Punjab-Haryana High Court
Dinesh vs State Of Haryana on 4 December, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
CRA-D-15-DB of 2007 1
PUNJAB & HARYANA HARYANA HIGH COURT AT
CHANDIGARH
CRA-D-15-DB of 2007
Date of decision:4.12.2012
Dinesh
...Appellant
Versus
State of Haryana
...Respondent(s)
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1.To be referred to the Reporters or not ?
2.Whether the judgment should be reported in the Digest ?
Present: Mr.S.S.Sandhu, Advocate,
for the appellant.
Mr.Kshitij Sharma, AAG, Haryana.
RAMESHWAR SINGH MALIK, J.
The present appeal is directed against the judgment of conviction dated 27.10.2006 and order of sentence dated 28.10.2006 passed by the learned Sessions Judge, Sonipat, thereby convicting the appellant Dinesh for an offence punishable under Section 302 IPC. Accordingly, the convict was sentenced to imprisonment for life and to pay fine of Rs.3,000/-. In default of payment of fine, he was ordered to undergo further imprisonment for a period of six months.
Facts first. The case of the prosecution, unfolded from FIR Ex. PA/1 is that Balister son of Ravi Dutt Tyagi, resident of Jainpur, Police Station Murthal, aged 42 years, put the criminal law into motion by getting his statement recorded as Ex.PA. On 3.5.2005, a telephonic message was received at Police Station Sadar Sonepat that a person CRA-D-15-DB of 2007 2 alongwith his motorcycle was lying dead on Kami road at some distance from the drain. On receipt of this information, SI/SHO Anup Singh (PW-14) alongwith ASI Somvir, HC Jagbir Singh No.557, EHC Bande Singh No.63, Constable Mahesh No.138 reached at the spot on a private vehicle, where Balister son of Ravi Dutt and Raj Kumar son of Jaggan resident of village Jainpur were found present. The complainant Balister (PW-1) stated that he was residing at the above-said address and was doing the work of agriculture.
His brother Satpal was serving in Electricity Board as ALM. His brother Satpal had a son Sandeep and two daughters named Rubi and Mamtesh. Rubi and Mamtesh were married in village Bhigan in the same family. Sister-in-law of Rubi and Mamtesh namely Rita daughter of Jai Bhagwan Tyagi, resident of village Bhigan, was married with Narender son of Sant Lal Tyagi resident of Garhi Kesari. Rekha daughter of Sant Lal sister-in-law of Rita, resident of Garhi Kesari was got married by his brother Satpal with Sandeep son of Sapattar about an year ago before the date of occurrence, in their village. Rekha was too much harassed by Sandeep and his family members for dowry, because of which, she committed suicide by throwing herself under a running train.
In this regard, a case had been registered against Sandeep and his family members in Police Station G.R.P., Sonepat for dowry death. In that case, his brother Satpal was the main witness, wherein date of hearing was fixed for 7.5.2000 in the Court. About one month before the date of occurrence, father of Sandeep, Sapattar, his uncle (Tau) Mangu son of Asha Ram and Siri Om son of Khacheru caste Tyagi, CRA-D-15-DB of 2007 3 resident of Jainpur came to them and said "let's go to Satpal" and request him not to give evidence against them in dowry death case. Complainant alongwith the above said three persons went to the house of Satpal and requested him not to give evidence against them in the dowry death case. However, Satpal clearly stated that he will give true evidence in the case. At this, Mangu, Sapattar and Siri Om said to Satpal in the presence of Balister that they would get him killed if he was insisting upon his stand for giving evidence against them.
On the date of occurrence, after receiving a telephonic message, he alongwith his uncle Raj Kumar reached at the spot. He further stated that he and his uncle had full suspicion that his brother Satpal was got murdered by Mangu, Sapattar sons of Asha Ram and Siri Om. When his brother Satpal was going on his duty via Kami Road to village Rajpur, then at some distance from the drain, he was shot dead. The reason for his murder was to take revenge for giving evidence by Satpal in the dowry death case. The dead body and motorcycle, lying on the spot, were identified by Balister (PW-1). He requested that legal action may be taken against the persons, who have committed the murder or have got the murder committed.
After recording the statement, Anup Singh, SI/SHO Police Station Sadar Sonepat read over the statement to its author Balister (PW-1), who admitted the same to be correct and put his signatures in Hindi.
Having found a cognizable offence under Sections 302/120-B/34 IPC and Sections 25/54/59 of Arms Act, the statement was CRA-D-15-DB of 2007 4 sent to the police station for registration of the case through constable Mahesh No.138. It was directed that after registration of the case its number be informed. Special report of the case be sent to the concerned officers. Photographer be also sent at the spot. SI/SHO alongwith his fellow officials proceeded to the place of occurrence for investigation. Based on the above-said facts, investigation was started by SI Anup Singh (PW-14). He prepared the rough site plan of the place of occurrence as Ex.PZ. He lifted the blood stained earth from the spot, which was made into a sealed parcel and taken into possession vide recovery memo Ex.PD. He also prepared the inquest report Ex. PU. The dead body was sent to the hospital for post-mortem examination through ASI Somvir (PW-6).
After conducting the post-mortem examination of the dead body, the doctor handed over a sealed parcel containing the clothes of the deceased. A separate sealed parcel containing a bullet retrieved from the dead body was taken into possession by the investigating officer vide recovery memo Ex.PL. Accused Satpal was arrested on 14.5.2005. He suffered his disclosure statement Ex.PE on 15.5.2005, according to which his son Sandeep came in contact with Dinesh accused-appellant in the jail. On asking of Sandeep, Dinesh and Bholu accused were hired by Sapattar accused for committing the murder of Satpal, who was shown to Dinesh and Bholu by Sapattar at the bus stand of his village. The deal was settled at Rs.2 lacs out of which Rs.21,000/- were paid as advance.
Pursuant to the plan, Dinesh and Bholu committed the murder of Satpal on Kami Road and the information of murder was given CRA-D-15-DB of 2007 5 to Sapattar accused by Bholu accused. Dinesh accused was arrested on 16.10.2005 from the Kotha of tubewell of his co-accused Rajesh. On his personal search, a pistol of .315 bore loaded with a cartridge was recovered alongwith one more cartridge from the pocket of his pant. Accused Dinesh, on interrogation, disclosed that Narender @ Bholu, Sonu and Dholu son of Mahabir were also present with him at the time of commission of murder. The clothes and bullet retrieved from the dead body as well as the pistol and cartridges recovered from the possession of accused Dinesh, were separately sent to the Forensic Science Laboratory.
After completion of the investigation, final report under Section 173 Cr.P.C. was presented to the learned court of competent jurisdiction against accused Sapattar, Sandeep, Siri Om and Mangu. Supplementary challan was presented to the court against accused Narender @ Bholu, Dinesh, Sonu, Rambir @ Dholu and Rajesh.
Having received both the above-said reports under Section 173 Cr.P.C., relevant documents were supplied to the accused, in accordance with law. The offence having been found to be exclusively triable by the court of session, the learned Illaqa Magistrate committed the case to the court of session, for its trial.
A prima-facie case was found to be made out. Accordingly, charge was framed for the offence punishable under Section 302 IPC and Section 25 of the Arms Act against accused Dinesh. Charge was framed against accused Rajesh for the offence punishable under Section 216 IPC. Similarly, charge under Section 302 read with Section 34 IPC was framed against the remaining 7 accused. All the accused pleaded not guilty to CRA-D-15-DB of 2007 6 the charge and claimed trial.
The prosecution, in order to substantiate the charge against the accused, examined as many as fifteen witnesses, besides tendering the relevant documents in evidence. On conclusion of the prosecution evidence, statements of accused Dinesh and Rajesh were recorded under Section 313 Cr.P.C. All the incriminating material brought on record was put to the accused. They alleged false implication and claimed themselves to be innocent. However, no defence evidence was led by any of these two accused. Since the only circumstance in evidence against the remaining accused was that some of them demarcated the place of occurrence, their examination under Section 313 Cr.P.C. was dispensed with because the place of occurrence was already known to the police before it was demarcated by them.
After hearing both the parties and appreciating the evidence on record, the learned trial Court came to the conclusion that the prosecution was able to prove its case against accused Dinesh under Section 302 IPC beyond reasonable doubt. However, it was also held that the prosecution failed to prove charge under Section 25 of the Arms Act against accused Dinesh and also the charge either under Section 302 read with Section 34 or Section 216 IPC against the remaining accused.
Consequently, accused Dinesh was held guilty for the offence punishable under Section 302 IPC and he was convicted accordingly, whereas the remaining accused were acquitted of the charge framed against them, vide judgment dated 27.10.2006 passed by the learned Sessions Judge, Sonepat. Convict-appellant Dinesh was CRA-D-15-DB of 2007 7 sentenced to imprisonment for life and to pay fine of Rs.3,000/-. In default of payment of fine, he was ordered to undergo further imprisonment for a period of six months. However, an application having been moved on behalf of convict Dinesh under Section 427(2) Cr.P.C., his sentence was ordered to run concurrently with the sentence of life imprisonment already granted to him in earlier case bearing FIR No.227 of 2001 registered under Section 302/498-A IPC at Police Station Ganaur. It was so ordered by the learned Sessions Judge, Sonepat vide his order of sentence dated 28.10.2006.
Feeling aggrieved against the above-said judgment of conviction and order of sentence, the appellant has approached this Court by way of instant appeal. That is how, this Court is seized of the matter.
Learned counsel for the appellant submits that the only evidence against the appellant was the recovery of pistol, which was also not duly proved. He further submits that the unexplained and long delay in sending the bullet and pistol to the FSL has also created doubt in the prosecution story. He next contended that possibility of causing the injuries by another bullet was not ruled out by the doctor, which has also created a serious doubt in the prosecution version. He concluded by submitting that since the impugned judgment was based on an erroneous and misconceived approach, the same was not sustainable in law. Finally, he prays for acceptance of the appeal.
Per contra, learned counsel for the State vehemently contended that prosecution has duly proved its case beyond reasonable doubt by producing convincing and cogent evidence. The prosecution CRA-D-15-DB of 2007 8 has completed the chain of events meticulously bringing home the guilt against the appellant. He further submits that the bullet retrieved from the dead body of the deceased Satpal had since been sent to FSL even before the arrest of appellant Dinesh and there was no delay in that regard. Further, placing reliance on the FSL report, Ex.PCC and Ex.PDD, learned State counsel submits that the scientific evidence has been duly proved against the appellant leaving no room for doubt that it was only the appellant and none-else who committed the offence in question. Learned counsel next contended that the present appeal was without any merit and the same was liable to be dismissed.
Having heard the learned counsel for the parties, after going through the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the instant appeal is bereft of any merit and without any substance. Thus, it must fail. To say so, the reasons are more than one, which are being recorded hereinafter.
A critical analysis of the prosecution evidence brought on record leaves no room for doubt that the prosecution has successfully proved its case against the appellant Dinesh. Dr.J.S.Punia (PW-11), who conducted the post-mortem examination on the dead body of deceased Satpal, has duly proved that bullet was recovered from the upper media stinum in front of the spinal cord. There was a punctured lacerated wound of size 1 x 1 cm with inverted margins with contusion collar present on the lateral side of right side of chest in axillary area. Wound was present going deeper medially towards right side of chest injuring the chest wall, CRA-D-15-DB of 2007 9 right lung, pleura upto media stinum. Massive haemothorax was present on the right side of chest. Larynx and trachea were full of blood. The cause of death, in the opinion of the doctor, was due to hemorrhage and shock, as a result of the injuries described in the post-mortem report Ex. PS. The probable time between injuries and death was within few minutes while between death and post-mortem, it was within 24 hours. He duly proved the post-mortem report Ex. PS. This witness also successfully stood the acid test of cross- examination. This witness deposed that injury no.1 having entry wound as well as exit wound, had been caused by one bullet. Injury no.2 can be caused by a separate bullet as well as by the first bullet. He denied the suggestion that the injuries mentioned in post-mortem report were possible with two and not with one bullet. A bare reading of the medical evidence given by Dr. J.S.Punia (PW-11), shows that the argument raised by learned counsel for the appellant in this regard is without any force.
The next material witness was SI Anup Singh (PW-14), who carried out the investigation of the case. This witness has duly proved the investigation conducted by him, including his endorsement Ex.PA/2 made on the statement Ex.PA, got recorded by the complainant Balister (PW-1), site plan Ex.PZ, recovery of blood stained earth from the spot vide recovery memo Ex.PD and inquest report Ex.PU. He further proved a sealed parcel containing the clothes of the deceased and parcel of a bullet recovered from the dead body, handed over by the doctor after post-mortem examination, which was taken into possession, vide recovery memo Ex.PL. He further proved the arrest of different accused CRA-D-15-DB of 2007 10 and disclosure statements. Nothing could be elicited from this witness during his cross-examination.
SI Yad Ram (PW-15) duly proved the arrest of appellant Dinesh on 16.10.2005, on the basis of secret information. He deposed that accused Dinesh and Rajesh were arrested by him from the Kotha of tubewell of accused Rajesh. On the personal search of accused Dinesh, a pistol of .315 bore loaded with a cartridge was recovered from the pocket of his pant alongwith one more live cartridge, vide recovery memo Ex.PG. He also proved the sketch of the pistol Ex.PG/1 and the site plan of recovery Ex.PG/2. He further proved the disclosure statement Ex.PM made by appellant Dinesh.
A bare perusal of the duly proved FSL report Ex.PCC would show that .315 fired bullet marked BC/1 had been fired from the country made pistol W/1 and not from any other firearm even of the same make and bore/calibre, because every firearm has got its own individual characteristic marks. FSL report further shows that the firing mechanism of the pistol was found in working order. Holes on the shirt contained in parcel no.1 have been caused by a bullet projectile.
In this view of the scientific evidence, coupled with the foregoing discussion, this Court feels no hesitation to conclude that the prosecution has duly proved its case by leading cogent and convincing evidence. No doubt, the present one was a case based on circumstantial evidence. However, the prosecution has successfully completed the chain of events so as to bring home the guilt against the convict-appellant Dinesh. His arrest has been duly proved.
CRA-D-15-DB of 2007 11
The recovery of the pistol from the appellant has also been duly proved. It has further been proved that bullet Ex.P11, which was retrieved from the dead body of deceased Satpal, was fired only from the pistol recovered from the appellant. It has been so proved by FSL report Ex.PCC. Thus, the appellant has been well connected with the offence in question beyond any reasonable shadow of doubt. The learned trial Court has rightly followed the law laid down by the Hon'ble Supreme Court in the cases of State of M.P. through C.B.I. v. Paltan Mallah 2005(1) RCR (Crl.) 949 and Hem Raj etc. vs. Raja Ram & others, 2004(1) CAR (SC) 82.
Keeping in view the given fact situation of the present case and the evidence brought on record, this Court is of the considered view that the learned trial Court has committed no error of law while convicting the appellant on the basis of circumstantial evidence.
The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in Bishnu Prasad Sinha & another v. State of Assam, 2008(1) SCC (Crl.) 766. In this regard the Hon'ble Court observed as under:-
"50. It is settled that the conviction can be based solely on circumstantial evidence, but it should be tested by the touchstone of law relating thereto as laid down by this Court in Hanumant Govind Nargundkar vs. State of M.P. [AIR 1952 SC 343]. {See Sharad Birdhichand Sarda vs. State of Maharashtra [(1984) 4 SCC 116].} In Hodge's case [168 ER 1136 at 1137], it was held : CRA-D-15-DB of 2007 12
"Alderson, B., told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, "not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person."
He then pointed out to them the proneness of the human mind to look for-and often slightly to distort the facts in order to establish such a proposition
-forgetting that a single circumstance which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt."
In view of the above, it is unhesitatingly held that the learned trial Court has rightly appreciated the evidence brought on record, while holding the appellant guilty for the offence punishable under Section 302 IPC.
No other argument was raised.
Considering the totality of the facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the prosecution has successfully proved its case beyond reasonable doubt. The appellant was rightly held guilty for CRA-D-15-DB of 2007 13 the offence under Section 302 IPC and was accordingly convicted while the remaining accused were acquitted, vide impugned judgment.
In this view of the matter, the learned trial Court has not committed any error of law. No patent illegality of perversity has been pointed out in the impugned judgment. No case for interference has been made out.
Resultantly, the present appeal, being bereft of any merit and without any substance, is ordered to be dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
4.12.2012
mks