Punjab-Haryana High Court
Ram Karan vs State Of Haryana on 25 March, 2013
Author: Sabina
Bench: Sabina
Criminal Appeal No.265 DB of 2005 1
Criminal Appeal No.138-DBA of 2006
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 25.3.2013
Criminal Appeal No.265 DB of 2005
Ram Karan ......Appellant
Versus
State of Haryana .......Respondent
Criminal Appeal No.138-DBA of 2006
State of Haryana ......Appellant.
Versus
Sehdev and others .......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Bipin Ghai, Sr. Advocate with
Mr.Sanjeev Kodan, Advocate,
for the appellants
Mr.Satyavir Singh Yadav, Addl.A.G.Haryana.
****
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned two appeals would be disposed of as these have arisen out of judgment/ order dated 5.3.2005 passed by the trial Court.
Prosecution story, in brief, is that complainant Ram Chander was resident of village Kharhar and was doing agricultural work. Ram Karan was the younger brother of the complainant. Complainant and his brother were residing separately since the year 1984. Ram Karan was residing in Karnal for the last about 2 ½ years. Complainant was not on good terms with his brother Ram Criminal Appeal No.265 DB of 2005 2 Criminal Appeal No.138-DBA of 2006 Karan. Manoj and Manjeet were the sons of the complainant and both of them were doing agricultural work with him. Ram Sarup, grand father of the complainant, had partitioned the land equally between the complainant and his brother. Father of the complainant was residing at Karnal with Ram Karan. When the land was given to the complainant and his brother, at that time, they were minor. Ram Karan had started selling the land and in this regard, complainant had moved an application before the Tehsildar and the land was partitioned between them. 7 killas of land in Chuhar Wala field towards village Bhaproda fell to the share of the complainant but was being cultivated by Ram Karan after partition. Due to this reason, Ram Karan had a grudge against the complainant party. Complainant had sown sugarcane crop in 4 killas of land and had sown Arhar crop in the remaining 3 killas of land. On 4.7.2003, at about 6.30 A.M., Manoj (elder son of the complainant) had gone to their fields. Manoj saw that two Maruti cars of white colour were parked in their fields and 8-10 persons including Ram Karan were present in the fields. Manoj returned back home on his tractor. On coming to know about the presence of Ram Karan and others in their fields, complainant Manoj and Manjeet went to their fields on their tractor. When they had gone about 4 killas towards the fields on Bhaproda road, they saw two cars coming from the opposite direction and the cars were stopped in front of their tractor. Manoj stopped the tractor. 8-10 persons got down from the cars including Ram Karan. All of them were armed with lathis/sticks, pistols and guns. Criminal Appeal No.265 DB of 2005 3 Criminal Appeal No.138-DBA of 2006 Complainant and his sons got down from their tractor. Ram Karan fired a shot from his gun which hit at the abdomen of Manoj. Complainant rushed towards his son. Two persons gave lathi blows on the person of the complainant, which hit on his fingers of the right hand and his left elbow. Complainant raised alarm. All the assailants fled away from the spot in their cars. Complainant and his sons could identify the accused, if produced before them. Manoj could disclose about the registration numbers of the cars. Manoj was removed to PGIMS, Rohtak for treatment.
On the basis of the statement of the complaint, formal FIR No.263 dated 4.7.2003 was registered by the police of police Station Sadar Bahadurgarh under Sections 307, 447, 427, 323, 506, 148/ 149 of the Indian Penal Code, 1860 (IPC for short) and Section 25 of the Arms Act, 1959 (the Act for short). Manoj, however, died on 8.7.2003. Consequently, offence under Section 302 IPC was added in the FIR.
After completion of investigation and necessary formalities challan was presented against the accused. Charge against the accused was framed under Sections 148 IPC and 427, 447, 323, 302, 506 read with 149 IPC. Charge was also framed against accused Ram Karan under Section 27 of the Act. Accused did not plead guilty and claimed trial.
Prosecution in order to prove its case at the trial examined 16 witnesses during trial.
After the close of prosecution evidence appellant Ram Criminal Appeal No.265 DB of 2005 4 Criminal Appeal No.138-DBA of 2006 Karan, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), pleaded as under:-
It is a false case and I have been falsely implicated. On 4.7.2003, I along with Jassu and Parveen went for ploughing the 4 acres of land with our tractor which had fallen to my share and when Parveen was ploughing the land Manoj, my nephew arrived there and tried to prevent us from ploughing the land. I politely told him that the 7 acres of land had fallen to his share in the family settlement. Manoj left the field saying that they would be coming back to teach us a lesson. So we stopped ploughing the land and were returning to the village in our Maruti car No. HR 22-0531 to discuss the matter in the Gram Panchayat when we reached near the village at a distance of one killa we met Ram Chander, Manoj and Manjeet coming on their tractor. They got stopped our car driven by me taking their tractor in front of it. I saw that Ram Chander was armed with a gun and his sons were having lathi and jaily. We both parties got down from our vehicles. Ram Chander aimed a fire at me and so I immediately picked up a danda of about 4' which was lying in the car and threw the danda at Ram Chander in my self defence. The danda hit Ram Chander at his right hand and so the direction of the barrel was changed, the fire hit Manoj, who was standing a bit away on the left Criminal Appeal No.265 DB of 2005 5 Criminal Appeal No.138-DBA of 2006 side of Ram Chander. Neither I am denying this statement nor any weapon was got recovered by me."
Accused Jasmer @ Jassu also took the same plea when he was examined under Section 313 Cr.P.C.
Accused Sehdev, Parvinder, Satish @ Billu and Krishan, when examined under Section 313 Cr.P.C., pleaded that they were innocent. They had never gone to village Kharhar with Ram Karan. No recovery of any weapon had been effected from them. They had not suffered any disclosure statement.
Accused Parveen, when examined under Section 313 Cr.P.C., prayed that on the day of occurrence, he had gone to cultivate the land of Ram Karan along with his uncle Ram Karan and Jassu. As Ram Karan started ploughing the land, Manoj reached there and had a talk with Ram Karan. Thereafter, Manoj returned back. Ram Karan asked him (accused) to stop the tractor and so he had returned back with his tractor to the village. Ram Karan, Jassu had also left the fields in their car.
Accused did not examine any witness in their defence. Trial Court, vide impugned judgment dated 5.3.2005 acquitted accused Parvinder, Satish @ Billu and Krishan of the charges framed against them. So far as accused Sehdev, Parveen, Jasmer @ Jassu and Ram Karan are concerned they were convicted qua commission of offence punishable under Sections 427, 447 IPC. Accused Ram Karan was also convicted qua commission of offence punishable under Section 302 IPC. Vide order of the even date, the Criminal Appeal No.265 DB of 2005 6 Criminal Appeal No.138-DBA of 2006 convicts were sentenced qua the offences for which they had been held guilty.
Accused Ram Karan has filed CRA No.265-DB of 2005, challenging his conviction and sentence as ordered by the trial Court. So far as accused Sehdev, Parveen and Jasmer @ Jassu are concerned, they have not challenged their conviction and sentence under Sections 427, 447 IPC and during the course of arguments, it transpired that they have already undergone the said sentence as imposed by the trial Court.
State has filed CRA No. 138-DBA of 2006 seeking conviction of accused Sehdev, Parveen, Jasmer @ Jassu, Parvinder, Satish @ Billu and Krishan under Section 302 IPC.
Both the appeals were heard by Division Bench of this Court. Ashutosh Mohunta J., vide judgment dated 28.8.2009, dismissed the appeal filed by the State. So far as the appeal filed by Ram Karan is concerned, the conviction of appellant Ram Karan was altered to conviction under Section 304 (II) IPC from Section 302 IPC. Consequently, the sentence of appellant Ram Karan was reduced to 10 years rigorous imprisonment. Mohinder Pal J., on the other hand, vide judgment of the even date, gave a dissenting judgment and dismissed the appeal filed by appellant Ram Karan. Further Ram Karan was also convicted and sentenced qua commission of offence punishable under Section 27 of the Act and Sections 148, 323 read with 149 IPC. So far as appeal filed by the State is concerned, the same was allowed to the extent that accused Criminal Appeal No.265 DB of 2005 7 Criminal Appeal No.138-DBA of 2006 Sehdev, Jasmer @ Jassu, Satish @ Billu and Krishan were convicted and sentenced qua commission of offence punishable under Section 148, 302, 323, 427, 447 read with Section 149 IPC. Thereafter, the appeals were listed before this Bench.
Learned senior counsel for appellant Ram Karan and other accused has submitted that the prosecution had failed to establish its case. The story putforth by the prosecution was improbable. In case, Manoj had gone to the fields at 5.30 A.M. as alleged by the prosecution to bring the motor of pumping set from the fields, then Ram Karan would have attacked him immediately. There was no occasion for Ram Karan to have allowed Manoj to return back home without firing at him if the intention of the accused was to commit the murder of Manoj. At the first instance, Manoj had come to the fields alone and that was the best time for the accused to have committed his murder. There was no occasion for the accused to have waited for the eye witnesses to arrive at the spot. The accused had no way of knowing that Manoj would return back to the fields after some time. Civil litigation was already going on between Ram Karan and Ram Chander. Ram Karan was in possession of the suit land and hence, there was no motive on his part to kill the deceased.
Learned senior counsel has further submitted in the alternative that since there was no intention on the part of the accused to commit the murder of Manoj then appellant Ram Karan could not be convicted qua commission of offence punishable under Section 302 IPC and instead was liable to be convicted qua Criminal Appeal No.265 DB of 2005 8 Criminal Appeal No.138-DBA of 2006 commission of offence punishable under Section 304 (II) IPC.
Learned State counsel, on the other hand, has submitted that prosecution had been successful in proving its case. In fact, all the accused were armed with deadly weapons and had attacked the complainant party. Accused Ram Karan had fired from his licenced gun at Manoj and as a result of this Manoj had died. Complainant Ram Chander had also suffered injuries in the occurrence. Hence, all the accused were liable to be convicted and sentenced qua charges framed against them.
Medical evidence:
PW-16 Dr.Hemant proved the report Ex.PBB, which was in the hand of Vikas Kathuria. He stated that as per the said report, he had conducted operation and had taken out some pellets from the body of the injured.
PW-14 Dr.Vikas deposed that on 4.7.2003, he had declared Manoj unfit to make a statement on a police request. On 21.7.2003, he had handed over pellets recovered from the body of Manoj to the police.
PW-13 Dr.Kashmir Singh deposed that on 4.7.2003, he had medico legally examined Ram Chander and had found following injuries on his person:-
"1. Lacerated wound over right middle finger over dorsal aspect of size 2 x 4 x 2.5 cm. No bleeding was present. Tenderness was present. Advised X-ray right hand and ortho opinion.Criminal Appeal No.265 DB of 2005 9
Criminal Appeal No.138-DBA of 2006
2. Contusion of pinkish colour over left elbow posteriorly of size 6 x 2.5 cm. tenderness was present. Advised X- ray left elbow and ortho opinion."
He further deposed that the kind of weapon used for both the injuries was blunt.
PW-1 Dr.J.K.Bhalla deposed that on 8.7.2003, he had conducted post mortem examination on the dead body of Manoj and had found a stitched wound on the left side of the abdomen with brown black margins with multiple oval shaped wounds around it of small varying size and shape. On the right side of abdomen, there was a wound of operation. Operation wound in the midline was stitched. In his opinion, the cause of death was due to shock and because of injuries to intestine and stomach leading to peritonitis. He further deposed that all the injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. Ocular version:
PW-5 complainant, while appearing in the witness box as PW-5 deposed that on 4.7.2003, his son Manoj aged about 27-28 years had gone to bring diesel motor of pumping set from their fields. Manoj, however, returned back home on his tractor without the motor and told him that there two Maruti cars and 8-10 persons including his uncle Ram Karan were present there. He also told him that Ram Karan was armed with a gun . All the said persons were uprooting the crops from their fields. On hearing this, he along with his sons Manoj and Manjeet left for the spot. When they had Criminal Appeal No.265 DB of 2005 10 Criminal Appeal No.138-DBA of 2006 gone about 4 killas from their village, they saw two cars coming from the opposite direction and the said cars stopped in front of their tractor. They all got down from their tractor and wanted to proceed towards their fields . All the accused got down from the cars including Ram Karan, who was armed with a gun. Others were armed with lathis. Ram Karan fired a shot which hit the abdomen of Manoj. He rushed towards Manoj along with Manjeet. Then they were attacked by the accused persons, who were armed with lathis. He suffered two lathi blows on his right hand fingers and left elbow. They raised alarm. Many persons from the village gathered at the spot. Then all the accused sped away from the spot in their cars towards village Bhaproda. Injured Manoj was rushed to PGIMS, Rohtak. He was medically examined by the doctor at General Hospital, Bahadurgarh. Police recorded his statement. He pointed out the place of occurrence to the police. Blood stained earth was lifted from the spot. On 11.7.2003, he went to the police station and accused Ram Karan was taken out from police lock up. On the basis of the disclosure statement already suffered by accused Ram Karan, he got recovered a gun from the disclosed place and the same was taken in police possession. On 13.11.2003, he went to the police station and accompanied the police to village Sahdpur. They saw a Maruti car of white colour coming from the opposite direction. The said car was stopped. Three persons got down from the car and disclosed their names during interrogation as Sehdev, Parveen and Jasvir @ Jassu. The said persons were wanted in this case and were Criminal Appeal No.265 DB of 2005 11 Criminal Appeal No.138-DBA of 2006 arrested. Their lathis lying in the car were taken in police possession. Then they returned back to the police station. Om Parkash produced Parvinder accused and the said accused was arrested and his tractor was taken in possession.
Manjeet, while appearing in the witness box as PW-10, has corroborated the statement of PW-5 with regard to the manner of occurrence. He further deposed that he had accompanied the police to village Basana and accused Krishan and Satish @ Billu were arrested. Lathis were taken in possession from them. Investigation:-
PW-12 Assistant Sub Inspector Ranbir Singh deposed that on 4.7.2003, he reached the hospital on receipt of information qua admission of injured Manoj. He sought opinion from the doctor qua fitness of the injured and the doctor declared injured Manoj unfit to make a statement. He recorded the statement of complainant Ram Chander and on the basis of the same, formal FIR was registered. He accompanied the complainant to the spot. The place of occurrence was got photographed and he prepared rough site plan qua the occurrence. He lifted blood stained earth from the spot. He further deposed with regard to arrest of accused Ram Karan, Parveen, Sehdev and Jasmer @ Jassu and recovery of weapons from them. He further deposed that accused Parvinder was produced before him by Om Parkash and the said accused was arrested and his tractor was taken in possession.
PW-15 Inspector Mahender Singh deposed that on Criminal Appeal No.265 DB of 2005 12 Criminal Appeal No.138-DBA of 2006 8.7.2003, he received a message that Manoj, who was admitted in PGIMS Rohtak with fire arm injury, had died. He went to the hospital and prepared inquest proceedings qua the dead body. The dead body was sent for postmortem examination. He further deposed that he had arrested accused Ram Karan and on the basis of his disclosure statement, accused got recovered the gun from the disclosed place. He further deposed with regard to the arrest of accused Krishan and Satish @ Billu and recoveries of lathis from them. He also deposed with regard to arrest of accused Sehdev, Jasvir and Parveen and recoveries of lathis from their cars. He further deposed that Om Parkash produced before him accused Parvinder. The said accused was arrested and his tractor was taken in possession.
PW-6 Kanwar Singh approved the sanction order Ex.PN. As per Ex.PN, the District Magistrate accorded sanction for prosecution of accused Ram Karan under Section 25 of the Arms Act.
Discussion/ conclusion:-
In the present case, the prosecution story is that Manoj had gone to his fields to bring the diesel motor of the pumping set on 4.7.2003 at about 6.00 A.M. Manoj saw Ram Karan along with 8-10 persons in the fields. At that time, Ram Karan was armed with a gun, whereas, the other persons were armed with lathis. On seeing the said persons in the fields, Manoj returned back home to inform his father in this regard as he had seen Ram Karan and his companions Criminal Appeal No.265 DB of 2005 13 Criminal Appeal No.138-DBA of 2006 uprooting their crop.
There is no force in the argument raised by learned senior counsel for the appellants that in case Manoj had actually gone to the fields at 6.00 A.M. and had seen the accused over there, the accused would have fired at him at that instant. It is possible that Ram Karan and his companions might not have noticed Manoj and Manoj on seeing Ram Karan and his companions in his fields might have immediately returned back home on his tractor and thus, Ram Karan and his companions did not get any opportunity to attack him. Even a perusal of the statement of appellant Ram Karan under Section 313 Cr.P.C. reveals that Manoj had visited the spot and had seen them ploughing the land. Hence, the argument raised by the defence counsel is contradictory to the plea taken by appellant Ram Karan in his defence under Section 313 Cr.P.C..
When the complainant and his sons reached near their fields, they were attacked by Ram Karan and his companions. From the statements of the complainant and PW-10 Manjeet, it is evident that Ram Karan had fired from his gun at Manoj. The pellets had hit Manoj in his abdomen. The said part of the ocular version is duly corroborated by the medical evidence. So far as the participation of other accused is concerned, a perusal of the statement of the complainant as well as PW-10 Manjeet reveals that the said witnesses have failed to give the names of the other accused apart from Ram Karan, while appearing in the witness box. Further both the said witnesses have failed to attribute any specific role to the Criminal Appeal No.265 DB of 2005 14 Criminal Appeal No.138-DBA of 2006 other accused apart from accused Ram Karan. Complainant as well as PW-10 Manjeet have deposed with regard to the arrest of the other accused as well as recovery of lathis from them but the said fact is not sufficient to come to a conclusion that the other accused had also shared any common intention with accused Ram Karan at the time of occurrence as their presence at the spot is not established. There is no evidence on record that the complainant and PW-10 Manjeet had participated in any identification parade qua the other accused. Complainant as well as PW-10 Manjeet have not deposed that they knew the other accused apart from accused Ram Karan prior to the occurrence in their examination-in-chief. The complainant, while appearing in the witness box, has not even pointed out at any particular accused with regard to the specific attribution to them qua the injuries suffered by him. All these facts render the presence of other accused at the spot doubtful. However, accused Sehdev, Parveen and Jasmer @ Jassu were convicted and sentenced by the trial Court qua commission of offence punishable under Sections 447/ 427 IPC and they have not preferred any appeal challenging their conviction and sentence qua the said offence. The said accused have already undergone the sentence. Hence, at this stage, no interference qua the conviction and sentence of accused Sehdev, Parveen and Jasmer @ Jassu qua commission of offence punishable under Sections 447/ 427 IPC as ordered by the trial Court is called for.
So far as accused Parvinder, Satish @ Billu and Krishan Criminal Appeal No.265 DB of 2005 15 Criminal Appeal No.138-DBA of 2006 are concerned, they were rightly acquitted by the trial Court as the prosecution had failed to prove its case qua the said accused.
So far as appellant-accused Ram Karan is concerned, the prosecution has been successful in proving its case against him qua commission of offence punishable under Sections 302/ 447/ 427 IPC. From the ocular as well as medical evidence on record, it is evident that appellant Ram Karan had fired a shot from his gun on the person of Manoj. As a result of said fire arm injury suffered by Manoj, he died on 8.7.2003. The gun used at the time of occurrence by appellant Ram Karan was taken in possession and was sent to Forensic Science Laboratory for examination along with pellets recovered from the dead body of the deceased. A perusal of the report of the Forensic Science Laboratory Ex.PCC reveals that the country made gun recovered from appellant Ram Karan was in a working order. Pellets and wades recovered from the body of Manoj could form part of 12 bore cartridge.
The plea taken by appellant Ram Karan, when examined under section 313 Cr.P.C., is not probable and is not substantiated from record.
The case of appellant Ram Karan was that he had politely told Manoj that 7 acres of land has come to his (appellant) share in the family settlement. Manoj had left the fields saying that they would return back to teach them a lesson. They stopped ploughing the land and while they were returning back to village, they were stopped by Ram Chander, Manoj and Manjeet. Ram Chander was Criminal Appeal No.265 DB of 2005 16 Criminal Appeal No.138-DBA of 2006 armed with a gun, whereas, his sons were armed with lathis and jellies. Ram Chander aimed a fire at him and he picked up a danda, which was lying in the car and threw the same in his self defence. As a result of this, direction of the barrel changed and the fire shot hit Manoj. Thus, the presence of complainant Ram Chander and accused Ram Karan at the spot is not in dispute.
Although appellant Ram Karan has admitted the presence of accused Jasmer @ Jassu and Parveen at the spot but the said fact has been denied by the said accused when they were examined under Section 313 Cr.P.C and hence, the admission made by appellant Ram Karan qua their presence is liable to be ignored as the prosecution witnesses have failed to establish the presence of accused Jasmer @ Jassu, and Parveen at the spot at the time of occurrence. However, the plea taken by accused Ram Karan qua the manner of occurrence fails to inspire confidence. Rather the statements of the complainant as well as PW-10 Manjeet inspire confidence with regard to involvement of appellant Ram Karan in the occurrence. In these circumstance, the trial Court had rightly ordered the conviction and sentence of appellant Ram Karan qua commission of offence punishable under Sections 302, 427, 447 IPC. The trial Court had, however, erred in not ordering the conviction and sentence of appellant Ram Karan under Section 25 of the Arms Act. Appellant Ram Karan, at the time of occurrence, had used the gun for commission of murder of Manoj. The gun used at the time of occurrence was not a licensed gun of appellant Ram Karan. Hence, Criminal Appeal No.265 DB of 2005 17 Criminal Appeal No.138-DBA of 2006 appellant Ram Karan was liable to be convicted and sentenced qua commission of offence punishable under Section 27 of the Act.
The argument raised by learned senior counsel for appellant Ram Karan to the effect that the said appellant could be said to have at the most committed the offence punishable under Section 304 (II) IPC is without any force. Appellant Ram Karan was armed with a double barrel gun and had fired from the said gun on the person of Manoj. Thus, the appellant had clear intention to commit the murder of Manoj. The fact that the second shot was not fired does not lead to the inference that Ram Karan had no intention to commit the murder of Manoj.
Accordingly, CRA No. 138-DBA of 2005 filed by the State is dismissed.
CRA No.265-DB of 2005 filed by appellant Ram Karan is also dismissed with a modification that the said appellant is also held guilty qua commission of offence punishable under Section 25 of the Arms Act and convicted thereunder. Appellant Ram karan is sentenced to undergo rigorous imprisonment for three years and shall be liable to pay fine to the tune of ` 5,000/- and in default of payment of fine, appellant Ram Karan shall further undergo rigorous imprisonment for three months. All the sentences are ordered to run concurrently.
(SABINA) JUDGE March 25, 2013 anita