Punjab-Haryana High Court
Dr. Indra Dalal And Another vs State Of Haryana on 3 March, 2009
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 311-DB of 2008
DATE OF DECISION : 03.03.2009
Dr. Indra Dalal and another
.... APPELLANTS
Versus
State of Haryana
..... RESPONDENT
Crl. A. No. 312-DB of 2008
DATE OF DECISION : 03.03.2009
Jaibir
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
Crl. A. No. 338-DB of 2008
DATE OF DECISION : 03.03.2009
Udeyveer alias Udey alias Sandeep
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. Vinod Ghai, Advocate,
for the appellants
(in Crl. Appeals No. 311-DB and 312-DB of 2008).
Mr. Jagjeet Beniwal, Advocate,
for the appellant.
(in Crl. A. No. 338-DB of 2008)
Mr. Partap Singh, Senior DAG, Haryana,
for the respondent-State.
Mr. J.S. Bedi, Advocate,
for the complainant.
***
Crl. A. No. 311-DB of 2008 -2-
SATISH KUMAR MITTAL , J.
This judgment shall dispose of three appeals bearing Criminal Appeal Nos. 311-DB, 312-DB and 338-DB of 2008.
2. Criminal Appeal No. 311-DB of 2008 has been filed by Dr. Indra Dalal and her brother Bijender alias Vijay and Criminal Appeal No. 312-DB of 2008 has been filed by Jaibir, against the judgment of their conviction dated 11.4.2008 and the order of sentence dated 12.4.2008, passed by Additional Sessions Judge-II, Bhiwani, in Sessions Case No. 82 of 2001/2005, arising from FIR No. 99 dated 24.5.2001, registered at Police Station City Dadri, whereby they have been convicted and sentenced for life imprisonment and to pay a fine of Rs. 10,000/- each, for the commission of offence punishable under Section 120B read with Section 302 IPC, in default of payment of fine, to undergo simple imprisonment for a period of one year each. The fourth accused, namely Ramesh, has been acquitted of the charge framed against him.
3. Criminal Appeal No. 338-DB of 2008 has been filed by Udeyveer alias Udey alias Sandeep against the separate judgment of his conviction dated 11.4.2008 and the order of sentence dated 12.4.2008, passed by Additional Sessions Judge-II, Bhiwani, in Sessions Case No. 83 of 2005, arising from the same FIR, whereby he has been convicted and sentenced for life imprisonment and to pay a fine of Rs. 10,000/-, for the commission of offence punishable under Section 302 IPC, in default of payment of fine, to undergo simple imprisonment for a period of one year. Crl. A. No. 311-DB of 2008 -3-
4. It is made clear that accused Udeyveer alias Udey alias Sandeep was tried separately, as earlier he could not be arrested and was declared proclaimed offender and after his arrest, supplementary challan was filed against him.
Facts :
5. One Nand Karan (deceased), a retired Master, and his wife Suraj Kaur, were residing in the house known as `Lal Kothi' situated on the Loharu Road, Dadri. On 24.5.2001 at about 8.00 P.M., he (Nand Karan), his wife and his brother Harish Chander Godara were present in the house. When his wife Suraj Kaur was watering the plant in the lawn and he was inside the room and his brother was on the roof, one young boy, aged about 22/25 years, came on a scooter. He asked Smt. Suraj Kaur that he had come from Rohtak and wanted to meet Master Nand Karan. When she was talking with that boy, Nand Karan came out of the house on the gate. Then his wife told him that the boy had come to meet him. Soon thereafter, the boy took out a pistol from the pocket of his pant and fired at Nand Karan on his chest. He also fired another shot on the head of Nand Karan. Thereupon, Nand Karan fell down while crying. After hearing the sound of shots, Harish Chander Godara, brother of Nand Karan, immediately came down on the spot. The boy after throwing the pistol at the spot ran away on the scooter, on which he came to the house. After the occurrence, many persons, including Suresh Kumar son of Hoshiar Singh and Jaipal son of Kamal Singh reached at the spot. They after arranging the vehicle took Nand Karan Crl. A. No. 311-DB of 2008 -4- to the Hospital, where he was declared dead. Dr. H.L. Beniwal (PW.3), who attended Nand Karan in the Hospital, declared him dead and sent a ruqa Ex.PE to SHO Police Station City Dadri at 9.10 P.M., regarding the dead body being brought by Suresh Kumar and Jai Pal.
6. In the Hospital, statement of Smt. Suraj Kaur (Ex.PA) was recorded by SI Ram Chander (PW.17) on 24.5.2001 at 11.00 P.M. In her statement, she narrated the abovesaid occurrence and further stated that her husband Nand Karan was got murdered by Dr. Indra Dalal, her brother Bijender alias Vijay and Mahabir, through some unknown person, by hatching a conspiracy. The cause of grudge, as stated by her, was that an allegation of murder was levelled by them against her husband Nand Karan, son Ravinder Kumar and one Sandeep son of Mahabir Singh and in that regard, a criminal trial under Section 302 IPC was pending. Her son Ravinder Kumar and Sandeep are in jail in connection with the alleged murder. However, her husband Nand Karan was released on bail about three months back. Due to the said grudge, Indra Dalal, her brother Bijender alias Vijay and Mahabir got committed the murder of her husband Nand Karan by hiring contract killer in a conspiracy. On the basis of the said statement, FIR Ex.PA/1 was registered at Police Station Dadri on 24.5.2001 at 11.10 P.M. Special report of the said FIR was received by the Illaqa Magistrate at 12.30 A.M. on 25.5.2001.
7. On 25.5.2001, post mortem of deceased Nand Karan was conducted by Dr. Anil Chaudhary (PW.4), Dr. H.L. Beniwal and Dr. Giri Crl. A. No. 311-DB of 2008 -5- Raj. They found two gun shot injuries on the body of the deceased, one on the chest and the other on the brain. One pallet each was got removed from those injuries. In the Post Mortem Report (Ex.PF), the cause of death of the deceased was stated to be haemorrhage and shock due to gun shot injury on vital organs.
Investigation :
8. During investigation, the police recorded statements of Suresh and Harish Chander Godara. In his statement, Harish Chander Godara gave the registration number of the scooter as HR-20G/1102. The police also took into possession clothes of the deceased Nand Karan, one fired bullet, one cartridge of fired bullet, stated to be taken out of the body of the deceased, one country made pistol, blood stained earth lifted from the place of occurrence and Hawai Chappals. On 31.5.2001, accused Bijender alias Vijay was arrested. He made a disclosure/confessional statement Ex.PH, in which he stated that he, his sister Indra Dalal and brother Mahabir hatched a conspiracy and killed Nand Karan after enticing a youth, because Nand Karan had murdered his nephew Dipender alias Banti. Thereafter, on 2.6.2001, Dr. Indra Dalal was arrested and she also made a disclosure/ confessional statement Ex.PT to the effect that she and her brother Bijender alias Vijay and Mahabir had hatched a conspiracy and got committed the murder of Nand Karan through a young man, because Nand Karan had committed the murder of her son Dipender alias Banti. On the same day, another disclosure/confessional statement (Ex.PK) of accused Bijender alias Crl. A. No. 311-DB of 2008 -6- Vijay was recorded, in which he stated that under the conspiracy hatched by him and his sister Indra Dalal, they got committed the murder of Master Nand Karan for Rs. 3 lacs, by engaging Udeyveer son of Rajbir, a resident of Sisai, District Hisar, who had executed the work and murdered Nand Karan. On 7.7.2001, during investigation, the police further recorded the statement (Ex.PK) of Pardeep Kumar son of Daya Nand, a resident of Charkhi Dadri, in which he stated that on 22.5.2001, he went to the clinic of Doctor Indra Dalal for medical check-up of his wife. At that time, Bijender (brother of Dr. Indra Dalal) came there and both of them went inside the room by saying that she will attend his wife after some time. When she did not come, he went to call her. There from the gate, which was slightly open, he heard their talks. Bijender was saying that he had engaged one Udeyveer for killing Master Nand Karan, therefore, she should not bother, as he will kill Master Nand Karan. She was only to arrange the money. Thereafter, during investigation, on 13.7.2001, a cream colour LML scooter bearing registration No. HR-20G/1102, which was used in the crime, was recovered from the old house of Dr. Indra Dalal vide recovery memo Ex.PD. After recovery of the said scooter, the police made an application Ex.PZ before the Registering Authority, Hisar, to know the name of the registered owner of the scooter. On that application, the Registering Authority, Hisar, vide noting Ex.PZ/1 informed that the registered owner of the scooter was accused Jaibir son of Kanshi Ram. Thereafter, accused Jaibir was arrested on 10.12.2001 and his disclosure/confessional statement (Ex.PL) was Crl. A. No. 311-DB of 2008 -7- recorded, in which he stated that he, Ramesh and Udeyveer prepared a plan to commit the murder of Master Nand Karan for a consideration of Rs. 3 lacs to be taken from Vijay Kumar, a contractor of Dadri. He further stated that he had given scooter No. HR-20G/1102 to Udeyveer and Ramesh for that purpose. Thereafter, accused Ramesh was also arrested and his disclosure/confessional statement Ex.PO was also recorded on 23.12.2001, in which he stated that he, Jaibir and Udeyveer had prepared a plan to commit the murder of Master Nand Karan of Dadri, by taking Rs. 3 lacs from Bijender, a contractor of Dadri.
9. Since accused Udeyveer could not be arrested, therefore, he was got declared a proclaimed offender and challan was filed against accused Indra Dalal, Bijender alias Vijay, Jaibir and Ramesh. During investigation, accused Mahabir was found innocent and he was not challaned. Charges under Sections 120-B and 302 IPC were framed against the aforesaid four accused, to which they pleaded not guilty and claimed trial.
10. Thereafter, during the pendency of the aforesaid trial against the accused, accused Udeyveer was arrested on 7.2.2005 and his disclosure/ confessional statement Ex.PN was recorded, in which he stated that he, Ramesh and Jaibir were engaged for Rs. 3 lacs, by Bijender alias Vijay, Mahabir Singh and Smt. Indra Dalal for committing the murder of Master Nand Karan, who had murdered the son of Dr. Indra Dalal. He further stated that he had taken the scooter of Jaibir to execute the said job. On the basis of Crl. A. No. 311-DB of 2008 -8- his disclosure statement, he got identified the place of occurrence vide memo of demarcation Ex.PE. During the investigation, the police also collected a disclosure/confessionial statement made by Jaibir on 30.11.2001 in another case bearing FIR No. 718 dated 30.11.2001 under Sections 420/407/463/ 471/120B IPC and Section 25/54/59 of the Arms Act, registered at Police Station Civil Lines, Hisar. Copy of the said statement has been placed on record as Mark A. In that statement, accused Jaibir had stated that he was given one LML Vespa scooter by one Vipin Kaushal and he in connivance with Udeyveer and Ramesh got the said scooter registered in his name on fake papers against registration No. HR-20G-1102 on 22.5.2001. He further stated that he, Udeyveer and Ramesh hatched a plan to kill a person at the instance of Vijay Thekedar resident of Dadri, after receiving Rs. 3 lakhs from him and for that, he had given his scooter No. HR-20G-1102 to Udeyveer and Udeyveer had executed the said plan and committed the murder in Dadri on 24.5.2001. This document Mark A has been proved by PW.15 Ram Avtar Inspector.
11. After completion of investigation, supplementary challan was filed against accused Udeyveer and charges under Sections 120-B and 302 IPC were framed against him, to which he did not plead guilty and claimed trial. (It is pertinent to mention here that in both the challans, separate trials were conducted).
Prosecution Evidence :
12. In the challan/case, filed against accused Indra Dalal, Bijender, Crl. A. No. 311-DB of 2008 -9- Jaibir and Ramesh, the prosecution examined 18 witnesses, namely PW.1 Suraj Kaur (complainant), who fully supported the prosecution version, PW.2 Harish Chander (brother of the deceased), who also fully supported the prosecution version, PW.3 Dr. H.L. Beniwal, who sent ruqa Ex.PE to SHO, Police Station City Dadri, PW.4 Dr. Anil Chaudhary, who conducted the post mortem of the deceased, PW.5 Mohinder Singh HC, who proved disclosure/confessional statement Ex.PH made by accused Bijender, PW.6 Kanwar Pal Draftsman, a formal witness, who prepared the site plan Ex.PJ, PW.7 Pardeep, a witness of conspiracy, who did not support the prosecution version and was declared hostile, PW.8 Bansi Dhar HC, PW.9 EHC Prem Singh, PW.10 Rameshwar Dass, Sub Inspector, PW.11 HC Pawan Kumar, (all formal witnesses), PW.12 Inspector Ram Avtar, who arrested accused Jaibir in another case and recorded his disclosure/confessional statement Mark A in that case, PW.13 Partap Singh, Inspector, who recorded the disclosure/confessional statements of accused Jaibir and Ramesh, PW.14 Dalip Singh SI/SHO, PW.15 Mohinder and PW.16 Constable Vir Singh, formal witnesses, PW.17 Ram Chander, retired Sub Inspector, who is the Investigating Officer of the case and PW.18 Gulab Singh, Registration Clerk, who stated that as per the record, Jaibir son of Kanshi Ram was owner of scooter No. HR-20G/1102, and also proved the application Ex.PZ moved by the police before the Registration Authority and report Ex.PZ/1 made by Pawan Kumar, Clerk.
13. Statements of accused Indra Dalal, Bijender, Jaibir and Ramesh Crl. A. No. 311-DB of 2008 -10- were recorded under Section 313 Cr.P.C., wherein they denied the incriminating evidence appearing against them and pleaded their innocence. They took the plea that they have been falsely implicated by the police at the instance of Suraj Kaur and Harish Chander in order to put pressure upon them to compromise the matter of murder of son of Indra Dalal, which was pending against deceased Nand Karan, his son Ravinder Kumar and one Sandeep. However, they did not lead any evidence in their defence.
14. In the supplementary challan/case, filed against accused Udeyveer, the prosecution examined 17 witnesses, namely PW.1 Mohinder, a formal witness, PW.2 Partap Singh, Inspector, who recorded the disclosure/confessional statements of accused Jaibir and Ramesh, PW.3 Dalip Singh SI/SHO, PW.4 Rameshwar Dass, Sub Inspector, formal witnesses, PW.5 Dr. Anil Chaudhary, who conducted the post mortem of the deceased, PW.6 Constable Vir Singh, a witness to the disclosure statement Ex.PR made by accused Bijender alias Vijay, PW.7 Suraj Kaur (complainant) who fully supported the prosecution case, PW.8 Harish Chander (brother of the deceased), who also fully supported the prosecution version, PW.9 HC Pawan Kumar, PW.10 Prem Singh, formal witnesses. PW.11 Pardeep, a witness of conspiracy, who did not support the prosecution version and was declared hostile, PW.12 Kanwal Pal Draftsman, a formal witness, who prepared the site plan Ex.PJ, PW.13 Hawa Singh, SI, a formal witness, PW.14 Ram Chander, retired Sub Inspector, the Investigating Officer of the case, PW.15 Inspector Ram Avtar, who arrested Crl. A. No. 311-DB of 2008 -11- accused Jaibir in another case and recorded his disclosure/confessional statement Mark A in that case, PW.16 Gulab Singh, Registration Clerk, who stated that as per the record, Jaibir son of Kanshi Ram was owner of scooter No. HR-20G/1102, PW.17 S.I. Mahender Singh, who arrested accused Udeyveer and recorded his disclosure statements Ex.PN and Ex.PD and prepared memo of demarcation Ex.PE.
15. In his statement under Section 313 Cr.P.C., accused Udeyveer denied the incriminating evidence appearing against him and pleaded his innocence and false implication at the instance of Suraj Kaur and Harish Chander. He also did not lead any evidence in his defence. Decision of the Trial Court :
16. The trial court, while relying upon the testimonies of PWs Suraj Kaur and Harish Chander, who had identified accused Udeyveer in the Court and according to whom, he was the person, who on 24.5.2001 fired two shots upon Nand Karan from the pistol, convicted accused Udeyveer for committing the murder of deceased Nand Karan. It was held that the presence of these two witnesses at the time of the occurrence was natural and their testimonies in the Court are fully trust-worthy and reliable. The contention of learned counsel for appellant Udeyveer that no test identification parade was held was rejected, especially when PW Suraj Kaur, who had seen the accused at her house and had talked with him, had given vivid description and identification of accused Udeyveer in her initial statement recorded by the police within two hours of the incident. It was Crl. A. No. 311-DB of 2008 -12- held that identification of an accused by a witness in the court is a substantive evidence, whereas the evidence of identification in the test identification parade is though primary but not substantive one and the same can be used only to corroborate identification of the accused by a witness in the court. Therefore, the failure to hold test identification parade does not make the evidence of identification in court inadmissible. It was further held that statements of PWs Suraj Kaur and Harish Chander, eye witnesses, were further corroborated by the medical evidence on the file. Further, the trial court also convicted Dr. Indra Dalal, Bijender alias Vijay and Jaibir for hatching conspiracy of murder of Nand Karan, while coming to the conclusion that testimonies of PWs Suraj Kaur and Harish Chander are trust-worthy, reliable and believable, to prove the allegation of conspiracy by Dr. Indra Dalal, Bijender and Jaibir, as revealed from their disclosure statements, coupled with the recovery of scooter from the house of Indra Dalal, supported with the medical evidence available on the record, because the act conspired has been completed by Udeyveer on 24.5.2001 by murdering Nand Karan at his residence by firing gun shots upon him. Accused Ramesh was acquitted by the trial court by giving him benefit of doubt. In this regard, it was held that there is no substantive evidence against him in order to point the conspiracy, because his name does not figure in the disclosure/confessional statement of Dr. Indra Dalal and Bijender. They have only named accused Udeyveer. It was further held that the confessional statement of accused Jaibir before the police cannot be Crl. A. No. 311-DB of 2008 -13- treated as substantive evidence against Ramesh, since nothing was recovered from him. Hence, these appeals.
Arguments :
17. Mr. Vinod Ghai, Advocate, appearing on behalf of appellants Indra Dalal, Bijender alias Vijay and Jaibir argued that in this case, the prosecution has miserably failed to prove the alleged conspiracy against the appellants. He submitted that there is no legal evidence on the file to establish agreement of accused Indra Dalal, Bijender and Jaibir with accused Udeyveer. In this regard, he submitted that PW.7 Pardeep, the only witness of conspiracy, examined by the prosecution, has not supported the prosecution version. Therefore, to prove the alleged conspiracy, there is no legal evidence on the record and mere suspicion cannot take the place of evidence. Learned counsel pointed out that merely on the basis of a motive, howsoever strong may be, a person cannot be convicted for the offence of conspiracy in a murder case. The motive merely creates a suspicion and the suspicion cannot take the place of proof of guilt. He submitted that the motive behind the crime is always a double edged weapon. It could be a ground for committing the crime, and at the same time, it be a ground for false implication. Learned counsel submitted that admittedly, there was a bitter enmity between family of the accused and the family of the complainant, therefore, it is natural that the complainant would falsely implicate the accused. Learned counsel submitted that for this reason, the testimonies of PWs Suraj Kaur and Harish Chander cannot be accepted as a Crl. A. No. 311-DB of 2008 -14- gospel truth, because they have reason to falsely implicate the appellants. Learned counsel further argued that the confessional statements of the appellants before the police, which have been relied upon by the learned trial court for convicting them for the offence of conspiracy for committing the murder of Nand Karan, are inadmissible in law and the same cannot be read into evidence. Therefore, conviction of the appellants on the basis of those confessional statements is not sustainable. Learned counsel further submitted that in this case, on the basis of the confessional statements of the appellants, no recovery was effected, therefore, the same are not covered by exception of Section 27 of the Indian Evidence Act and, thus, are not admissible in evidence. Learned counsel further argued that the recovery of scooter from the old house of accused Indra Dalal has also not been proved. He submitted that firstly, there is no evidence that the said scooter was used in the alleged crime by Udeyveer. Secondly, recovery of the scooter from the old house of Indra Dalal is also doubtful, because there are material contradictions in the statements of PWs Suraj Kaur and Harish Chander regarding the information of concealing of scooter in the old house of Indra Dalal, recovery of scooter and presence of other persons in the said house. Learned counsel submitted that the old lady, who was present at the time of the recovery of scooter in the old house of Indra Dalal, has not been examined by the prosecution and her non-examination shatters the prosecution version. Learned counsel further pointed out that the police has fabricated the statement of PW Harish Chander, which according to the Crl. A. No. 311-DB of 2008 -15- prosecution was recorded on 25.5.2001. In that statement, the said witness had disclosed the registration number of the scooter, alleged to be used by Udeyveer on the day of occurrence. But this fact does not find a mention in the FIR. If the said witness had noted down the number of the scooter, then it would have certainly come in the FIR, because he was very much present in the Hospital at the time of recording of statement of complainant Suraj Kaur. Learned counsel submitted that lateron, to implicate the appellants in the crime, the false recovery of scooter was planted vide recovery memo Ex.PD. Therefore, on the basis of the said recovery of scooter from the old house of Indra Dalal, the trial court has wrongly convicted the appellants for the offence of conspiracy for committing the murder of Nand Karan.
18. Shri Jagjeet Beniwal, Advocate, appearing on behalf of appellant Udeyveer, submitted that the appellant has been convicted on the basis of his identification by PWs Suraj Kaur and Harish Chander only in the court. He submitted that identification of the accused in the court has no value in the eyes of law. He further submitted that except the testimonies of these two witnesses, there is no evidence against the appellant to prove that he has committed the alleged offence. Learned counsel further referred to the statement of Smt. Suraj Kaur (PW.7), where she had stated that the boy took out a pistol from his pocket and in her presence, he shot a fire on her husband, which hit on his chest and thereafter, he took out the second pistol from the pocket and again fired at her husband, which hit on his head. Thereafter, he ran away from the place of occurrence, after throwing one Crl. A. No. 311-DB of 2008 -16- pistol at the place of occurrence. Learned counsel submitted that in her statement before the police, Smt. Suraj Kaur did not state about the second pistol used by the assailant. Therefore, this is a major contradiction in the statement of the prosecution witness, which creates a doubt about the participation of accused Udeyveer in the alleged crime. Learned counsel further submitted that the confessional statement made by the accused did not lead to any recovery, therefore, the same is inadmissible in law and cannot be relied upon. He further submitted that the memo of demarcation Ex.PE, whereby the place of occurrence was got demarcated from the appellant, is of no value, because the place of occurrence was already known to the police. Therefore, conviction of the appellant by the trial court under Section 302 IPC is not sustainable, as there is no evidence against him.
19. On the other hand, Shri Partap Singh, Senior Deputy Advocate General, Haryana, appearing on behalf of the respondent-State, being assisted by Shri J.S. Bedi, Advocate, appearing on behalf of the complainant, submitted that the prosecution has fully established guilt against all the accused beyond shadow of a reasonable doubt. He submitted that in the instant case, there was a strong motive to commit the alleged crime, as the son of accused Indra Dalal was allegedly murdered by Nand Karan (the deceased), his son Ravinder Kumar and one Sandeep son of Mahabir Singh. When Nand Karan came out on bail, a conspiracy was hatched by accused Indra Dalal and Bijender alias Vijay to murder him by Crl. A. No. 311-DB of 2008 -17- hiring the contract killer. Learned counsel submitted that Smt. Suraj Kaur and Harish Chander, in their initial statements, which were recorded immediately after the alleged occurrence, had mentioned about the conspiracy hatched by accused Indra Dalal and her brother Bijender alias Vijay. They named these two accused as the persons who got murdered Nand Karan. Learned counsel further submitted that in addition to the aforesaid statements, the prosecution has proved on record the recovery of scooter, used in the crime, from the old house of accused Indra Dalal, which was in the name of accused Jaibir. Learned counsel further argued that the disclosure/ confessional statements of all the accused have further proved the conspiracy hatched by accused Indra Dalal and Bijender alias Vijay in order to commit the murder of Nand Karan. He submitted that Smt. Suraj Kaur, in her initial statement before the police, had given vivid description of accused Udeyveer, the assailant, and lateron, while appearing in the court as PW.7, she identified him. Accused Udeyveer was also identified in the Court by PW.8 Harish Chander (the second eye witness). He further submitted that failure to hold test identification parade does not make the evidence of identification in court inadmissible, because identification of an accused by a witness in the court is substantive evidence. Learned counsel submitted that all the four accused have rightly been convicted on the basis of the evidence, which according to him, was sufficient and reliable to convict them.
Decision :
Crl. A. No. 311-DB of 2008 -18-
20. After hearing the arguments of learned counsel for the parties and perusing the evidence led by the prosecution in support of its case and looking into the defence taken by the accused, we do not find any merit in all these three appeals.
21. Admittedly, there was a strong enmity between deceased Nand Karan and accused Indra Dalal and Bijender alias Vijay, as son of Indra Dalal was allegedly murdered by Nand Karan, his son Ravinder Kumar with the help of one Sandeep. When the alleged occurrence in this case had taken place, the trial pertaining to the murder of son of accused Indra Dalal was pending in the court. The son of Nand Karan and Sandeep were in custody, whereas Nand Karan was released on bail, just three months prior to the alleged occurrence. It is the case of the prosecution that in order to take revenge of the murder of her son, accused Indra Dalal and her brother Bijender alias Vijay hatched a conspiracy and hired the contract killer to commit murder of Nand Karan, who was on bail. It is pertinent to mention here that after the alleged occurrence, Ravinder (son of deceased Nand Karan) and his accomplice Sandeep have been convicted under Section 302 IPC for murdering Dipender alias Banti son of accused Indra Dalal. In the light of this background, we will discuss the evidence led by the prosecution to prove the alleged crime.
22. As per the prosecution version, on 24.5.2001 at about 8.00 P.M., Nand Karan, his wife Suraj Kaur and his brother Harish Chander Godara were present in his house, known as `Lal Kothi' situated on the Crl. A. No. 311-DB of 2008 -19- Loharu Road, Dadri. When PW Suraj Kaur wife of Nand Karan was watering the plants, a young boy, not known to the family, came on a scooter and entered in the gate of the house. He asked her that he had come from Rohtak and wants to meet Master Nand Karan. In the meantime, Nand Karan came. Suddenly, the said boy took out a pistol from the pocket of his pant and straight way fired two shots upon Nand Karan, who fell down. Immediately, he was taken to the Hospital by PWs Suresh Kumar and Jail Pal, where he was declared dead. The homicidal death of Nand Karan has been proved by the medical evidence. Smt. Suraj Kaur, in her statement Ex.PA, which was recorded in the Hospital immediately after the occurrence, had named Smt. Indra Dalal and Bijender alias Vijay as the persons, who got murdered her husband, due to the previous enmity, as indicated above, by engaging the assailant. It is a fact that at the time of registration of the FIR, the assailant was unidentified, but in her statement before the police, PW Suraj Kaur had given vivid description of the assailant. However, she did not mention the registration number of the scooter, on which the assailant came and fled away from the spot after committing the crime, as she had not noticed the same. But, on the next day i.e. on 25.5.2001, statement of Harish Chander, the other eye witness, was recorded by the police, in which he had disclosed the registration number of the scooter as HR-20G/1102, which he stated that he had noted down, when the assailant was fleeing away. On 31.5.2001, after a week of the alleged occurrence, accused Bijender alias Vijay was arrested. On the same day, his Crl. A. No. 311-DB of 2008 -20- disclosure/confessional statement Ex.PH was recorded, in which he stated that he, his sister Indra Dalal and his brother Mahabir hatched a criminal conspiracy to kill Nand Karan by engaging a youth, because Nand Karan had murdered his nephew Dipender alias Banti. In this statement, he did not disclose the name of the assailant or any other conspirator. Two days thereafter, on 2.6.2001, accused Indra Dalal was arrested. Again both the accused, namely Bijender alias Vijay and Indra Dalal were interrogated. In his second disclosure/confessional statement (Ex.PK), accused Bijender alias Vijay disclosed that he and his sister Indra Dalal hatched a conspiracy and got committed the murder of Nand Karan on 24.5.2001 by engaging Udeyveer son of Rajbir, a resident of Sisai, District Hisar, for a consideration of Rs. 3 lacs. In this statement, he further stated that his brother Mahabir was not involved in the conspiracy. (It is to made clear here that on the basis of that statement, Mahabir, who was initially arrayed as an accused, was discharged). Disclosure/confessional statement of accused Indra Dalal (Ex.PT) was also recorded, in which she did not mention the name of Udeyveer. During investigation, one Pardeep Kumar son of Daya Nand, a resident of Charkhi Dadri, made statement Ex.PK to the police, in which he stated that on 22.5.2001, he along with his wife went to the clinic of Doctor Indra Dalal (accused) for her medical check-up. At that time, he had heard accused Bijender saying to accused Indra Dalal that he had talked to accused Udeyveer, a contract killer, to kill Master Nand Karan. Thereupon, accused Indra Dalal stated to him that he should not worry about Crl. A. No. 311-DB of 2008 -21- the money, she will arrange for the same. Subsequently, on 13.7.2001, during investigation, a secret information was received that a scooter bearing registration No. HR-20G-1102, which was used in the crime, was kept concealed in the old house of accused Indra Dalal. On that secret information, the aforesaid scooter was got recovered from the disclosed place vide recovery memo Ex.PD, in the presence of PWs Harish Chander and Bansi Dhar HC. Thereafter, on 16.8.2001, the police moved an application before the Registering Authority, Hisar, to know about the ownership of the said scooter and on that application, vide endorsement Ex.PZ/1, it was disclosed that accused Jaibir was owner of the said scooter. On the said disclosure/confessional statement, name of accused Jaibir came to light. The prosecution, by examining PW.18 Gulab Singh, the Registration Clerk, has proved that the scooter bearing registration No. HR- 20G-1102 was owned by accused Jaibir. After knowing the name of accused Jaibir being owner of the scooter, he was traced and arrested on 7.12.2001. During his interrogation, he made disclosure/confessional statement Ex.PL to the effect that he, Udeyveer and Ramesh were got engaged by accused Bijender for a consideration of Rs. 3 lacs, for committing the murder of Master Nand Karan, because he had committed the murder of son of accused Indra Dalal. He further stated that he had given his scooter bearing registration No. HR-20G-1102 to Udeyveer and Ramesh for committing the crime. This disclosure/confessional statement has been proved by examining PW8 Bansi Dhar HC. During the investigation, the police collected an Crl. A. No. 311-DB of 2008 -22- important document i.e. disclosure/confessional statement dated 30.11.2001, made by accused Jaibir in another case, bearing FIR No. 718 dated 30.11.2001 under Sections 420/407/463/471/120B IPC and Section 25/54/59 of the Arms Act, registered at Police Station Civil Lines, Hisar. In that statement, accused Jaibir had stated that one LML Vespa scooter was given to him by one Vipin Kaushal and the said scooter was got registered by him in his name on the basis of fake documents. He further stated that he, Udeyveer and Ramesh were engaged by Vijay Thekedar of Dadri for killing Nand Karan for a consideration of Rs. 3 lacs. He also stated in his statement that he gave his scooter bearing registration No. HR-20G-1102 to Udeyveer. This statement has been proved by PW.15 Ram Avtar Inspector, CIA Staff, Hisar. Accused Udeyveer could not be arrested and during investigation, he was declared proclaimed offender. During investigation, accused Ramesh was arrested and he made disclosure/confessional statement Ex.PO to the effect that he, Jaibir and Udeyveer after taking Rs. 3 lacs from Bijender contractor of Dadri, had prepared a plan and accordingly committed murder of Master Nand Karan. He further stated, his share was Rs. 60,000/-, out of which Rs.35,000/- were spent by him and the remaining amount of Rs. 25,000/- were kept concealed by him in a small bag, lying in the Almirah inside his house.
23. In our opinion, the prosecution has led sufficient evidence during the trial of accused Udeyveer, which clearly proved beyond reasonable doubt that he committed the murder of deceased Nand Karan on Crl. A. No. 311-DB of 2008 -23- 24.5.2001 by firing two shots upon him from his pistol in the presence of PW.7 Suraj Kaur and PW.8 Harish Chander. Though at the time of the alleged occurrence, the name of accused Udeyveer was not known to the witnesses, but in the court, he was identified by both the prosecution witnesses as the assailant who fired two shots upon deceased Nand Karan on the day of occurrence. During the investigation of the case, in the disclosure/confessional statement of co-accused Bijender, within seven days of the occurrence, name of accused Udeyveer came in light, who was hired for a consideration of Rs. 3 lacs to kill Master Nand Karan. Before recording of that disclosure/confessional statement, the investigating agency was not aware of the name of assailant. Accused Udeyveer was arrested on 7.2.2005, after more than three and half years of the occurrence, and thereafter, he was also challaned for the offence of committing murder of Master Nand Karan. Before the Court, both the eye witnesses had identified accused Udeyveer, as the assailant on the day of the occurrence. We do not see any reason of his false implication by these two eye witnesses. The identification of accused Udeyveer in the Court is perfectly valid, particularly when he is having the same physical description, the detail of which was given by Smt. Suraj Kaur in her initial statement before the police, soon after the occurrence. It is not the defence of accused Udeyveer that his physical appearance is different than the description given by PW Suraj Kaur to the police.
24. Learned counsel for accused Udeyveer has vehemently argued Crl. A. No. 311-DB of 2008 -24- that identification of accused Udeyveer by PWs Suraj Kaur and Harish Chander in the Court is of no value, because in this case, no test identification parade was held for establishing the identification of Udeyveer being an accused and conviction of an accused, who at the time of the alleged occurrence was not known to the eye witnesses, only on the basis of his identification by the alleged eye witness in the court is not safe. We do not agree with this contention. In our opinion, identification of an accused in the court by an eye witness of the occurrence is a substantive evidence, as admissible under Section 9 of the Indian Evidence Act. The Supreme Court in Malkhan Singh v. State of M.P., 2003 (3) Crimes 123 has observed that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a test identification seems to be the test to strengthen the trust-worthiness of that evidence. The prior test identification is safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in the court as to identity of the accused was stranger to them at the time of the alleged occurrence. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. It was held that this rule of prudence, however, is Crl. A. No. 311-DB of 2008 -25- subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. Therefore, failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases the Court may accept the evidence of identification even without insisting on corroboration. Therefore, in our opinion, the identification of accused Udeyveer by PWs Suraj Kaur and Harish Chander, while appearing as witnesses in the court, is fully trust- worthy and needs no corroboration, as we are satisfied that both the witnesses had closely watched accused Udeyveer at the time of the alleged occurrence and PW Suraj Kaur had given his vivid description before the police at the time of recording of her initial statement. We do not find any reason, as already said, that PWs Suraj Kaur and Harish Chander would have falsely named accused Udeyveer as the assailant, who fired two shots at Master Nand Karan. We also do not agree with the contention of learned counsel for the appellant that the statement of Smt. Suraj Kaur (PW.7) is contradictory, as in her statement in the court, she has stated that at the time of the alleged occurrence, two pistols were used by the assailant, whereas in her statement before the police, she had stated regarding use of only one pistol. The trial court has also considered this aspect of the matter and has come to the conclusion that this contradiction is of minor nature. We are also of the opinion that on the basis of this contradiction, the testimony of Crl. A. No. 311-DB of 2008 -26- PW.7 Suraj Kaur cannot be discarded or considered to be doubtful. There is possibility that accused Udeyveer might have used two pistols. One pistol may be thrown by him at the place of occurrence to mis-lead the investigation and the second pistol may be carried away by him, while running away, in order to have the safe escape. But the important fact, which has been established, is that accused Udeyveer was the person, who fired two shots from the pistol towards Master Nand Karan, due to which he had died on the spot. This fact has been fully established beyond reasonable doubt by the statements of PWs Suraj Kaur and Harish Chander, whose testimonies before the court are wholly trust-worthy and reliable. In view of the direct evidence of these two witnesses, in our opinion, accused Udeyveer has rightly been convicted by the trial court for the offence of committing murder of Master Nand Karan.
25. As far as accused Indra Dalal, Bijender and Jaibir are concerned, we are of the opinion that the prosecution has fully established against them the offence of conspiracy to commit the murder of Master Nand Karan. From the statements of the Investigating Officer and other police officials, before whom various disclosure/confessional statements were made by the accused, coupled with other connected evidence available on the record, particularly the recovery of scooter from the old house of accused Indra Dalal and the disclosure/confessional statement Mark A, made by accused Jaibir in another case bearing FIR No. 718 dated 30.11.2001 under Sections 420/407/463/471/120B IPC and Section 25/54/ Crl. A. No. 311-DB of 2008 -27- 59 of the Arms Act, registered at Police Station Civil Lines, Hisar, which has been proved by PW.15 Ram Avtar Inspector, it has been clearly established that accused Indra Dalal and Bijender hatched a conspiracy to commit the murder of Master Nand Karan, by engaging accused Udeyveer and his colleague for a consideration of Rs. 3 lacs. We do not find any force in the contention of learned counsel for accused Indra Dalal, Bijender and Jaibir that in this case, there is no legal evidence on the file to establish the alleged conspiracy, as PW.7 Pardeep, the only witness to the alleged conspiracy, has not supported the prosecution witness. It is true that the confessional statement made by an accused before the police is inadmissible, and on the basis of such confessional statement, an accused cannot be convicted. Therefore, certain confessional statements made by the accused before the police may not be the basis for conviction of the accused, but in our view in the instant case, the alleged conspiracy of killing hatched by accused Indra Dalal and Bijender, who had a strong motive to get Nand Karan killed, has been proved. The participation of accused Jaibir in the said conspiracy has also been proved, because his scooter was used by accused Udeyveer in the crime. In this case, statement (Ex.PA) of PW Suraj Kaur was recorded by the police, on the basis of which formal FIR (Ex.PA/1) was registered within two or three hours of the alleged occurrence. She named accused Indra Dalal and Bijender, as the persons who got killed her husband due to the previous enmity. Only during the interrogation of these two accused, in the disclosure/confessional statement of accused Bijender, Crl. A. No. 311-DB of 2008 -28- within one week of the alleged occurrence, the name of accused Udeyveer as the assailant came to light. Thereafter, on 13.7.2001, the scooter bearing registration No. HR-20G-1102, which was used in the crime, was recovered from the old house of accused Indra Dalal, vide recovery memo Ex.PD. On verification about the ownership of the said scooter, name of accused Jaibir came to light and thereafter, he was arrested on 10.12.2001. The important circumstance in this case is that before Jaibir was arrested in this case, he had already made the disclosure/confessional statement in another case bearing FIR No. 718 dated 30.11.2001 under Sections 420/407/ 463/471/120B IPC and Section 25/54/59 of the Arms Act, registered at Police Station Civil Lines, Hisar, which has been proved by PW.15 Ram Avtar Inspector. In that statement, he had categorically stated that he and accused Udeyveer received Rs. 3 lacs from accused Bijender for killing Nand Karan. These facts, which complete the chain of circumstances, clearly establish that accused Indra Dalal and Bijender hatched a conspiracy for killing Nand Karan and hired Udeyveer as the contract killer, who in furtherance of that conspiracy, after getting the scooter of Jaibir, committed the murder of Nand Karan.
26. We do not find any substance in the argument of learned counsel for the appellants that in this case, the main evidence relied upon by the prosecution is the recovery of scooter from the old house of Indra Dalal, but the said recovery has not been proved in accordance with law. In this regard, learned counsel pointed out certain minor contradictions in the Crl. A. No. 311-DB of 2008 -29- statements of PW.8 Bansi Dhar Head Constable and PW.17 SI Ram Chander, the Investigating Officer. According to learned counsel, PW.8 Bansi Dhar stated that on 13.7.2001, Harish Chander met the police party in front of bus stand, Charkhi Dadri and disclosed to the police regarding the scooter that the same was lying parked in the old house of Indra Dalal. On the other hand, PW.17 SI Ram Chander, in his statement before the court, stated that on 13.7.2001, he received a secret information regarding the scooter at the house of Indra Dalal and thereafter, he met PW Harish Chander. He further pointed out certain minor contradictions with regard to the old lady also, who was residing as a tenant in a part of the old house of accused Indra Dalal. In our opinion, from these minor contradictions, the testimonies of PW.8 Bansi Dhar Head Constable and PW.17 SI Ram Chander, in whose presence the scooter was recovered, cannot be discarded. When the scooter was recovered on 13.7.2001, within less than two months of the occurrence, name of accused Jaibir (owner of the scooter) was not known to the police. Only after the recovery of the scooter from the old house of Indra Dalal, the police got information from the registering authority regarding name of the owner of the scooter and only then, the name of accused Jaibir came in picture. Merely because the lady tenant, who was present in the house at the time of the alleged recovery, or other independent witness, available there, were not associated by the police during the investigation, it is not sufficient to disbelieve the said recovery, because on account of defective investigation, the complainant cannot be allowed to suffer. It is also one of the principles of criminal jurisprudence Crl. A. No. 311-DB of 2008 -30- that an accused cannot be acquitted solely on account of defective investigation. In our view, these facts itself prove that recovery of scooter bearing registration No. HR-20G-1102 is not a planted recovery. The evidence led by the prosecution in the present case is sufficient, which clearly establish the alleged conspiracy hatched by Indra Dalal and Bijender to commit the murder of Master Nand Karan, by engaging Udeyveer, a contract killer, in which accused Jaibir had also participated by providing scooter to Udeyveer, the assailant. In our opinion, the trial court is perfectly justified, while relying upon the observations of the Supreme Court in Firozuddin Basheeruddin v. State of Kerala, 2001 (4) RCR (Criminal) 20, which lays down that the criminal conspiracy can be proved by circumstantial evidence. In that case, it was held that regarding admissibility of evidence, loosened standard prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions.
27. In view of the above, we do not find any illegality or perversity in the decision of the trial court, convicting accused Udeyveer, Indra Dalal, Bijender and Jaibir. Consequently, all the three appeals are dismissed.
( SATISH KUMAR MITTAL )
JUDGE
March 03, 2009 ( DAYA CHAUDHARY)
ndj JUDGE