Punjab-Haryana High Court
Subhash @ Bhasi And Another vs State Of Haryana on 27 November, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(i) Criminal Appeal No.D-582-DB of 2007
Date of decision : 27.11.2012
Subhash @ Bhasi and another
....Appellants
VERSUS
State of Haryana
....Respondent
(ii) Criminal Appeal No.S-1226-SB of 2007
Anil and others
....Appellants
VERSUS
State of Haryana
....Respondent
CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Mr.R.N.Kush, Advocate, for the appellants in Criminal Appeal No.D-582-DB of 2007. Mr.Atul Lakhanpal, Senior Advocate with Mr.R.S.Chahal and Mr.Arjun Lakhanpal, Advocates, for the appellants in Criminal Appeal No.S-1226-SB of 2007.
Mr.R.K.S.Brar, Addl. Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J This judgment shall dispose of Criminal Appeal No.D- 582-DB of 2007 filed by appellants Subhash @ Bhasi and Ashok and Criminal Appeal No.D-582-DB of 2007 etc. [2] Criminal Appeal No.S-1226-SB of 2007 filed by appellants Anil, Chandu and Jagdish as these arise out of the judgment dated 28.05.2007 and order of sentence dated 30.05.2007, passed by the Addl. Sessions Judge, Hisar, vide which appellant Subhash @ Bhasi has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months under Section 307 read with Section 149 IPC, rigorous imprisonment for a period of three years under Section 148 IPC; simple imprisonment for a period of one month under Section 341 read with Section 149 IPC and rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months under Section 25 of the Arms Act. Appellants Anil, Ashok, Chandu and Jagdish have been convicted and sentenced to undergo rigorous imprisonment for a period of three years each under Section 148 IPC, simple imprisonment for a period of one month each under Section 341 read with Section 149 IPC and rigorous imprisonment for a period of five years each and to pay a fine of Rs.2,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of two months each under Section 307 read with Section 149 IPC. All the sentences were ordered to run concurrently.
Brief facts of the prosecution case are that FIR was registered on the statement of Gulab Singh, complainant, which was Criminal Appeal No.D-582-DB of 2007 etc. [3] got recorded by Sub Inspector Mahinder Singh, Police Station City, Hisar, on 11.09.2001 at 4:00 a.m. In his statement, complainant Gulab Singh has stated that on 10.09.2001, at about 10:00 p.m., his uncle Hanuman and Mahinder @ Bhuria and Rajinder came to him and told that their cow had been lost and asked him to help them in searching the cow. When after making search, they were coming back at their house at about 12:30 a.m. in the night, Rajinder was walking ahead from them and complainant, his uncle and Bhuria were walking behind him. When they reached in front of the house of Subhash @ Bhasi, accused Subhash @ Bhasi, his brother Ashok Kumar, Chandu & Jaggi, sons of Raghbir and Anil son of Vijay were standing there. Bhasi raised lalkara that Rajinder be caught hold and they should teach him a lesson for giving the evidence against them. Accused Jaggi and Chandu caught Rajinder Singh. Anil and Ashok, who were armed with lathies, stopped the complainant and others. Accused Subhash @ Bhasi, who was holding a country-made pistol in his hand, fired a shot in the chest of Rajinder in their presence. When the complainant and others raised alarm, the accused ran away from the spot with their respective weapons. Motive of the occurrence is that four years back Bhashi and his brother Anil had committed the murder of Shakti Singh, uncle of the complainant, and in which case, Rajinder was the witness. Injured Rajinder Singh was shifted to General Hospital, Hisar, for treatment where doctor after giving some treatment, referred him to Sapra Hospital, Hisar and he Criminal Appeal No.D-582-DB of 2007 etc. [4] was got admitted in Sapra Hospital, Hisar. On receiving the ruqa, Sub Inspector Mahinder Singh alongwith other police officials reached General Hospital, Hisar from where he came to know that Rajinder had been shifted to Sapra Hospital for treatment. Then Investigating Officer alongwith police officials reached Sapra Hospital. Doctor gave the opinion that injured was unfit to make the statement. Statement of Gulab Singh was recorded. Ruqa was sent to the police station on the basis of which formal FIR was registered. Then Investigating Officer went to the spot and inspected it. He prepared the rough site plan Ex.P20. The clothes of the injured and the bullet taken out from the body of the injured were taken into police possession after preparing separate sealed parcels. The statement of the injured was recorded on 16.09.2001 after taking the opinion of the doctor that the injured is fit for making statement. Accused Subhash @ Bhasi was arrested on 17.10.2001. On interrogation, he suffered disclosure statement and then in pursuance of his disclosure statement, he got recovered .315 bore pistol. After completion of investigation, firstly challan was presented against accused Subhash only before the Court. Thereafter, on the application filed by the complainant Gulab Singh under Section 319 Cr.P.C., accused Jagdish, Anil, Ashok and Chandu were summoned to face the trial.
On presentation of challan, copies of challan and other documents were supplied to the accused under Section 207 Cr.P.C. Criminal Appeal No.D-582-DB of 2007 etc. [5] Finding a prima facie case against accused Subhash @ Bhasi, he was charged for the offences under Section 307 and 342 IPC and 25 of the Arms Act on 03.07.2002. Thereafter, on 18.12.2002, all accused were charged for the offences under Sections 148 and 341 and 307 read with Section 149 IPC to which they pleaded not guilty and claimed trial.
The prosecution, in support of its case, examined PW1 Head Constable Om Parkash, who is a formal witness. He tendered into evidence his affidavit Ex.P1. PW2 Dr.Jaibir Sharma mainly deposed that on 11.09.2001, he medico legally examined Rajender and found the following injuries:-
1. A rounded wound on the right side chest as external space just near to sternum with fresh bleeding was as 3rd interpostal space just near to sternum with fresh bleeding was coming out. The side wound was .5 x .5 cms with little blackening was present on the wound.
History of fire arms injury advised kept under
observations and x-rays.
2. Surgeon opinion
3. City scan chest, the injury was within six hours of duration. Opinion was reserved for fire arm injury because kind of weapon was not mentioned at the examination of the patient.
PW3 ASI Umed Singh mainly deposed regarding Criminal Appeal No.D-582-DB of 2007 etc. [6] preparing of report under Section 173 Cr.P.C. PW4 Dr.M.R.Sapra, Medical Officer, Sapra Nursing Home, Hisar, mainly deposed regarding admission of injured Rajinder at 2:00 a.m. on 11.09.2001 having fire arm injury in right chest. He deposed regarding the treatment given to the injured. He also gave the opinion regarding the nature of injury on the application of the police. PW5 Sub Inspector Krishan Kumar mainly deposed regarding scribing of FIR Ex.P-12 after receiving ruqa Ex.P-11 with endorsement Ex.P11/A. PW6 Gulab Singh, complainant, eye witness to the occurrence, deposed as per prosecution version. PW7 Constable Ram Singh is a formal witness who tendered into evidence his affidavit Ex.P18. PW8 Rajinder (injured) is also an eye witness to the occurrence and deposed as per prosecution version. PW9 Sub Inspector Mahender Singh is the Investigating officer. He deposed regarding the investigation of the case. PW10 Subhash Chander, Draftsman, deposed regarding preparing of scaled site plan Ex.P29. Public Prosecutor, after tendering into evidence sanction order Ex.P-25 and Forensic Science Laboratory Reports Ex.P-26 to P-28, closed the prosecution evidence.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of the evidence and pleaded themselves as innocent. Accused Subhash @ Bhasi in his statement pleaded that no occurrence took place in front Criminal Appeal No.D-582-DB of 2007 etc. [7] of his house on the alleged date. He did not participate in any such occurrence. He did not made any disclosure statement nor he got recovered any pistol or cartridges from him. He is innocent and has been falsely implicated in this case. The other accused also pleaded that they are innocent and have been falsely implicated in this case In defence, the accused examined DW1 Mahabir, who mainly deposed that a case FIR No.409 dated 14.09.2001 under Excise Act registered at Police Station City Hisar is pending against him. Suresh Kumar Jangra is co-accused in the aforesaid case but he does not know where he resides. He does not know that who was the Investigating Officer in that case. He does not know whether there was any connection in the Excise Act case which he is facing and in which he has been summoned as a witness. He and Suresh Jangra were arrested and were produced in the Court together. He did not see any fire arms injuries on the person of Suresh when he was produced with him in the Court. DW2 Santosh Saini, Addl. Ahlmad, Court of Judicial Magistrate Ist Class, Hisar, mainly produced the case file. DW3 ASI Shiv Charan, Police Station Sadar Hisar deposed that he conducted the investigation of the case FIR No.409 dated 14.09.2001 under Section 61/1/14 of Excise Act, Police Station City Hisar. During investigation, Suresh Jangra was found having old injuries on his person. DW4 Suresh Jangra deposed that on the intervening night of 10/11.09.2001 he and Rajinder were going to the house of Rajinder at mid night. He had reached in the street. Criminal Appeal No.D-582-DB of 2007 etc. [8] It was dark and there was no light in the street. Somebody fired a shot. The unburned gun powder hit him and the bullet hit Rajinder PW. They saw but none was visible. They raised a noise on which the neighbours were attracted at the spot. In the light of torch, which was used by the neighbours, pistol was lying found there towards the wall of a house. The pistol was covered with iron disk (tasla). The police was informed. Thereafter, he left the place of occurrence. He stated that none of the accused was present at the time of occurrence. DW5 Krishan Kumar mainly deposed that he know Sube Singh. He also know injured of this case. They are brothers in the family.
The trial Court, after appreciation of evidence, convicted and sentenced the appellants-accused as stated above.
At the time of arguments, learned counsel for the appellants contended that the appellants-accused have been falsely implicated in the present case. The version of the prosecution looks unnatural. When a fire arm injury is given from the front side and from a close range, there is no need to caught hold any person and it may also cause injury to the persons nearby the victim. No active role attributed to the accused except appellant-accused Subhash @ Bhasi. Similarly, there was no motive for accused Anil, Chandu and Jagdish to cause the occurrence. On the other hand, there was strong motive to implicate accused Chandu and Jagdish as the real brother Ishwar was murdered by one Mangli, brother of the Criminal Appeal No.D-582-DB of 2007 etc. [9] complainant and Chandu was a witness in that case. Learned counsel for the appellants further contended that defence version is probable and has been duly proved by the DWs that some unknown person caused injuries to Suresh Jangra and Rajinder but accused have been falsely implicated in the present case. Learned counsel for the appellants further contended that the size of the wound was .5 x .5 cm which shows that this injury is only regarding pellet and not with the bullet and these facts support the defence version. In the alternative, learned counsel for the appellant Subhash @ Bhasi contended for reduction of sentence.
Learned Addl. Advocate General, Haryana contended that the case of the prosecution has been duly proved specially by the injured eye witness which is duly supported by medical evidence and further from the Forensic Science Laboratory report. The recovery of pistol in view of the disclosure statement of accused Subhash @ Bhasi further supports and corroborates the prosecution version. He contended that motive in the present case has been duly proved there being enmity due to earlier occurrence and injured was witness against the accused. He further contended that all the accused have taken active participation in the commission of offence, therefore, the appeal having no merit should be dismissed.
We have heard learned counsel for the appellants and learned Addl. Advocate General, Haryana and with their assistance we have gone through the evidence on record minutely and carefully. Criminal Appeal No.D-582-DB of 2007 etc. [10] From the record, we find merit in the arguments of learned counsel for the appellants to the extent that no active role is attributed to the other appellants-accused except appellant-accused Subhash @ Bhasi. There is only one fire arm injury given by appellant Subhash @ Bhasi to PW8 Rajinder. No injury has been given by the appellants Anil, Ashok, Chandu and Jagdish to injured Rajinder or to any other person. There was also no motive for appellants Anil, Chandu and Jagdish to cause injuries. They are not related to appellant Subhash and Ashok. They belong to other castes. Further, we find that as per medical evidence, the fire arm injury was given from a close range and little blackening was also present which also shows that the injury was caused from the close range. Even PW2 Dr.Jaibir Sharma in cross-examination has stated that the possibility of shot having been fired within the range 3 to 6 feet is there. He has also stated in cross-examination that as the wounds of the entry on the right side front of the chest, the assailant must be in front of the victim. In view of these circumstances, it looks unnatural that Chandu and Jagdish will caught hold Rajinder (injured). There is every possibility that when a fire was shot from 3 to 6 feet, it may also cause injury accidentally to the persons standing close or nearby to the victim. Otherwise also, there was no necessity to caught hold the injured who was not stated to be armed with any weapon etc. Therefore, this evidence regarding the fact that the appellants-accused Chandu and Jagdish caught hold Rajinder Criminal Appeal No.D-582-DB of 2007 etc. [11] creates reasonable doubt regarding their participation in the commission of offence. Similarly, the only act attributed to appellants Anil and Ashok was that they were armed with lathies and they stopped complainant and two other persons, who were coming behind Rajinder. They have not caused any injury either to the injured Rajinder or to any other person. Therefore, their presence or participation in the occurrence is also not proved beyond reasonable doubt. Further, we find that as per cross-examination of PW6 Gulab Singh, Ishwar, brother of Jagdish and Chandu, was murdered by Mangli, brother of complainant and Chandu was a witness in that case. Therefore, there is strong motive to implicate them in the present case. Furthermore, appellants Ashok, Anil, Chandu and Jagdish were found innocent during investigation. Therefore, keeping in view all these facts and evidence on record, we find that a reasonable doubt exists regarding the participation of the appellants, Ashok, Anil, Chandu and Jagidsh in the present case and benefit of doubt is to go to these appellants and giving benefit of doubt, we hold them not guilty of the charges framed against them.
As regarding appellant Subhash @ Bhasi, we find that PW8 Rajinder, who is injured witness, has deposed that appellant- accused Subhash @ Bhasi had caused fire arm injury by firing from a country-made pistol. We have perused the cross-examination of PW8 Rajinder. There is nothing in his cross-examination which may make his statement unreliable. Country made .315 bore pistol was Criminal Appeal No.D-582-DB of 2007 etc. [12] got recovered by him in pursuance of his disclosure statement which was sent to the Forensic Science Laboratory and there is report of Forensic Science Laboratory that the pistol was in working condition. It is also the opinion of the Forensic Science Laboratory that .315 bullet marked BC/1 has been fired from country-made pistol W/1 and not from any other fire arm even of the same make and bore/caliber because every firearm has got its own individual characteristic marks. The Forensic Science Laboratory also found that the hole of the 'baniyan' contained in parcel No.II has been caused by a bullet projectile. This report of the Forensic Science Laboratory further supports and corroborates the prosecution version. The police official has no enmity or motive to falsely implicate accused Subhash @ Bhasi and deposed falsely regarding recovery of pistol from him. There is no evidence on record to show any motive or any such enmity. Therefore, the statements of police official cannot be disbelieved. The other evidence, as deposed by PW6 Gulab Singh (complainant) and PW8 Rajinder (injured) is fully supported and corroborated by medical evidence. The arguments of learned counsel for the appellant that keeping in view the nature of the wound, as given by PW2 Dr.Jaibir Sharma that it is by pellet, we find no evidence regarding the same. The bullet was removed from the body of the injured and it was compared by the Forensic Science Laboratory and there is report by the expert that this bullet has been fired from the recovered pistol only and the hole in the 'baniyan' is Criminal Appeal No.D-582-DB of 2007 etc. [13] also from the bullet projectile. There is no cross-examination to PW2 Dr.Jaibir Sharma that this injury cannot be caused by bullet but can be caused by pellets. Therefore, we do not find any merit in this contention of learned counsel for appellant Subhash @ Bhasi. Further, we find no merit in the contention of learned counsel for the appellant regarding the defence version. The mere fact that the police did not lift the blood stained earth in front of the house of appellant-accused Subhash will not prove that the occurrence has not taken place, as alleged by the prosecution. The accused has also not stated in his statement under Section 313 Cr.P.C. that occurrence took place somewhere else nor there is any cogent evidence on record to show that this occurrence had taken place somewhere else. The version given by DWs also does not show that Suresh Jangra was injured with Rajinder at the time of occurrence. DW1 Mahabir rather has not supported the defence version. He has specifically stated that he did not see any fire arm injury on the person of Suresh when he was produced with him in the Court. Similarly, DW3 ASI Shiv Charan, who was the Investigating Officer in case FIR No.409 dated 14.09.2001 under Section 61/1/14 of Excise Act, registered at Police Station City Hisar, has also stated that during investigation, Suresh Jangra accused was found having old injuries on his person. DW4 Suresh Jangra himself appeared as a witness and stated that somebody fired a shot. The unburnt gun powder hit him and the bullet hit PW8 Rajinder which means that Criminal Appeal No.D-582-DB of 2007 etc. [14] even as per statement of DW4 Suresh Jangra, he has not received any bullet injury. The mere fact that he gave statement to the Investigating Officer during investigation under Section 161 Cr.P.C. in no way can be held as proved and it cannot be believed that the occurrence took place as deposed by DW4 Suresh Jangra nor in any way it can be held that the Investigating Officer has found this occurrence as deposed by DW4 Suresh Jangra as correct because the final report under Section 173 Cr.P.C. has been presented against appellant-accused Subhash @ Bhasi. The Investigating Officer, during investigation found other appellants-accused as innocent, therefore, it means that the Investigating Officer did not believe the version of DW4 Suresh Jangra. The statements of DWs, therefore, nowhere prove the defence version. Keeping in view the evidence on record, we find that appellant-accused Subhash @ Bhasi gave fire arm injury to Rajinder with intention to kill him and he has committed the offence under Section 307 IPC. By keeping illegal arm i.e. country-made pistol, he has also committed offence under Section 25 of the Arms Act. Therefore, his conviction under Section 307 IPC and 25 of the Arms Act is upheld. As the other appellants- accused have been acquitted by giving benefit of doubt, therefore, the charges framed against accused Subhash @ Bhasi under Sections 148 and 341 read with Section 34 IPC are set aside.
We have considered the alternative request of learned counsel for appellant Subhash @ Bhasi for reduction of sentence. Criminal Appeal No.D-582-DB of 2007 etc. [15] We find that one fire arm injury has been given on the right side of chest of Rajinder by appellant Subhash.
Keeping in view the facts and circumstances of the present case, we reduced the sentence of Subhash @ Bhasi to undergo rigorous imprisonment for twelve years instead of life imprisonment under Section 307 IPC. The sentence of fine shall remain the same. Sentence awarded under Section 25 of the Arms Act shall also remain the same. Both the sentences shall run concurrently. These sentences shall also run concurrently with the sentence of life imprisonment awarded in case FIR No.1013 dated 11.09.1997 under Section 302/34 IPC, Police Station City Hisar, the copy of which is placed on record. It is also mentioned here that in Ranjit Singh v. Union Territory of Chandigarh and others, AIR 1991 SC 2296, it is held by the Hon'ble Supreme Court that "last sentence in the direction means that in case, any remission or commutation is granted in respect of the earlier sentence of life imprisonment alone then the benefit of that remission or commutation will not ipso facto be available in respect of the subsequent sentence of life imprisonment which would continue to be unaffected by the remission or commutation in respect of the earlier sentence alone. In other words, the operation of the superimposed subsequent sentence of life imprisonment shall not be wiped out merely because in respect of the corresponding earlier sentence of life imprisonment any remission or commutation has been granted by the appropriate Criminal Appeal No.D-582-DB of 2007 etc. [16] authority. The consequence is that the appellant would not get any practical benefit of any remission or commutation in respect of his earlier sentence because of the superimposed subsequent life sentence unless the same corresponding benefit irrespective of the subsequent sentence is also granted to the petitioner".
Keeping in view the above stated law, in the present case also the sentence of twelve years rigorous imprisonment will run concurrently with the earlier sentence of life imprisonment. The benefit of remission or commutation given in the earlier sentence alone will not ipso facto be available in the present case.
Therefore, from the aforesaid discussion, Criminal Appeal No.S-1226-SB of 2007 filed by Anil, Chandu and Jagdish is allowed. Criminal Appeal No.D-582-DB of 2007 is allowed qua appellant Ashok and is dismissed qua appellant Subhash @ Bhasi with the aforesaid modification. Appellants Anil, Chandu, Jagdish and Ashok are acquitted of the charges framed against them. Appellants Anil, Chandu, Jagdish and Ashok are on bail, therefore, their bail bonds/surety bonds stand discharged.
(SATISH KUMAR MITTAL) (INDERJIT SINGH)
JUDGE JUDGE
27.11.2012
mamta