Punjab-Haryana High Court
Rati Ram And Another vs State Of Haryana on 28 October, 2010
Author: Rajan Gupta
Bench: Ranjan Gogoi, Rajan Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Appeal No.182-DB of 2007
DATE OF DECISION: October 28, 2010
Rati Ram and another
.....Appellants
versus
State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr.Shiv Kumar, Advocate for the appellant
Mr.Pardeep Singh Poonia, Additional Advocate
General, Haryana
..
RAJAN GUPTA, J.:
The present appeal emanates out of judgment delivered by Additional Sessions Judge, Faridabad convicting the accused-appellant for offences under section 302 read with section 34 IPC and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- each, in default whereof to further undergo rigorous imprisonment for two years.
On 22.9.2000, Sub Inspector Sukhvinder Singh, PW10 alongwith other police officials was present at village Bamni Khera for checking crime in government jeep No.HR-51-3307 being driven by Naresh Kumar, Constable. He was informed by a passer-by that a person had been shot dead in village Deeghot. On hearing this, SI-Sukhvinder Singh alongwith other police officials reached the said Crl.Appeal No.182-DB of 2007 - 2 - village. Dead body of deceased Babu Ram was found lying on the spot. His father Gangi Ram and certain other persons were present there. He recorded the statement of Gangi Ram (Ex.PD). Gangi Ram stated that he was residing in village Deeghot and had five sons. Babu Ram (deceased) was his third son. On that day i.e. 22.9.2000 at 4/4.30 A.M., he and his brother Mohar Singh were smoking Hookka outside their house. Around that time, Sanwal and Satto, parents of Ratti Ram passed from that site. Babu Ram and his brother-in-law Ram Saran had left the house for answering the call of nature and had just gone 15-20 paces ahead of their house when they were surrounded by Ratti Ram, son of Sanwal and Brij Mohan @ Bishamber. Ratti Ram was armed with .12 bore gun and Brij Mohan was having a country made pistol. Brij Mohan fired a shot from his country made pistol on Babu Ram and the bullet hit on his head. As a result of which he fell down. At that time, Ratti Ram also fired two shots towards Babu Ram. Both hit him on the neck. Complainant Gangi Ram and his brother Ram Saran rushed to the spot and raised hue and cry. On hearing the same, Ratti Ram and Brij Mohan fled away from the scene. It was thus alleged that Babu Ram had been killed by Ratti Ram and Brij Mohan in conspiracy with Sanwal and Satto. The motive of crime as narrated by the complainant was that about four years ago, he had taken 10 killas of land on lease from one Shish Pal Gujjar. Ratti Ram and Sanwal used to tell Gangi Ram (complainant) that he had wrongly taken the land on lease. He should either vacate the same or pay the money Crl.Appeal No.182-DB of 2007 - 3 - falling to their share. Even brother of Ratti Ram, namely, Bishambar had extended threats to son of the complainant, namely, Jai Narain about a year ago that either the land should be vacated or consequences would be bad.
Investigative machinery was thereafter set in motion. Accused Sanwal and Satto were arrested by police for hatching conspiracy to kill Babu Ram (deceased). Accused Ratti Ram and Brij Mohan (appellants herein) were, however, declared proclaimed offenders. They could be arrested about two years after the occurrence. While Ratti Ram was arrested on 3.6.2002, Brij Mohan @ Brijesh was arrested on 12.6.2002. After his arrest, Ratti Ram made disclosure statements, Ex.PK and Ex.PK/1. On the basis of said statements, weapons of offence i.e. gun and cartridges were taken in possession. These had already been recovered pursuant to another case i.e. FIR No.374 dated 1.10.2001 registered against Ratti Ram under sections 302, 307 IPC at police station Sadar Palwal. Infact, in the said occurrence, complainant Gangi Ram, father of deased Babu Ram had been killed. Accused Brij Mohan also made disclosure statements Ex.PL and Ex.PM. Inquest proceedings were also conducted which are on record as Ex.PH. A rough site plan of the place of occurrence is Ex.PJ. Report regarding post-mortem conducted on the body of Babu Ram is Ex.PB. After completion of investigation, the investigating agency presented challan under section 120-B against all the four accused and under section 302 read with section 34 IPC and section 25 of the Arms Act against accused Ratti Crl.Appeal No.182-DB of 2007 - 4 - Ram and Brij Mohan (appellants herein). Charge-sheet was submitted against all the accused and charges were framed. The accused, however, pleaded not guilty and claimed trial.
To prove its case, prosecution examined as many as 15 witnesses. Statements of the accused were recorded thereafter under section 313 Cr.P.C. The accused denied all the allegations and pleaded false implication. One witness was examined in defence. After completion of trial, the trial court found that prosecution had not been able to prove its case against accused Sanwal and Satto and acquitted them of the charges levelled. Accused Ratti Ram and Brij Mohan were, however, convicted for offence punishable under section 302 read with section 34 IPC as it was found that they had committed the murder of Babu Ram in furtherance to their common intention. They were thus sentenced as enumerated in the opening paragraph.
Aggrieved, the instant appeal has been preferred by the appellants before this court.
Learned counsel for the appellants has submitted that there are glaring discrepancies in the evidence led by the prosecution and the accused are entitled to be acquitted. He has referred to evidence of PW3-Ram Saran and PW4-Mohar Singh and pointed out certain lacunae in the prosecution case. This apart, he has laid emphasis on the fact that there could not have been any identification at 4.30 A.M. in the month of September as it is dark at that time and thus, the eye witness account on this score is Crl.Appeal No.182-DB of 2007 - 5 - unbelievable. He further referred to site plan Ex.PJ to contend that the same did not show any electric pole at the site of occurrence and thus there was no light when the alleged assault took place on Babu Ram and it was not possible to identify the assailants. According to him, the said accused have been named merely on the basis of suspicion. He further submitted that the country made pistol referred to in the eye-witness account was never recovered by the investigating agency though the injuries on the deceased were caused by said weapon.
Learned State counsel, on the other hand, has vehemently contended that the eye-witnesses had been consistent in their testimony and no material discrepancy could be found with the same. He submitted that the said witnesses were subjected to lengthy cross-examination, but the defence could not elicit anything useful. He referred to FSL report (Ex.PP) to show that both double barrel gun and country made pistol were used in the commission of crime. He submitted that non recovery of the country made pistol made no material difference to the prosecution case. As the accused were arrested almost two years after the occurrence, recovery of the other weapon could not be effected. He further referred to evidence of PW8-Manoj Kumar and contended that the same showed that there were electric poles in the area in the light of which the assailants could easily have been identified. He has further submitted that though injury had been caused by country made pistol, recovery of double barrel gun had been Crl.Appeal No.182-DB of 2007 - 6 - effected. According to him, in view of FSL report (Ex.PP) both the weapons were used in the crime as cartridges were recovered from the place of occurrence.
We have heard learned counsel for the parties and gone through the entire record of the case with their assistance.
Out of 15 prosecution witnesses examined by the prosecution, PW3-Ram Saran and PW4-Mohar Singh are eye witnesses. While PW3, brother-in-law of deceased Babu Ram, had witnessed the entire occurrence, PW4-an uncle of deceased, was sitting and smoking Hookka outside his house when the occurrence took place. PW3-Ram Saran stepped into witness box and deposed that on 22.9.2000 at 4.30 A.M. he and Babu Ram had gone to answer the call of nature. Babu Ram was walking about 15 steps ahead of him. At that time, accused Brijesh came out of kikar trees and fired a shot at Babu Ram from a country made pistol hitting him on right side of face and neck. Then Ratti Ram emerged from the same trees holding a gun. He fired 3-4 shots at Babu Ram, but the same did not hit him. Ratti Ram was also carrying a Pharsa. Ratti Ram thus used a Pharsa, which he was carrying, to cause injuries to Babu Ram. On hearing noise, complainant Gangi Ram and Mohar Singh, who were smoking Hookka in the nearby house, also came there and raised hue and cry. The accused thus, fled away from the scene. This witness was subjected to cross-examination by the defence. In cross-examination, he submitted that near the house of Babu Ram there are Kikar trees, open land and fields. Crl.Appeal No.182-DB of 2007 - 7 - There were electric poles as well as electric light on the road. PW4-Mohar Singh also deposed more or less in the same terms as PW3-Ram Saran. In his testimony, he narrated the entire occurrence as witnessed by him. PW5 is Dr.B.L. Cimpa, who conducted post-mortem examination on the dead body of Babu Ram on 22.9.2000 at General Hospital, Palwal. He was assisted by Dr.Anju Verma in the post-mortem examination. As per the report of post-mortem (Ex.PB), there were total six injuries on the person of the deceased. Out of these six injuries, injury No.1 was a lacerated firearm wound near root of neck and right eye and a bullet was found in the occipital region which was extracted and handed over to the police. Injuries No.2 to 6 were found to be incised wounds. The death, according to doctor, was due to coma, shock and haemorrhage. The relevant part of the report reads thus:-
(i) Lacertated fire arm wound over root of nose and right eye 4 cm x 4 cm in size, round in shape, margins were inverted collor of abrasion present around the wound. Clotted blood was present in the wound. On exploration of wound under-lying bone was fractured and bullet found in the occipital region. Bullet was sealed and was handed over to the police.
ii) Incised wound over right parietal region 4x1
inch in size, bone deep, clean and regular
margins, antro-posterior in direction.
Crl.Appeal No.182-DB of 2007 - 8 -
Underlying bone was fractured. Brain matter
had come out of the wound. Clotted blood was present.
iii) Incised wound over right side of the face.
Lateral to angle of mouth. Transverse in direction, 3 x 1 inch in size. Bone deep, clotted blood was present and under-lying bone was fractured.
(iv) Incised wound over anterior side of neck.
Transverse in direction 5 x 1 inch in size.
Bone deep. Clean and regular margins and cutting trachea and other under-lying structure. Clotted blood was present.
(v) Incised wound over anterior side of neck, 1 cm. below the injury No.4. Transverse in direction, 4 x 1 inch in size. Clean and regular margins. Clotted blood was present. Bone deep cutting trachea and other under-
lying structure.
(v) Incised wound over anterior side of neck. 1 cm. below the injury No.5. Transverse in direction, 4 x 1 inch in size. Clean and regular margins. Clotted blood was present.
Cutting trachea and other under-lying
structure."
Crl.Appeal No.182-DB of 2007 - 9 -
The injuries were found to be ante-mortem in nature and sufficient to cause death in the ordinary course of nature collectively as well as individually. This witness also deposed that injuries No.2 to 6 could be caused by a Pharsa.
PW1-Constable Naval Singh was working as general duty constable at police station Sadar Palwal. He delivered copy of special report of post-mortem to Illaqa Magistrate and other authorities on 22.9.2000. PW2-Subhash Chand delivered sealed parcel of clothes of deceased and other articles handed over by doctor, to the investigating officer of the case Sukhvinder Singh which were taken in possession by him vide recovery memo Ex.PA. PW6-Swatantra Singh, SI, went to Ferozepur and inspected the Army Establishment Register where as per entry no.586 dated 21.9.2000 (Ex.PC) Sanwalia and Satto had gone to Ferozepur and reached there on 21.9.2000. PW7-ASI Harish Kumar received statement (Ex.PD) of Gangi Ram along with endorsement Ex.PD/1 of Sukhvinder Singh and recorded FIR (Ex.PD/2). PW8-Constable Manoj Kumar visited the spot on 9.5.2000 and prepared site plan (Ex.PE) on pointing of complainant Gangi Ram. PW9-Daya Ram stated that on 22.9.2000 he received information at his residence at Faridabad about the occurrence. He lifted blood-stained earth which was taken into possession vide recovery memo Ex.PF. One cartridge of .315 bore and two cartridges of .12 bore were found near the dead body and were taken into possession vide recovery memo Ex.PG. PW10-SI Sukhvinder Crl.Appeal No.182-DB of 2007 - 10 - Singh recorded statement (Ex.PD) of complainant Gangi Ram and made endorsement Ex.PD/1, which were sent to police station for registration of FIR. Three empty cartridges, one 315 bore and other two of 12 bore were made into parcels with seal of S.S. and taken into possession vide Memo Ex.PG. He prepared inquest report (Ex.PH) and recorded statements of other witnesses. Memo Ex.PA was also prepared by him regarding the articles handed over to police after post-mortem examination. He also arrested Sanwal and Satto on 30.4.2001 and took photographs of the place of occurrence. ASI-Samay Singh was examined as PW11. In his presence, accused Ratti Ram was taken out of lock up and interrogated by SI-Sadhu Ram and accused Ratti Ram made disclosure statement Ex.PK. On the same day, accused Ratti Ram made disclosure statement (Ex.PK/1) regarding pharsa. On 12.6.2002, accused Brij Mohan @ Brijesh was arrested by this witness in the presence of Abdul Hamid, H.C. and the accused made disclosure statement Ex.PL with regard to occurrence and having concealed the country made pistol in U.P. PW12-HC Abdul Hamid signed the disclosure statements made by accused Brij Mohan @ Brijesh. PW13-SI Sadhu Ram arrested accused Ratti Ram in connection with FIR No.374 of 2001 and interrogated accused Brij Mohan, who made disclosure statement Ex.PM. PW14-SI Virender Singh arrested accused Brij Mohan @ Brijesh on 12.6.2002 and produced him in court on the same day. PW15-Naveen Kumar, Inspector took accused Ratti Ram to Dehradun in connection with FIR No.374 of 2001 at police station Sadar Palwal and accused Ratti Crl.Appeal No.182-DB of 2007 - 11 - Ram got recovered a licensed double barrel gun and two cartridges, which were taken into possession vide Ex.PN. Rajdoot motorcycle bearing registration No.HR-51B 8770 which was used by accused was also recovered and taken into possession. This witness also recorded statement of witnesses of recovery and prepared site plan, Ex.PN/1.
In defence, the accused summoned and examined Lance Naik Om Prakash of 128 Air Defence Regiment c/o 56 APO who produced the summoned record i.e. guest entry register maintained in their unit regarding the visit of relatives and friend. This witness deposed that on 21.9.2000 the unit was at Ferozepur Cantt. and as per entries in the register, the mother and father of Bishamber visited there. The names in the unit guest register were entered as Sanwalia and Satto, residents of village Deeghot, District Faridabad. They came to the unit at 7.00 A.M. in the morning of 21.9.2000 and stayed up to 8.00 P.M. on 21.7.2000. copy of the guest entry register was taken on record as Ex.PX.
After examining the evidence of the prosecution witnesses, we find that the ocular testimonies of the eye- witnesses PW3-Ram Saran and PW4-Mohar Singh are quite consistent. Both of them have stated time of occurrence as between 4.30 A.M. to 5.00 A.M. A vivid description of the entire occurrence was given by these witnesses. There can hardly be any doubt about identification of accused, as PW3-Ram Saran in his cross-examination stated that there was electric pole near the house on the road where the Crl.Appeal No.182-DB of 2007 - 12 - occurrence took place. In his statement, the investigating officer (PW10) clearly stated that main road passed in front of house where the complainant was living. There was also office of HSEB on the said road. Keeping in view that occurrence took place merely 15 to 20 paces away from where eye-witnesses PW3-Ram Saran and PW4-Mohar Singh were sitting, the plea that it was not possible to identify the assailants, is without any force. A perusal of site plan (Ex.PE) shows that the distance between the place where the eye witnesses were smoking Hookka and the spot where murder took place is not much. We are, therefore, of the view that there can hardly be any doubt about the identification of the accused-appellants Ratti Ram and Brij Mohan by the eye- witnesses.
As regards failure of the investigating agency to recover the country made pistol due to which a serious injury was caused to the deceased, suffice it to say that both the accused-appellants absconded after the commission of crime and remained elusive for almost two years. After they were arrested on a disclosure statement made by Ratti Ram, a double barrel gun was recovered. The plea of the prosecution that the other weapons could not be recovered due to lapse of time is quite probable as arrest of the accused-appellants was effected almost after two years. The ocular evidence, report of Forensic Science Laboratory and medical evidence go to show that in the occurrence gunshots were fired both by Ratti Ram and Brij Mohan. After the first shot was fired by Brij Mohan by a country made Crl.Appeal No.182-DB of 2007 - 13 - pistol, bullet of which was recovered from the skull (occipital region) of the deceased, the deceased fell down. Ratti Ram thereafter opened fire with his double barrel gun. It appears that the said gunshots did not hit Babu Ram as he had fallen down at that time. Thereafter Pharsa blows were inflicted on him by the said accused (Ratti Ram). It has also come in the evidence that certain cartridges of double barrel gun were recovered from the scene of occurrence as is evident from the FSL report (Ex.PP). The doctor, who appeared as PW5 proved five injuries by a sharp-edged weapon on the person of deceased. There is thus no room for doubt that both the accused Ratti Ram and Brij Mohan actively participated in the commission of crime in furtherance of their common intention to commit murder of Babu Ram (deceased). There is evidence on record to show that there was motive behind commission of this crime. Statement of Gangi Ram, who was killed during the pendency of appeal, was proved by witness (PW10). The motive of crime is lease of 10 killas of land taken by the deceased and his family members from one Shish Pal Gujjar. This had become the bone of contention between the parties as mentioned in the statement of complainant proved by PW10-Sukhvinder Singh, SI. According to said statement, accused Ratti Ram and Sanwal had been asking the complainant's side to vacate the piece of land taken on lease or to pay their share of money. About one month prior to occurrence, accused Brij Mohan @ Shamsher Singh (brother of Ratti Ram) had extended threats to Jai Narain, son of Crl.Appeal No.182-DB of 2007 - 14 - complainant to either vacate the land or face the consequences.
Keeping in view the entire material on record, we are of the considered view that the prosecution has been able to prove its case beyond doubt against appellants- accused Ratti Ram and Brij Mohan @ Bishamber. We are, thus, not inclined to interfere in the judgment delivered by the trial court convicting the said accused for offence under section 302 read with section 34 IPC. The sentence as awarded by the court below is maintained.
( RAJAN GUPTA )
JUDGE
October 28, 2010 ( RANJAN
GOGOI )
pc JUDGE