Punjab-Haryana High Court
Azad Singh vs State Of Haryana on 21 March, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No. 398-DB of 2008 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:March 21, 2012
Criminal Appeal No. 398-DB of 2008
Azad Singh
......Appellant
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.D.S.Bali, Sr.Advocate with
Ms.Neha Mann, Advocate,
for the appellant.
Mr.G.S.Chahal, Addl.A.G.Haryana.
****
JUDGMENT
SABINA, J.
Appellant, husband of the deceased, has preferred this appeal challenging his conviction and sentence for commission of an offence under Sections 302 of the Indian Penal Code, 1860 (IPC for short) and 27 of the Arms Act, 1959 (the Arms Act for short), as ordered by the trial Court vide judgment/ order dated 23.4.2008/ 24.4.2008 .
On 12.9.2004, Amar Lal along with Satbir had gone to look after his fields. He saw a dead body of an unknown lady lying Criminal Appeal No. 398-DB of 2008 2 with her face downwards in the fields of his brother Shiv Lal. There were signs of injury on her neck and pellet marks on her back. One empty cartridge of .12 bore was lying near the dead body. One blood stained gandasi and one pair of laies slippers of pink colour, stained with blood, were also lying nearby. On his information to Assistant Sub Inspector Mukesh Chander, Police Station Barwala, FIR No.281 dated 12.9.2004 was registered at police station Barwala under Sections 302/ 201 IPC and 25 of the Arms Act.
Thereafter, Assistant Sub Inspector Mukesh Chander visited the spot and lifted one empty, one gandasi, pair of chappals, one dupatta, blood stained earth in which pellets were lying and one tabeez of gold from the spot. The spot as well as the dead body were got photographed. He prepared inquest report qua the un- identified female dead body and sent the same for postmortem examination.
On 13.9.2004, Sub Inspector Manbir Singh recorded the statement of Naveen (son of the deceased), Pal Singh (father of the deceased) and Jaipal @ Modu.
On 3.3.2006, Sub Inspector Vinod Shankar arrested appellant Azad Singh. On interrogation, appellant suffered a disclosure statement and on the basis of the same, he got recovered his licensed .12 bore gun from the disclosed place and the same was taken in possession.
After completion of investigation and necessary formalities, challan was presented against the appellant.
Prosecution in order to prove its case examined 20 Criminal Appeal No. 398-DB of 2008 3 witnesses.
The appellant, when examined under Section 313 of the Code of Criminal Procedure, 1973, after the close of prosecution evidence, pleaded that he was innocent and had been falsely involved in this case.
The appellant did not lead any evidence in his defence. Learned senior counsel for the appellant has submitted that the material witnesses i.e. Naveen, son of the deceased, and Pal Singh, father of the deceased had not supported the prosecution case during trial. The trial Court had erred in convicting and sentencing the appellant by basing reliance on the report of the Forensic Science Laboratory (FSL for short). In fact, no empty had been recovered from the spot. Hence, no reliance could be placed on the report of the FSL.
Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. The appellant had not lodged any report qua the missing of his wife and hence, his conviction was liable to be upheld. The empty, recovered from the spot, had reached the FSL in the year 2004 and the same was compared with the gun recovered from the appellant in the year 2006.
After hearing learned senior counsel for the appellant as well as learned State counsel and going through the record available on the file carefully, we are of the considered opinion that the present appeal deserves dismissal.
The present case rests on circumstantial evidence. In Criminal Appeal No. 398-DB of 2008 4 'Manjunath Chennabasapa Madalli versus State of Karnataka', AIR 2007 Supreme Court 2080, it was held as under:-
"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446) ; State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."Criminal Appeal No. 398-DB of 2008 5
Thus, in order to establish its case resting on circumstantial evidence, prosecution is required to complete the chain of circumstance which points only towards the guilt of the accused and negates his innocence.
The process of law was set in motion on the basis of the statement of complainant Amar Lal, who had seen the dead body of an unknown lady lying in the fields of his brother. Although Naveen, son of the deceased, while appearing in the witness box as PW-15, has not supported the prosecution case but the same stands duly proved from the report of the FSL. PW-17 Pal Singh, father of the deceased, deposed that on 12.9.2004, Jaipal had left Naveen with him. Although the said witness has not supported the prosecution case on other aspects but to this extent his statement can be relied upon that Naveen had been left at his house on 12.9.2004 by Jaipal.
There is no force in the argument raised by the learned senior counsel that no empty had been recovered from the spot. PW-20 Assistant Sub Inspector Mukesh Chander deposed that he had lifted one empty from the spot on 12.9.2004. Although PW-11 Amar Lal has not deposed qua the presence of the empty at the spot but there is also no denial by him qua presence of the empty at the spot.
A perusal of the report of the FSL (Ex.PH/1) reveals that one 12 bore fired cartridge case, lifted from the place of occurrence, had reached the said laboratory in November, 2004. The appellant was arrested on 3.3.2006 and thereafter, gun recovered from him Criminal Appeal No. 398-DB of 2008 6 was sent to the laboratory for testing and it reached the FSL on 10.3.2006. A perusal of the report of the FSL (Ex.PH) reveals that the gun, recovered from the appellant, was found in working order. The gun, recovered from the appellant, contained one 12 bore mis- fired cartridge and 12 bore live cartrdige. The gun, recovered from the appellant, was compared with empty cartridge case recovered from the spot and it was opined that the same had been fired from the 12 bore double barrel gun, recovered from the appellant and not from any other fire arm even of the same make or bore because every fire arm has got its own individual characteristics marks. Since the empty, which had been recovered from the spot, had been sent to the laboratory in the year 2004 itself, the argument raised by the learned senior counsel for the appellant that in fact, empty had been falsely planted in this case is devoid of any merit.
The gun, recovered from the appellant, is his licensed gun. PW-10 Satbir Singh deposed that gun DBBL, 12 bore bearing No.B/7-6976 was entered in the licence of the appellant and the licence was valid up to 23.12.2005. The said witness was shown the gun, recovered on the basis of the disclosure statement suffered by the appellant, (Ex.P-15) and the witness stated that it was the same gun, which had been entered in the name of the appellant in his licence.
As per the report of the FSL (Ex.PH/1), the pellets taken out from the dead body of the deceased were opined to be usually loaded in shotgun cartridges including 12 bore. The wad recovered Criminal Appeal No. 398-DB of 2008 7 from the dead body of the deceased was also opined to be wad of 12 bore cartridge.
PW-13 Dr. Luv Sharma deposed that on 14.9.2004 he had conducted post mortem examination on the dead body of an un- identified female at 11.30 A.M. and had found following injuries on her person:-
"1.Entry wound of fire arm of size 3x 2 cm was present over right side of back, 9 cm below tip of right shoulder and 12 cm away from the midline. It was 130 cm from the right heeled. The margins were reddish, inverted and irregular. A semi circular color of abrasion was present over a medial margin of wound ( 1 cm diameter). On dissection underlying tissues were ecchymosed. The wound was directed below upwards postero and interiorly and from latero medially. It pierced in its in word track the soft tissues and muscles of the back shuttering right scapula (supra spinatous fossa) and 5th and 6th survical vertebra. Shattered multiple bone spicules were present all along the track, driven in words. From the above described tack plastic wad and multiple metallic pellets were recovered. Similar pellets were also recovered in the region of shattered vertebra. Further beyond shattering the survical vertebra, the wound crossed midline to reach upto left side of neck to exit the body. All spicules of bone showed infiltration of blood.
2. An exit wound of size 4 x 2 cm on left side of neck, 7cm Criminal Appeal No. 398-DB of 2008 8 from midline and 5.5 cm below lobule of left ear. The mandible was shattered through and through at a level 2.5 cm from midline. Infiltration of blood was seen in the fractured segments. It was situated 136 cm from the left heel.
3. A sharp cut of size 9 x 4 cm over right side of neck, 12 cm from midline and 6 cm below lobule of right erar, placed obliquely. On dissection underlying tissues were found to be cut along with sharp cut of transfers process of survical vertebra C3 to C5 with infiltration of blood seen in cut segments of bone.
4. A sharp cut of size 7 x 5 cm present over right side of neck in its lower part in horizontally oblique direction, situated 5 cm from midline and 5 cm above tip of right shoulder. On dissection underlying tissues were ecchymosed and cut through and through with corresponding cut over shattered right clavicle. The cut bones segments showed blood infiltration.
5. An entry wound of firearm of size 5 x 4 cm present over the back in midline at level corresponding to thoracic T1- T4 vertebra and 110 cm above the heels. The margins of wound were reddish contused, irregular and inverted. Collar of abrasion 1 cm in diameter was seen over the medial half (semi circular). The wound was directed postero interiorly up wards and towards right side. Along the track the soft tissues and strap Criminal Appeal No. 398-DB of 2008 9 muscles of the back were pearsed and corresponding vertebra found shattered with blood infiltration. Along track multiple metallic pellets were recovered. Further the wound traversed into right chest cavity to lacerate upper part of middle lobe of right lung from posterior aspect. More pellets were recovered from this region with shattered bone specules found indriven into lung parenchyma.
6. There was a sharp cut over base of left thumb and left index finger with hole of left thumb and middle and distal. Phalanx of left index finger cut and missing. On dissection underlying tissues were ecchymosed. An exposed traveculae of bone showed infiltration of blood. Cause of death, in his opinion, was due to firearm injuries and sharp cuts due to heavy sharp weapon. All the injuries were sufficient to cause death in the ordinary course of nature when taken single or coupled together. The probable time that elapsed between injuries and death was instantaneous and between death and postmortem examination was between 3 to 5 days.
Thus, in the present case, it was established on record that the empty recovered from the spot had been fired from the licenced gun of the appellant. Deceased was the wife of the appellant. The appellant never lodged any report qua the missing of his wife nor made any effort to search his wife. As per medical evidence, the deceased had died due to fire arm and heavy sharp edged weapon injuries. Although Naveen, son of the deceased as Criminal Appeal No. 398-DB of 2008 10 well as the appellant has not supported the prosecution case qua last seen evidence but that in itself cannot be said to be fatal to the prosecution case. The deceased was not a stranger to the appellant but was his wife and was residing with him. The fact that Naveen had been left at the house of his maternal grand father Pal Singh by Jaipal and the report of the FSL that the empty recovered from the spot had been fired from the licenced gun of the appellant point out towards the guilt of the appellant and negates the possibility of his innocence. In the facts and circumstances of the case, the possibility that any body else might have committed the offence is also ruled out.
In these circumstances, learned trial Court had rightly ordered the conviction and sentence of the appellant under Sections 302 IPC and 27 of the Arms Act. No ground for interference is called for.
Accordingly, the appeal is dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
March 21, 2012