Punjab-Haryana High Court
Rohit Chaudhary vs State Of Haryana on 27 April, 2009
Author: Jora Singh
Bench: Jasbir Singh
Crl. Appeal No. 111-DB of 2006. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No. 111-DB of 2006.
DECIDED ON : 27.04.2009
Rohit Chaudhary
Appellant.
VERSUS
State of Haryana
Respondent.
CORAM :HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr.Vinod Ghai, Advocate, for
the appellant.
Mr.S.S.Randhawa, Additional Advocate
General, Haryana.
JORA SINGH,J.
Through the instant criminal appeal, Rohit Chaudhary has impugned the judgment/order dated 31.10.2005 rendered by Additional Sessions Judge (I), Faridabad in Sessions case No. 23 of 2004, bearing First Information Report No. 490 dated 23.5.2002 registered at Police Station Central Faridabad under Sections 120-B, 302, 307/34 of the Indian Penal Code. Appellant Rohit Chaudhary was convicted under Sections 120-B, 302, 307/34 of the Indian Penal Code Crl. Appeal No. 111-DB of 2006. 2 and was sentenced as under:-
(i)Under Section 120-B of the Indian Penal Code: Imprisonment for life and a fine of Rs.25,000/-. In default of payment of fine he was directed to further undergo rigorous imprisonment for three years.
(ii) Under Section 302 of the Indian Penal Code:
Imprisonment for life and a fine of Rs.25,000/-. In default of payment of fine he was directed to further undergo rigorous imprisonment for three years.
(iii) Under Section 307/34 of the Indian Penal Code: Rigorous imprisonment for ten years and a fine of Rs.10,000/-. In default of payment of fine he was directed to further undergo rigorous imprisonment for two and a half year.
All the sentences were, however, ordered to run concurrently.
Ranbir Singh co-accused was acquitted of the charges levelled against him.
Against acquittal of Ranbir Singh, no appeal was preferred by the State.
Prosecution story, in brief, is that Sukhvinder Crl. Appeal No. 111-DB of 2006. 3 Singh complainant is the resident of Sector 17, Faridabad. On 23.5.2002 at about 7.15 A.M. complainant along with his cousin brother Sukhdev Singh and uncle Amarjit Singh was in the park of Sector 17, Faridabad in connection with morning walk. Gurdev Singh cousin brother of the complainant was also in the park of Sector 17, Faridabad then sighted three young boys fully armed while coming towards Amarjit Singh, they had fired upon Amarjit Singh. Amarjit Singh tried to run away towards Kothi No. 1089/17. But his leg got entangled in the revolving gate of the park and fell down. Accused had again fired with their respective weapons hitting Amarjit Singh. On receipt of fire arm injuries, Amarjit Singh had died on the spot. Ranbir Contractor resident of Nawada, Brij Bhan resident of House No. 22/16A, Faridabad and Satyajit Bedi, Sector 15, Faridabd had threatened to eliminate Amarjit Singh because Amarjit Singh had property dispute with Ranbir Contractor and Brij Bhan. Complainant suspected that Amarjit Singh was murdered by the above said persons.
On receipt of VT message from control room, Faridabad Police Station headed by SI/ I/C Sri Bhagwan , Sector 17, Faridabad had gone to the spot, statement (Ex.PL) of the complainant was recorded, who had Crl. Appeal No. 111-DB of 2006. 4 signed the same in token of its correctness. After making endorsement at 7.50 A.M., statement was sent to the Police Station, on the basis of which formal First Information Report Ex.PL/1 was recorded at 8.20 A.M. Special Report was received by the Ilaqa Magistrate at 1.25 A.M. on the same day. Inquest report was prepared. Dead body was identified by Sukhvinder Singh and Taninder Tandon. Blood stained earth was lifted from the spot and the same was made into a sealed parcel, sealed with seal bearing impression "NS". Sealed parcel was taken into police possession vide recovery memo attested by the witnesses. 15 lead pieces and 29 empty cartridges were lifted from the spot and the same were made into separate sealed parcels, sealed with seal bearing impression "NS". Sealed parcels were taken into police possession vide recovery memo attested by witnesses. Rough site plan of the place of occurrence with correct marginal notes was prepared at the spot. Dead body was sent to Civil Hospital for post mortem examination. Guddu injured had produced T shirt stained with blood and the same was made into a sealed parcel. Sealed parcel was taken into police possession vide memo attested by the witnesses. Statement of the injured and others witnesses were recorded. Crl. Appeal No. 111-DB of 2006. 5
On return to the Police Station, case property was deposited with the MHC.
On 15.7.2002 Rajender Singh Chauhan, Police Line Bharatpur received message from District Control Room, Bharatpur to the effect that some criminals have looted cash from Mathura after the guard was injured. Then Nakabandi was held. Again VT message was received that after looting cash, accused are going from Gopalgarh side Pahari. Then naka was laid. There was police en-counter and after the firing was stopped from both sides then three accused were found dead. Fourth was apprehended while in a injured condition. On inquiry, accused had disclosed his name as Rohit Chaudhary. He was armed with a pistol. Pistol and five live cartridges were recovered from him and Rs.4,40,500/-from the bag carried by the accused. On 1.10.2003 in pursuance to the production warrant, Rohit Chaudhary was arrested in this case after brought from Bharatpur Jail. Accused was interrogated. Accused suffered disclosure statement Ex.PR that he has kept concealed one Alto car. On 2.10.2003 as per disclosure statement Ex.PJ accused had identified the place of occurrence and Alto car was got recovered from the specified place.
Crl. Appeal No. 111-DB of 2006. 6
After completion of investigation, accused were challaned.
The case was committed to the Court of Session for trial.
Accused were charged under Section 120-B, 302/34 and 307/34 I.P.C. to which accused pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined PW-1 Guddu who stated that on the day of occurrence he was near park of Sector-17, Faridabad. There was a firing. Amarjeet Singh was shot dead. He had also received fire shot in his abdomen. He was shifted to Civil Hospital and produced blood stained T shirt before the police.
PW-2 Taninder Tandon stated that he had identified the dead body of Amarjeet .
PW-3 Dharambir stated that three years ago he had gone to the house of deceased, police party was present there. After inquiry, he disclosed his name and address and his signatures were obtained on some blank papers.
PW-4 Jawahar Singh stated that in his presence 29 empty cartridges and 15 lead pieces were lifted from the spot and were sealed in his presence and Crl. Appeal No. 111-DB of 2006. 7 were taken into police possession.
PW-5 Dr. N.K.Sharma stated that on 23.5.2002 he was member of the Board and Board had conducted post mortem examination on the dead body of Amarjeet Singh and found the following injuries on his person:-
1. Wound entry lacerated wound 18 x 10 cm blackening present. Irregular margins on the left side of face were present. Fracture mandible. Margins were inverted. Wounds of exit. 10 x 9 cm averted margins on right parietal occipital region. Clotted blood was present. Wounds fractured. Brain matter coming out. Blood coming out of the right ear.
2. Wound of entry lacerated wound 2 x 1 cm on the back of scapula right medial side of the inter-scapular region. Black carbon particle present. Inverted margins. Wound of exit 8 x 5 cm lacerated wound with averted margins in front of the right shoulder.
3. Wound of entry 1.7 x 1.5 cm below and medial to the right nipple 7 cm from nipple oval shape. Blackening present. Wound of Crl. Appeal No. 111-DB of 2006. 8 exit 6 x 4 cm lacerated wound on the right sternum opposite third rib was present.
Muscles were lacerated.
4. 1.2 x 0.75 cm lacerated wound 4 cm from nipple on right side in front of chest.
Blackening was present.
5. 1.2 x 0.75 lacerated wound with blackening 8 cm below right nipple.
6. Wound of entry on left lateral aspect of chest 4 x 2 cm Rib was fractured. Muscles were lacerated. The wound was going deep. Burn mark was present.
7. Wound of entry on left gluteal region 2.5 x 1 cm Margins of the wound were irregular. Wound of exit on left lumber region 10 cm from midline. 5 x 4 cm in size and margins of the wound were averted.
8. Wound of entry on chest right side of mid line going downwards.
9. Wound of entry on left side of scapular region, 1.25 cm from blade of scapula.
10.Lacerated wound of right hypochondrium in anterior axillary line 1 x 0.7 cm. Blood was oozing out.
Crl. Appeal No. 111-DB of 2006. 911.2 x 1 cm lacerated wound on lateral aspect of lumber region.
12.Lacerated wound 1 x 1.5 cm three in number on right inguinal area, 5 cm below anterior , superior, iliac spine.
13.1.5 cm x 1 cm lacerated wound found in number 2.5 cm below injury No.12.
14. Two lacerated wound on anterior part of thigh 1.2 cm below inguinal ligament and 5 cm below inguinal ligament.
15.1 x 0.7 cm two lacerated wound in mid- thigh. Lateral aspect Margins of the wounds were inverted . Clotted blood was present. Muscles were seen.
Cause of death as per opinion of the doctor was due to shock and haemorrhage and injuries to the vital organs. Injuries were caused by fire arm weapon. All the injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature.
PW-6 Dr. Rakesh Aggarwal on 23.5.2002 at 7.30 A..M. had medico legally examined Guddu and had found gun shot injury, on right side of the abdomen 10 cm below the xiphoid process. 6 cm above the umblicus and 1 cm lateral right to the mid line. Crl. Appeal No. 111-DB of 2006. 10 Associated with vomiting containing clotted blood. There was only gun shot injury on the person of the said Guddu. Injury was dangerous to life.
PW-7 Assistant Sub Inspector Rajender Singh was serving as MHC, with whom the case property was deposited by the Investigating Officer.
PW-8 Head Constable Satbir Singh had delivered sealed parcel in the office of Forensic Science Laboratory, Madhuban.
PW-9 Constable Hewa Singh stated that on 2.10.2003 Rohit Chaudhary accused had pointed out the place of occurrence.
PW-10 Constable Satish Kumar had delivered report to the Ilaqa Magistrate on 23.5.2002.
PW-11 Inspector Tahir Hussain had recorded formal First Information Report Ex. PL/1 on receipt of ruqa Ex.PL PW-12 Constable Sarwan Singh had prepared scaled site plan Ex.PM.
PW-13 Assistant Sub Inspector Pritam Singh had taken photographs Ex.P8 to Ex.P-14.
PW-14 Constable Sanjay Kumar stated that on 14.2.2003 Narain Dass had identified the Alto car .
PW-15 Sub Inspector Sri Bhagwan on receipt of Crl. Appeal No. 111-DB of 2006. 11 information on 23.5.2002 had gone to the spot and had recorded the statement of the complainant then inquest report was prepared and had lifted blood stained earth, empty cartridges and lead pieces.
PW-16 Sub Inspector Anoop Singh stated that in pursuance of the production warrant issued by the Court had formally arrested Rohit Chaudhary accused who was lying admitted in Bharatpur Jail. Accused was interrogated. As per disclosure statement, accused had pointed out the place of occurrence and got recovered Alto car from the specified place.
PW-17 Inspector Dalbir Singh stated that on 23.5.2002 on receipt of VT message, he had gone to the spot where police party headed by Sri Bhagwan was present. He had recorded the statement of witnesses. On 15th July, 2002 investigation was entrusted to Inspector Navin Sehgal.
PW-18 Sub Inspector Rajender Singh Chauhan stated that as per message from District Control Room regarding dacoity, nakabandi was held. Rohit Chudhary was arrested while carrying a pistol with cartridges. Cash was also recovered. Three accused on receipt of fire arm injuries had died on the spot.
PW-19 Narin Dass stated that on 14.10.2003 he Crl. Appeal No. 111-DB of 2006. 12 had identified his Alto car in the Police Station Palwal.
PW-20 Gurdev Singh is the complainant and PW-21 Sukhvinder Singh is the eye witness. Both have supported the prosecution story.
After close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., to explain the allegations levelled against him. Accused denied all the allegations and claimed to be innocent.
Opportunity was given to lead defence but no defence was led.
We have heard learned counsel for the appellant and Mr. S.S.Randhawa, Additional Advocate General, Haryana for the State and have gone through the evidence on the record.
Learned defence counsel for the appellant-accused argued that appellant-accused was not named in the First Information Report. No test identification parade was held to connect the appellant-accused with the crime. No weapon was recovered from him. Appellant- accused had no motive to commit the crime, in fact the deceased had property dispute with Ranbir Contractor, Brij Bhan and Satyajit Bedi. Ranbir was acquitted by the trial Court. Appellant-accused had no connection with the above said persons. So, without enmity there Crl. Appeal No. 111-DB of 2006. 13 was no idea to murder particularly when the appellant- accused is from UP. Occurrence was in the morning and no one had noticed the assailants. Appellant- accused is a poor man. He was implicated in a police encounter. Three dacoits were shot dead and 4th one is the present appellant-accused. To solve the unsolved murder case, appellant-accused was challaned.
Mr. S.S.Randhawa, Additional Advocate General, Haryana argued that appellant-accused is from UP. If the accused is not named in the First Information Report then on this short ground story is not to be ignored. If there is circumstantial evidence to connect the accused with the crime. Deceased was a politician. He was supporter of Ex. Chief Minister Chaudhary Bhajan Lal and was inimical towards Ex. Chief Minister Chaudhary Bansi Lal. Appellant-accused is a professional killer. Alto Car of Narain Dass was stolen and in that car appellant-accused came to the place of occurrence and after murder had fled away from the spot. Later on, there was a police encounter near chowk Pahari on 15.7.2002. Three dacoits were killed in the encounter. Fourth one is the appellant-accused and he was identified by the eye witnesses namely Gurdev Singh and Sukhvinder Singh. Identification of the appellant- Crl. Appeal No. 111-DB of 2006. 14 accused for the first time in Court is not to be ignored, when nothing to disbelieve the eye witnesses. Eye witnesses had no enmity with the appellant-accused. Question is why the appellant-accused was falsely implicated when no complaint to any authority was made regarding his false implication.
First submission of the defence counsel for the appellant-accused is that there was no test identification parade. Appellant-accused was not named in the First Information Report. Identification of the appellant- accused for the first time in Court is without any evidentiary value. We have gone through the evidence on the file but are not in a position to agree with the submission of learned defence counsel for the appellant- accused. Undisputedly, the appellant-accused was not named in the First Information Report. First Information Report was recorded as per the statement of Sukhvinder Singh who was 18 years old. Sukhvinder Singh is nephew of the deceased. Sukhvinder Singh, Gurdev Singh and the deceased were in the park of Sector-17, Faridabad at about 7.15 A.M. Eye witnesses were at some distance from the deceased. Three young boys fully armed came in the park and had fired with their respective weapons hitting the deceased. Crl. Appeal No. 111-DB of 2006. 15 According to the First Information Report, complainant party suspected that Amarjit Singh was murdered due to property dispute with Ranbir Contractor, Brij Bhan and Satyajit Bedi. Ranbir was acquitted by the trial Court. Brij Bhan and Satyajit Bedi were not challaned because they were found innocent. Gurdev Singh (PW-
20) when appeared in Court stated that in the morning on 23.5.2002 at about 7 A.M. he along with Sukhvinder Singh and Amarjit Singh was in the park. He was at a distance of few paces from Amarjit Singh. Two assailants armed with AK-47 Assault Rifles came in the park after scaling the wall of the tube well. On seeing them, his uncle started running towards House No. 1089, Sector 17, Faridabad. Both the assailants had fired from their respective weapons hitting Amarjit Singh. Amarjit Singh while running was near the revolving gate of the park. Accused had fired more shots. Out of the two assailants, one was Shiv Kumar alias Bablu. Two photographs were shown to him by the Superintendent of Police, Faridabad. Second assailant was wearing T-shirt, Jeans and sports shoes. Appellant-accused appearing in Court resembles with one of the two assailants but he is not Bablu. Accused present in Court is one of the assailants. Second Crl. Appeal No. 111-DB of 2006. 16 assailant namely Bablu was killed in an encounter and his dead body was identified at Bharatpur in Rajasthan. In cross-examination, witness admitted that before the present occurrence accused was not known to him. Name of the accused was told by the police when he had gone to the hospital in Rajasthan. Guddu (PW-1) also received fire arm injury in the same occurrence, while present near Park of Sector-17, Faridabad. Gurdev Singh stated that he cannot identify the assailants who had fled away from the spot. Now the only dispute is whether identification of the accused for the first time in Court carries evidentiary value or not. There was heavy firing. 29 empty cartridges were lifted from the spot. 15 lead pieces were also recovered from the spot. Accused while committing the crime had not covered their faces. Occurrence was during day time at about 7 A.M. Deceased was politically sound. Due to enmity with the Ex. Chief Minister, police protection was provided to the deceased as per order of the Hon'ble High Court. According to the evidence on the file, complainant was crying and weeping uncontrollably, he became perplexed after witnessing the occurrence and was not in a position to disclose about the facts of the case minutely as to how the occurrence had taken place. Crl. Appeal No. 111-DB of 2006. 17 When there is indiscriminate firing by the assailants with their respective weapons then it depends upon the facts and circumstances of the case, as to how a person present on the spot reacts. As per production warrant appellant-accused was brought from Bharatpur jail on 1.10.2003 by Sub Inspector Anoop Singh. If the appellant-accused was very much sure that he had not committed the crime as alleged by the prosecution then he could easily cover his face and request for identification from the eye witnesses. Evidence further shows that there was a police encounter near Pahari Chowk on 15.7.2002. Three dacoits were killed in the encounter. Fourth one was the present appellant- accused. Pistol was recovered from the appellant- accused. Weapons were also recovered from them. An amount of Rs. 4,40,500/- was also recovered from the vehicle being used by the appellant-accused at the time of encounter. Second accused namely Bablu was killed in the police encounter. Complainant party had gone to hospital where dead body of the accused, namely Bablu was lying and had identified him. Appellant-accused was also lying admitted in the hospital and was identified as one of the accused. Complainant party came to know about the name of the appellant-accused Crl. Appeal No. 111-DB of 2006. 18 from the police. When the eye witnesses had seen the appellant-accused while lying admitted in hospital after police encounter. Then, there was no question of test identification parade. In Malkhansingh and others vs. State of M.P., (2003) 5 Supreme Court Cases 746, Hon'ble Supreme Court held that failure to hold a identification parade would not make inadmissible the evidence of identification in Court. Identification parades do not constitute substantive evidence. The substantive evidence is the evidence of identification in Court. Test Identification Parade provides corroboration to the sworn testimony of the witnesses in Court as to the identity of the accused. In appropriate cases, the Court may accept the evidence of identification in Court even without insisting on such or other corroboration. In a gang rape case, where the evidence of the prosecutrix found to be implicitly reliable, conviction in the absence of test identification parade could be sustained on the basis of the identification of the accused by the prosecutrix in Court.
In Ramanbhai Naranbhai Patel and others Vs. State of Gujarat, (2000) 1 Supreme Court Cases 358 Hon'ble Supreme Court held that identification of the accused for the first time in Court by eye witnesses Crl. Appeal No. 111-DB of 2006. 19 when they did not know him earlier and when no identification parade can be held. Such evidence, may be treated to be of a weak nature. Evidence is not totally irrelevant or admissible. Real evidence of such evidence would depend upon the facts and circumstances of each case.
As discussed earlier, deceased was a well- known personality in the area. Police protection was also provided to the deceased. After the occurrence, complainant party was so much perplexed that the complainant party had to shift from Haryana to Punjab. One witness namely Dgarambir (PW3) in whose presence blood stained earth and empty cartridges were lifted failed to support the prosecution story. Out of fear of the appellant-accused. Before the present occurrence, car of Narain Dass was stolen. Qua theft of car, case was registered. After arrest of the appellant-accused in pursuance of the disclosure statement, car was recovered from the specified place on 4.10.2003 and the same car was used by the appellant-accused to commit the crime. Recovery of 29 empty cartridges and 15 lead pieces show that for sufficient time accused-appellant remained at the place of occurrence. Possibility of imprint of the face of the appellant-accused in the Crl. Appeal No. 111-DB of 2006. 20 memory of the eye witnesses present at the spot cannot be ruled out. Accused is from UP but he had pointed out t6he place of occurrence as per disclosure statement. In case accused had not visited the place of occurrence then how he can point out the same. Occurrence was at about 7.15 A.M. whereas the report was lodged at about 7.50 A.M. Formal First Information Report was recorded at 8.20 A.M. and special report was received by the Ilaqa Magistrate at 1.20 P.M. Second submission of the defence counsel for the appellant-accused was that no weapon was recovered. So, the appellant-accused cannot be connected with the crime but submission of the learned defence counsel seems to be not correct one. Occurrence was on 23.5.2002 at 7.15 A.M. After committing the crime, accused had fled away from the spot. Later on 15.7.2002 there was police encounter near chowk Pahari and in that encounter three dacoits were killed. Appellant- accused was the fourth one who received fire arm injury in the encounter and was arrested with a pistol but in the present case, pistol was not used. Sophisticated weapons i.e. AK-56 or AK-47 were used. Lifted empty cartridges were sent to the laboratory on 3.6.2002. In case, after committing the crime weapon is Crl. Appeal No. 111-DB of 2006. 21 destroyed then on account of non-recovery of weapons, story is not to be ignored.
Next submission of the defence counsel for the appellant-accused was that there was no motive to commit the crime. In fact, the deceased had property dispute with Ranbir Contractor, Brij Bhan and Satyajit Bedi. Ranbir Contractor was arrested and others were not challaned. Appellant-accused had no connection with the above said persons. So without motive there was no idea to commit the crime but submission of the learned defence counsel carries little weight. No doubt as per First Information Report, complainant suspected that due to property dispute with Ranbir Contractor, Brij Bhan and Satyajit Bedi, Amarjit Singh was murdered but after investigation, Ranbir Contractor was challaned, others were not challaned. Before the present occurrence, Alto car of Narain Dass was stolen and same was used in committing the crime. On 15.7.2002 appellant-accused with the co-accused who were killed in the police encounter was on a jeep. Weapons were recovered from all the accused including the appellant- accused. More than Rs.4,40,000/- was recovered from the appellant-accused. Recovery of cash and weapon show that the appellant-accused is a professional Crl. Appeal No. 111-DB of 2006. 22 criminal. Deceased with political back ground had dispute with Ex. Chief Minister of Haryana. Possibility of hiring the appellant-accused to eliminate the deceased who was the supporter of Ex. Chief Minister Ch. Bhajan Lal cannot be ruled out. If the prosecution fails to prove motive then on this short ground story is not to be ignored. Sometimes without motive heinous crimes are committed. Motive is always in the heart of the accused and he is to see how, where and why crime is to be committed. Recovery of stolen car from the appellant- accused. Pistol and cash at the time of police encounter on 15.7.2002 shows that appellant-accused had the motive. Appellant-accused is from UP. Place of occurrence was in the park of Sector-17, Faridabad. Police officials had no friendship with the complainant party. Question is why appellant-accused was implicated in the present case and if the case was false then why the appellant-accused kept mum. He should have complained to different authorities. Not a word was stated in the statement under Section 313 Cr.P.C. regarding false implication.
Last submission of the defence counsel for the appellant-accused was that investigation is tainted. Appellant-accused was brought from Bharatpur jail. No Crl. Appeal No. 111-DB of 2006. 23 intimation to the concerned police station. Inspector Navin Sehgal who had partly investigated the case in hand was not examined but submission of the learned defence counsel carries no weight. After police encounter on 15.7.2002 appellant-accused was in Bharatpur jail. As per production warrant issued by the court, appellant-accused was brought from Bharatpur Jail. There is no hard and fast rule that before bringing the accused from Bharatpur Jail, intimation is to be given to the concerned Police Station. After the appellant-accused was brought from Bharatpur jail then accused as per disclosure statement had pointed out the place of occurrence. Stolen car was also got recovered from the specified place. In case, appellant-accused was not involved in the commission of crime then how he had pointed out the place of occurrence. There was no idea to get recovered the stolen car as per disclosure statement. Nothing on the file that the appellant- accused was brought from Bharatpur jail illegally. After following legal procedure appellant-accused was brought from jail and in case, the investigating officer has committed some mistake by not informing the concerned police station then complainant party should not suffer . No ground to ignore the story. Rather, Crl. Appeal No. 111-DB of 2006. 24 circumstantial evidence connects the appellant-accused with crime.
No other contention was put forward.
In the light of the above discussion, appeal without merit is dismissed.
( JORA SINGH )
JUDGE
27.04.2009. ( JASBIR SINGH )
Anoop JUDGE