, had also received six injuries but he could not be examined due to his death. The third injured Sandeep had not been examined in the present case and had been given up being won over. He Cr. A Nos.D-951-DB of 2009 etc. [21] was the driver of the jeep in which the complainant party was travelling. The presence of eye witnesses cannot be doubted especially of injured PW- 12 Surender alias Shalender. The injuries on his person cannot be self- suffered and he received the injuries during the occurrence. He had deposed consistently regarding the time, date, place of occurrence and the manner in which the occurrence took place. There is no evidence on the record that any of the accused had received any injury. There is no evidence on the record that complainant party was armed with any weapon. Three persons from the complainant side, namely, Rai Saheb, Juglal and Dholu Ram had died due to receiving of fire arm injuries. The eye witnesses had deposed consistently regarding the prosecution version and there are no material contradictions in their statements which may go to the root of the case. Similarly, though there are some improvements in the statements of the witnesses but these are not such material improvements which may go to the root of the case.
The argument that some of the persons were not named in the FIR but the complainant gave their names in his statement and they have been challaned (charge-sheeted) does not create any doubt in the prosecution version. First of all, the FIR cannot be held as an encyclopedia. It is only meant for giving the earliest version and to set the criminal law into motion. We further find that complainant Chhabil Dass had given the names of five more persons which he gave in the FIR. Teja Ram was the driver of the tractor trolley and it is in the FIR that a tractor trolley was parked near the bridge to obstruct the way. Teja Ram had already died during the pendency of the trial. As regards Ram Niwas, he is facing Cr. A Nos.D-951-DB of 2009 etc. [22] inquiry before the Juvenile Justice Board. As regards accused Surender and Ramesh Kumar, they got recovered country made pistols as per evidence and as per FSL report the weapons recovered from Surender and Ramesh Kumar have been matched with some of the empties recovered from the spot. Therefore, in view of the above facts it cannot be held that all these five persons, who were not named in the FIR, are innocent only on that ground. A perusal of the evidence on record shows that though three persons had been killed in the present case and three had received injuries, which were fire arm injuries but even then it looks that the complainant party has tried to implicate almost all the family members and near relatives of the family which is general tendency to name as many persons as possible to implicate almost all the family members by making exaggeration. In the present case, no specific injury has been attributed to specific accused-appellant. There is general evidence that all the accused fired upon the complainant party. No specific weapon in the hand of specific person had been mentioned. No specific injury had been attributed to specific person as had come in the evidence. Otherwise also, as per prosecution version the accused had hide themselves in the jeep and in a jeep about 18 persons cannot sit. There is also no need to bring all the children of the family members to the place of occurrence by the accused party. Therefore, from the evidence on record, it looks that some of the accused have been implicated being close relatives of the accused party specially in the circumstances when there is already enmity between the two families and the criminal cases are pending between them. It is also the prosecution version that the complainant party was going on that day in a Cr. A Nos.D-951-DB of 2009 etc. [23] jeep to attend a Court case against the accused and they were attacked by waylaying them and killed an eye witness of that case. A specific place had been chosen that is bridge which was blocked. The complainant party was encircled and fired from the fire arms. The injuries received by the deceased as well as the injured and from the evidence on record it cannot be held that all these persons have taken participation in the commission of the offence. In view of these circumstances, it is the duty of the Court to separate the grain from the `chaff'. In other words, the Court is to separate the falsehood from the truth.
It is settled law that each case has to be decided on its own facts. Generally, the Courts look for corroboration from surrounding circumstances i.e. medical evidence, gravity of the role, probability, motive etc. Generally cases of complete substance are rare whereas addition or false implication of some persons is quite common. It is seen that generally the actual culprits are not left out but due to some reason or the other there is tendency on the part of aggrieved victim to give an exaggerated version and to rope in even innocent persons of the opposite faction. The doctrine of falsus in uno is not applicable in India.
As regards the argument that the FIR was not recorded on the statement of injured, it will make no difference as PW-10 Chhabil Dass was also an eye witness to the case. Secondly, it is in the evidence that when they had been medico-legally examined, they were conscious but after recording the statement of the complainant it is in the Police proceedings that when the Investigating Officer went to the hospital, these injured were not in a condition to give statements. Therefore, on this ground, no Cr. A Nos.D-951-DB of 2009 etc. [24] reasonable doubt exists in the prosecution version.
In the present case, as per evidence on record 12 bore country made pistol Ex.P.151 was recovered from Mahadev, which has been marked as per FSL report as W/1. Again .315 bore country made pistol Ex.P.152 was recovered from Kuldeep-appellant, which has been marked as W/2 in the FSL report. A 12 bore country made pistol Ex.P.135 was recovered from Johri Mal alias Pappu, which has been marked as W/4 in the FSL report. Similarly, a .315 bore country made pistol has been recovered, which is Ex.P.137, from Virender alias Molar, which has been marked as W/5 in the FSL report. From appellant Surender a .315 bore country made pistol Ex.P.136, which has been marked as W/6 in the FSL report, was recovered. From Inder a .315 bore country made pistol Ex.P.36, which is marked as W/7 in the FSL report, was recovered. From Ramesh Kumar a 12 bore country made pistol Ex.P.33, which is marked as W/9 in the FSL report, was recovered. From Mahender a .315 bore country made bore pistol Ex.P.160, which has been marked as W/10 in the FSL report, was recovered. From appellant-Jagdish a 12 bore country made single barrel gun Ex.P.161 and a double barrel rifle Ex.P.165 have been recovered, which were marked as W/11 and W/12 in the FSL report. As per FSL report Ex.P.217 and result of entry No.3 shows that 12 bore fire cartridges marked as C/1 to C/4 and 12 bore fired lead slug marked as BC/7 have been fired from country made pistol marked as W/9 and not from any other fire arm. This weapon W/9 has been recovered from appellant Ramesh Kumar. Therefore, the weapon recovered from appellant Ramesh Kumar has been matched with the empties C/1 to C/4 and the fired lead slug marked BC/7. Similarly, as per Cr. A Nos.D-951-DB of 2009 etc. [25] entry No.4 of the result of FSL, 12 bore fired cartridge case marked as C/5 has been fired from a country made gun marked as W/4 and not from any other fire arm even of the same make and bore. This weapon W/4 has been recovered from Johri Mal alias Pappu. Again as per result of entry No.5, . 315" fired cartridge cases marked as C/14, C/24, C/25 and .315" fired bullet marked as BC/2 have been fired from a country made pistol marked as W/2, which has been got recovered by Kuldeep-appellant. As per result entry No.6, .315" fired cartridges cases marked as C/7, C/8, C/9, C/10, C/12 and . 315" fired bullets marked as BC/1, BC/9 had been fired from country made pistol marked as W/5 and not from any other weapon. This pistol has been got recovered by appellant Virender alias Molar. Entry No.7 regarding the result of FSL shows that .315" fired cartridges cases marked as C/13, C/15, C/16, C/19, C/20 and C/22 and .315" fired bullets marked as BC/3, BC/5 had been fired from country made pistol mark-W/6 and not from any other weapon. This weapon has been got recovered by Surender appellant. As per result of entry No.8, .315 fired cartridges cases marked as C/11, C/18 and C/21 have not been fired from W/2, W/3, W/5, W/6, W/7, W/10. However, these have been fired from one and same country made fire arm. Therefore, as per this result, it can be fired from the other country made weapon of .315 bore which has not been got recovered. As per result entry No.9, no definite opinion could be formed regarding the linkage of .315"
fired cartridge cases marked as C/6, C/17, C/23 in respect of country made pistol due to lack of sufficient comparable individual characteristic marks. However, C/6, C/17 and C/23 have been fired from country made fire arm. This result/opinion of the FSL regarding the weapon and the empties which Cr. A Nos.D-951-DB of 2009 etc. [26] were lifted from the spot connects accused-appellants Ramesh Kumar, Johri Mal alias Pappu, Kuldeep, Virender alias Molar and Surender with the commission of crime. Therefore, from the evidence, it is clear that the 25 empties, which were lifted from the spot, some of them have been matched with the weapons which were got recovered by these five appellants. Therefore, there is cogent evidence regarding their involvement in the present case who had fired from their weapons. As per result of entry No.9 of the FSL, C/6, C/7 and C/23 fire cartridges opinion could not be formed due to lack of sufficient comparable individual characteristic marks which means that these could have been fired from the .315 bore pistol of Mahender and country made pistol of .315 bore of Inder or the persons who are already named above. Otherwise also, appellants-Mahender and Inder during the interrogation have got recovered these weapons and in view of the statements of the eye witnesses and in view of the fact that their names have been given in the FIR itself connect them with the commission of crime.
As regards appellants-Mahadev and Jagdish, they have been named in the complaint filed by the complainant party which was pending on that day as admitted at the time of argument. Therefore, these witnesses are to depose against them in that complaint which was the motive for the occurrence to stop them from appearing in the Court. Therefore, appellants Mahadev and Jagdish are also involved in the crime and in view of the statements of the eye witnesses and in view of their names in the FIR and in view of the fact that complaint had been filed against them and the motive to stop the witnesses who were going to attend the Court, they are proved to Cr. A Nos.D-951-DB of 2009 etc. [27] be involved in the case and no doubt can be raised regarding their guilt and the version of prosecution regarding them also cannot be held as improbable.
As regards appellants Shiv Lal, Bharat Singh and Jasram, no arms had been recovered nor any incriminating articles had been recovered, therefore, there is a reasonable doubt regarding their presence at the spot and their active participation in the commission of offence. Similarly, from appellants Makhan, Hans Raj and Jai Dev no arms had been recovered. From Jai Dev a mobile phone is stated to have been recovered but the call details are not connected. Therefore, a reasonable doubt exists regarding these six accused-appellants regarding their participation in the commission of crime.
Therefore, from the above discussion, we find that the prosecution has failed to lead cogent evidence to connect accused- appellants Bharat Singh, Jasram, Shiv Lal, Makhan, Hans Raj and Jai Dev by leading cogent evidence and a reasonable double exists regarding their involvement in the crime. Therefore, benefit of doubt always go to the accused and by giving them benefit of doubt, they are held not guilty of the charges framed against them.
As regards appellants Mahadev, Juglal, Johri Mal alias Pappu, Surender, Virender alias Molar, Ramesh Kumar, Mahender, Kuldeep and Inder, as discussed above, there is cogent evidence regarding their involvement in the commission of offence. All of these appellants have got recovered weapons. Some of the weapons have even matched with the empties recovered from the spot. There is specific finding regarding Cr. A Nos.D-951-DB of 2009 etc. [28] matching of 19 empties which may be from the country made .315 bore pistols and three empties as per FSL report were fired from one weapon only. The statements of the eye witnesses to that extent have been duly supported and corroborated by medical evidence and investigation conducted in the case. There is a motive for causing the occurrence. Therefore, the prosecution has succeeded in proving its case against these nine appellants.
As regards the criminal revision for enhancement of sentence, we find that in no way it can be held as a rarest of rare case and no special circumstances have been shown to give the capital punishment to the appellants (respondents in criminal revision) as the allegations against all the appellants are same and no specific attribution is there to specific appellant. Therefore, in the facts and circumstances, we do not find it a fit case where capital punishment should be awarded to the appellants (respondents in criminal revision) and to that extent we do not find any merit in the criminal revision.
As regards compensation, we find that each of the convict has been asked to pay fine of `30,000/- i.e. `10,000/- in each of the murder case. If this is recovered, it will also be paid to the legal representatives of the victims as compensation in equal share. In addition to it, the convicts- appellants will also pay `50,000/- each as compensation. The total compensation amount recovered will be given 1/3rd to the LRs of each deceased i.e. Rai Saheb, Juglal and Dholu Ram and their legal representatives will get inter se in equal shares.
Therefore, from the above discussion, Criminal Appeal No.D-
Cr. A Nos.D-951-DB of 2009 etc. [29] 951-DB of 2009 is allowed qua appellants No.2, 3 and 4 Bharat Singh, Jasram and Shiv Lal respectively and the impugned judgment of conviction and order of sentence qua them are set aside. They are acquitted of the charges framed against them. As they are in custody, they be released forthwith, if not required in any other case. However, appeal qua appellants No.1 and 5 Mahender and Jagdish respectively is dismissed. The amount of `30,000/- each of fine, if recovered, will also be treated as compensation payable to the legal representatives of the deceased as stated above.
Criminal Appeal No.D-960-DB of 2009 is allowed qua appellants No.3 and 5 Hans Raj and Jai Dev respectively and the impugned judgment of conviction and order of sentence qua them are set aside. They are acquitted of the charges framed against them. As they are in custody, they be released forthwith, if not required in any other case. However, appeal qua appellants No.1, 2 and 4 Mahender, Kuldeep and Inder respectively is dismissed. The amount of `30,000/- each of fine, if recovered, will also be treated as compensation payable to the legal representatives of the deceased as stated above.
Criminal Appeal No.D-1034-DB of 2009 is allowed qua appellant No.2 Makhan and the impugned judgment of conviction and order of sentence qua him are set aside. He is acquitted of the charges framed against him. As he is in custody, he be released forthwith, if not required in any other case. However, appeal qua appellants No.1, 3, 4 and 5 Johri Mal alias Pappu, Surender, Virender and Ramesh Kumar respectively is dismissed. The amount of `30,000/- each of fine, if recovered, will also be treated as compensation payable to the legal representatives of the deceased Cr. A Nos.D-951-DB of 2009 etc. [30] as stated above.
Criminal Revision No.586 of 2010 regarding enhancement of sentence of capital punishment is dismissed and as regards compensation, it is allowed. The convicts-appellants in addition to fine, which is converted into compensation, will further pay compensation of `50,000/- each which is to be paid to the legal representatives of the deceased as stated above.
(Jasbir Singh) (Inderjit Singh)
Judge Judge
March 25, 2013.
*hsp*