Himachal Pradesh High Court
Gaurav Rana vs State Of Himachal Pradesh on 4 November, 2016
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 408 of 2014 with Cr.A. No. 507 of 2015 .
Judgments reserved on: 21.10.2016 Date of decision: 4th November, 2016 Cr.A. No. 408 of 2014 Gaurav Rana ...Appellant of Versus State of Himachal Pradesh ...Respondent Rajesh Singh rt Cr.A. No. 507 of 2015 ...Appellant Versus State of Himachal Pradesh ...Respondent Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? Yes For the Appellants : Mr. Y.P.S. Dhaulta, Advocate for the appellant In Cr. Appeal No. 408 of 2014 and Mr. Chander Sekhar Sharma, Advocate, for the appellant in Cr. A. No. 507 of 2015.
For the Respondent : Mr. Vikram Thakur, Deputy
Advocate General with Mr. J.S.
Guleria, Assistant Advocate
General.
___________________________
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 2 Tarlok Singh Chauhan, Judge.
These appeals are directed against the judgment of conviction and sentence passed by the learned .
Additional Sessions Judge-II, Una, District Una, in Session Trial No. 30/2011, whereby the appellants have been convicted and sentenced to undergo imprisonment for life and to pay fine Rs.10,000/- each under Section 302 of the Indian Penal of Code (for short 'Code') and in default of payment to further undergo rigorous imprisonment for a period of one year.
rt They are further sentenced to undergo rigorous imprisonment for a period of five years and pay fine Rs.3000/- each under Section 392 of the Code and in default to further undergo simple imprisonment for six months. All the sentences shall run concurrently and the period of detention undergone has been ordered to be set of under Section 428 Cr.P.C.
2. The prosecution story, in brief, is that on 26.4.2011, at about 11:30 p.m., Pardhan of Gram Panchyat, Bathri telephonically informed the police that a woman had been stabbed by some unknown persons who came on motorcycle and after stabbing the lady had fled away ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 3 towards Punjab side. On the basis of this information rapat Ex.PW2/A entered in Police Station, Haroli and SI/SHO Shakti Singh Pathania (PW48) alongwith ASI Ashok Kumar, PSI .
Nishant Kumar, C. Deepak Kumar and HHG Piare Lal proceeded to the spot in the government vehicle No. HP-
20C-0507 and visited the spot. They found a woman stained with blood and injuries on her stomach and other parts of of the body lying on the bed box in the verandah of sweet shop of Chaman Lal (PW1) by that time the woman had rt already died. Chaman Lal, husband of deceased got his statement Ex.PW1/A recorded under Section 154 Cr.P.C. to the effect that he is running a shop of halwai in bus stand, Bathri for the last 12-13 years and he used to sleep in the shop daily during the night. On 26.4.2011, at around 9:30 p.m. his wife (deceased) had come to the shop for providing dinner to him and after taking dinner he had gone to answer the call of nature at the distance of about 100 meters from the shop and while he was washing his hands at a distance of about 50 meters from the shop, he heard the cries of his wife Swarni Devi and he rushed to the shop where he saw two boys coming out of the shop who ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 4 then fled away on motorcycle towards Garhshankar side.
He went inside the shop and found his wife lying in blood stained condition and the Galla (chest) of the shop was .
opened and on checking it was found that Rs. 2000/- to Rs.2500/- were missing from the Galla. Thereafter, his Babhi Bholi Devi came on the spot and they both put Swarni Devi on the bed box but she had died. Lateron, the villagers and of Pardhan of lower panchayat also came to the spot. On the statement of complainant case under Sections 392, 302 rt read with 34 of the Code was registered vide FIR Ex. PW33/A at Police Station, Haroli. SHO Shakti Singh Pathania conducted the investigation of the case on 27.4.2011.
Ashok Kumar Videographer (PW13) visited the spot and conducted the videography of the spot. Site plan was prepared by the I.O. Ex.PW48/B on the identification of the witnesses. The blood stained leaves, ball pen, one coin of 50 paise and currency note of Rs.10/- were found and put in plastic container and were taken into possession vide memo Ex.PW2/A. Control sample of concrete was lifted from the spot and put in plastic contained vide memo Ex.PW2/B. The blood was lifted from the shop and verandah ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 5 and taken into possession vide memo Ex.PW2/C. The wooden box (galla) was taken into possession vide Ex.PW2/D. Specimen of the seal Ex.PW2/E was taken on .
piece of cloth and seal after use was handed over to witness Satish Kumar (PW2). Dead body was examined through LC. Ramana (PW26) and form Nos. 25, 35 A & B Ex.PW4/A and application for postmortem Ex.PW25/A was of prepared. The postmortem was conducted by PW29 Dr. Sanjay Mankotia, which reveal that deceased died due to rt hemorrhagic shock subsequent to multiple wounds and duration between death and postmortem was within 18 hours. The probable duration between injury and death was few minutes to an hour. The doctor had preserved the viscera in a jar and blood sample and clothes for chemical examination were separately packed in a parcel and handed over to the police and the doctor had issued PMR Ex.PW29/A. The doctor on receipt of FSL report Ex.PW29/B has given final opinion Ex.PW29/C. HC Vipan Kumar (PW32) on 27.4.2011 had received viscera, clothes of deceased from LC Ramana Devi and entered the same at Sl. No. 575/11 of Malkhana register. He further received case ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 6 property from the I.O. and entered at Sl. No. 576/11 of Malkhana register.
3. On this very day i.e. 26.4.2011, information had .
been received that in lower Bathri two boys who were on motorcycle had caused injuries to one person with sharp edged weapon and had snatched Rs.400/- and one mobile. On receipt of such information ASI Prem Chand of (PW44) had been deputed for investigation of the case FIR No. 91/2011, dated 27.4.2011, registered under Section 392, rt 326, 323 read with 34 of the code at Police Station, Haroli. SI Prem Chand visited the spot and recorded the statement of Rajnish and thereafter the mobile phone was put under observation for tracking its location and on 12.5.2011 location of the mobile was found in the village Samundra, District Hoshiarpur and the Mobile was found to have been issued in the name of Amrit Pal, resident of Chak Guru, District Hoshiarpur. Regarding the investigation of this fact, team comprising police officials HC Suresh Kumar (PW23), HC Sanjay (Pw20) were sent to village Samundra and during investigation Amrit Pal revealed that mobile phone being used for Sim No. 98035-91723 had been purchased by him ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 7 from the appellant Gaurav Rana for Rs. 200/- and after minor repair, Amrit Pal had further sold the mobile to Jagtar Singh for Rs. 400/-. During investigation, it was found that .
both the appellants - Gaurav Rana and Rajesh were in judicial lock-up in Punjab as they were involved in FIR No. 34/2011, dated 27.4.2011, registered under Section 394/34 IPC, registered in P.S. Nurpur Bedi. Production warrants of of both the appellants were obtained from the Court and on 20.5.2011, both the appellants were produced before the rt Court and police remand was obtained. During police custody, the appellant Rajesh on 20.5.2011 made disclosure statement Ex.PW14/A and appellant Gaurav Rana made disclosure statement Ex.PW14/B in presence of witnesses Jaswant Singh and C. Ram Gopal and on 21.5.2011 appellant Gaurav Rana got recovered Capri and T-shirt from his house at Samundra which were packed in a cloth parcel Ex.PW15/A and sealed with three seals of 'J' and sample of seal 'J' was handed over to witness Vijay Singh.
On the same day appellant-Rajesh got recovered from his house a lower (Pyjama) of blue colour and T-shirt black in colour which were kept in a parcel Ex.PW20/B after sealing ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 8 the same and taking into possession vide memo Ex.PW20/A. On 26/27.4.2011, the appellants after committing the murder and causing injuries to a person at lower Bathri had .
stayed in the hotel named Oasis, Garhshankar and had paid Rs.1000/- for staying their. On 23.5.2011, Rs.1000/- paid by the appellants to the waiter was got recovered and taken into possession vide Ex.PW16/A. The medical of examination of both the appellants was got conducted and their blood on FTA cards was handed over to MHC.
rt Articles recovered from the appellants and other case property had been deposited with MHC.
4. On 31.5.2011, an application was moved to SDJM, Anandpur Sahib for taking case property and custody of the appellants and on 5.6.2011 MHC Nurpur Bedi handed over motorcycle without number, one Kritch sealed with seal impression DS and photocopy of register No. 19, which had been taken in possession vide memo Ex.PW24/A. On the same day, ASI Darshan Singh produced copy of Zimini order dated 17.5.2011, photocopy of sketch of Kritch, Photocopies of disclosure statements, recovery memo of motorcycle and photocopies of MLCs of both the ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 9 appellants which had been taken into possession vide Ex.PW24/B.
5. The appellants on 21.5.2011 had led the police .
party to the place of occurrence and had identified the place where they committed crime and memo Ex.PW4/B as per disclosure statement was prepared.
6. Statements of the witnesses under Section 161 of Cr.P.C. was recorded and finally on receipt of the chemical reports Ex.PW48/J to Ex.PW48/L challan was prepared and rt presented in the Court of learned Judicial Magistrate Ist Class, Una on 23.8.2011 and copy of the challan was supplied to the appellants and committed the case to the Court of learned Sessions Judge, Una vide order dated 13.9.2011 and the learned Sessions Judge, Una, thereafter vide order dated 20.9.2011 assigned the case for trial to the Court of learned Additional Sessions Judge-II, Una. The charges were framed and the appellants were made to stand trial for the commission of offence under Sections 392, 302 read with 34 IPC, in which trial appellants were eventually convicted as aforesaid.
::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 107. The prosecution in order to prove its case examined as many as 49 witnesses and closed its evidence on 4.3.2013. Thereafter, the appellants were examined .
under Section 313 Cr.P.C. in which they pleaded innocence and claimed to be falsely implicated. As per them, they have not committed any murder and robbery. The appellants in defence examined one witness Varinder Singh of DW1 and closed the evidence.
8. Learned rt counsel for the appellants S/Shri Chander Sekhar Sharma and Y.P.S. Dhaulta have vehemently argued that the instant case is a case of no evidence where the so-called eye witnesses i.e. PW1, PW3, PW5 and PW39 are none other then the close relatives of the deceased, whereas no independent witness has been examined in the case. That part, they have vehemently argued that once it is the admitted case of the prosecution that the appellants were unknown persons, then it was imperative upon the prosecution to have conducted an identification parade and in absence thereof the entire trial stand vitiated. It is further argued that apart from their being material inconsistency in the statements of the witnesses ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 11 examined by the prosecution, they have been marked improvement and padding in the prosecution case on the basis of which conviction cannot be sustained. Lastly, it is .
vehemently argued that the prosecution has failed to establish the presence of the appellants at the scene of the crime and this fact in itself is sufficient to acquit the appellants.
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9. On the other hand, Shri Vikram Thakur, Deputy Advocate General assisted by Shri J.S. Guleria, Assistant rt Advocate General, vehemently argued that the identification parade is not sine qua non can definitely for convicting a person, more particularly, when the prosecution has led clear, cogent and convincing evidence to establish not only the identity of the appellants but their acts of committing crime, which has been duly proved in the statement of PW1, PW3, PW5 and PW39 and there is no reason whey the statements should be discarded only on the ground that they were related to deceased, especially, when their credibility remains intact. It is further argued that in such scenario there is no necessity to have examined independent witnesses. Before appreciating the ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 12 rival contentions of the parties, it would be necessary to advert to the evidence led by the prosecution.
10. PW1 Chaman Lal, husband of the deceased, .
who lodged the FIR, in question, stated that on 26.4.2011 at about 9:30 p.m. his wife came to shop with dinner and after taking dinner he had gone to answer the call of nature at a distance of 100 meter. While he was washing his hands at a of distance of about 50 meters from the shop, he heard cries of his wife and accordingly rushed to the shop and found rt two boys one of whom was tall and other of medium height running out of his shop, who went towards Garhshankar side on a black motorcycle. He raised hue and cry upon which Bholi, Raghnandan, Leela Devi came on the spot and later on the Pardhan Suman Devi also came there. He identified the appellants in the Court as being the same who had fled away on the motorcycle. He further stated that he found Rs.2000/- to Rs.2500/- missing from the Galla and claimed that the appellants had murdered his wife. Up-Pardhan had informed the police and he had reported the matter to the police vide Ex.PW1/A. The police recovered various items like ball pen, blood stained leaves, coin of 50 paisa and ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 13 blood stained concrete pieces from the spot. He further deposed that on 21.5.2011, the police had brought the appellants to his shop and appellants had identified the .
shop. He also stated that body of his wife has been taken to the hospital for postmortem and he identified the clothes of his wife Ex.P1 to Ex.P6. During cross-examination, he stated that his house is at a distance of about half kilometer from of the shop and admitted that thresher was working in nearby field at the distance of 40 meters. He further stated that he rt had chased the boys up to 10 meters. He denied that the appellants were seen by him for the first time on 21.5.2011.
He did not dispute that there was no street light, however, there was a light in the shop.
11. PW3 Rajinder Kaur alias Bholi identified the appellants in the Court and stated that she had seen two boys aged about 20-22 years and 25-26 years respectively.
She claimed that the younger boy was wearing green colour T-shirt and small pant whereas the other boy was wearing black colour T-shirt and blue lower. She on hearing the cries of Swarna Devi had rushed to the shop alongwith Leela Devi, the appellants had fled away on the ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 14 motorcycle towards Garhshankar side and the taller boy was possessing black colour type article. They found Swarna Devi in an injured condition on the floor as she had .
sustained injuries on her abdomen and arms. The appellants, as per information given by PW1 Chaman Lal, had taken away money from the cash box. During examination, she had stated that except khokha of of vegetable of Piare Lal, no other shop was opened at the time of occurrence. She denied that she had not visited the rt shop or that she had not seen the appellants on the spot.
12. PW5 Master Jaswinder, the Court after being convinced that this witness was mature enough to give statement, recorded his statement on 21.1.2012. This witness has stated that on 26.4.2011, he alongwith his younger sister was sitting in the shop of his father at Bathri. At about 10:30 p.m, the appellants, whom he identified in the Court came on the motorcycle. They went towards Garhshankar side and thereafter came back. His uncle Chaman Lal left his shop to answer the call of nature, however, his wife Swarna Devi remain in the shop. The appellants purchased a bottle of soda from Smt. Swarna Devi and gave her Rs.500/-
::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 15currency note. She went inside the shop to give balance to the appellants, in the meanwhile, the taller appellant went inside the shop and other remain outside the shop. When .
Swarna Devi was giving balance amount to the appellant the taller boy got hold of the wooden cash box and Smt. Swarna Devi tried to snatch the same, thereafter taller appellant stabbed Swarna Devi with some sharp edged of object and thereafter both the appellants fled away on the black motorcycle. Smt. Swarna Devi had been crying and rt this witness claimed to have seen the entire incident from his shop and raised noise and call his father. He further stated that the motorcycle was without number and he had seen the occurrence as there was electricity bulb in his shop and also in the shop of Chaman Lal. During cross-
examination, he denied that he had been directed by Bholi Devi to give the statement in the Court. He also denied that there was no witness to the scene of the crime and he was deposing falsely.
13. PW 39 Smt. Leela Devi stated that on 26.4.2011, she alongwith her Devrani Rajinder Kaur were returning to their house after threshing wheat around 10:30-11:00 p.m. ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 16 While they were near the Panchayat ghar, they have heard noise from the shop of Chaman Lal. The cries were of Swarna Devi (deceased). They went to shop and found two .
boys coming out of the shop out of whom one was of medium height and while the other one was tall in stature.
The medium stature boy had worn green T-shirt and capri (half pant) while the other boy had worn the blue lower and of black T-shirt. The taller boy was having black colour weapon in his hand. She further stated that Chaman Lal had gone to rt answer the call of the nature and was washing his hands near the well. Chaman Lal had raised noise and they had found Swarna Devi in the floor of the shop and blood was spreading on the spot and because of the attack Swarna Devi had become unconscious. She was lifted and laid on the wooden bed. She further stated that appellants had parked the motorcycle near the kokha and had fled away towards the Garhshankar side on a motorcycle, which was without number and black in colour. She claimed that Swarna Devi received injuries on the chest, arm and stomach. The articles were lying here and there in the shop and the Galla (wooden chest) was empty. The appellants ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 17 had fled away after taking the money from the Galla by attacking Swarna Devi with some weapon. She identified both the appellants in the Court and stated that they were .
the same who attacked/murdered Swarna Devi in the shop and had taken money from the Galla. She further deposed that she had seen the kritch which the taller appellant in stature was having in his hand. During cross-examination, of she stated that she and her Devrani were carrying bags of 40-40 kgs each at that time and all the lights of the rt Panchayat ghar, shops and houses were on. She claimed to be at a distance of about 50 meter from the Panchayat ghar and 100 meter away from the shop when they heard noise. She denied that the shop of Chaman Lal was not visible from the Panchayat ghar and voluntarily stated that at that time they were near the Panchayat ghar. She denied the suggestion that she alongwith her Devrani had not visited the shop or not seen the appellants who eventually fled from the spot. She further denied that she had identified appellants in the Court at the instance of the police.
::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 1814. PW2 Satish Kumar, ex Pardhan stated that he had been associated in the investigation and on 27.4.2011 he alongwith Sansar Chand had visited the shop of PW1 .
where the police had taken into possession ball pen, blood stained leaves, coin of 50 paise, currency note of Rs.10/-, concrete etc. These articles were put in a plastic container and thereafter taken into possession vide Ex.PW2/A which of bore his signature. Similarly, the police had also taken into possession concrete and tar coal vide memo Ex.PW2/B and rt likewise the stain of blood lying on the spot vide Ex.PW2/C. The police also took into possession currency note and coin from the cash box amounting to Rs. 123.50 paise and wrapped in cloth parcel vide memo Ex.PW2/D. However, this witness denied that the seal had been given to him by the police and thereafter this witness was declared hostile.
In cross-examination by the defence counsel, the witness denied that seal 'P' was affixed by the police on the parcels and claimed that all the recovery memos were prepared on 27.4.2011. He further stated that Rs.10/-
currency note and 50 paise coin were recovered by the police out of which the currency note was recovered near ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 19 the electric pole near the shop of the complainant whereas 50 paise coin was recovered in front of khokha on the road about 10 meters away from the shop of the complainant.
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He admitted that there are many shops in the market and people frequently visit there as it was main Bathri-
Garhshankar road. However, he denied the suggestion of appellants that no recovery had been effected nor any of memo have been prepared and that his signature has been obtained on a blank paper.
rt
15. PW4 Balbir Singh, Up-Pardhan was at the relevant time in village Bathri and stated that about 10:30 p.m. he had heard noise of cries from the shop of Chaman Lal. When he reached there he found Chaman Lal, Bholi Devi, Leela Devi and many other persons were present at the spot. He saw Swarna Devi in an injured condition and clothes were blood stained. She was kept on wooden kot and he touched the body and found that she was dead.
Chaman Lal had told him that two boys had killed his wife and had thereafter fled away on the motor cycle. He informed the police on telephone about the occurrence and on reaching the spot had prepared the inquest report ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 20 Ex.PW4/A, which was signed by him and by Chaman Lal.
Police took the dead body for postmortem to R.H., Una and he alongwith Chaman Lal and other family members .
accompanied the police. Subsequently on 21.5.2011, the police brought the appellants, who were present in the Court and had stopped vehicle at a distance of 50 meters from the shop and thereafter the appellants had identified of the spot and narrated the entire exercise made by them while committing the offence. They also identified the place rt where the motorcycle was parked by them. Memo Ex.PW4/B was prepared by the Investigating Officer which bore his signature and also the signatures of Sansar Chand and the appellants and one police official also signed the memo. In cross-examination, this witness stated that there are many shops in the abadi in and around the place of occurrence. There were 4-5 halwai shops, three confectionary shops, two barber shops, two clothes shops and two mechanic shops, however, at the time of occurrence none of the shop was opened except the shop of Chaman Lal. He did not dispute that Panchayat ghar is towards western side from the rain shelter, however, it is ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 21 denied that shop of Chaman Lal is not visible from panchyat ghar. He further reiterated that police had prepared the site plan at the spot on the basis of the .
information given by the appellants.
16. PW6 Jarnail Singh is the person who claimed to have been attacked by the appellants on 26.4.2011 while he was walking at village Keluan near Bathri. He stated that of at about 8:30 p.m. he had gone inside the shop to recharge his mobile alongwith Rajnish, Pawan and one another boy rt and while going back to their quarter two boys i.e. appellants present before the Court came on their motorcycle and hit him with the motorcycle and thereafter inflicted injuries with the sharp edged weapon on his right arm, back and chest duly shown to the Court below, the appellants had abused him and asked him to give whatever he had. Thereafter the appellants had taken away his mobile bearing No. 98160-63345 and Rs. 400/- and because of the injuries this witness had become unconscious. When he regained the conscious, he was in the hospital at Una and thereafter got registered FIR. During cross-examination, he denied that due to darkness he had ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 22 failed to recognize the appellants and rather voluntarily stated that he identified them with the help of the light of the motorcycle. He further stated that appellants were not .
got identified by the police and were identified by him in the Court.
17. PW7 Swaran Singh stated that Sim Card No. 98160-63345 was in the name of his mother and he had of given the same to Jarnail Singh who had come to Una for service. During cross-examination, he stated that the same rt had been purchased by him from M/s Rana General Store, Durana.
18. PW8 Sansar Chand has proved recovered memo Ex.PW2/A, PW2/D and identified Galla Ex.P1, Ball Pen Ex.P7, currency note of Rs.10/- Ex.P8, coin 50 paise Ex.P9, bandage pieces Ex.P10, concrete Ex.P11, leaves Ex.P12, concrete Ex.P13, bandage Ex.P14, currency notes of Rs.20, Ex.P15 and P16 and articles Ex.P1 to Ex.P7 which had been taken into possession by the police. In cross-examination, he did not dispute that there were many shops in and around the area and even buses halt there at night. However, it is denied that pilgrims stayed during the night.
::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 2319. PW9 HC Rajesh Kumar stated that on 22.9.2011 case property, in case, FIR No. 91/2011, dated 27.4.2011 of Police Station, Haroli was deposited with him by HHG .
Dilbagh Singh vide R.C. No. 284/2011 alongwith packet containing mobile, keypad and two sim cards. The parcels were sealed with seals M & J and entered in Malkhana register at Sl. No. 3204/11. During cross-examination, he of denied the suggestion that no parcel had been deposited with him and he had been deposing falsely.
rt
20. PW 10 Amrit Pal Singh is running mobile repair shop in the name and style of M/s Jaskaran Telecom at village, Samundra, Garhshankar. He deposed that in the year 2011 the appellant Gaurav Rana present before the Court had come to his shop saying that he is in need of money and wanted to sell mobile model Nokia 1202, which he checked and purchased for Rs.200/-. He thereafter changed the key pad and put in sim card of Aircel bearing No. 98035-91723, which was a demo sim. He later on sold the mobile phone to Jagtar Singh for Rs.400/- and he had handed over the mobile phone to the police Ex.P18, keypad Ex. P19 and sim card Ex.P20. During cross-
::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 24examination, he admitted that he did not give any receipt for the purchase of the mobile and however, he denied the suggestion that the appellant Gaurav had not visited and .
stated that he had sold the mobile after replacing its keypad but had not issued any receipt of sale while selling the same to the Jagtar Singh.
21. PW11 HC Surjeet Singh had stated that on of 17.5.2011, he alongwith ASI Darshan Singh remained associated in investigation of case FIR No. 34/11, registered rt against the appellants under Section 394 IPC at Police Station Nurpur Bedi. Appellant Gaurav Rana in his presence had made a disclosure statement Ex.P24/E before ASI Darshan Singh of P.P. Kalma to the effect that on 26.4.2011 during night he alongwith appellant Rajesh at lower Bathri had injured one person with Kritch and snatched Rs.400/-
and a mobile and thereafter murdered a woman with Kritch and snatched Rs.2500/- from the Galla (chest) at a shop at Bathri. He alongwith Nasib Singh Lambardar and Sarpanch Harket Singh had put signatures on the memo Ex.PW24/F and later on Gaurav Rana had got recovered the Kritch and Rs.20,600/-, which were taken into possession vide ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 25 Ex.PW24/F. Rough sketch of Kritch Ex.PW24/D was prepared.
The motorcycle used for the commission of the crime was recovered vide memo Ex.PW24/G. During cross-
.
examination, he stated that he had joined investigation on 17.5.2011 and denied that at that time appellants were in custody. He also denied that no statement had been given by the appellant Gaurav Rana on the basis no recovery of had been effected. He also denied that no recovery of currency notes had been effected at the instance of the rt disclosure statement of appellant Gaurav Rana.
22. PW12 Suman Kumari is Pardhan of Gram Panchayat Bathri and has stated that the shop had been given to Chaman Lal without rent as he was a poor person and in the shop on 26.4.2011 his wife was murdered. During cross-examination, she denied that there was no shop in the Sarai.
23. PW 13 HC Ashok Kumar deposed that he on 27.4.2011 on the directions of the superior officers had conducted photography of the spot at village Bathri. He found dead body lying in the verandah of the shop and there was blood lying outside the shop, on the road and on ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 26 the leaves. He further stated that there were Rs.10/- note, 50 paise coin and ball pen lying outside the shop. He photographed these articles and handed over the CD to .
I.O. in a sealed condition with seal 'R'.
24 PW14 Jaswant Singh ex-Pardhan of Gram Panchayat Bhadiaran, deposed that on 20.5.2011 appellant Rajesh had disclosed to the police in his presence and in of presence of C. Ram Gopal that on 26.4.2011, he alongwith Gaurav Rana during the night had murdered a woman with rt Kritch (Dagger) and identified such place and the place where they parked the motorcycle. He also disclosed that he can get recovered his T-shirt and lower from his house, which he had been wearing at the time of murder.
Disclosure statement of the appellant Gaurav Rana was Ex.PW14/A. During cross-examination, he denied that the statement of the appellants had already been recorded by the police and he had only put his signatures. He admitted that the appellants had disclosed to the police that they could identify the place of murder, however, this witness was confronted with the memo Ex.PW14/A and Ex.PW14/B, wherein, this fact has not been mentioned. He further ::: Downloaded on - 15/04/2017 21:30:16 :::HCHP 27 denied that neither any statement was made by the appellants nor he was present with the police on the said date.
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25. PW15 Vijay Singh deposed that the clothes had been recovered at the instance of the mother of appellant Gaurav Rana and he was also present there. He was declared hostile and during cross-examination conducted of by the learned P.P., he admitted that he had put his signature on memo Ex.PW15/A after going through the rt contents. Appellant Gaurav Rana had taken the police party to his house and got recovered his Capri and T-shirt from his house. These clothes were put in a parcel and sealed with seal 'J' and sample of seal had been taken separately. He further admitted that sample of seal Ex.PW15/B had been taken on a piece of cloth, which bore his signature and memo Ex.PW15/A had been signed by him, the appellant and another witness. He also admitted that the clothes shown to him were the same which had been taken in possession by the police from the house of appellant Gaurav Rana. During cross-examination by the learned defence counsel, he had stated that police had ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 28 called him after taking into possession recovered clothes.
He denied that he had put his signature on memo and other documents at the instance of the police and further .
denied that the seal had not been affixed in his presence.
26. PW16 Omkar Sharma is the Manager of Oasis Hotel and Restaurant, who has stated that he comes to the hotel at 8:00 a.m. and returns to his house around 10:30 of p.m., however, during night one waiter Mukesh remain in the hotel and the details of the visitors who visit hotel after rt his duty, are entered in the register by the waiter. On 26.4.2011, he had left the hotel around 11:00 p.m. and in the morning the waiter had disclosed that two boys had stayed in the hotel during night and he charged Rs.1000/- from them, which the waiter handed over to him. As per waiter, these boys had left the hotel without getting their names entered in the register in the morning. The amount of Rs.
1000/- was handed over to the police vide Ex.PW16/A. During cross-examination, he stated that the appellants were not known to him, therefore, he cannot say that there were the appellants who had stayed in the hotel.
::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 2927. PW17 Mukesh Kumar is waiter in hotel Oasis and stated that on 26.4.2011 at around 12:00 midnight two boys came to the hotel and demanded room for stay. He .
opened the room and charged Rs.1000/-. He further deposed that these boys came on motorcycle and assured him to make entry in the register in the morning, however, in the morning both the boys had fled away without making of entry in the register. He also stated that on the arrival of Manager, he handed over Rs.1000/- to him. On 23.5.2011, rt police came to the hotel and he had identified the boys, who had been staying in the hotel in the night of 26/27.4.2011. He produced Rs.1000/- notes to the police, which were taken into possession vide Ex.PW16/A. He also identified the appellants before the Court. During cross-
examination, he denied that without consent of the Manager he had no authority to allow anybody to stay in the hotel during night hours. He further denied that the appellants had not stayed in the hotel.
28. PW18 C. Jasbir Singh stated that on 30.4.2011, he had received five parcels, two samples of seals and one docket containing viscera, clothes, sealed with Una ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 30 mortuary seal from MHC Vipan Kumar and other parcels sealed with seal 'P' alongwith sample seal, which were containing blood stained leaves, blood stained crushed .
stones, Rs.10 note and 50 paise coin and deposited the same at FSL, Junga. On 27.6.2011, he again carried three parcels sealed with seals T, J, DS, CHC, Haroli, 2 FTA cards, one parcel containing lower and T-shirt and one containing of Kritch sealed with seal DS alongwith seal sample to FSL, Junga and deposited the same there on 28.6.2011.
rt
29. PW19 C. Deepak Kumar had joined investigation on 27.4.2011 and as per his statement at about 1:25 a.m., I.O. Shakti Singh recorded statement of Chaman Lal which he had carried to P.S., Haroli on the basis of which FIR had been registered. On 5.7.2011 he had gone to Junga for collecting result and handed over the same to MHC on 7.7.2011.
30. PW20 HC Sanjay Kumar alongwith HC Naresh Kumar, HC Dharam Pal, C.Deepak Kumar and C. Ram Gopal remained associated in the investigation of the present case with SHO Shakti Singh of P.S., Haroli. The appellants during police custody had taken the police ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 31 party to the spot at village, Bathri in Chaman Lal Sweet Shop and got identified the places from where they had snatched the money from the wife of Chaman Lal and .
stabbed her to death. They had also identified the place where they had parked the motorcycle. Regarding this memo Ex.PW4/B had been prepared which bore his signatures, as well as of Balbir Singh and the appellants. On of the same day, the appellants took the police party to village Dhamai where PW Balbir Singh of village Dhamai rt was associated in the investigation and appellant Rajesh had led the police party to his house where his mother was present. The appellant from the room where iron petty (box) was lying over which, one brief case of black colour was kept and from the brief case, the appellant had taken out one lower suit (Pyjama) over which there were two cuts on right side of leg. He also got recovered T-shirt of black colour over which Amar Icon mark was written. Above said T-shirt and lower were packed in cloth parcel and parcel was sealed with seal T and seal after use was given to Balbir Singh and parcel had been taken in possession vide memo Ex.PW20/A. The sample of seal Ex.PW20/B had been ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 32 retained. He has also identified T-shirt Ex.P35 and one lower Ex.P36 in the Court which had been recovered at the instance of appellant Rajesh from his house. During cross-
.
examination, he has denied that they had called ward panch Balbir after recovery and nothing was recovered at the instance of appellant Rajesh.
31. PW21 Jagtar Singh has stated that he had of purchased one old mobile Nokia 1202 from the shop of Amrit Pal Singh (PW10) for a consideration of Rs.400/- in the rt fifth or sixth month of 2011. After about 15-20 days of purchase of mobile, police had come to his shop where he was working and police had taken said mobile from him. He had inserted sim No. 94655-53283 in the mobile. During cross-examination, he has admitted that there is no specific identification on mobile Ex.P18.
32. PW22 ASI Prem Chand had produced Kritch in the Court which was deposited with him in Malkhana of P.S. Anandpur Sahib by SHO, P.S. Nurpur Bedi. He had already produced Kritch before learned SDJM, Anandpur Sahib as well as before learned JMIC (I), Una. During cross-
::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 33examination, he has admitted that Kritch Ex.K1 had not been recovered in his presence by the I.O.
33. PW23 is HC Naresh Kumar. He has stated that he .
remained associated with the investigation of this case with SI Shakti Singh. As per his statement, on 21.5.2011 they had gone to village Samundra with both the appellants. The witness Vijay Kumar had also been associated and of appellant Gaurav Rana took them to his house where his brother was present.
rt Appellant from his room got recovered T-shirt Ex.P23 and Capri Ex.P24 from small trunk which was lying on big iron box (petty). T-shirt, Capri which the appellant was wearing at the time of occurrence, had been taken in possession vide memo Ex.PW15/A. Clothes had been packed in a cloth parcel and parcel had been sealed with three seals of impression J and sample of seal Ex.PW15/B had been taken on a piece of cloth. On 12.5.2011 he alongwith HC Sanjay Kumar and other police officials as per orders of Superintendent of Police, Una had gone to village Samundra in connection with investigation of case FIR No. 91/2011. One Amrit Pal, son of Ajmer Singh who was running mobile shop was associated in the ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 34 investigation. On the basis of call details as the mobile was under observation and mobile had been snatched from Jarnail Singh, the mobile had been sold to Amrit Pal by .
appellant Gaurav and after repair he further sold that mobile to Jagtar Singh. On the same day, Jagtar had produced mobile and sim which were put in cloth parcel and sealed with three seals of J and taken in possession of vide memo Ex.PW23/B. During cross-examination, he has denied that they had purchased new mobile and other rt articles from the shop of Amrit Pal and no recovery of mobile had been made from Jagtar Singh. He has denied that parcel had been sealed in the police station. He has denied that no recovery had been effected at the instance of appellant Gaurav Rana.
34. PW24 SI Nishant Bhardwaj had also visited the spot alongwith SI Shakti Singh. In the shop of Chaman Lal dead body of Swarni was lying on the wooden cot and blood had been on the floor. The articles in the shop were scattered here and there. The I.O. got the spot videographed from HC Ashok Kumar and prepared site plan and took in possession articles for evidence. I.O. had ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 35 filled in 25, 35(a)(b) forms and deputed ASI Ashok Kumar and L.C. Ramana for taking the dead body of Swarni for postmortem to D.H., Una. On 5.6.2011 he alongwith I.O. and .
other police officials had visited P.S., Nurpur Bedi (Punjab) where they had shown order dated 31.5.2011 of SDM, Anandpur Sahib, to MHC Balbir Singh, MHC had produced case property of case FIR No. 34/2011 dated 27.4.2011 of which was required in the present case. The case property including one motorcycle pulsar of black colour and cloth rt parcel sealed with seal DS stated to be containing Kritch (sharp edged weapon) had been taken in possession. They had also procured copy of Malkhana register No. 19 of P.s.
Nurpur Bedi bearing Mad No. 202 dated 17.5.2011. The motorcycle, parcel and abstract of Malkhana register had been taken in possession vide memo Ex.PW24/A by the I.O.
Copy of order of learned SDJM, Anandpur Sahib had been given to MHC Balbir Singh of Nurpur Bedi. On the same day, he alongwith the I.O. and other police officials with the case property had gone to P.P. Kalma where ASI Darshan Singh had produced record of case FIR No. 34/2011 dated 27.4.2011 under Section 394 IPC registered at P.S. Nurpur ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 36 Bedi including copy of disclosure statement of appellant Gaurav Rana, copy of memo regarding Kritch and cash Rs.20,600/-, copy of memo of motorcycle pulsar of black .
colour, copy of sketch of Kritch, zimini No. 16, dated 17.5.2011, two applications moved to Medical Officer, PHC Singhpur for medical examination of appellants, which were taken in possession by the I.O. vide memo Ex.PW24/B. copy of of Malkhana register is Ex.PW24/C, copy of sketch of kritch is Ex.Pw24/D, copy of disclosure statement of appellant rt Gaurav Rana is Ex.PW24/E, copy of recovery memo of kritch and cash is Ex.PW24/F, copy of recovery memo of motorcycle is Ex.PW24/G, copies of applications moved to Medical Officer, PHC, Singhpur are Ex.PW24/I, copy of order issued by learned SDJM, Anandpur Sahib is Ex.PW24/J. During cross-examination, he had admitted that at the time of taking in possession copies of above documents, appellants were not present.
35. PW25 ASI Ashok Kumar had got conducted postmortem of the dead body of Swarna Devi and after postmortem, dead body had been handed over to Chaman Lal vide memo Ex.PW25/B in the presence of L.C. ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 37 Ramna Devi and Balbir Singh. He had obtained postmortem report and handed over the same to I.O.
36. PW26 L.C. Ramna Devi had been deputed to .
village Bathri from where she and ASI Ashok Kumar had been deputed for D.H., Una for getting the postmortem of Swarni conducted through doctor. After postmortem, the doctor had handed over to her one parcel containing of viscera, parcel containing clothes of deceased, one parcel of ornaments, one seal sample, one envelope sealed with rt Una mortuary seal and she had handed over all these articles to MHC.
37. PW27 HHC Dharam Pal on 4.6.2011 had been deputed to FSL, Junga. He accordingly collected envelop containing FSL report No. 670B-SFSL, PHY-88/2011 and had handed over envelope to MHC on 5.6.2011.
38. PW28 is HHC Jagtar Singh who on 5.8.2011 had been deputed to collect FSL report from Junga and he collected report No. 1025/A, SFSL, B10-149/2011 contained in a sealed envelope which he had deposited with MHC on 6.8.2011.
::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 3839. Postmortem of the deceased had been conducted by PW29 Dr. Sanjay Mankotia on 27.4.2011 on the application Ex.PW25/A moved by the police. At the .
time of postmortem, he had noticed;
(1) sharp edged wound on right breast 3cm x 2cm with deep tissues and fat visible 4cm below right nipple and 3cm deep.
of (2) sharp edged wound below right breast 4cm deep in between 7th and 8th ribs.
(3) sharp edged wound on the joining right axilla rt and iliac crest 4cm x 2cm penetrating in abdominal cavity 4cm deep mid way between this line. Right plurae and lung punctured at leviel of 7th and 8th ribs.
As per his opinion, the deceased had died due to hemorrhagic shock subsequent to multiple wounds. The probable duration between death and postmortem was within 18 hours and duration between injury and death was few minutes to an hour. The doctor had preserved viscera in a jar, blood sample and clothes, brazier, dupatta, pranda for chemical examination in separate parcels sealed with Una mortuary seal and handed over the parcels to the police and issued report Ex.PW29/A. On 19.9.2011, SHO P.S., ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 39 Haroli had moved application Ex.Pw29/D and produced one parcel sealed with FSL seals. There were two signatures on both sides of the parcel and parcel had been opened .
and Kritch Ex.K had been found in it. The injuries observed on the person of deceased Swarni Devi were possible with the kritch and injuries present on the dead body were sufficient to cause her death. Kritch Ex.K1 had been sealed of with Una mortuary seal and returned to the police with sample seal Ex.PW29/E. During cross-examination, he has rt admitted that there was no blood on the kritch when it was shown to him by the police.
40. PW30 Dr. Shingara Singh is Medical Officer, posted at PHC, Basdehra and on 22.5.2011 the police had moved application Ex.PW30/A for medical examination and collection of blood samples on FTA cards for DNA profiling of appellants Gaurav and Rajesh. He has firstly conducted medical examination of appellant Gaurav Rana at about 12:40 p.m. and on examination there was healed scar mark curved over base of left hand forefinger. His blood sample in FTA cards was collected, sealed and sample was sealed for further investigation at FSL, Junga. The parcel was sealed ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 40 with hospital seal. He had taken seal sample on FTA form Ex.PW30/B. On the same day, he had also conducted medical examination of appellant Rajesh and had noticed .
infected wound on his left thigh just above knee joint. The wound was already stitched and as stated by the appellant. He had got the wound stitched on 26.4.2011 from some private practitioner. He had issued MLCs of of appellant Rajesh Ex.PW30/C and that of appellant Gaurav Ex.PW30/D. The blood sample of appellant Rajesh had been rt taken on FTA cards and sealed with hospital seal for further investigation at FSL, Junga. He had filled in FTA form Ex.PW30/E of appellant Rajesh and obtained his right and left thumb impressions and signatures.
41. PW31 Surinder Pal Singh is Patwari posted in Patwar circle, Bathri. On 16.8.2011 on application Ex.PW31/A, the Tehsildar had given orders of demarcation of T-shop of Chaman Lal and accordingly he had conducted demarcation of shop in the presence of police and shop had been identified by the police. He had prepared Tatima Ex.PW31/B and copy of Jamabandi Ex.PW31/C. On 17.8.2011 report had been produced before ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 41 the police after counter signatures of Kanungo and report is Ex.PW31/D which is in his hand and bears his signatures. The shop of Chaman Lal had been found on Khasra No. 2397.
.
42. PW32 HC Vipan Kumar is MHC and he had received case property from LHC Ramana Devi on 27.4.2011 containing viscera, clothes, ornaments alongwith sample seals. On the same day, he had also received four of parcels from SI/SHO Shakti Singh and he had entered all the articles at Sl. No. 576/2011 of Malkhana register. On rt 21.5.2011, SHO Shakti Singh had deposited one parcel sealed with three seals of impression J and he had entered the same at Sl. No. 574/2011 of Malkhana register. On 22.5.2011, he had received an envelope sealed with two seals of CHC, Haroli stated to be containing blood samples on FTA cards of appellant Gaurav Rana and another envelope sealed with two seals of CHC, Haroli containing blood sample on FTA cards of appellant Rajesh and he had entered the same at Sl. No. 598/2011 of Malkhana register.
On 23.5.2011 he had received one unsealed envelope containing 10 notes of 100 denomination each and entry has been made by him at Sl. No. 600/2011. On 5.6.2011 he ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 42 had also received one parcel from SHO Shakti Singh containing kritch sealed with seal DS and entered the same at Sl. No. 608/2011 of Malkhana register. On 30.4.2011, .
articles mentioned at Sl. Nos. 575/2011 and 576/2011 had been sent to FSL, Junga through C.Jasbir Singh. On 27.6.2011 articles mentioned at Sl. No. 594/2011, 598/2011 and 608/2011 had been sent to FSL, Junga through C.Jagtar of Singh. On 5.6.2011 HHC Dharam Singh had brought one parcel sealed with two seals of FSL, Junga alongwith result rt which he had entered in Malkhana register and handed over the same to I.O.
43. PW33 Baldev Ram had got entered FIR Ex.PW33/A on the basis of statement of Chaman Lal Ex.PW1/A and made endorsement Ex.PW33/B on reverse of Ex.PW1/A and thereafter the file had been sent to the spot through C.Deepak Kumar. On receipt of file and expert opinion he had prepared supplementary challan. During cross-examination, he has denied that FIR was registered later on at the instance of I.O. and he has wrongly prepared supplementary challan.
::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 4344. PW34 is Dr. Vivek Sehajpal, Assistant Director (DNA), FSL, Junga. He has stated that in the present case, he had received nine parcels for DNA analysis in sealed .
condition vide R.C. No. 135/2011 dated 30.4.2011, R.C. No. 189/2011 dated 27.6.2011. He had carried DNA profiling of the exhibits and had given opinion as report No. 670/D/SFSL /DNA-52/2011 and 1025B/SFSL/DNA-89/11 Ex.PW34/A (nine of sheets).
45. PW35 C/ Gurbax had only collected SFSL report rt in FIR No. 90/2011 on 28.6.2011. PW36 Naseeb Chand is Nambardar of village Ajampur. On 17.5.2011 in his presence and in the presence of Harket Singh appellant Gaurav Rana had made disclosure statement that on 26.4.2011 in the area of Himachal Pradesh in lower Bathri, he alongwith appellant Rajesh had inflicted injuries on pedestrian and snatched Rs.400/- and mobile and thereby, they had murdered one woman at village, Bathri and taken away Rs.2500/-. Copy of disclosure statement is Ex.PW24/E. Appellant Gaurav had also made disclosure statement that he had kept kritch and Rs. 2500/- in his house and accordingly, led the police party to his house and got ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 44 recovered currency notes and kritch from the trunk which were taken in possession vide memo Ex.PW24/F. As per his version, copy of sketch of kritch is Ex.PW24/D. During cross-
.
examination, he has stated that signatures of appellants were not taken in his presence. He has denied that no disclosure statement had been made by appellant Gaurav in his presence nor any recovery had been effected.
of
46. PW37 Balbir Singh has stated that on 21.5.2011 he remained associated with the police in this case and rt nothing was recovered in his presence at the instance of appellants. He was declared hostile and during cross-
examination by learned P.P. he has admitted that on 21.5.2011 he and HC Sanjay had joined investigation but has denied that appellant Rajesh had taken the police party to his house and recovery of lower and T-shirt had been effected. He has admitted that seal sample Ex.PW20/B bore his signatures.
47. PW38 Navjeet is Nodal Officer, AIR Cell, Shimla.
On 12.5.2011 on the request of Superintendent of Police, Una, he had provided call details of mobile No. 98035-91723 bearing IMEI No. 351529041336850 through e-mail to ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 45 Superintendent of Police, Una copy of which is Ex.PW38/B and call details are Ex.PW38/B and IMEI No. is encircled red in Ex.PW38/B. During cross-examination, he has stated that .
as per record, mobile No. 9803591723 belongs to Amrit Pal Singh son of Ram Lal.
48. PW40 HC Balbir Chand of P.S. Nurpur Bedi has stated that on 5.6.2011 on the directions of learned SDJM, of Anandpur Sahib, he had produced one parcel containing kritch sealed with seal DS and motorcycle pulsar without rt number to SHO, Shakti Singh of P.S. Haroli which had been taken in possession vide memo Ex.PW24/A and memo bears his signatures as producer. He has brought original Malkhana register and Ex.PW24/C abstract of Malkhana register is correct as per original record. During cross-
examination, he has denied that articles mentioned by him in examination-in-chief were not in his possession and he had not produced kritch and motorcycle to SHO, P.S. Haroli.
49. HC Balbir Singh (PW41) of P.P. Daulatpur has stated that on 23.5.2011 he had gone to Garhshankar alongwith SHO Mukesh Kumar had produced Rs. 1000/- who is working as waiter in hotel Oasis and currency notes had ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 46 been put in an envelope and taken in possession vide memo Ex.PW16A. He had translated memos Ex.PW24/E, Ex.PW24/F, Ex.PW24/A which were in Punjabi and translation .
of the same is Ex.PW41/A to Ex.PW41/C which is true version of memos which are in Punjabi.
50. PW42 is C. Rajesh Kumar and he has proved rapats Ex.PW42/A to Ex.PW42/C from the original record and of as per him, rapat Nos. PW42/A to Ex.PW42/C had been entered at the instance of SI Shakti Singh. During cross-
rt examination, he has denied that rapats had been written later on.
51. PW43 is Megha Kanwar, Criminal Ahlmad of Court of learned JMIC-I, Una and she had produced challan pertaining to FIR No. 91/2011 of P.S. Haroli.
52. PW44 ASI Prem Lal is I.O. of P.S. Haroli and he had conducted investigation in case FIR No. 91/2011 dated 27.4.2011 registered under Section 392, 323, 326 read with 34 IPC. Information of murder at Bathri had been received and accordingly, rapat Ex.PW17/A had been entered which is lying in case file No. RBT-22-11-12/11 of the Court of learned JMIC-I, Una. He alongwith SI Shakti Singh, PSI Nishant, ASI ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 47 Ashok Kumar and other police officials had visited the spot.
He had received information that two boys were also assaulted by the appellants at Bathu village and he .
accordingly alongwith C. Ashok Kumar had been deputed to verify the facts at Bathu. He had recorded statement of Rajnish son of Prakaram Singh Ex.Pw1/A lying in the file of lower court and statement had been sent to P.S., Haroli of through C. Ashok Kumar on the basis of which case had been registered against the appellants. He recorded rt statements of the witnesses and procured production warrants of the appellants on 23.5.2011 and they had produced the appellants before learned JMIC, Court No. 2, Una on 25.5.2011. During police custody, appellants had identified the place of occurrence and injured. During cross-examination, he has admitted that no investigation in case FIR No. 90/2011 had been conducted by him. He has denied that in case No. 91/2011 false investigation had been conducted by him.
53 PW45 HC Shakti Nandan on 14.9.2011 had received kritch sealed with seal of FSL, Junga from C. Yash Pal in P.S. Haroli and entered the same at Sl. No. 608/2011 of ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 48 Malkhana register. Kritch had been given to SHO on 19.9.2011 for taking opinion of the doctor and on the same day, kritch bearing Una mortuary seal had been received .
by him alongwith sample seal from the SHO. On 22.9.2011 parcel of kritch had been sent through C.Jagtar to P.S. Nurpur Bedi and entry to this effect had been made at Sl.
No. 608/2011.
of
54. PW46 C. Yash Pal on 12.9.2011 had gone to FSL, Junga for collecting result of case FIR No. 90/2011 and had rt brought kritch alongwith FSL report and deposited the same with MHC. The parcel was bearing FSL seals.
55. PW47 Devinder Verma is Nodal Officer of Bharti Airtel, Kasumpati, Shimla. He has stated that on the request of police he had emailed billing address of Mobile No. 98160-63345, copy of which is Ex.PW47/A. During cross-
examination, he has stated that sim No. 98160-63345 had been issued in the name of Rekha Devi.
56. PW48 SI Shakti Singh Pathania is an Investigating Officer, who conducted investigation in this case. He stated that on 26.4.2011 at about 11:20 p.m. Pardhan, Gram Panchayat, Bathri telephonically informed at Police Station, ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 49 Haroli that at Bathri bus stand in a tea stall two persons had stabbed woman in the shop and fled away towards Punjab on motorcycle. Regarding this rapat No. 37-A Ex.PW42/A .
had been entered. He thereafter alongwith PSI Nishant Sharma, ASI Ashok Kumar, ASI Prem Lal, C. Ashok Kumar, C. Deep Kumar and HHG Piare Lal proceeded to the spot in a government vehicle. On reaching spot, a dead body of of woman, namely, Swarna Devi lying on wooden bench (takhtposh) and other local people were present there. The rt dead body was stained with blood and there were injuries on the stomach, arm and other parts of the body. During this period, he received one more information that at village Bathri two persons who were riding motorcycle had inflicted injuries to one person and snatched his money and mobile etc. and fled away. On this information, ASI Prem Lal alongwith C.Ashok Kumar were deputed to visit the spot to verify the facts. Thereafter, PW1 Chaman Lal got recorded his statement Ex.PW1/A under Section 154 Cr.P.C. On the basis of a statement, he prepared a Rukka and sent the same to the Police Station, Haroli through C. Deepak Kumar, on the basis of which FIR Ex.PW33/A under Sections ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 50 392, 302 read with Section 34 IPC had been registered. In the meanwhile, photographer HC Ashok Kumar and LHC Ramana reached on the spot and videography of this spot .
was conducted and CD Ex.P.22 was prepared, which was handed over to him after sealing the same with three seals of impression R. Specimen of impression was taken on separate piece of cloth Ex.PW48/A. The site plan Ex.PW48/B of of the spot as per identification of complainant and witnesses was prepared. Dead body of the deceased was rt examined through LHC Ramana and local lady/witnesses and filled up form 25:35 A & B and form 25:39 (inquest report) Ex.PW4/A, which was signed by Chaman Lal and Balbir Singh. He then prepared application Ex.PW25/A for the postmortem of deceased Swarna Devi and sent the dead body alongwith inquest report and connected documents through ASI Ashok Kumar and LHC Ramana Devi to R.H., Una. After postmortem ASI Ashok Kumar handed over the report Ex.PW29/A to him. One ball pen, coin of 50 paise, currency note of Rs.10/- and blood stained leaves were found on the spot which were put in a plastic container and sealed with three seals of seal impression P ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 51 and taken into possession vide memo Ex.PW2/A. The control sample of concrete was lifted from the spot and put in a plastic container and seal with three seals of seal impression .
P and was taken into possession vide memo Ex.PW2/B. Thereafter the blood was also lifted from inside the shop and verandah with the help of cotton bandage and put in a plastic container which was put in a cloth parcel and of sealed with three seals of impression P and taken into possession vide memo Ex.PW2/C. Wooden box lying inside rt the shop, which was stated to be containing Rs. 2000/- to Rs.2500/- was checked and one currency note was found of Rs.20/-, one note of Rs.5/- and coins, total amount Rs.
123.50 and remaining amount had been allegedly taken away by the appellants. This amount was put in same wooden cash box and sealed with seal impression of P and taken into possession vide memo Ex.PW2/D. Specimen seal was taken on a piece of cloth Ex.PW2/F. Vide said memos, parcel and sample seals were signed by the witnesses, namely, Satish Kumar and Sansar Chand and the seal after use was handed over to PW Satish Kumar. The statements of PWs were also recorded and after conducting the ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 52 investigation on the spot as well as in the area. He came back to the police station. Case property was handed over to MHC. The mobile phone, which was stated to be .
snatched by the appellants in case FIR No. 91/2011 was put on observation for tracking the location of mobile No. 98160-63345. On 12.5.2011, the mobile location was found in village Samundra, District Hoshiarpur in Aircel Sim No. 98035- of 91723, which was found to have been issued in the name of Amrit Pal, resident of Chack Guru, District Hoshiarpur.
rt Regarding the investigation of this fact, a team comprising of police officials HC Naresh and HC Sanjay was sent to village Samundra and during investigation, it was revealed that the mobile phone being used for Sim No. 98035-91723 had been purchased by Amrit Pal from the repair shop.
However, he again stated that he purchased the above said mobile from appellant Gaurav Rana, which has been taken into possession in case FIR No. 91/2011. During investigation, it was also found that appellants Gaurav and Rajesh were in judicial lock-up in Punjab. Production warrants of the accused were obtained from the Court and on 19.5.2011 both the appellants were arrested and ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 53 produced before the Court on 20.5.2011 and their police remand was obtained. On 20.5.2011, while in police custody, the appellant Rajesh made disclosure statement .
Ex.PW14/A, whereas appellant Gaurav made disclosure statement Ex.PW14/B in the present of witnesses Jaswant Singh and C. Ram Gopal and also on 21.5.2011 appellant Gaurav Rana got recovered Capri (short pant) and T-shirt of from his house at Samundra, which were packed in a parcel of cloth and parcel was sealed with three seals of J rt and sample of specimen J Ex.PW15/B was retained on a piece of cloth and seal after use was handed over to witness Vijay Singh and these articles were taken into possession vide memo Ex.PW15/A. On the same day, at village Dhamai accused Rajesh got recovered from his house a lower (pajama) of blue colour and T-shirt and specimen of seal Ex.PW20/B was retained on a piece of cloth and taken into possession vide memo Ex.PW20/A. Seal after use was handed over to the witness Balbir Singh. The witnesses had also put their signatures on the memo. After investigation, the case property was handed over to MHC.
On 22.5.2011, medical examination of both the appellants ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 54 were conducted and the blood on FTA card was taken and two FTA cards, two envelopes were handed over to MHC.
On 23.5.2011, at hotel Oasis in Punjab near Garhshankar, .
Rs.1000/-, which the appellants had given to waiter Mukesh were recovered and taken into possession vide memo Ex.PW16/A in the presence of witnesses. On 31.5.2011, application was moved to SDJM, Anandpur Sahib for taking of case property in custody. On 5.6.2011, MHC Nurpur Bedi handed over motor cycle without number (Pulsar), one rt kritch sealed with seal impression DS, photocopy of register No. 19, which had been taken into possession vide memo Ex.PW24/A. On the same day, in P.P. Kalma, ASI Darshan Singh produced copy of Zimini order dated 17.5.2011, photocopy of sketch of kritch, photocopy of disclosure statement, photocopies of recovery memo of motorcycle, kritch, photocopies of MLC of both the accused which were taken into possession vide memo Ex. PW24/B in the presence of the witnesses. Earlier to this, on 21.5.2011, both the accused had led the police party to the places of occurrence and they identified the place where they had committed the crime and memo Ex.PW4/B as per disclosure ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 55 statements had been prepared. Statements of the witnesses were recorded as per their version. Photocopy of FIR No. 91/2011 is Ex.PW48/C, application for medical is Ext.
.
PW48/D, MLC of Jarnail Singh is Ext.PW48/D and call detail is Ex.PW48/F. Statements of witnesses Satish, Vijay and Balbir Ex.PW48/G to I, were recorded under Section 161 Cr.P.C., as per their version and nothing had been added or omitted of from the statements. On receiving FSL report Ex. PW48/J to L, the challan was prepared by him and presented in the rt Court. Prior to this on 19.9.2011 weapon had been shown to M.O. concerned for taking his opinion and final opinion of doctor had been taken. The supplementary challan had been prepared by SI Baldev Ram. He had seen kritch Ex.K1 and case property Ex.P1 to P34, which were same. He further testified that both the appellants in the case were present in the Court on that date. In cross-examination, he had admitted that near the alleged place of occurrence, there is abadi and shops and towards the north west in front there is a Panchayat ghar and passage go in front of the panchayat ghar as well as in the back side of the Panchayat ghar. He also admitted that in the night, shops ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 56 were closed, however, self stated that the alleged shop was open and one khokha was also open. He stated that the phone had been received at 11:20 p.m. was of Pardhan .
and he could not tell the name of the Pardhan. He voluntarily stated that rapat No. 37 has been entered on the basis of such information. Dead body of Swarna Devi was lying at taktposh in the verandah of the shop which of had been placed by the husband and other relatives of the deceased. He had recorded the statements of persons rt about the identification of the assailants. He denied the suggestion that the currency note and other articles had not been sealed on the spot and such seal had not been handed over to anyone. He further denied that the statement of Chaman Lal, Rajinder Kaur, Jaswinder Singh were recorded lateron to give correct shape to the occurrence. He further denied that Mobile No. 98160-63345 is common and voluntarily stated that the phone was identified on the basis of IMEI number. He denied that the appellants had not made any disclosure statements or that the same had been recorded by using pressure on them.
He stated that he had visited Samundra and Dhamai ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 57 alongwith appellants and witnesses and had gone there in government vehicle as well as in private vehicle though he does not remember the number of such vehicle. He could .
not recollect the name of the witnesses who claimed that he had offered his personal search to the witnesses. He denied that Capri and T-shirt had not been recovered and also suggests that the appellants Gaurav Rana had not got of effected recovery of Capri and T-shirt. Similar, suggestions regarding Pajama and T-shirt by appellant Rajesh was rt denied and it is also denied that no parcel had been prepared at the spot and sealed. It is further denied that recovery memo Ex.PW16/A had been prepared falsely. It was also denied that no identification of the place of occurrence had been made by the appellant and that he had recorded the statement of the witnesses at his own.
Lastly, it was denied that since the accused had been arrested in Punjab, therefore, they had been falsely implicated in the present case.
57. PW49 ASI Darshan Singh deposed that he had remained posted as at In-charge, P.P. Kalman, Police Station Nurpur Bedi from 2010-2011 and on 26.4.2011 had ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 58 received file for investigation in case FIR No. 34/2011, registered under Section 394 IPC at Police Station Nurpur Bedi. Both the appellants were arrested by SHO on 26.5.2011 .
and on 17.5.2011 file had been handed over to him. That the accused had been interrogated on 18.5.2011 when appellant Gaurav Rana made disclosure statement Ex.PW24/E about the injuries inflicted to a person at Bathri of with kritch and snatched a mobile and currency notes of Rs.
400/- on 26.4.2011 and murdered a lady at Bathri in shop rt with kritch and snatched Rs. 2500/- from the cash box in the same night. The statement had been given in the presence of witness Karam Chand, Lambardar and Harket Singh and HC Surjeet Singh. On 17.5.2011, the appellant Gaurav Rana had got recovered kritch and currency notes of Rs. 20,600/-
from his house and on the basis of the statement appellant Rajesh, currency notes of Rs. 19,400/- alongwith mobile phone had been recovered from his house at village Dhamai, Police Station Nawansahar. The motorcycle used in the commission of the crime, which was without number had also been recovered from traffic staff Nawansahar. On 5.6.2011, he handed over the photocopies of memos ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 59 Ex.PW24/e, PW24/F, PW24/G, PW24/H, PW24/I and sketch of kritch Ex.PW24/D to SHO, P.S. Haroli, which had been taken into possession vide memo Ex.PW24/B, which was duly .
signed by him. After seeing the kritch, Ex.K1, he claimed that he had deposited the same with MHC. In cross-examination, he denied the suggestions that the accused had not given any statement that he had procured their signatures on of various memos by pressurizing them. He further denied that no witness was present on the spot or no recovery was rt effected at the instance of the appellants. He claimed to have gone to the village of the accused in government vehicle and its No. PB-12L-5231, the kritch was sealed with seal DS. He denied that the memo had been prepared in the police post and clarified that though he had called the local witnesses of the villages of appellants but nobody had turned up.
58. Learned Court thereafter recorded the statement of accused under Section 313 Cr.P.C. and thereafter examined one witness Varinder Singh DW1 who had stated that he was an agriculturist and for this purpose he kept tractor and threshing machine. In 2011, he had ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 60 started threshing work of wheat from 15th April and work remained in progress for about one month. The appellants were known to him and had been engaged for threshing of .
wheat and this work remained in force continuously for 24 hours. The appellants had worked with him continuously for a period of one month for threshing of the wheat and they never remained absent during that period and they had of also not availed any leave during that period. In cross-
examination, he admitted that he did know the name of rt the father of accused Gaurav. He admitted that the labour take rest.. He further denied that threshing work start late in Himachal. He further denied that in the year, 2011, the threshing work had started late. He feigned ignorance that appellants had stabbed one boy on 26.4.2011. Similarly, he feigned ignorance about the accused having stabbed one lady in the same night at around 10:00 p.m. and snatching money from the owner of the shop at Bathri. He voluntarily stated that the appellants were with him on that day for threshing the wheat. He did not know that the appellants had been arrested by the Punjab Police on 27.4.2011 and recovery had been effected at their instance.
::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 61I have heard learned counsel for the parties and have gone through the records of the case.
59. Having dealt with the evidence led on record .
by the parties, its now time to consider and evaluate the arguments of either side. As observed earlier learned counsel for the appellants have vehemently argued that the instant case is a classical example, which is bereft of of any evidence to connect the appellants with the alleged crime. PW1, PW3, PW5 and PW-39 are the close relatives of rt the deceased whereas no independent witness has been examined in this case.
60. Before proceeding to consider the submissions made by the appellants, it has to be remembered that the cardinal principal of criminal jurisprudence is that guilt of the accused must be proved beyond reasonable doubts.
However, the burden on the prosecution is only to establish his case beyond reasonable doubt and not all doubts. In this context, it is apt to reproduce the following observations made by Hon'ble Supreme Court in State of U.P. vs. Krishna Gopal and Anr, 1988 4 SCC 302:-
"25. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 62 doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based .
upon reason and common sense. It must grow out of the evidence in the case.
26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a of robust common sense and, ultimately on the trained intutions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of rt criminal justice."
61. It is clearly settled that the rule regarding the benefit of doubt does not warrant acquittal of accused by resorting to surmises, conjectures and fanciful considerations as held by Hon'ble Supreme Court in State of Punjab Vs. Jagir Singh, 1974 3 SCC 277.
62. Earlier to that, Hon'ble Supreme Court in Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, 1973 2 SCC 793 had observed that excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma and only reasonable doubts belong to the accused. It is apt to reproduce the following observations:-
::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 63"The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the .
attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community."
63. As regards the contentions of the appellants of that the prosecution has only examined the interested witnesses, who were none other than the close relatives of rt the deceased, identical contentions have been considered by the Hon'ble Supreme Court in Criminal Case No. 1482 of 2013, Yogesh Singh Vs. Mahabeer Singh & Ors., decided on 20.10.2016 wherein the Hon'ble Supreme Court observed as under:-
"24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh vs. State of Punjab, 1953 AIR (SC) 364, is one of the earliest cases on the point. In that case, it was held as follows:-
"A Witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 64 true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of .
relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh and Ors. Vs. State of Punjab, 1977 AIR (SC) 2274, this Court held:-
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is of creditworthy there is not bar in the Court relying on the said evidence."
26. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, 1981 3 SCC 675, a three-judge Bench of this Court observed:
rt "..It is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subject to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, if may, by itself, be sufficient, in the circumstances of the further case, to base a conviction thereon."
27. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 65 implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
.
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses of are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. rt State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
64. In view of the ratio of judgments laid in Yogesh Sing's case (supra), this court is only required to carefully scrutinise and appreciate the evidence of closely related witnesses before arriving at any conclusion. However, evidence cannot be disbelieved on the ground that these witnesses are related to each other or to the deceased and evidence has a ring of truth to it is cogent, credible and trustworthy.
::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 6665. If the testimony of these witnesses i.e. PW1, PW3, PW5 and PW39, which has been reproduced in extenso above, is gone through, the presence of the appellants at .
the spot has clearly been established and they have been so identified by these witnesses. Moreover, the prosecution is not bound to produce all the witnesses said to have seen the occurrence. The material witnesses necessary by the of prosecution unfolding the prosecution story alone need to be produced without any un-necessary and redundant rt multiplication of the witnesses and in this connection general reluctance of average villager to appear as witness and get himself involved has also to be considered. In this background, it shall be worthwhile to reproduce the following observations of the Hon'ble Supreme Court in Appabhai and Anr. Vs. State of Gujarat, 1988 Supp1 SCC 241:-
"52. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. hey keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities.::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 67
One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution .
version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
66. The learned counsel for the appellants then contended that in absence of identification parade the of appellants could not have been convicted and in support of such contentions, has placed reliance on following judgments:-
rt
1. Lakhwinder Singh and Ors. Vs. State of Punjab, AIR 2003 Supreme Court 2577;
2. Ravi alias Ravichandran vs. State represented by Inspector of Police, (2007) 15 Supreme Court Cases 372
3. OMA @ Omparkash & Anr. Vs. State of Tamil Nadu, 2013 (3) SCC 440
4. Motilal Yadav Vs. State of Bihar (2015) 2 SCC 647
67. In Lakhwinder Singh and Ors. Vs. State of Punjab AIR 2003 Supreme Court 2577, Hon'ble Supreme Court held that on the basis of the facts of that case observed that since the assailants were not known to the witness by name, therefore, there was no reason why the test of identification parade was not held and this was a serious lacuna in the ::: Downloaded on - 15/04/2017 21:30:17 :::HCHP 68 case of the prosecution. It is apt to reproduced para 36, which reads thus:-
"36. It is not in dispute that one the date of .
occurrence i.e. 24th December, 1996 the informant PW.14 did not know the names of any of the gunmen who had taken part in the assault. Similarly, PW.15 also did not know the names of the gunmen of Ranjit Singh and his father. Admittedly PW.14 came to know of their names 3-4 days later. We have earlier noticed that despite the fact that they did not know the names of any of the gunmen, the name of of Paramjit Singh finds place in the first information report as well as in the marginal notes of the site plan, both prepared at the instance of PW.14. That apart, since the assailants were not known to this witness by name, there appears to be no reason rt why a test identification parade was not held. It is not in dispute that no test identification parade was held to identify the assailants and this also is a serious lacuna in the case of the prosecution. "
68. In Ravi alias Ravichandran vs. State represented by Inspector of Police, (2007) 15 Supreme Court Cases 372, the Hon'ble Supreme Court held that the substantive evidence of identification parade is the one made in the Court and judgment of conviction can be arrived at even if no test identification parade has been held. But when first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing veracity of the witness in regard to his capability of identifying the ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 69 persons who were unknown to him. It is apt to reproduce the relevant observations, which read thus:-
"18. It is no doubt true that the substantive evidence .
of identification of an accused is the one made in the court. A judgment of conviction can be arrived at even if no test identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of of identifying persons who were unknown to him. The witnesses were not only sure as to whether they had seen the appellant before. Had the accused been known, their identity would have been disclosed in the first information report. PW1 for the first time rt before the Court stated that he had known the accused from long before, but did not know their names earlier, although he came to know of their names at a later point of time.
19. In case of this nature, it was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification."
69. In OMA @ Omparkash & Anr. Vs. State of Tamil Nadu, 2013 (3) SCC 440, it was observed by Hon'ble Supreme Court that where the witness did not know the accused earlier, the accused could be identified through test identification parade, which had not been done in ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 70 case of one of the accused, it is apt to reproduce the following observations:-
"30. We may indicate that in the instant case, FIR .
was registered against unknown persons. A2, as already stated, was arrested after ten years on 26.02.2005 in connection with some other crime. We fail to see how PW1 and PW2 could identify A2 in the court at this distance of time. They were guided by the photographs repeatedly shown by the police.
31. Evidently, the witnesses did not know the accused earlier, hence the accused could be of identified only through a test identification parade which was not done in this case, so far as A-2 is concerned. In this connection we may refer to the judgment of this court in Mohd. Iqbal M. Shaikh vs. State of Maharashtra (1998 4 SCC 494 wherein this rt Court held that"
"If the witness did not know the accused person by name but could only identify from their appearance then a test identification parade was necessary, so that, the substantive evidence in court about the identification, which is held after fairly a long period could get corroboration from the identification parade.
But unfortunately the prosecution did not take any steps in that regard."
70. In Motilal Yadav Vs. State of Bihar, (2015) 2 SCC 647, which is heavily relied upon by the learned Counsel for the petitioner held otherwise as would be evident from paras 10 to 14 of the judgment, which reads thus:-
"10.Another argument advanced before us is that no test identification parade in the present case was held, as such, the conviction and sentence, recorded by the trial court, has been wrongly upheld by the High Court. In this connection, our attention is drawn to the case of Kanan and others v. State of Kerala[5]. In said case, this Court has opined that ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 71 failure to conduct test identification parade raises serious doubt about the testimony of the witnesses. On going through said case, we find that this Court doubted evidence of a particular witness (PW- 25 of said case) who told the Court that he could .
identify the accused persons (not known to him) who were running away from the scene of occurrence. Contrary to that, in the present case the testimony of PW-3 Sourav Kumar is natural as he explained in what manner he reached Haldwani, and he had enough time to identify the accused who accompanied him to the persons who took money from him whereafter the victim was released.
of
11.The evidence as to the identity of a person is admissible under Section 9 of the Indian Evidence Act, 1872. In the case of Ravi Kumar v. State of Rajasthan[6], this Court has opined in paragraph 35 rt as follows: -
"35.... The court identification itself is a good identification in the eye of the law. It is not always necessary that it must be preceded by the test identification parade. It will always depend upon the facts and circumstances of a given case. In one case, it may not even be necessary to hold the test identification parade while in the other, it may be essential to do so. Thus, no straitjacket formula can be stated in this regard."
12. In the case of R. Shaji v. State of Kerala[7], regarding the evidential value of the test identification parade, this Court has stated in paragraph 58 as under: -
".... The identification parade is conducted by the police. The actual evidence regarding identification is that which is given by the witness in court. A test identification parade cannot be claimed by an accused as a matter of right. Mere identification of an accused in a test identification parade is only a circumstance corroborative of the identification of the accused in court. "::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 72
13. In Ashok Debbarma alias Achak Debbarma v. State of Tripura[8], this Court has made following observations in para 20 which are reproduced below: -
.
"20..... The primary object of the test identification parade is to enable the witnesses to identify the persons involved in the commission of offence(s) if the offenders are not personally known to the witnesses. The whole object behind the test identification parade is really to find whether or not the suspect is the real offender. In Kanta Prasad v. Delhi Admn.[9], this Court stated that the failure to hold the test identification parade of does not make the evidence of identification at the trial inadmissible. ...."
14. In view of the above principle of law laid down by this Court, we are unable to accept the rt submission of learned amicus curiae that not holding of test identification parade in the present case is fatal for the prosecution."
71. On the basis of aforesaid conspectuous of law, it can be conveniently held that the court identification is a good identification in the eyes of law and it is not always necessary that it must be proceeded by test identification parade. This would always depend upon the facts and circumstances of the given case. In one case, it may not necessary to hold the test identification parade while in the other it may be essential to do so. Thus, no strait jacket formula can be stated in this regard, after all the actual evidence regarding identification is that which is given by ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 73 the witnesses in court and moreover a test identification parade cannot be claimed by an accused as a matter of right. Mere identification of accused in a test identification .
parade is only a circumstance corroborative of the identification of the accused in court. The primarily object of test identification parade is to enable the witnesses to identify the persons involved in the commission of offence(s) of if the offenders are not personally known to the witnesses.
The whole object behind the test identification parade is rt really to find whether or not the suspect(s) is / are the real offender(s). Moreover, the failure to hold the test identification parade per se does not make the evidence of identification at the trial inadmissible.
72. As observed earlier, PW1, PW3, PW5 and PW39 have identified the accused not only by their physical frame but also on the basis of clothes worn by them, which have been recovered on the basis of their disclosure statements and such recovery have been duly proved on record. Even if, the identification parade is not conducted, the same can only be a lapse in investigation. It is then required to be examined as to whether due to such lapse any benefit ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 74 should be given to the accused. The law on the subject is well settled that the defective investigation itself cannot be a ground for acquittal. Here it shall be apt to reproduce the .
observations made by Hon'ble Supreme Court in C.Muniappan and Others Vs. State of Tamil Nadu, 2010 9 SCC 567, which read thus:
"30.There may be highly defective investigation in a of case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a rt ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
73. It is thereafter argued by the appellants that PW5 is a minor, who is an interested witness and has made marked improvements in his statement before the court.
::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 75How the testimony of a child witness is to be appreciated has again been considered by the Hon'ble Supreme Court in Yogesh Singh's case (supra), wherein it was held as .
under:-
"22. It is well-settled that the evidence of a child witness must find adequate corroboration, before it is relied upon as the rule of corroboration is of practical wisdom than of law. (See Prakash Vs. State of M.P., (1992) 4 SCC 225; Baby of Kandayanathi Vs. State of Kerala, 1993 Supp (3) SCC 667; Raja Ram Yadav Vs. State of Bihar, (1996) 9 SCC 287; Dattu Ramrao Sakhare Vs. State of Maharashtra, (1997) 5 SCC 341; State of U.P. Vs. Ashok Dixit & Anr., 2000) 3 SCC 70;
rt Suryanarayana Vs. State Of Karnataka, (2001) 9 SCC 29).
23. However, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is a found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. [Vide Panchhi Vs. State of U.P., (1998) 7 SCC 177]."
74. Adverting to the testimony of PW5, it would be noticed that he has not only established the presence of the appellants at the spot but has also narrated in detail the sequence of events how the taller appellant went inside the shop while other remained outside the shop and how thereafter the taller appellant stabbed Swarna Devi with ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 76 some sharp edged object while she was giving the balance amount to the appellant who had purchased a Soda bottle from her. He also described in detail how both the .
appellants had fled away from the spot and how Smt. Swarna Devi ultimately succumbed to the injuries. He has identified the motor cycle, which was without number and being an eye-witness his testimony cannot be easily of discarded as this witness has withstood the test of cross-
examination. rt
75. The so-called improvement only relates to the purchase of Soda bottle which did not find mention in the statement given to the police and also with regard to beating being given to Swarna Devi prior to her being stabbed.
76. The learned counsel for the appellants then argued that there are number of contradictions, embezzlement and improvement and therefore the prosecution must fail.
77. As regards the so-called discrepancies in evidence, the legal position has been long settled that minor discrepancies are not to be given undue emphasis ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 77 and the evidence is to be considered from the point of view of trustworthiness and whether the same inspire confidence in the mind of the Court.
.
78. The legal position has been scantly summed up by the Hon'ble Supreme Court in Yogesh Singh's case (supra), wherein it was held as under:-
"29. It is well settled in law that the minor of discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the rt Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796)."::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 78
79. In the present case, we do not find any major contradiction in the evidence of the witnesses, which may .
tilt the balance in favour of the appellants. The minor improvement and embezzlement etc. apart from being far yielded of human faculties are insignificant and to be ignored since the evidence of the witnesses otherwise of overwhelmly corroborate each other in material particulars.
80. It rt is established on record that prior to committing the murder of Swarna Devi, the appellants had given beating to PW6 Jarnail Singh at lower Bathri and had also snatched mobile having sim No. 98160-63345 and Rs.400/- from him and he duly identified the appellants in the court. This mobile phone was then sold by appellant Gaurav Rana to PW10 Amrit Pal at village Samundra, who had further sold the same to Jagtar Singh PW21 for Rs. 400/-.
The appellants had been arrested by the Punjab Police on 16.5.2011 in case FIR No. 34/11, registered under Section 394, 34 IPC, P.S. Nurpur Bedi. The investigation had been conducted by ASI Darshan Singh PW49. Appellants had made disclosure statement Ex.PW24/E and had disclosed ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 79 that they had committed the murder of lady at village Bathri and snatched currency notes. No doubt, much reliance cannot be placed on such statement as the same .
is hit by Section 26 of the Evidence Act, however, the recovery of the kirtch, currency notes of Rs. 20,600/- and Rs.19,400/- with mobile on the basis of the statement, cannot be discarded. More particularly, when there is no of iota of evidence to suggest that the prosecution witness had any enmity with the appellants or for any other reason rt wanted to involve them in a false case.
81. Learned counsel for the appellants would then argue that once the prosecution has miserably failed to prove the motive behind the murder, the conviction of the appellants cannot be sustained.
82. It is a settled legal proposition that even any absence of motive, as alleged, is accepted, that is of no significance and pales into insignificance when direct evidence establishes the crime. Therefore, in case, there is direct trustworthy evidence of witnesses as to the commission of offence, motive losses it significance.
::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 8083. Here again it shall be apt to reproduce the following observation made by Hon'ble Supreme Court in Yogesh Singh's case (supra):-
.
" 46. It has next been contended by the learned counsel for the respondents that there was no immediate motive with the respondents to commit the murder of the deceased. However, the Trial Court found that there was sufficient motive with the accused persons to commit the murder of the deceased since the deceased had defeated of accused Harcharan in the Pradhan elections, thus putting an end to his position as Pradhan for the last 28-30 years. The long nursed feeling of hatred and the simmering enmity between the family of the deceased and the accused persons most likely rt manifested itself in the outburst of anger resulting in the murder of the deceased. We are not required to express any opinion on this point in the light of the evidence adduced by the direct witnesses to the incident. It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. [Hari Shankar Vs. State of U.P., (1996) 9 SCC 40; Bikau Pandey & Ors. Vs. State of Bihar, (2003) 12 SCC 616; State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73; Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91 and Bipin Kumar Mondal Vs. State of West Bengal; (2010) 12 SCC 91]."::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 81
84. Learned counsel for the appellant have thereafter vehemently contended that the entire evidence of the prosecution is full of contradictions and discrepancies .
which creates a serious doubt about the truthfulness and credit worthiness of the witnesses, and therefore, the appellants could not have been convicted on the basis of such evidence.
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85. As regards discrepancies, this issue has again been considered by the Hon'ble Supreme Court in Yogesh rt Singh's case (supra), and the legal position was summed up as under:-
"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 82 contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC .
186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796)."
86. The appellants have failed to point out any of major contradictions though it is vehemently argued that PW1 in his examination-in-chief has stated that on checking rt of chest, he had found an amount of about Rs.2000/- -
Rs.2500/- to be stolen, however, in his cross-examination, he had stated that he had kept his purse in the cash box. This fact had not been stated before the police in his statement Ex.PW1/A, and had only stated that he had not counted the remaining currency in cash box, which were found to be Rs.123/-.
87. We really do not find any discrepancies in the aforesaid statement as the statement regarding Rs.2000/- to Rs.2500/- is the one which pertains to the amount stolen by the appellants whereas the later part of the statement ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 83 relates to the balance of Rs.123/-, and therefore, has no connection with the earlier part of the statement.
88. The appellants would then claim that there is .
major discrepancies with regard to the time of incident, as PW4 has stated that the incident took place at 10:30 p.m. whereas as per the police record, the incident took place at about 11:20 p.m. when the Pardhan, Gram Panchyat, of Bathri informed the police.
89. We have considered this submission and find rt that the same is based upon complete mis-reading of the statements of PW4 and PW48. PW4 in his statement has categorically stated that on 26.4.2011 at about 10:30 p.m., he had heard noise of cries from the shop of Chaman Lal and thereafter reached the spot. As regards the testimony of PW48 Shakti Singh Pathania, who is an Investigating Officer. He has stated that on 26.4.2011 he had received a telephonic information about the incident at 11:20 p.m but nowhere has this witness stated that the incident itself took place at 11:20 p.m. It is obvious that when the incident took place people had assembled at the spot as otherwise ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 84 stated by PW4 and it is after that, he informed the police and obviously the same would have taken some time.
90. That apart, the timing of the alleged occurrence .
is duly proved in the testimony of PW5 who categorically stated that the appellants came on a motorcycle at about 10:30 p.m. on 26.4.2011, when the committed the crime.
91. Learned counsel for the appellants would then of contended that no reliance could be placed on the testimony of PW6, who in his cross-examination has rt categorically stated that the appellants were not got identified by the police and these were identified on the basis of photographs. We have gone through the statement of PW6 and find that the submissions made by the appellants is based upon mis-reading of the statement of PW6 who though has stated that the appellants were not got identified by the police but then he had identified them in the Court.
92. It is lastly contended that appellants' conviction cannot be sustained as it is based upon the testimony of PW14 who is a stalk witness whereas PW37, who is alleged to be an eye-witness to the recovery of the clothes worn by ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 85 the appellant Rajesh, had turned hostile and had not supported the prosecution case.
93. Even this contention of the appellants cannot .
be accepted as there is nothing in the testimony of the statement of PW14 which may establish that he is stock witness rather this witness has clearly proved the disclosure statement of appellant Rajesh Singh PW14/A and of Gaurav of Rana Ex/PW14/B. He has categorically denied that his village was 18 kilometers away from village Bathri. The mere rt fact that he has been frequently visiting the police station is of no consequence as he has explained the reason thereof.
He being an ex Pardhan, obviously had good relations with the police, but that in any manner cannot be a reason to discard his testimony.
94. AS regards the statement of PW37 Balbir Singh, who is the ward panch of village Dhamai, Tehsil Garhshankar, no doubt he was declared hostile, however, in the cross-examination conducted by the Public Prosecutor, he clearly admitted that the sealed sample Ex.
PW20/B bore his signature and also of HC Sanjay Kumar and accused. He further admitted that the parcel of clothes was ::: Downloaded on - 15/04/2017 21:30:18 :::HCHP 86 taken into possession in his presence vide memo Ex.Pw20/A, which again bore his signature.
95. More importantly, he has categorically admitted .
that Banyan (T-shirt) Ex.P35 shown to him in the court was the same which had been sealed. That apart, the reason for this witness turning hostile was obvious because the appellant Rajesh Singh was his nephew.
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96. In view of the aforesaid discussion, we find no reason to interfere with the judgment passed by the learned rt trial Court, which has correctly analyzed the material on record in the factual as well as legal perspective to arrive at its conclusion. Accordingly, there is no merit in this appeal, the same is accordingly dismissed and the judgment and order of conviction and sentence passed by the learned Sessions Judge is upheld.
(Tarlok Singh Chauhan) Judge.
(Chander Bhusan Barowalia)
November 4th 2016 Judge.
(sanjeev)
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