Punjab-Haryana High Court
Mukesh vs State Of Haryana on 30 April, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl.Appeal No.594-DB of 2008 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Date of decision: 30.4.2010
(1) Crl.Appeal No.594-DB of 2008
Mukesh
... Appellant
versus
State of Haryana
... Respondent
(2) Crl.Appeal No.603-DB of 2008
Kaptan
... Appellant
versus
State of Haryana
... Respondent
(3) Crl.Appeal No.605-DB of 2008
Kuldeep @ Monu and another
... Appellants
versus
State of Haryana
... Respondent
(4) Crl.Appeal No.624-DB of 2008
Joginder @ Gola
... Appellant
versus
State of Haryana
... Respondent
(5) Crl.Appeal No.641-DB of 2008
Rajesh @ Raje @ Kala
... Appellant
versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR. JUSTICE JORA SINGH.
Crl.Appeal No.594-DB of 2008 2
Present: Mr.H.S.Gill, Sr.Advocate, with
Mr.Vivek Goel, Advocate,
for the appellant in Crl.Appeal No.594-DB of 2008.
Mr.Sanjeev Kadian, Advocate, for
Kaptan, appellant in Crl.Appeal No.603-DB of 2008, and
Kuldeep @ Monu, appellant in Crl.Appeal No.605-DB of 2008
Mr.V.C.Gautam, Advocate, for
Rajesh Kumar @ Mogli @ Raju, appellant in
Crl.Appeal No.605-DB of 2008.
Mr.Vinod Ghai, Advocate, for
the appellant in Crl.Appeal No.624-DB of 2008.
Mr.R.S.Rai, Sr. Advocate, with
Mr.Deepender Brar, Advocate,
for the appellant in Crl.Appeal No.641-DB of 2008.
Mr.S.S.Randhawa, Addl.AG, Haryana.
...
JORA SINGH, J.
By this common order, we propose to dispose of five connected appeals bearing Nos.594-DB of 2008 (Mukesh vs. State of Haryana), 603- DB of 2008 (Kaptan vs. State of Haryana), 605-DB of 2008 (Kuldeep @ Monu and another vs. State of Haryana), 624-DB of 2008 (Joginder @ Gola vs. State of Haryana) and 641-DB of 2008 (Rajesh @ Raje @ Kala vs. State of Haryana), as all these appeals have been filed to impugn the judgment of conviction dated 8.8.2008 and order of sentence dated 11.8.2008 rendered by Additional Sessions Judge, Rohtak, arising out of FIR No.264 dated 23.5.2003 under Sections 148/149/302/307/333/353/186 IPC and Sections 25/54/59 of the Arms Act, PS Civil Lines, Rohtak. By the said judgment, they were convicted under Sections 148/149/302/307/333/353/186 IPC. Appellants Joginder @ Gola, Mukesh and Kaptan were further convicted under Section 25 of the Arms Act. All the appellants were sentenced as under:-
"Sections 148/149 IPC To undergo RI for one year and to pay a fine of Rs.1,000/-, in Crl.Appeal No.594-DB of 2008 3 default of payment of fine, to further undergo RI for two months;
Section 302IPC To undergo RI for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for three years;
Section 307IPC To undergo RI for ten years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for two years; Section 333 IPC To undergo RI for ten years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for two years; Section 353 IPC To undergo RI for one year, and Section 186 IPC To undergo RI for three months.
Appellants Joginder @ Gola, Mukesh and Kaptan were further sentenced to undergo RI for two years under Section 25 of the Arms Act.
All the substantive sentences were ordered to run concurrently."
Prosecution story, in brief, is that on 23.5.2003, police party headed by SI/SHO Jai Parkash, PS Civil Lines, Rohtak, while present on Sheela By Pass, Rohtak, in connection with patrol duty, then received a wireless message from the control room to the effect that firing had taken place in the Court Complex, Rohtak. On receipt of wireless message, Crl.Appeal No.594-DB of 2008 4 SI/SHO Jai Parkash along with party had gone to the Court Complex, Rohtak, where ASI Ram Kumar had met him and got his statement recorded to the effect that while serving in Police Lines, Rohtak, on 22.5.2003, he was deputed to collect the accused from District Jail, Sonepat, to produce them in the District Courts at Rohtak. On 23.5.2003, he along with EHC Raj Singh and other police officials, had gone to Borstal Jail, Sonepat, and three accused were taken into custody from there. Then they had gone to District Jail, Sonepat from where Anup Singh and Vinod were taken into custody. After that, police party along with the accused in a jeep came to the District Courts, Rohtak. Jeep No.HR-45-1762 was parked in front of lock up of the Court. Another Jeep No.HR-46-0372, in which the accused were brought from Sonepat, was already standing there. At about 11.45 AM, accused Anup Singh requested the police party to urinate, then he along with EHC Raj Singh, Constable Ashok Kumar, Constable Jitender and Constable Sucha Singh, who were armed with stain guns, came out from the jeep. Anup Singh was brought near the bathroom situated on the ground floor, but it was found locked. Then he was being taken to the bath room situated at the first floor to urinate and when they reached in the staircase, then suddenly firing started from the upper side of the staircase, hitting Anup Singh and EHC Raj Singh, who was holding Anup Singh. He had returned firing from his service revolver. Accused were 6-7 in number, who were firing with their respective weapons. Then he along with 2-3 police officials had chased the accused. He had fired five shots with his service revolver, out of which, two shots hit the accused, who continued firing while in injured condition. In the said firing, Constable Pawan Kumar, Constable Raj Singh and HC Shiv Charan received fire arm Crl.Appeal No.594-DB of 2008 5 injuries. One accused, namely, Mukesh, who had received gun shot injuries, was apprehended on the spot, whereas remaining accused, while continued firing with their respective weapons, succeeded in escaping from the spot. Some police officials were seen while chasing them. Naresh Kumar and Vinod, who were facing trial in the case, had seen the accused while firing and disclosed about the names of assailants as Joginder @ Gola son of Nafe Singh, r/o Ladpur, Kaptan, Mahabir @ Don, Rajesh r/o Mundka, Kuldeep @ Monu, Sunder, r/o Titoli and one Fauji. He had given information to the control room and with the help of ASI Bhim Singh and other police officials, injured policemen and Anup Singh were shifted to PGIMS, Rohtak. It was informed to him that Anup Singh was declared dead. After recording the statement of ASI Ram Kumar ((Ex.P1), same was sent to the police station after making endorsement, on the basis of which, formal FIR was recorded at 2.00 PM. Special report was delivered to the Ilaqa Magistrate at 4.30 PM on 23.5.2003. Thereafter, ASI Ram Kumar had apprehended one of the accused, who was firing, namely Mukesh and from his possession, one pistol of .9 mm along with seven live cartridges and one empty cartridge, were taken into possession, and he (Mukesh) was sent to PGIMS, Rohtak, for treatment. Sketch of pistol was prepared. Sketch of pistol (Ex.P3), mouser (Ex.P5), live cartridges (Ex.P6 to Ex.P8) and empty cartridge (Ex.P9) were taken into police possession vide separate memo (Ex.P10) attested by the witnesses. ASI Ram Kumar had also handed over his service revolver (Ex.P11) and produced three missed bullets (Ex.P12 to Ex.P14) and two fired bullets (Ex.P15 and Ex.P16), which were also taken into police possession vide separate memo (Ex.P17) attested by the witnesses.
Crl.Appeal No.594-DB of 2008 6
SI Sukhbir Singh also produced his official mouser and three live cartridges, which were taken into police possession vide separate memo attested by the witnesses.
After leaving Raj Singh and Constable Surinder at the spot, SI/SHO Jai Parkash had gone to PGIMS, Rohtak. Ruqas regarding death of Anup Singh and injuries on the persons of Mukesh, EHC Raj Singh, Constable Shiv Charan, Constable Pawan and Constable Raj Singh were collected. HC Dharam Singh had handed over three sealed parcels of clothes, sealed with the seal of doctor, and the same were taken into police possession vide separate memo attested by the witnesses. After that, SI/SHO Jai Parkash had gone to Casualty Department, but no attendant was found near the dead body of Anup Singh. Doctors were busy in giving treatment to the injured. ASI Bhim Singh came to the Casualty Ward and reported that when the injured along with Anup Singh were being brought to PGIMS, Rohtak, then there was a traffic jam near Bajrang Bhawan Mandir. Then he noticed a Maruti Zen No.DL-9-CD-4416. When he got down from the vehicle, then driver of the car on noticing him dropped one boy and ran away with the car in streets side. Boy (Kaptan) was apprehended by him (ASI Bhim Singh). One .38 bore revolver along with two live cartridges and four empty cartridges was produced before him and same was taken into police possession vide memo attested by the witnesses. Pants worn by Mukesh was produced by ASI Bhim Singh before SI/SHO Jai Parkash and the same was taken into police possession vide memo attested by the witnesses.
Inspector Jai Parkash thereafter had gone to the place of occurrence. Rough site plan with correct marginal notes (Ex.P123) was Crl.Appeal No.594-DB of 2008 7 prepared. Four used bullets and one wrapper of that bullet were found in staircase, ten empties of different kind of weapons were found in the verandah on the first floor and four empties were found in front of the Court of Sh.Vinod Jain, the then ASJ, Rohtak, on the ground floor. Recovered articles were taken into police possession after the same were made into sealed parcels. Blood was lifted from the spot. Boundary wall was also found to be stained with blood. Blood from the boundary wall was also lifted. Blood was made into a sealed parcel and taken into police possession vide memo attested by the witnesses. Near Railway Crossing, Rohtak, Car No.DL-9-CD-4416 was noticed while coming from the side of Subhash Nagar, Rohtak. Car was signalled to stop. Driver of the car disclosed his name as Joginder @ Gola and on search of the accused, one . 30 bore revolver with four live cartridges was recovered. Sketch of revolver was prepared. Cartridges and revolver were taken into police possession. After inspection of the car, its front left window from in side and back seat were found to be stained with blood. Blood was lifted and same was made into a sealed parcel. One cover of pistol and two mobile phones were also recovered from the car. Same were taken into police possession vide separate memo (Ex.P107) attested by the witnesses.
Accused Joginder @ Gola was brought to PGIMS, Rohtak. Applications were moved requesting the doctors to opine as to whether injured were fit to make statements or not. Injured Shiv Charan, Raj Singh and Pawan Kumar were declared fit to make statements. Thereafter, statements of Shiv Charan, Raj Singh and Pawan Kumar were recorded. After that, Inspector Jai Parkash had gone to the dead house, where dead body of Anup Singh was lying. Inquest report was prepared. Dead body Crl.Appeal No.594-DB of 2008 8 was handed over to the police officials for postmortem examination. On return to the police station, case property was handed over to the Incharge of malkhana. Joginder @ Gola was lodged in police lock up.
On 24.5.2003, FSL team from Madhuban came and inspected the scene of crime. They had lifted a bullet from staircase, which was not noticed by the SHO. Parcel of the same was prepared and taken into police possession vide memo (Ex.P110) attested by the witnesses. Joginder was interrogated. Mukesh was also interrogated after he was declared fit to make statement by the doctor. Kaptan was declared unfit. On 26.5.2003, Kaptan was also arrested, after he was declared fit to make statement.
On 31.5.2003, statement of EHC Raj Singh was recorded. On 4.7.2003, accused Mahabir @ Don was formally arrested in this case from Delhi, where he was already in custody in some other case.
After completion of the investigation, challan was presented. Accused were charged under Sections 148/149/302/307/ 333/353/186 IPC and Sections 25/54/59 of the Arms Act, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW1 SI Bimla Devi stated that on 23.5.2003, on receipt of statement (Ex.P1) of ASI Ram Kumar, formal FIR (Ex.P2) was recorded.
PW2 Vinod stated that on 23.5.2003, he was in Sonepat Jail with Anup Singh. Naresh was also the accused with him in the murder case of Subhash Ruhil. Case was pending in the Court of Additional Sessions Judge, Rohtak, on that day. Naresh @ Kala, co-accused was lodged in Jind jail. He along with Anup Singh was brought from Sonepat Jail by the Crl.Appeal No.594-DB of 2008 9 police party headed by ASI Ram Kumar. At about 11.45 AM, he along with Anup Singh was sitting in the police vehicle. They had requested the police party to allow them to urinate. Anup Singh was brought by the police party towards bathroom to urinate. He remained in the vehicle. In the meantime, he heard sound of fire arm. Then noticed Joginder @ Gola, Mukesh, Kaptan, Rajesh @ Kala, Kuldeep, Narender @ Kala, Rajesh Kumar, Mahabir @ Don and Shiv Kumar, armed with pistols/revolvers while firing indiscriminately. Police officials present in the Court complex also fired shots towards the accused. Number of persons received injuries in the firing. After firing, accused had fled away from the spot. Anup Singh, HC Raj Singh and two Constables had received injuries. Mukesh had also received injuries in the occurrence. He was arrested on the spot. Injured were shifted to PGIMS, Rohtak. Krishan Pehlwan, resident of Village Dichao, PS Nazafgarh, Delhi, was a leader of one notorious gang. Anup was a resident of Village Mitrau and he was a leader of second gang.
PW3 ASI Ram Kumar is the complainant. He supported the prosecution story as to how occurrence had taken place.
PW4 ASI Jag Ram was serving as MHC on 23.5.2003, with whom case property was deposited by the Investigating Officer.
PW5 HC Kulbir Singh stated that sealed parcels were handed over to him on 4.6.2003 and the same were deposited in the FSL, Madhuban.
PW6 Constable Sumit Kumar had prepared scaled site plan (Ex.P21 and Ex.P22).
PW7 Sumeer Kumar, employee of PGIMS, Rohtak, brought the files of injured Pawan Kumar, Raj Singh, Shiv Charan, Mukesh and Kaptan. Crl.Appeal No.594-DB of 2008 10
PW12 HC Liyakat Ali stated that on 3.6.2003, he had gone to Apollo Hospital, where HC Raj Singh was lying admitted. Application was moved for getting opinion of the doctor regarding fitness of the injured, but he was declared unfit to make statement. On 11.6.2003, information was received in the police station regarding death of HC Raj Singh. Dead body was brought to AIIMS, New Delhi, for postmortem examination, after preparing inquest report.
PW13 HC Raj Singh stated that after postmortem examination on the dead body of Anup Singh, he had handed over two sealed parcels to SI Dalip Singh. Parcels were taken into police possession vide memo (Ex.P54) attested by the witnesses.
PW14 SI Dalip Singh stated that on 24.5.2003, HC Raj Singh had produced two sealed parcels before him, i.e., one parcel of the belongings of the deceased and second of the bullet.
PW15 Constable Dharam Singh stated that on 23.5.2003, he received three sealed parcels of clothes of Constable Pawan, Constable Raj Singh and HC Raj Singh, and same were taken into police possession. On 28.5.2003, another sealed parcel of a vial was received and the same was taken into police possession.
PW16 ASI Shiv Charan and Constable Pawan Kumar were on duty in the Court Complex on 23.5.2003. Both are the injured eye witnesses and have supported the version of PW2 Vinod and PW3 ASI Ram Kumar, complainant.
PW18 Constable Sitender Singh was member of the party, who brought accused from Sonepat Jail.
Crl.Appeal No.594-DB of 2008 11
PW29 Naresh @ Kala was accused, who was brought from Jind Jail for production in the Court.
PW30 SI Sukhbir Singh was also on duty in the Court Complex.
PW32 Constable Raj Singh brought accused from Rohtak Jail and also received injuries in the occurrence.
PW35 ASI Bhim Singh brought Naresh @ Kala (PW29) to the Court complex and stated how the occurrence had taken place in the Court complex.
PW11 Dr.Baljinder Singh on 24.5.2003 had conducted postmortem examination on the dead body of Anup Singh and observed as under:-
"(i) Entrance wound of firearm 1 x 1 cm in size, present over the front of abdomen, near the midline (1 cm right to the midline), 11 cms above the umbilicus, 120 cm from the right heel, 121 cms from the left heel, circular with contused and blackish margins, irregular, inverted and with a collar of abrasion, seen all around. On dissection underlying tissues were ecchymosed, wound was directed antero-posteriorly, above downwards and right to left, piercing on the way subcutaneous tissues, muscles, greater omentus with its vessels, small intestines and large intestine at multiple places, mesentery with its vessels, left kidney with extensive laceration, and spleen, which was also extensively lacerated and finally existing through wound number 2. Crl.Appeal No.594-DB of 2008 12
(ii) Exist wound of firearm, 3 x 4 cm in size, over the lateral side of abdomen on the left side, 5½ cm from the left iliac crest and 113 cm from the left heel, 24 cm from the umbilicus, margins dark, irregular and everted and underlying tissues were ecchymosed.
(iii) Entry wound of firearm 1 x 1 cm in size on the left posterior lateral side of abdomen, 8 cm from left iliac crest, 6 cm posterior to the exit wound No.2, 117 cms from the left heel. Margins of the left wound were contused, dark, inverted, irregular with a collar of abrasion, direction of the wound track was above downwards slightly medially, piercing subcutaneous tissue with ecchymosed, muscles, small intestine, large intestine, mesentery and ultimately lodging into the iliac bone just near the left acetabulum. Bullet was recovered duly signed and handed over to the police.
(iv) Entry wound of firearm 1 x 1 cm over the anterior side of the upper part of right forearm, 37 cm from the tip of the right shoulder, margins of the wound were dark, irregular and inverted. The track of the wound was lateral to medial side and below upward and slightly anterior to posterior direction, piercing skin subcutaneous tissues, muscles and tenderness on the way, coming out ultimately through the exit wound of firearm of size 1.5 cm x 1.5 cm over the medial side of the right arm. 1.5 cm above the medial epicondyle of Crl.Appeal No.594-DB of 2008 13 right humerus, 24 cm from the anterior axillary fold.
Margins of the wound were darkish, everted and irregular. Tissues around entry and exit wound showed ecchymosis.
(v) Entry wound of firearm 1.5 cm x 1.5 cm in size over the anterior side of right thigh, 18 cm over the right knee and 65 cm above the right heel. Margins of the wound were dark, irregular and inverted and a collar of abrasion was seen in the lower 2/3rd of the margin of the wound. The track of the wound was lateral to medial, below upwards and anterio posteriorly, piercing along the way skin, subcutaneous tissues, muscles with extensive ecchymosis and ultimately coming out from the medial side of upper part of right thigh, 27 cms from right knee joint, 76 cms from the right heel. The exit wound of firearm was 2 cms xx 3 cms in size, margins were lacerated and everted and surrounding tissues were ecchymosed."
Death was due to haemorrhage and shock, due to the injuries described, which were sufficient to cause death in the ordinary course of nature. All the fire arm injuries were ante mortem in nature.
PW26 Dr.Sanjiv Lalwani stated that on 11.6.2003, he had conducted postmortem examination on the dead body of HC Raj Singh and observed as under:-
"(1) Stitched wound in the midline of abdomen 30 cms in length situated 15 cms above root of penis and 15 cms below sternal angle.Crl.Appeal No.594-DB of 2008 14
(2) Infected wound with pus and slough on right side abdominal wall anteriorly of size 5 x 2.5 cms situated 19 cms. below the right nipple and 5 cms right lateral to midline. The wound was peritoneal cavity deep. (3) Infected wound with pus and slough on right side anterior abdominal wall of size 6 x 6 cms situated 8 cms right lateral to midline and 26 cms below right nipple (Colostomy wound).
(4) Pressure sores on right gluteal region upper part with infection.
(5) Abrasion left eye, both upper and lower lips and left side angle of mouth with peeling of skin and red inflamed base.
(6) Infected wound on right side abdominal wall laterally of size 2 x 1.5 cm situated 21 cm right lateral to midline and 9 cm from colostomy wound. The wound was peritoneal cavity deep.
(7) Infected wound 1 x 1 cm situated 26 cms below right nipple and 5 cms above and lateral to wound No.2 with pus and slough.
(8) Healed stitched wound of size 1.5 x 1 cm abdominal thoracic cavity deep on left side back situated 9 cm left lateral to midline 110 cm above left lower limb and 38 cms below shoulder top and track of wound was oblique. (9) On exploration of abdominal cavity- the muscular layers were found stitched and there were dense adhesions of Crl.Appeal No.594-DB of 2008 15 abdominal organs involving small and large intestine, mesentery and omentum with evidences of intestinal repairs and ileostomy (hemicolectomy, colonic colostomy)."
Death was due to haemorrhage and shock, due to the injuries described, which were sufficient to cause death in the ordinary course of nature. All the fire arm injuries were ante mortem in nature.
PW9 Dr.Sanjay Photedar, stated that on 23.5.2003, he had medico legally examined Constable Raj Singh, EHC Raj Singh and HC Shiv Charan. They were brought to PGIMS, Rohtak, at 13.30 PM by ASI Bhim Singh. Following injuries were found on their person:-
Constable Raj Singh "1. Lacerated wound of size 0.5 x 0.5 cms present on back left half with blackening of margins present and fresh bleeding was present.
2. Lacerated wound of size 1 x .5 cms on right lateral abdominal wall. Fresh bleeding was present."
EHC Raj Singh
1. Lacerated wound of size 1 x .5 cms present on upper and outer quadrant of right buttock with blackening of margins and fresh bleeding was present.
HC Shiv Charan
1. Multiple lacerated wound were present on right parietal region and right forehead. Fresh bleeding was present.
2. Lacerated wound of size .5 x .2 cms on right cheek.
Fresh bleeding was present."
Crl.Appeal No.594-DB of 2008 16PW10 Dr. Amarjeet Singh Rathi stated that on 23.5.2003, he had medico legally examined Mukesh brought by ASI Bhim Singh, and found the following injuries on his person:-
"1. A lacerated wound 2 x 1 cm with inverted margins.
Blackening around the wound on left leg just below the left knee joint.
2. A lacerated wound 2 x .5 cm on left wrist with blackening around the margins of wound. Orthopaedic Surgeon's opinion was sought."
On the same day, Pawan Kumar was also medico legally examined and following injuries were found on his person:-
"(i) 1 x .5 cm lacerated wound with inverted margins on anterio medical aspect of right thigh. Blackening around the wound was also present. Orthopaedic surgeon's opinion was sought for."
One unknown person brought by ASI Bhim Singh was also medico legally examined on the same day and following injuries were found on his person:-
"(i) A lacerated wound 1 x .5 cm with inverted margins, Blackening around the wound with fresh bleeding at left angle of mandible was present.
(ii) A lacerated would 1 x 1 cm with everted margins with fresh bleeding was present at right angle of mandible.
(iii) Bleeding mouth was present.
(iv) A lacerated wound 1 x 1 cm at middle of left thigh with blackening around the wound and inverted margins and Crl.Appeal No.594-DB of 2008 17 bleeding was also present.
(v) A lacerated wound 1 x .5 cm anterio medical aspect of left thigh lower 1/3rd blackening around the wound with inverted margin and bleeding was present."
PW8 Vinod Kumar Pathak, Radiologist, stated that on 23.5.2003, he had x-rayed injuries on the persons of Pawan Kumar, Raj Singh, Shiv Charan, Mukesh and Kaptan.
Multi radio opaque shadows of metallic density were seen in the soft tissue of mid thigh right side of Pawan Kumar.
In case of Raj Singh, radio opaque shadow of metallic density and size and shape of bullet seen in the soft tissue of left gluteal region.
Radio opaque shadow of metallic density seen in the region of skull and face in case of Shiv Charan.
Radio opaque shadow of metallic density and size and shape of bullet seen in the soft tissue of back of left leg in upper part in case of Mukesh.
Fracture mandible seen in case of Kaptan.
PW19 Ram Bhagat Sharma, Reader, stated that District Magistrate, Rohtak, accorded sanction to prosecute Kaptan, Joginder @ Gola and Mukesh, under Section 25 of the Arms Act. Sanction orders are Exs. P59, P-60 and P-61 respectively.
PW20 HC Ram Phal brought Daily Diary Register and stated that entries of DDR Nos.59 and 60 dated 23.5.2003 are exhibited as Ex.P62 and Ex.P63, respectively.
PW21 Constable Dharambir tendered his affidavit (Ex.P64). Crl.Appeal No.594-DB of 2008 18 PW22 Virender Singh, Medical Record Clerk, brought file of Raj Singh, injured.
PW24 Inspector Ram Parkash stated that on 2.8.2003, he received VT message from Crime Branch, Lodhi Colony, New Delhi, regarding arrest of Rajesh Kumar son of Mahabir. After obtaining order from the Court, he was arrested in this case. After completion of investigation, he submitted report under Section 173 Cr.P.C.
PW31 ASI Megh Raj stated that on 24.5.2003, team from FSL, Madhuban, had lifted one bullet lying near the staircase and the same was taken into possession vide memo (Ex.P110), which was attested by him.
PW33 Inspector Jai Parkash is the Investigating Officer. PW34 Constable Rustam stated that on 23.5.2003, he was with the police party of SHO Jai Parkash.
PW36 SI Ishwar Singh stated that after getting order from the Court, Rajesh @ Mogli was arrested in this case on 23.12.2004.
PW37 ASI Raj Singh stated that after obtaining production warrant from the Court of CJM, accused Kuldeep was arrested in this case on 26.7.2004.
PW38 Mehtab Singh had identified dead body of Anup Singh in PGIMS, Rohtak.
After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent.
Defence version of Joginder @ Gola was that he was falsely implicated in this case. No recovery was effected from him. Weapon was planted.
Crl.Appeal No.594-DB of 2008 19
Defence version of Mukesh was that his brother-in-law Devinder was married with Sunita and second brother-in-law Mehtab Singh was married with Neelam, sister of Sunita. There was matrimonial dispute amongst his brothers-in-law and their wives. Divorce cases and matrimonial proceedings at the instance of Sunita and Neelam were pending in Rohtak Courts. Sh.K.L.Khera, Advocate, was engaged by them. He used to accompany his relatives to pursue the cases. In one of the cases, date of hearing was 19.5.2003, but on that day, they came to know that case was adjourned on 17.5.2003 because Presiding Officer was on leave from 19.5.2003 to 29.5.2003. Sh.K.L.Khera directed them to come on 23.5.2003 for preparation of the case. On 23.5.2003, he along with his brother-in-law had gone to Rohtak Courts. They had gone to canteen. At about 11.45 AM, they heard noise of firing in the Court building. He came out in the corridor and was hit by a bullet. Devender Singh shifted him to the guard room to board the police vehicle. He was shifted to PGIMS, Rohtak, and was medico legally examined. SSP and DSP after enquiry, felt sorry. He was directed by the SSP to become a witness and is to be awarded suitably. Then he replied that after consultation with his family members, he is to report. On 24.5.2003, his family members brought a Panchayat and had met SSP and DC and requested that he is not to become a witness. SSP replied that either he is to become a witness, otherwise, he is to be implicated as accused.
Defence version of Kaptan was that he came to the Court Complex in connection with his personal work and was falsely implicated in this case.
Defence version of Rajesh Kumar @ Mogli was that he was Crl.Appeal No.594-DB of 2008 20 falsely implicated in this case. No recovery was effected from him. Weapon was planted.
Defence version of Rajesh @ Raje @ Kala was that he was not present at the spot and was on bed on account of illness. He was unable to move and was under treatment.
Defence version of Kuldeep @ Monu was that he was innocent and falsely implicated in this case. No recovery was effected from him. Weapon was planted simply to strengthen the prosecution case.
In defence, DW1 Dr. Dinesh Gupta stated that Rajesh Dahiya son of Mahabir Singh was under his treatment. He visited his dispensary on 14.4.2003, 21.4.2003 and 26.4.2003.
DW2 Devender, brother-in-law of Mukesh, stated that he had litigation with his wife. His brother was also having litigation with his wife. Cases were pending. As per request of their counsel, he alongwith Mukesh had gone to the Court Complex. There was a firing and in the firing, Mukesh received fire arm injuries.
DW3 Karan Singh stated that Mukesh is from his village. Mukesh received injuries in the firing in the Court Complex. They had met SP and DC, Rohtak, that Mukesh is innocent.
DW4 Azad Singh, who is also from the village of Mukesh, has also supported the defence version of Mukesh by saying that he is innocent and had met SSP and DC, Rohtak.
DW5 Prem Sehgal, Record Keeper, stated that petition filed by Sunita against Devender was decided on 21.2.2004. In the petition, date of hearing was 29.4.2003, when the petition was adjourned to 22.7.2003 for arguments.
Crl.Appeal No.594-DB of 2008 21
We have heard learned counsel for the appellants, State counsel and gone through the evidence on the file.
Mr.H.S.Gill, learned counsel for appellant Mukesh argued that there were two gangs, one was headed by Anup Singh (deceased) and the second was headed by Krishan Pehlwan. Mukesh was not belonging to any gang. No case is pending against him. He had not appeared as a witness in any case registered against any member of the gang of Anup Singh. In fact, he came to the Court Complex on the date of occurrence in connection with the case of his brother-in-law Devender. Devender and his brother had matrimonial disputes with their wives, pending in the Court. Mukesh along with Devender came to the Court complex to pursue the litigation. No witness stated a word that Mukesh was seen while firing. When there was firing in the Court complex, then Mukesh received injuries. No weapon was recovered from him. Police was not sure as to who were the accused. In case Mukesh was the accused and was seen while firing, then he could be arrested on the same day because immediately after the occurrence, he was shifted to hospital. When he refused to become eye witness, then he was falsely implicated in this case.
Mr. Vinod Ghai, learned counsel for appellant Joginder @ Gola argued that names of the accused were mentioned in view of the statements of Vinod and Naresh. Naresh was facing trial in murder case with Vinod and Anup Singh (deceased). PW Vinod is related to Anup Singh. Vinod and Naresh are very much interested in the success of this case being related to the deceased. They are the members of the gang headed by Anup Singh. Joginder @ Gola was named on the allegation that he is the member of opposite gang. No witness had seen the appellant while Crl.Appeal No.594-DB of 2008 22 actually firing in the Court complex. Vinod and Naresh, as per prosecution story, had witnessed the occurrence while sitting in the police vehicle at point `H', shown in the map, but from point `H', occurrence was not visible, i.e., ramp/staircase. When there was firing, then lawyers, clerks and general public present in the Court complex to attend different cases were seen while running from the spot. Appellant was named on the allegation that he was seen while running from the spot in a car. In fact, rivalry amongst two groups was going on. Due to previous enmity, appellant was named. In case, Vinod and Naresh had really witnessed the occurrence, then on the same date, i.e., 23.5.2003, their statements should have been recorded. Statements of Vinod and Naresh were recorded on 28.5.2003 and 29.5.2003, respectively. Statement of SI Sukhbir Singh is to the effect that he had seen the accused while occupying the driver seat. Second accused, namely, Kaptan had also boarded the same car. FIR was recorded in view of the statement of ASI Ram Kumar. ASI Ram Kumar and SI Sukhbir Singh were together after the occurrence and in case, SI Sukhbir Singh had seen the accused while fleeing from the spot in a car, then this fact should have been recorded in the statement of ASI Ram Kumar, complainant. Statement of SI Sukhbir Singh was recorded at 1.30 PM, whereas FIR was recorded at 2.00 PM. That means, SI Sukhbir Singh had not seen the accused while fleeing from the spot in a car. Second allegation of the prosecution witness, namely, ASI Bhim Singh was that when they were shifting the injured to hospital, then there was traffic jam near Bajrang Bhawan Mandir. Then Car No.DL-9-CD-4416 was found stuck in the jam. When he had alighted from the police vehicle, then on seeing the police vehicle, driver of the car dropped the injured, namely, Kaptan and fled away Crl.Appeal No.594-DB of 2008 23 from the spot. Later on, appellant was arrested at about 6.00 PM. In case, appellant had really fired in the Court complex, then there was no idea to remain in the city upto 6.00 PM. Story qua appellant is unnatural because after committing the crime, appellant could easily flee from the spot by leaving the car.
Mr. Sanjeev Kadian and Mr.V.C.Gautam, learned counsel representing appellants Kuldeep @ Monu and Rajesh @ Mogli @ Raju, respectively, argued that identity of the appellants was not established. No cogent and convincing evidence on the file that they were the members of unlawful assembly. Appellants were not present at the spot. No witness had seen them while firing. Test identification parade was not arranged. Identification of the appellants for the first time in Court is without any evidentiary value. When evidence is missing as to what role was played by the appellants, then they are not vicariously liable.
Mr.R.S.Rai, learned counsel for appellant Rajesh @ Raje @ Kala, argued that he was not named in the FIR. Occurrence is dated 23.5.2003. Injured witnesses while appearing in Court did not name Rajesh @ Raje @ Kala. In the FIR, seven accused, i.e., Joginder @ Gola, Kaptan, Mahabir @ Don, Rajesh r/o Mundka, Kuldeep @ Monu, Sunder and Fauji were named. In the Court also, PW16 ASI Shiv Charan stated that one Rajesh and another Rajesh were accused along with Mukesh and others. PW17 Constable Pawan Kumar and PW18 Constable Sitender Singh failed to name the appellant. No weapon was recovered from him. Appellant was not injured. He was named for the first time when statements of witnesses were recorded on 28.5.2003 and 29.5.2003. Learned counsel further argued that identity of the appellant is doubtful to opine that he had actually fired in Crl.Appeal No.594-DB of 2008 24 the Court complex.
Learned State counsel argued that number of accused were brought from District Jails Sonepat and Jind etc. Vinod and Anup Singh were brought from District Jail, Sonepat, whereas Naresh from District Jail, Jind. They were facing trial in murder case. At about 11.45 AM, Anup Singh had requested police party to allow him to urinate and when he was being taken to first floor to urinate and was on the ramp, then from the upper side of ramp, there was a firing. Mukesh was arrested on the spot. Joginder @ Gola and Kaptan had fled away from the spot in a car. Later on, Kaptan was arrested, when he was thrown out of the car by Joginder @ Gola. Kaptan was medico legally examined at about 1.00 PM on the same day. In the evening, Joginder @ Gola was also arrested. Occurrence was at about 11.45 AM and FIR was recorded at 2.00 PM. In view of the statements of Vinod and Naresh, all the appellants were named because they were seen by these witnesses while firing with their respective weapons. Evidence on the file was rightly scrutinized by the trial Court.
Undisputedly, Anup Singh and Vinod along with Naresh were facing trial in a murder case pending in the Court of Additional Sessions Judge, Rohtak. Anup Singh and Vinod were brought from District Jail, Sonepat by police party headed by PW3 ASI Ram Kumar, complainant. Naresh was brought from District Jail, Jind, by PW35 ASI Bhim Singh.
PW16 ASI Shiv Charan, PW17 Constable Pawan Kumar and PW30 SI Sukhbir Singh were on duty in the Court complex, Rohtak, on 23.5.2003.
On the day of occurrence, police party headed by ASI Ram Kumar had brought three accused from Borstal Jail and District Jail, Crl.Appeal No.594-DB of 2008 25 Sonepat, in a police vehicle. Naresh, who was also facing trial along with Anup Singh and Vinod, was also brought from District Jail, Jind. At about 11.45 AM, Anup Singh and Vinod requested police officials to allow them to urinate. Firstly, Anup Singh was being taken towards the bathroom. He was not handcuff, but was held by HC Raj Singh. Bathroom on the ground floor was found locked. Then he was being taken to first floor. When he along with police officials was on the ramp, then suddenly there was a firing. Anup Singh and HC Raj Singh, including other police officials, had received injuries in the firing. Mukesh was apprehended by ASI Ram Kumar. ASI Ram Kumar when appeared in Court, then stated that he had also fired with his weapon and shots fired by him might have hit the accused. Mukesh was apprehended by him with gun shot injuries. Weapon of Mukesh fell on the spot and the same was lifted by him. Weapon was produced by him before Investigating Officer Jai Parkash. Occurrence was at about 11.45 AM. Immediately all the injured were shifted to hospital. At 12.30 PM, injured were in the hospital. PW9 Dr.Sanjay Photedar had medico legally examined Constable Raj Singh and HC Shiv Charan. Four injuries were noticed on the person of Constable Raj Singh and two on the person of HC Shiv Charan. PW10 Dr. Amarjit Singh Rathi had also medico legally examined Mukesh, Constable Pawan Kumar and one unknown person at about 1.00 PM, who was later on identified as Kaptan. All the injuries on the person of Constable Raj Singh, HC Shiv Charan, Mukesh, Constable Pawan Kumar and unknown person were fire arm injuries. No suggestion was put to the doctor that the injuries noticed were not fire arm injuries.
Anup Singh and HC Raj Singh were also shifted to hospital, Crl.Appeal No.594-DB of 2008 26 but unfortunately they had succumbed to their injuries. PW11 Dr. Baljinder Singh had conducted postmortem examination on the dead body of Anup Singh. Five injuries were noticed. Ex.P42 is the copy of postmortem report. PW26 Dr. Sanjiv Lalwani had conducted postmortem examination on the dead body of HC Raj Singh and nine injuries were noticed. All the injuries were fire arm injuries. No question was put to Dr.Baljinder Singh or Dr.Sanjiv Lalwani that injuries were not fire arm injuries and the injuries were not received in the occurrence at about 11.45 AM. As per PW10 Dr. Amarjit Singh Rathi, two injuries were noticed on the person of Mukesh, i.e., one on the left leg and second on the left wrist. Time that elapsed between injuries and examination was within six hours. Examination was done at 1.00 PM. That means, possibility of injuries received in the occurrence at 11.45 AM cannot be ruled out.
Allegation of Mukesh is that his brother-in-law Devender had a dispute with his wife. Matrimonial dispute was pending in the Court. Date of hearing was 19.5.2003 and when he along with Devender had gone to the Court to attend the case, then came to know that case was adjourned on 17.5.2003 to 29.5.2003, because on 19.5.2003, Presiding Officer was on leave. Mr. Khera was their counsel and he had directed them to visit the Court complex on 23.5.2003 for preparation of the case. Devender when appeared as DW2 then stated that he had litigation with his wife. Divorce petition and maintenance application under Section 125 Cr.P.C. were pending. On 23.5.2003, he along with his brother-in-law Mukesh came to the Court complex to know about the date of hearing in case under Section 125 Cr.P.C. They had engaged K.L.Khera, Advocate, but he was not available. After that, he along with his brother-in-law Mukesh was in Crl.Appeal No.594-DB of 2008 27 canteen, then there was a firing. Out of curiosity, they came out of canteen. Mukesh received fire arm injuries. He was shifted to hospital. After three days, he was arrested. Devender is related to Mukesh. He is very much interested in the acquittal of Mukesh. Devender has not stated a word that date of hearing was 19.5.2003 and on that date, he along with Mukesh had gone to Court complex and then came to know that due to leave of the Presiding Officer, case was adjourned on 17.5.2003 to 29.5.2003 and on the request of their counsel, they came to the Court complex on 23.5.2003 for preparation of the case.
DW5 Prem Sehgal, Record Keeper, brought the summoned file titled as Sunita vs. Devender, decided on 21.2.2004. As per file, date of hearing was 29.5.2003 and next date was 22.7.2003. No question was put to Prem Sehgal that in the divorce petition or application under Section 125 Cr.P.C., date of hearing was 19.5.2003, but on 17.5.2003, case was adjourned to 29.5.2003 because Presiding Officer was on leave on 19.5.2003. When date of hearing was not 17.5.2003 or 19.5.2003, then no question to visit the Court complex on 23.5.2003 for preparation of the case. If date of hearing was 19.5.2003 and the case was adjourned on 17.5.2003 due to leave of Presiding Officer, then it could be said that submission of Mukesh is correct one that on the request of their counsel, they came to the Court complex on 23.5.2003. Mukesh was arrested on the spot by the complainant. Weapon of Mukesh fell down and was picked up by the complainant. Weapon was produced before the Investigating Officer on the same date. Mukesh had two injuries on his person. When there was no date in the matrimonial case, then submission of Mukesh regarding his presence in the Court complex at the time of occurrence is not correct one. Crl.Appeal No.594-DB of 2008 28 Immediately after the occurrence at 2.00 PM on 23.5.2003 accused were named in the FIR. Receipt of injuries in the same incident and recovery of weapon from Mukesh show that he was very much present at the time of occurrence and had participated in the commission of crime.
Submission of Joginder @ Gola is that no witness had seen him while firing or fleeing from the spot after firing. Participation of Joginder @ Gola in the commission of crime is very much clear from the statements of witnesses. Evidence on the file is to the effect that Joginder @ Gola and Kaptan had fled away from the spot in car No. DL-9-CD-4416. Number of car was flashed. After the occurrence, injured were being shifted to the hospital, but there was traffic jam near Bajrang Bhawan Mandir. Then above said car was noticed by police party. ASI Bhim Singh while alighting from the police vehicle was noticed by appellant Joginder @ Gola. Kaptan was injured. On seeing the police party, he was dropped from the car. Kaptan was arrested by the police party. Joginder had fled away from that place. After medico legal examination of injured, in the evening, Investigating Officer was present near Railway Crossing, Rohtak, then car was noticed and was forced to stop with the help of police vehicle. Appellant was arrested by the police party. .30 bore pistol and four live cartridges were recovered. Left window and back seat of the car were found stained with blood. One cover and two mobile phones were recovered from the car. At about 1.00 PM, unknown person was medico legally examined by Dr. Amarjit Singh and the unknown person was Kaptan. No doubt, Joginder @ Gola was arrested at about 6.00 PM. After committing the crime, he could easily leave Rohtak but it was for the accused to see whether to leave the city or not. When a crime is committed Crl.Appeal No.594-DB of 2008 29 by an ordinary person, then there is a possibility to leave the place of occurrence or to conceal somewhere else, but when the crime is committed by hard core criminal or member of a gang, then experience shows that no effort is made to flee from the spot, rather continues to roam around the scene of crime or in the same city to watch the situation. SI Sukhbir Singh was with the party when injured were being shifted to hospital. He had seen the accused while fleeing from the spot in a car, but this fact is missing in the FIR. FIR is not an encyclopedia. When there is firing in the Court complex, then any person can report the matter to the police on phone or by visiting the police station. Names of all the assailants and eye witnesses are not required to be mentioned in the FIR. After occurrence at 11.45 AM, an effort was made to shift all the injured to nearest hospital for medical aid to save their lives. FIR was recorded at 2.00 PM. Joginder @ Gola and Kaptan were named in the FIR. After the occurrence, Naresh and Vinod brought from different jails were produced in Court at about 1.00 PM. Court timings on the date of occurrence were from 7.00 AM to 1.30 PM. After producing the accused in Court, they were sent back to respective District Jails. After occurrence, they were not with the complainant. So, within one or two hours, there was no question of consultation to concoct the story. Immediately after the occurrence, names were disclosed by Vinod and Naresh to the complainant. After their statements at 2.00 PM FIR was recorded and special report was delivered to Ilaqa Magistrate at 4.30 PM. Joginder @ Gola received injuries in the same occurrence and he was to explain how he received injuries. Defence version of Joginder @ Gola is that case is false. Weapon was planted. Joginder @ Gola had no case on the date of occurrence. He is from Village Ladpur. When he had no case in the Crl.Appeal No.594-DB of 2008 30 Court on 23.5.2003, then for what purpose he was in the Court complex at the relevant time. Vinod and Naresh were brought from jail and they were in the van. Van was parked at point `H', as shown in the site plan. If ramp/stairs were not visible from point `H', then on this short ground, prosecution story is not to be ignored because there were number of injured eye witnesses and other police officials, who had seen the appellant while committing the crime. Appellant when examined under Section 313 Cr.P.C., then did not state a word that he was not the member of the gang headed by Krishan Pahalwan. Appellant cannot argue that he being member of opposite gang was falsely implicated. .38 bore revolver was recovered from Kaptan, whereas .30 bore pistol along with four live cartridges was recovered from Joginder @ Gola. Car recovered from Joginder @ Gola was also found to be stained with blood. Left window from inside and back seat of the car were found to be stained with blood. Not a word was stated by Joginder @ Gola how back seat and left window from inside of the car were found to be stained with blood.
Submission of learned counsel representing appellants Rajesh Kumar @ Mogli @ Raju and Kuldeep is that they were not identified by any of the witnesses while firing with different weapons. So identification of the appellants for the first time in the Court is without any evidentiary value. But after going through the evidence on file, we are of the view that submission of learned counsel representing Rajesh Kumar @ Mogli @ Raju and Kuldeep has little weight. They were named in the FIR on the date of occurrence. Injured eye witnesses, namely, PW16 HC Shiv Charan, PW17 Constable Pawan Kumar and PW32 Constable Raj Singh, and other eye witnesses, while appearing in the Court, specifically stated that the Crl.Appeal No.594-DB of 2008 31 appellants were very much present at the time of occurrence and had participated in the commission of crime. If the appellants were very much sure that they were not present at the time of occurrence, then at the time of their arrest, they could easily cover their faces and request to arrange a test identification parade. Occurrence was during day time and immediately after the occurrence, appellants were named in the FIR. When no request by the appellants to arrange test identification parade, then their identification in the Court carries evidentiary value.
Submission of learned counsel representing appellant Rajesh @ Raje @ Kala was that he was not named in the FIR. No weapon was recovered from him and he was implicated in view of the statement recorded after 4-5 days. Submission of learned counsel seems to be reasonable one. As discussed earlier, occurrence was at about 11.45 AM on 23.5.2003. Three police officials, namely, HC Shiv Charan, Constable Raj Singh and Constable Pawan Kumar, had received injuries in the firing. HC Raj Singh had also received injuries in the occurrence but later on, he had succumbed to his injuries. Constable Raj Singh appeared as PW32 and named the appellant but his statement qua the appellant is not correct one because his statement was not recorded on the same day. Constable Raj Singh in his cross-examination admitted that his statement was recorded after 4-5 days. Statement of ASI Shiv Charan was recorded on the day of occurrence and in Court he has named Rajesh and another Rajesh. Constable Pawan Kumar and Constable Sitender Singh while appearing as PW17 and PW18, respectively, failed to name the appellant. PW29 Naresh, who was accused with Vinod and Anup Singh, stated that one Rajesh r/o Mundka was one of the accused. Names of accused were disclosed to the Crl.Appeal No.594-DB of 2008 32 complainant on the date of occurrence by Naresh and Vinod, but their statements were not recorded on the same day. Statement of Vinod was recorded on 28.5.2003, whereas statement of Naresh was recorded on 29.5.2003. On that day also they named Rajesh @ Raje. If Rajesh @ Raje had participated in the commission of crime, then in the FIR, when names of the accused were recorded at their instance, then they should have named appellant Rajesh @ Raje. But as per the FIR, name of the accused was Mahabir @ Don. In fact, Mahabir @ Don is the name of father of Rajesh @ Raje @ Kala. No injury on the person of Rajesh @ Raje @ Kala. No weapon was recovered from him. His name did not figure in the FIR. But for the first time, his name came in view of the statements of Vinod and Naresh recorded on 28.5.2003 and 29.5.2003, respectively. So, possibility of implication of Rajesh @ Raje @ Kala being the member of opposite gang cannot be ruled out. Benefit of doubt is given to appellant Rajesh @ Raje @ Kala and he is acquitted of the charges levelled against him.
For the reasons recorded above, we are of the opinion that evidence on the file was rightly scrutinized by the trial Court, except qua Rajesh @ Raje @ Kala accused. No scope of different opinion.
The impugned judgment of conviction and order of sentence qua appellant Rajesh @ Raje @ Kala, who is in custody, is set aside and he is acquitted of the charges. Accordingly, the appellant be set at liberty forthwith, if not required in any other case.
Accordingly, Crl.Appeal Nos. 594-DB, 603-DB, 605-DB and 624-DB of 2008 are dismissed, whereas Crl.Appeal No.641-DB of 2008 filed by Rajesh @ Raje @ Kala is accepted.
As appellant Joginder @ Gola is on bail, therefore, his bail Crl.Appeal No.594-DB of 2008 33 bonds stand cancelled and he is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance of with law.
( JORA SINGH )
JUDGE
30.4.2010 ( SATISH KUMAR MITTAL )
pk JUDGE