Punjab-Haryana High Court
Satish vs State Of Haryana on 25 February, 2012
Author: S.S.Saron
Bench: S.S.Saron
Criminal Appeal No.177-DB of 2007 and
Criminal Appeal No.178-DB of 2007 ...1...
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.177-DB of 2007
DATE OF DECISION: 25.02.2012
Satish ...Appellant
Versus
State of Haryana ...Respondent
Criminal Appeal No.178-DB of 2007
Parmod ...Appellant
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR.JUSTICE S.S.SARON.
HON'BLE MR.JUSTICE M.JEYAPAUL.
Present: Mr. Jastej Singh, Advocate (Amicus Curiae)
for the appellants.
Mr. H.S. Sran, Additional Advocate General, Haryana
for the State.
S.S.SARON, J.
This order will dispose of Criminal Appeal No.177-DB of 2007 filed by the appellant Satish son of Tek Ram and Criminal Appeal No.178-DB of 2007 filed by the appellant Parmod son of Kartar Singh as they arise from the same judgment and order dated 14.11.2006 and 22.11.2006 passed by the learned Additional Sessions Judge, Sonepat.
Amit Kaundal
The appellants Satish and Parmod in the respective 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...2...
appeals have been convicted by the learned Additional Sessions Judge, Sonepat in pursuance of the impugned judgment and order for the commission of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code ('IPC' - for short). The appellant Parmod has been further convicted for the offence under Section 25 of the Arms Act, 1959 for being in conscious possession of a .38 bore country made revolver in the premises of the District Jail Sonepat. They have been sentenced to undergo rigorous imprisonment for life, besides, pay a fine of Rs.5,000/- each and in default of payment of fine, the defaulting accused has been ordered to undergo imprisonment for a period of 5 months for the commission of offence punishable under Section 302 read with Section 34 IPC. Apart from the offence under Section 302 read with Section 34 IPC, the appellant Parmod has been further sentenced to undergo rigorous imprisonment for a period of two years, besides, pay a fine of Rs.2,000/- and in default thereof to undergo imprisonment for two months for the offence under Section 25 of the Arms Act.
Seva Singh, Deputy Superintendent, District Jail, Sonepat (PW25) addressed letter Sr. No.3144 dated 26.4.2004 (Ex.PV) to SHO, Police Station City, Sonepat asking for initiating legal proceedings regarding the death of convict Jasbir alias Jassu son of Jagdev resident of Halalpur. In respect of the above subject it is stated by Seva Singh (PW-25) that he was at about 9.00 a.m. on Amit Kaundal 26.4.2004 informed by Head Warder Rajbir Singh (PW19) on the 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...3...
intercom at his residence that firing had taken place in barrack No.16 of the jail. On this, Seva Singh (PW25) at once reached the jail and in the 'deodi' (portico), he met Head Warder Rajbir Singh (PW19) and Head Warder Jasbir Singh (PW6). On the asking by Seva Singh (PW25), he was informed that firing had taken place in barrack No.16. While Seva Singh Deputy Superintendent Jail (PW25) was going inside the jail, Head Warder Chander Pal (PW-11) was bringing with him the accused Parmod (appellant) and Satish (appellant). Chander Pal (PW11) informed Seva Singh Deputy Superintendent Jail (PW25) that Parmod and Satish (appellants) had together killed accused Jasbir alias Jassu son of Jagat Singh resident of Halalpur. Parmod (appellant) had fired the shot while Satish using an 'ustra' (shaving razor) had slit the throat and the weapons of the offence were with them. Thereafter Parmod (appellant) produced a revolver .38 bore along with two cartridges. Seva Singh (PW25) opened the revolver and checked it and he found five live cartridges in it. Satish (appellant) produced an 'ustra' (shaving razor), which was stained with blood. Thereafter, Seva Singh (PW-25) went in the barrack and saw the dead body of Jasbir Singh alias Jassu was lying on the 'thadda' (platform) in barrack No.16 and it was smeared with blood. Information regarding the said incident was given at the police station on telephone. A letter (Ex.PV) about the incident was written to the police station and sent it through Head Warder, Shyam Lal (PW5) for taking necessary action. The Amit Kaundal letter is signed by Seva Singh son of Shri Sadhu Ram, Deputy 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...4...
Superintendent, District Jail, Sonepat (PW25) and is dated 26.04.2004.
The police proceedings (Ex.PV/1) were recorded by Sub Inspector Jorawar Singh, Incharge Police Post, Gohana, Sonepat (PW24) on 26.4.2004 at 12.15. p.m., which is to the effect that on the said date a telephone call was received from the District Jail, Sonepat at Police Station City Sonepat regarding death of prisoner Jasbir alias Jassu son of Jagdev resident of Halalpur having occurred with a fire arm injury and that police be sent for carrying out proceedings. On this, S.I. Jorawar Singh (PW24) along with H.C. Sat Narain (PW7), Constable Shrawan Kumar were going to District Jail, Sonepat that Shyam Lal, Head Warder (PW5) of the jail met him near the police lines, Sonepat and he produced the aforementioned letter (Ex.PV). On the basis of the said letter (Ex.PV), the offence under Sections 302 and 303 IPC, besides, Section 25 of the Arms Act were made out. The writing in original was sent to the police station through Constable Shrawan Kumar for registration of a case (FIR). The number of the case after registration was asked to be intimated. Head Constable Sat Narain (PW7) was sent to District Magistrate, Sonepat for appointing a Magistrate and also for initiating proceedings under Section 176 of the Code of Criminal Procedure ('Cr.P.C.' - for short). Sub Inspector Jorawar Singh (PW24) along with Jail Warder Shyam Lal (PW5) proceeded to the District Jail, Sonepat for conducting proceedings. The proceedings were signed Amit Kaundal by Sub Inspector Jorawar Singh In charge Police Post Gohana Road, 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...5...
Sonepat (PW24) on 26.4.2004 at 12.15 p.m. at Police Lines, Sonepat. Special report was asked to be sent to the senior officers. SHO was also asked to be informed. On receipt of the writing at the police station, case FIR No.101 dated 26.4.2004 (Ex.PO) was registered at Police Station City Sonepat for the offences under Sections 302, 303 and 34 IPC, besides, Section 25 of the Arms Act. Sub Inspector Jorawar Singh (PW-24) reached District Jail, Sonepat where Seva Singh Deputy Superintendent Jail (PW-25) met him and he handed over to him a razor ('ustra') (Ex.P2), a .38 bore revolver (Ex.P1), and 7 live cartridges of the same bore. The empties, it is mentioned in the statement of SI Jorawar Singh (PW24), were Ex.P4 to Ex.P6 and live cartridges were Ex.P7 to Ex.P12. He (PW24) prepared a sketch (Ex.PE/2) of the revolver (Ex.P1) and a sketch (Ex.PE/3) of the razor ('ustra') (Ex.P2). Sub Inspector Jorawar Singh (PW24) took the same in his possession and sealed the revolver (Ex.P1), the razor ('ustra') (Ex.P2) and the cartridges into three separate sealed parcels with the seal bearing impression 'JS' which after use was handed over to Head Warder Shyam Lal (PW5). The sealed parcels were taken in possession vide recovery memo Ex.PE. Thereafter S.I. Jorawar Singh (PW-24) went to barrack No.16 of District Jail, Sonepat with the Duty Magistrate Shri Satish Kumar the then Tehsildar Sonepat (PW18) and inspected the spot. He (PW24) took in possession one steel plate (Ex.P3) having bullet marks, blood stained earth, three empty cartridges, a bed sheet and a towel. Amit Kaundal These articles were separately sealed in different sealed parcels with 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...6...
the seal bearing inscription 'JS' and were taken in possession vide recovery memo Ex.PE/1. The documents Ex.PE, Ex.PE/1, Ex.PE/2 and Ex.PE/3 were signed by Head Warder Shyam Lal (PW5) and Seva Singh Deputy Superintendent Jail (PW25). Rough site plan Ex.PV/2 of the place of occurrence with its correct marginal notes was prepared. The Duty Magistrate Sh. Satish Kumar (PW18) received an application Ex.PQ/1 from the District Magistrate, Sonepat with order Ex.PQ/2 passed on it for conducting inquest proceedings by visiting the District Jail Sonepat where Jasbir alias Jassu had been murdered by some inmates. The inquest proceedings with respect to the dead body of Jasbir alias Jassu were conducted. The statement (Ex.PS) of Jasbir Singh Head Warder (PW6) and statement (Ex.PS/1) of Chander Pal Head Warder (PW11) were recorded; besides, statements of Siri Bhagwan (PW1), brother of the deceased, and Phool Kumar who identified the deceased were recorded. Satish Kumar, Magistrate (PW18) submitted his report Ex.PT. The dead body of Jasbir alias Jassu was sent for post mortem examination vide application Ex.PK/1. On 28.04.2004, Sub Inspector Jorawar Singh (PW24) was joined by Suresh Kumar the then Inspector/SHO Police Station City, Sonepat (PW13) in the investigation of the case. Inspector/SHO Suresh Kumar (PW13) moved an application Ex.PN in the Court of Chief Judicial Magistrate, Sonepat for permission to join Parmod and Satish in the investigation of the case. He (PW13) interrogated the Amit Kaundal accused (appellants) Parmod and Satish. During the course of 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...7...
interrogation, Parmod suffered a disclosure statement (Ex.PG) while accused Satish suffered a disclosure statement (Ex.PH). The statements were signed by the respective accused (appellants) and also signed by Sub Inspector Jorawar Singh (PW24) and HC Sat Narain (PW7). On 26.04.2004 i.e. the date of the incident, Sub Inspector Jorawar Singh (PW24) had also taken in the possession bullet Ex.P13 and the clothes of deceased, which were handed over to him by HC Sat Narain (PW7). These were taken in possession vide recovery memo Ex.PJ. The accused Satish and Parmod (appellants) were present at the District Jail, Sonepat when Sub Inspector Jorawar Singh (PW24) had gone there on 26.04.2004. In the investigation conducted by Sub Inspector Jorawar Singh (PW24) it came to light that Seva Singh (PW25) had recovered the revolver and cartridges from the possession of Parmod; besides, a razor ('ustra') was recovered from the possession of Satish.
Inspector Suresh Kumar, Police Station City Sonepat (PW13) also investigated the case. On 28.04.2004, he (PW13) was posted as SHO PS City Sonepat. On that day he along with other police officials came to the Court of Chief Judicial Magistrate, Sonepat and an application Ex.PN was filed for permission to join the accused Parmod and Satish (appellants) in the investigation of the case. On the permission of the Court, he (PW13) joined Parmod and Satish (appellants) in the investigation of the case. On interrogation, Parmod made a disclosure statement Ex.PG. He (Parmod) disclosed Amit Kaundal that on 26.04.2004 at about 9.00 a.m. he and accused Satish 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...8...
committed the murder of Jasbir alias Jassu in the jail premises with the help of a pistol and an 'ustra' (razor blade). He also disclosed that he used to receive letters from Anil alias Bhagta that Jasbir alias Jassu (deceased) belonged to the gang of Krishan Mahendripuria and he might kill them. He further stated that Anil alias Bhagta had directed them to finish Jasbir alias Jassu in the jail. Parmod further disclosed that he had asked Bhagta for supply of weapons so that he could commit the murder of Jasbir alias Jassu. He also disclosed that on 07.07.2004 (sic. 07.04.2004) when he had gone to attend the Court at Bhiwani at the instance of Anil alias Bhagta, Surender (accused and since acquitted by the learned trial Court) gave an 'ustra' (razor blade) to him. On 19.04.2004, when Parmod again went to attend the Court at Bhiwani, then Surender handed over to him (Parmod) a revolver with 15 live cartridges. After concealing the same he brought them to the jail. After the occurrence, he handed over the revolver and the cartridges to Deputy Superintendent of Jail, Sonepat (PW25). It was also disclosed by Parmod that he handed over the 'ustra' (razor blade) to co-accused Satish who used it in the commission of the crime. He (Parmod) further disclosed that the clothes which were worn by him at the time of occurrence had been kept concealed by him in barrack No.6, which he could get recovered after making demarcation. He also disclosed that he knew the whereabouts of Anil and Surender. Suresh Kumar, Inspector SHO (PW13) also interrogated Satish (appellant) who made a disclosure Amit Kaundal statement Ex.PH. He (Satish) disclosed that on 26.04.2004 he and 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...9...
accused Parmod had committed the murder of Jasbir alias Jassu with the help of a revolver and an 'ustra' (razor blade), which Parmod had handed over to him. In some other occurrence, the deceased Jasbir had caused injuries to him with a knife and that is why he had committed his murder. He (Satish) also disclosed that on the asking of Parmod, Anil Bhagta had helped in the matter of money. He also disclosed that the clothes that were worn by him at the time of occurrence had been kept concealed in barrack No.14 and he offered to get the same recovered. Suresh Kumar, SHO, Inspector (PW13) got signatures of the accused and the witnesses on the disclosure statement Ex.PH. Thereafter, he again produced the accused in Court and got their police remand. The accused were put in the police lock up. The statements of witnesses under Section 161 Cr.P.C., were recorded. Thereafter on 1.10.2004 Police Report (challan) was filed against Surender by preparing a supplementary 'challan' against him.
ASI Ishwar Singh (PW14) was posted as Head Constable at Police Station City, Sonepat on 29.4.2004. On that day he joined the investigation of the case with Sub Inspector Ram Avtar, EHC Ranbir and Constable Yash Kumar. At about 10.30 A.M. on that day both the accused Parmod and Satish alias Mona had got recovered the clothes. Accused Parmod led the police party in pursuance of his disclosure statement (Ex.PG) to barrack No.6 from where he got recovered one pant, one shirt, a pair of slippers, a pair of blue colour Amit Kaundal sports shoes, one anklet and one plastic tape. These were taken in 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...10...
possession by the Police through memo Ex.PM, which bears his (ASI Ishwar Singh's) signatures. These articles were converted into a sealed parcel with the seal of 'RS'. Accused Satish alias Mona thereafter led the police party to barrack No.14 and got recovered one pant, one grey colour shirt and a pair of shoes, which were taken in police possession through memo Ex.PM/1 after converting the recovered articles into sealed parcels with the seal of 'RS'. The Investigating Officer recorded his statement under Section 161 Cr.P.C.
Inspector Sitar Singh (PW21) was posed as Inspector/SHO at Police Station City, Sonepat on 03.07.2004. On that day after completion of the investigation he had got prepared the report under Section 173 Cr.P.C., which was filed in the Court of the learned Chief Judicial Magistrate, Sonepat on 27.7.2004. The learned Chief Judicial Magistrate after considering the facts and circumstances of the case inter alia observed that it appeared to him that the present case was exclusively triable by the Court of Session. Accordingly, on 17.08.2004 the case was committed for trial to the Court of Sessions Judge, Sonepat for trial as against Parmod son of Kartar Singh, Satish son of Tek Ram and Jitender son of Rajender. By a separate order passed on 3.11.2004 the case was committed by the learned Chief Judicial Magistrate, Sonepat to the Court of Sessions as against Surender alias Kala son of Krishan.
The learned Additional Sessions Judge, Sonepat on Amit Kaundal 3.1.2005 framed charges against the accused Jitender, Surender, 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...11...
Satish and Parmod for the commission of offences punishable under Sections 302/34, 303/34 and 120-B IPC, besides, Section 25 of the Arms Act. It was alleged that on 26.04.2004, the accused namely Parmod, Satish, Jitender and Surender alias Kala at about 9.00 am in the premises of District Jail, Sonepat while Parmod was confined in District Jail, Sonepat and was undergoing life imprisonment in case FIR No.180 of 2000 under Sections 148, 149, 302, 395 and 397 IPC registered at Police Station Sadar Sonepat, he with his co- accused Satish who at that time was also confined in District Jail, Sonepat in furtherance of their common intention did commit murder by intentionally causing the death of inmate Jasbir alias Jassu son of Jagdev and thereby committed an offence punishable under Section 303/34 IPC. (This part of the charge for the offence under Section 303 IPC was set aside by this Court vide order dated 23.02.2005.) It was further alleged that on the same day i.e. 26.04.2004 at about 9.00 am in the premises of District Jail, Sonepat while Satish was confined in District Jail, Sonepat as undertrial inmate, he along with his co-accused Parmod who was also confined in District Jail, Sonepat at that time in furtherance of his common intention did commit murder by intentionally causing the death of Jasbir alias Jassu son of Jagdev resident of Halalpur and thereby committed an offence punishable under Section 302/34 IPC. It was further alleged that prior to 26.04.2004, the accused Jitender and Surender agreed with their co-accused Parmod and Satish to cause to do an illegal Amit Kaundal act namely murder of Jasbir alias Jassu who was already lodged in 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...12...
District Jail, Sonepat and by the above said agreement they did commit some acts in pursuance of the said agreement to commit the offence of murder punishable with death or imprisonment for life by supplying 'ustra' (razor blade) and a country made revolver to accused Parmod and Satish (appellants) when they went to Bhiwani to attend Court and thereby they both (Jitender and Surender) hatched a criminal conspiracy with their co-accused Parmod and Satish (appellants) to commit murder of Jasbir alias Jassu and thereby they both committed an offence punishable under Section 120-B IPC. Lastly it is alleged that on 26.04.2004, the accused Parmod kept in his conscious possession a country made revolver and .38 bore cartridges in the premises of District Jail, Sonepat without any licence or permit to retain the same and thereby he (Parmod) committed an offence punishable under Section 25 of the Arms Act. The accused were directed to be tried by the court. The accused heard and understood the charges. They pleaded not guilty to the charges and claimed trial.
The prosecution in order to establish its case examined as many as 25 witnesses; besides, tendered documents in evidence including the FSL report (Ex.PX). The statements of the accused in terms of Section 313 Cr.P.C. were recorded and the substance of the evidence appearing against them was put to them. The appellants took the defence that they were innocent and had been falsely involved in the case. The learned trial Court after considering the Amit Kaundal evidence and material on record convicted the appellants Parmod 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...13...
and Satish for the offence under Section 302 read with Section 34 IPC; besides, the appellant Parmod was also convicted for the offence under Section 25 of the Arms Act for keeping in his conscious possession a .38 bore country made revolver in the premises of District Jail, Sonepat on 26.04.2004. The other accused namely Jitender and Surender were, however, acquitted. It was observed that there was not sufficient evidence against them for hatching a criminal conspiracy and their role had not been deposed by any witness of the prosecution. Therefore, without sufficient evidence on record against them they were acquitted of the charges levelled against them. The appellants Parmod and Satish were sentenced to undergo rigorous imprisonment for life; besides, pay a sum of Rs.5000/- each as fine and in default of payment of fine, the accused who defaulted was ordered to undergo further imprisonment for a period of five months for the offence punishable under Section 302 read with Section 34 IPC. The appellant-Parmod was also sentenced to undergo rigorous imprisonment for a period of two years, besides, pay a fine of Rs.2000/- and in default thereof to undergo imprisonment for two months for the offence under Section 25 of the Arms Act. Aggrieved against the same, the present appeal has been filed by the appellants Satish and Parmod.
Learned counsel for the appellants has submitted that the prosecution has miserably failed to prove its case against the appellants. It is submitted that the prosecution case is based only on Amit Kaundal circumstantial evidence. The witnesses namely Jasbir Singh, Head 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...14...
Warder (PW6) and Chander Pal, Head Warder (PW11) who were examined by the prosecution, in their evidence did not support the prosecution case and they did not attribute any role to the appellants in committing the alleged crime. It is submitted that the trial Court erred in appreciating and giving undue weightage to the evidence of Seva Singh, Deputy Superintendent Jail (PW-25) who in fact admittedly did not witness the occurrence and, therefore, his evidence was inconsequential. It is submitted that even otherwise there are material discrepancies in the prosecution case inasmuch as the number of cartridges that are said to be there and which have been recovered do not tally. It is submitted that when Parmod was brought back from District Court, Bhiwani to the District Jail, Sonepat, he was checked at the jail gate and in the deposition of Azad Singh Warder (PW10) who checked Parmod on 07.04.2004 and Sunda Ram (PW9) who checked Parmod on 19.04.2004 it has been established that he did not bring anything from outside the jail. It is submitted that the manner in which the arms had been brought in the jail has not been explained. It is submitted that even Chander Pal Head Warder (PW11) who is a crucial witness in the case and may be said to be the link in the chain of circumstances did not support the prosecution case. He was cross-examined by the public prosecutor but he did not attribute any role as regards the crime to the appellants. It is submitted that deposition of Seva Singh, Deputy Superintendent, District Jail (PW25) cannot be taken as sole basis Amit Kaundal for convicting the appellants. Therefore, the case of the 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...15...
prosecution has not at all been proved beyond shadow of reasonable doubt and the learned trial Court gravely erred in convicting and sentencing the appellants whereas they were liable to be acquitted.
In response, learned counsel for the State has submitted that the prosecution has established and proved its case beyond shadow of reasonable doubt. It is submitted that the spontaneity with which witness disclosed the occurrence to Seva Singh Deputy Superintendent Jail (PW-25) who then reported the matter to the Police would add credence to the prosecution case that they were not deposing falsely; besides, their evidence would be an exception to the rule of hearsay evidence. Moreover, the jail officials had no reason whatsoever to falsely implicate the appellants and their testimonies are liable to be accepted and the conviction of the appellants upheld and sustained. The mere fact that some of the witnesses have resiled from their statements before the Police or have not supported the prosecution case, it is submitted, is inconsequential as the prosecution case otherwise stands established. Therefore, it is submitted that the appeal is liable to be dismissed.
We have given our thoughtful consideration to the matter. The prosecution case is based on the application (Ex.PV) submitted by Seva Singh, Deputy Superintendent District Jail, Sonepat (PW25). The case of the prosecution as per Ex.PV is that on 26.04.2004 at about 9.00 am Head Warder, Rajbir Singh (PW-19) informed Seva Amit Kaundal Singh Deputy Superintendent Jail (PW25) on the intercom at his 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...16...
residence that a firing had taken place in barrack No.16 in District Jail, Sonepat. On getting this information Seva Singh, Deputy Superintendent Jail (PW25) rushed to the jail and in the 'deodhi' (portico) of the jail, Head Warder Rajbir Singh (PW-19) and Head Warder Jasbir Singh (PW-6) met him. On his (PW25) reaching, they informed him that firing had occurred in barrack No.16. As soon as Seva Singh, Deputy Superintendent Jail (PW-25) entered the jail from the portico, Chander Pal, Head Warder (PW-11) met him. He was bringing out Parmod (appellant) and Satish (appellant) with him. He (Chander Pal PW-11) informed Seva Singh Deputy Superintendent Jail (PW-25) that Jasbir Singh alias Jassu who was an accused in a case, had been killed by them with the common intention. Parmod (appellant) it was informed had fired shot with a gun while Satish (appellant) had slit the neck of Jasbir alias Jassu with a razor. The weapons were with them. Parmod produced a .38 bore revolver and two cartridges. Seva Singh, Deputy Superintendent Jail (PW-25) after opening the revolver, checked it and he found five live cartridges in it. Satish (appellant) produced an 'ustra' (razor blade). Seva Singh (PW-25) went in the jail and saw the blood stained dead body of Jasbir alias Jassu was lying on the platform of barrack No.16. The police was also informed through telephone and the letter (Ex.PV) was sent to police station through Head Warder Shyam Lal (PW-5).
Seva Singh Deputy Superintendent Jail (PW25) in his Amit Kaundal deposition in Court supported the prosecution case and reiterated 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...17...
that on being informed that a firing had taken place in barrack No.16 in District Jail, Sonepat on 26.04.2004 at 9.00 am, he rushed there and Head Warder Jasbir Singh (PW-6); besides, Head Warder Rajbir Singh (PW-19) met him in the portico. On his inquiry, they informed him that there had been firing in barrack No.16. When he (PW-25) went in the jail from portico, Chander Pal Warder (PW11) met him. He (PW11) was bringing Satish and Parmod with him and he informed that Parmod and Satish (appellants) had committed the murder of Jasbir. Parmod (appellant) handed over one revolver and two cartridges to him (Seva Singh PW25). He (PW25) checked the revolver and found five more cartridges in it. Satish (appellant) handed over to him (Seva Singh PW25) a razor ('ustra') which was sustained with blood. He (PW25) ensured the safety of both the accused namely Parmod and Satish and also ensured safe custody of the weapons. Then he went to barrack No.16 and found that Jasbir alias Jassu was lying on the enclosure of barrack No.16. His dead body was smeared with blood. He then ensured security of the jail and informed his superiors as also the police. The complaint (Ex.PV) was in his hand which was signed by him. It was handed over to Shyam Lal Head Warder (PW-5). The police came to the jail and he handed over the revolver (Ex.P1), the razor (Ex.P2) and the cartridges Ex.P-7 to Ex.P-12 which were sealed and seized vide recovery memo (Ex.PE). The police also took in possession blood stained earth, one steel plate, bed sheet, empty cartridges three in Amit Kaundal number which were separately sealed with seal bearing inscription 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...18...
'JS'. These were taken in possession vide recovery memo Ex.PE/1. The sketch of the revolver was Ex.PE/2 and sketch of the razor Ex.PE/3 were prepared. The said documents bear his signatures. In cross-examination it is inter alia stated by him that there were two gates to be crossed from the main gate to the barracks and checking of the inmates is done after they crossed the main gate in the portico. During rush hours when inmates numbering 50 to 60 entered together in the portico, they intermingle with each other and it is not possible for the jail authorities to check the inmates thoroughly. They tried their level best to get personal security check of each inmate. However, no written complaint was made to higher authorities for employing more persons for security purposes in District Jail, Sonepat. He had no knowledge when the inmates go for attending the Court. They are checked by the staff before being lodged in the lock up situated in the Court premises. Police vehicles bring the under trial prisoners to the Court. He had no idea that the police vehicles straight away bring inmates from the Courts to District Jail, Sonepat. It was stated as incorrect that sneaking of revolver, cartridges and razor ('ustra') in the jail premises was because of security lapse on his part. It is also stated as incorrect that in connivance with jail officials, some jail officials took arms inside the jail. It is also stated as incorrect that the accused had been falsely implicated in the case. The approximate total strength of jail inmates on 26.04.2004, it is stated, was about 739. In a big barrack 100 to Amit Kaundal 125 inmates were lodged while in small barrack 40 inmates were 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...19...
lodged. The distance between the place of alleged occurrence and his office was about 200 to 300 yards. To reach the place of occurrence from his office, there were three gates in between. Guards were posted on two gates. Distance between his house and office was about 350 yards. He received information through intercom installed at his house which was made from the portico at 9.00 am. He straight away reached the portico. No jail official met him from his house to the portico. The portico is adjacent to his office. None else other than Chander Pal (PW-11) met him during the course of time when he was going inside the jail from the portico. He (PW11) met him at a distance of 10 to 12 paces from the portico. The police came to the jail at about 11.45 am. Sub Inspector Jorawar Singh (PW-24) had come along with one Head Constable and one Constable. They remained in the jail till 4.35 pm. His statement was recorded by Sub Inspector Jorawar Singh (PW-24). He handed over to him seven live cartridges i.e. five plus two. To his knowledge none of the cartridge out of the seven was in broken condition.
From the above it is evident that initially Chander Pal (PW11) had disclosed to Seva Singh (PW25) about the incident. Chander Pal (PW11) in his deposition states that he was posted as Warder in District Jail, Sonepat on 26.04.2004. He was on duty at barracks No.15 and 16 from 6.00 am to 12.00 noon. When he was present at barrack No.15 and was getting the toilets cleaned from Amit Kaundal sweeper Sanjay in barrack No.15, a sound of fire shot came from 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...20...
barrack No.16 at about 9.00 am. He reached barrack No.16 where there was a panic amongst the inmates. He saw that Jasbir alias Jassu was lying on the floor of the barrack in an injured condition and blood was coming from his body. He did not see anything else. He inquired about the episode from the other inmates but they did not disclose anything about the facts of the case. At the said stage, on the request of the learned Public Prosecutor, Chander Pal (PW11) was declared hostile and he was allowed to be cross-examined. In his cross-examination, he stated that he had heard his statement Ex.PL but he did not make such a statement to the police. He further stated that it was incorrect to suggest that he had in his statement stated that he saw inmate Parmod was having a revolver in his hand and inmate Satish was having an 'ustra' (razor) in his hand. He also denied that within his sight Parmod fired a pistol shot at the neck of Jasbir alias Jassu due to which he fell down or that then Satish cut the throat of Jasbir alias Jassu with an 'ustra' (razor). He was confronted with his statement (Ex.PL) from portion A to A where it was so recorded. It was also stated as incorrect to suggest that he in his statement stated to the police that in all four-five shots were fired and due to fear of firing other inmates were running here and there. Then Parmod and Satish threatened in a loud voice that if anyone tried to come in the way, he would meet the same fate. He was confronted with portion B to B of his statement (Ex.PL) wherein it was so recorded. It is further stated as incorrect that he had stated to the Amit Kaundal police that in the meantime Head Warder Jasbir (PW6) reached there 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...21...
who also saw accused Parmod and Satish at the spot and he informed the Deputy Superintendent of Jail, (Seva Singh PW25), in this respect or that he (Chander Pal PW11) and Head Warder Jasbir (PW6) over powered the accused Parmod and Satish and produced them before Deputy Superintendent Jail (PW25) near the main gate of the jail. He was confronted with his statement Ex.PL wherein it was so recorded. It was wrong to suggest that he was deposing falsely having been won over by the accused or that the accused Parmod and Satish were the persons who committed the murder of Jasbir alias Jassu or that he had witnessed the occurrence. It is also stated as incorrect the inmate Parmod handed over one pistol and live cartridge to the Superintendent in his presence or that Satish handed over 'ustra' (razor) to the Superintendent in his presence. He was confronted portion D to D of the statement Ex.PL wherein it was so recorded.
The other witness who was there at the time of occurrence is Jasbir Singh (PW-6) Head Warder. He has stated that he was posted in District Jail, Sonepat as Head Warder on 26.04.2004. He was at barracks Nos.7, 8, 9 and 10. At about 9.00 am, he heard sound of fire arm shot from the side of barrack No.16. He rushed there where he found Head Warder Chander Pal (PW11) standing in the 'verandah' of the barrack. He (PW11) informed him that some fire shots had been fired and the matter should be reported to the concerned officer. Then he (Jasbir Singh Head Amit Kaundal Warder PW6) made a report to Head Warder Rajbir Singh (PW19).
2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...22...
Thereafter there was hustle and bustle in the entire jail building. All the inmates (prisoners) were then brought in their respective barracks properly. In the meanwhile, the Deputy Superintendent Jail (PW25) and other officials reached accompanied by Parmod and Satish (appellants). Then Deputy Superintendent of Jail Seva Singh (PW25) took the accused in his office. He made his statement to the Police. At the said stage, the learned Public Prosecutor requested for declaring Jasbir Singh Head Warder (PW6) as hostile as he was suppressing the truth. He was declared hostile and was allowed to be cross-examined. In cross-examination he stated that, he heard his statement Ex.PF. He accepted that he made his statement from mark A to A but he had not made further statement from point B to B. Portion A to A records that he (PW6) was posted as Head Warder in District Jail, Sonepat. He was on duty at District Jail, Sonepat on 26.04.2004 at 6.30 am. At about 9.00 am he heard sound of firing bullets. On hearing the sound, he rushed towards Barrack No.16. When he reached the gate, he saw Chander Pal Head Warder (PW11) was standing at the gate. The later portion from B to B records that he (PW11) informed that prisoner Parmod and Prisoner Satish had murdered Jasbir alias Jassu with their common intention and that Parmod fired the shot while Satish had slit the throat, was denied. In his further cross-examination, he denies that Chander Pal Head Warder (PW11) had informed him that Parmod and Satish had committed the murder of Jasbir alias Jassu with the help of an 'ustra' Amit Kaundal (razor) and a pistol. It is also denied that Parmod handed over the 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...23...
pistol (country made) with two cartridges and Satish handed over razor stained with blood to the Deputy Superintendent of Jail (PW25). It is also denied that on checking the pistol which was handed over by the accused Parmod to the Deputy Superintendent Jail Seva Singh (PW25), five live cartridges were found in it. It is also stated as incorrect to suggest that he (PW6) had told Deputy Superintendent Jail (PW25) that the accused Parmod and Satish had committed the murder of Jasbir alias Jassu. He was confronted with his statement Ex.PF from point B to B and from C to C wherein it is so recorded. It was stated as wrong to suggest that he was deposing falsely in order to save the accused as having been won over by the accused.
Rajbir Singh (PW19) in his deposition has stated that he was posted as Head Warder in District Jail, Sonepat on 26.04.2004. On that day he was on duty at the gate from 6.00 am to 12.00 noon. Then Jasbir Singh Head Warder (PW6) came at the gate and informed that a person namely Jasbir alias Jassu had been murdered. The said information was conveyed by him to the Deputy Superintendent Jail (PW25) through intercom. On receipt of the message, Deputy Superintendent Jail (PW25) came in the jail at the spot and the Superintendent also reached at the spot. In cross- examination it is stated that he did not know as to who had caused the murder of Jasbir alias Jassu in the jail. It was wrong to suggest that he was deposing falsely.
Amit Kaundal
The postmortem examination on the dead body of Jasbir 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...24...
alias Jassu was conducted by Dr. Varsha, Medical Officer, General Hospital, Sonepat (PW8) along with Dr.Naresh Dahiya and Dr. J. S. Punia. The following injuries were found on the person of the deceased:-
"1. A lacerated wound of size 1.5 cm x 1 cm was present on the right side of the base of the neck with inverted margins with blackish discolouration. On exploration, the track was going forward and upward medially towards the midline, piercing the great vessels i.e. carotid right side and soft tissue. The track was going upto the base of left angle of mandible where the bullet was lodged. It was removed and sealed into a parcel.
2. An incised wound of size 10" x 2" was present on the base of the neck of right side from just above the medial angle of clavicle extending to anterior to the left side of the base of the neck. Clotted blood was present. The underlying deep structures i.e. muscles, vessels, trachea cartilages were cut.
3. One incised wound of size 4" x 2.5 x 2 on the chin inverted V shape from the left end of the chin to the mid chin.
4. One incised wound was present over the right upper region of chest of size 2.5" x 1" obliquely placed just below the right shoulder.
Amit Kaundal
5. One lacerated wound of size 1.5 cm x 1.5 cm on the 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...25...
middle of the left arm on the lateral aspect. Blackening was present and the margins were inverted. The track was going upward upto the tip of the shoulder where the bullet was impacted. The bullet was removed and sealed and handed over to the police.
6. One lacerated wound of size 1 cm x 1 cm was present over the left iliac region just near the anterior superior iliac spine. Blackening was present and the margins were inverted. On exploration, the track was going backward and posteriorly upto the sacral area where the bullet was located. It was removed, sealed and handed over to the police.
7. One lacerated wound of size 1 cm x 1 cm with blackish margins was present over the two cm lateral to the mid-line on the lower back at the level of iliac crest. The wound was going upward and medially upto the spinal cnal at the level of L2 vertebre where the bullet was lodged. The bullet was recovered, sealed and handed over to the police.
All other organs were healthy and pale. In our opinion, the cause of death in this case was due to shock and excessive haemorrhage as a result of the injuries described above, which were ante mortem in nature and were sufficient to cause death in normal course of life. Amit Kaundal These injuries were caused with the fire arms and sharp 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...26...
edged weapons both."
It is further mentioned by Dr. Varsha (PW8) that the probable time between injuries and death was within few minutes and between death and postmortem was within 24 hours. The correct carbon copy of the postmortem report is Ex.PK and the inquest report Ex.PK/1 contains 18 pages and bears her signature. In cross- examination it is stated by Dr. Varsha (PW-8) that the deceased might have taken his meals about 4 to 6 hours before his death. The possibility of death during night of 25.04.2004 could not be ruled out. She (PW-8) could not tell the range of fire as she was not a ballistic expert. It was incorrect that opinion regarding cause of death was not correct.
A perusal of the deposition of Dr. Varsha (PW8) shows that there are four lacerated wounds and three incised wounds. Injuries Nos.5 and 7 show blackening and blackish margins respectively. These are indicative of the fact that the firing with the fire arm with which the assault was committed was from a close range like a barrack. Incised wound No.2 is of the size of 10" x 2" present on the base of the neck of right side from just above the medial angle of clavicle extending to anterior to the left side of the base of the neck, which can indeed be caused with razor; besides, the cause of death has been given as due to fire arm as well as sharp edged weapon. The .38 bore revolver (Ex.P1) and a razor blade (Ex.P2) ('ustra') were indeed recovered. The .38 bore revolver and the razor blade Amit Kaundal were recovered by Seva Singh Deputy Superintendent Jail (PW-25) 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...27...
and he handed over the country made revolver (Ex.P1), the razor (Ex.P2) and cartridges Ex.P7 to Ex.P12 vide recovery memo Ex.PE to Sub Inspector Jorawar Singh (PW24). The recovery memo Ex.PE is regarding taking in possession the revolver with seven cartridges and the razor blade ('ustra').
Sub Inspector Jorawar Singh (PW24) Incharge Police Post, Gohana Road, Sonepat recorded the recovery memo Ex.PE and in his deposition accepted the fact that Seva Singh (PW25) had handed over one razor, one revolver .38 bore revolver and seven cartridges of the same bore. He prepared sketch Ex.PE/2 of the revolver and sketch (Ex.PE/3) of the razor (ustra). These were sealed vide seal bearing impression 'JS'. The sealed parcels were taken in his possession vide recovery memo Ex.PE.
The FSL report Ex.PX of the recovered articles was prepared, records the result as follows:-
"Result
1. The .380" revolver marked W/1 is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working order.
2. .380 cartridge cases marked C/1 to C/3 have been fired from .380" revolver marked W/1 and not from any other firearm even of the same make and bore, because every firearm has got its own individual characteristic marks.
3. .380" bullets marked BC/1 to BC/4 have been fired from .380" revolver marked W/1 and not from any other firearm even Amit Kaundal 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...28...
of the same make and calibre because every firearm has got its own individual characteristic marks.
4. The hole on the steel plate contained in parcel No.IV has been caused by a bullet projectile.
5. Report in original from serology division is enclosed herewith."
The above report corroborates the case of the prosecution regarding the use of .38 bore revolver being used and the cartridges being fired from it; besides, in respect of the laboratory examination that was carried out to detect the presence of blood on the recovered article, it has been opined as under:-
"1. Blood was detected on exhibit - 1(Razor); exhibit -10(c) (Sport Shoes) and in exhibit-3 (Blood).
2. Blood could not be d etected on exhibit -9d (Leather Chappals).
3. Traces of blood too small for serological examination were detected on exhibit -5(c) (Handle); exhibit 9e (Ribbon) and exhibit 9f (woolen band).
4. Exhibit -4 (steel plate); exhibit -5a (Towel); exhibit 5b (bed sheet); exhibit 7a (T-shirt); exhibit 7b (Langot); exhibit 7c (Pyjami); exhibit 9a (sport shoes); exhibit 9b (pants); exhibit -9c (shirt); exhibit -10a (shirt) and exhibit - 10b (pants)."
As regards the origin of the blood, it is mentioned that material had disintegrated on the (2) razor and (3) blood. In other Amit Kaundal words, it could not be opined to be human blood. Whereas on the 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...29...
other articles namely (4) steel plate; (5a) towel; (5b) bed sheet; (7a) T-shirt; (7b) Langot; (7c) Pyjami; (9a) Shoes; (9b) Pants; (9c) Shirt; (10a) shirt; (10b) pants and (10c) Shoes, the origin was human blood; the blood group, however, is mentioned as; 'inconclusive'. Therefore, the link evidence in the case as regards the use of weapons that were recovered by Seva Singh Deputy Superintendent Jail (PW25) and handed over to Sub Inspector Jorawar Singh (PW24) goes to show that the weapons that were recovered were indeed used in the commission of the murder of Jasbir alias Jassu.
The question, however, that requires consideration is whether there is evidence connecting the appellants to the commission of the murder particularly when Chander Pal, Head Warder (PW11); Jasbir Singh, Head Warder (PW6) and Rajbir Singh, Head Warder (PW19) have resiled from their statements made before the police and have not supported the prosecution case. The case hinges primarily on the deposition of Seva Singh, Deputy Superintendent Jail (PW25). Seva Singh, Deputy Superintendent Jail (PW25) has stated that on the day of occurrence i.e. 26.04.2004 at about 9.00 am, he was informed by Head Warder Rajbir Singh (PW19) that a firing had taken place in barrack No.16 of the jail. On this, he rushed there and Head Warder Rajbir Singh (PW-19) met him in the portico. On inquiry, he informed that firing had taken place in barrack No.16. When Seva Singh, Deputy Superintendent Jail (PW-25) went inside the jail from the portico, Head Warder Chander Amit Kaundal Pal (PW11) met him. He was bringing Satish and Parmod 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...30...
(appellants) with him and he (Chander Pal PW-11) informed that Parmod and Satish (appellants) had committed the murder of Jasbir alias Jassu. Parmod handed over one revolver and two cartridges to Seva Singh, Deputy Superintendent Jail (PW25). He checked the revolver and found five more cartridges in its chamber. Accused Satish handed over to him (PW25) a razor (ustra), which was stained with blood. Seva Singh, Deputy Superintendent Jail (PW25) ensured the safety of both the accused and also of the weapons. Then he went into barrack No.16 and found Jasbir alias Jassu lying dead on the enclosure of the barrack No.16. His dead body was smeared with blood. Seva Singh, Deputy Superintendent Jail (PW25) ensured the security of the jail and informed his superior as also the police. The said deposition of Seva Singh, Deputy Superintendent Jail (PW25) shows that he has stated what was informed to him by Head Warder Rajbir Singh (PW-19) and Head Warder Chander Pal (PW11), soon after the occurrence had taken place. Not only the information was given but the weapons used in the commission of the crime were also recovered and taken in possession by Seva Singh, Deputy Superintendent Jail (PW25) who ensured security of the weapons as well. These weapons later on were handed over to Sub Inspector Jorawar Singh (PW24) vide recovery memo Ex.PE, which records that the weapons were produced by Seva Singh, Deputy Superintendent Jail (PW25). The deposition and statement made in Court by Seva Singh, Deputy Superintendent Jail (PW25) Amit Kaundal would be admissible in evidence in view of its spontaneousness and 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...31...
forming a part of the same transaction ruling out any possibility of concoction. Therefore, it would be covered by the rule of 'res gestae' as contained in Section 6 of the Evidence Act. Section 6 of the Evidence Act and its illustration A reads as under:-
"6.Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different time and places.
Illustration
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by -standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."
The rule of 'res gestae' as envisaged by Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. However, for applying the rule, it is to be part of the same transaction and spontaneous; besides, ruling out any possibility of concoction. In Sukhar versus State of Uttar Pardesh AIR 1999 SC 3883, the FIR in the case was lodged by one Nakkal who later died during trial. The accused Sukhar who was nephew of Nakkal had forcibly cultivated the land of Nakkal. There was enmity between Nakkal and Sukhar. On the fateful day during the morning while Nakkal was going on the road, Sukhar caught hold Amit Kaundal of his back and fired a pistol shot towards him. On raising an alarm 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...32...
by Nakkal, Ram Kala and Pitam reached the occurrence and they brought him to the police station where his statement was recorded. During trial, the prosecution witnesses merely stated as to what they heard from the injured at the relevant point of time and according to Pitam PW2, the injured had told him the assailant Sukhar had fired upon him. The learned Sessions Judge held that the statement of Nakkal recorded under Section 161 Cr.P.C was admissible under Section 33 of the Evidence Act. In appeal, the High Court came to the conclusion that the statement given by the injured to the investigating officer was not admissible as a dying declaration under Section 32 or under Section 33 of the Evidence Act. Their Lordships of the Supreme Court observed that the said conclusion was unassailable and there was no infirmity in the same. The High Court, however, heavily relied on the statement of Pitam PW2 and even though he was (sic.- not) an eye witness to the occurrence but his evidence to the effect that as soon as he reached the place where the injured was lying, the injured told him that the injury had been caused on him by the appellant was held to be admissible under Section 6 of the Evidence Act. On the basis of the statement of Pitam PW2 and the evidence of another witness, the High Court came to the clear conclusion that charge under Section 307 had been established beyond reasonable doubt. The Hon'ble Supreme Court held that the statement of the witnesses that on hearing the sound of firing, he went to the scene of occurrence and found injured Amit Kaundal lying on the ground. He told him that who had fired was admissible 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...33...
under Section 6 being part of the same transaction, that is, the act of shooting by the accused. In the present case also, Chander Pal, Head Warder (PW11) soon after the incident had occurred had indeed informed Seva Singh Deputy Superintendent Jail (PW25) that Parmod and Satish had committed the murder of Jasbir alias Jassu. This statement had been made as soon as Seva Singh (PW25) was going to the barrack of the jail where the incident had occurred and the appellants after being apprehended by the jail staff were being brought out and thereafter even the weapons that were used were recovered from them. The chain of circumstances and the manner in which the incident had occurred goes on to establish that Satish and Parmod had indeed committed the murder of Jasbir alias Jassu who was lodged in the jail as an accused. In terms of illustration (a) to Section 6 of the Evidence Act, if A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by
-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. The evidence of Chander Pal (PW11) as to what he informed his superior officer, that is, Seva Singh Deputy Superintendent Jail (PW25) as a by stander even would be a relevant fact and is a circumstances, which goes to inculpate the appellants Parmod and Satish in the murder of Jasbir alias Jassu.
The other two accused who were stated to be a part of the conspiracy have been acquitted and have been given the benefit Amit Kaundal of doubt. The circumstances as have been enumerated go to show 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...34...
that Inspector Suresh Kumar (PW13) was posted as SHO, Police Station City, Sonepat on 28.04.2004. He was entrusted with the investigation of the case. The accused Parmod and Satish (appellants) were joined in the investigation by him after he moved an application Ex.PN in the Court of Chief Judicial Magistrate, Sonepat. On his interrogation, Parmod (appellant) made a disclosure statement Ex.PG and he disclosed on 26.04.2004 at about 9.00 am he and Satish committed the murder of Jasbir Singh alias Jassu in the jail premises with the help of a pistol and an 'ustra'. This portion of the statement was objected to by the learned defence counsel being in the nature of confession before the police of which the police in any case was already aware of. The said confession indeed would be not of any consequence and, therefore, the same would be inadmissible in evidence. However, it is also deposed by Suresh Kumar (PW13) then SHO that Satish further disclosed that Anil alias Bhagta had directed them to finish Jasbir alias Jassu in the jail. Parmod disclosed that he had asked Anil Bhagta for the supply of weapons so that he could commit murder of Jassu. He further disclosed that on 07.07.2004 (sic. 07.04.2004) while he had gone to attend the Court at Bhiwani at the instance of Anil Bhagta, Surender (accused-since acquitted) gave an 'ustra' (razor) to Parmod. Then on the next date of hearing i.e. 19.04.2004 when Parmod went to the Court at Bhiwani, then Surender handed over to him one revolver with 15 live cartridges. After concealing the same, he brought them Amit Kaundal in the jail. After the occurrence he handed over the revolver and the 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...35...
cartridges to the Seva Singh Deputy Superintendent Jail (PW25); besides, it was disclosed that the 'ustra' had been handed over to Satish who used it in the commission of the crime. The clothes which were worn at the time of occurrence had been concealed by them in barrack No.16 which he could get recovered after making demarcation. This was objected to by the defence counsel.
It may be noticed that this part of the disclosure Ex.PG to the extent as to how the accused (appellants) had procured the weapons was not in the knowledge of the police and this would be discovery of a fact for the first time which would be covered and admissible in evidence in terms of Section 27 of the Evidence Act. In Pulukuri Kottaya and others v. Emperor, AIR 1947 PC 67, it was held that the condition necessary to bring Section 27 into operation is that the discovery of a fact must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. It was observed that the section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can safely be allowed to be given in evidence but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.
Therefore, the manner in which the weapons were procured is established. These weapons were taken in jail by Amit Kaundal hoodwinking the security staff of the jail. It has come in the evidence 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...36...
of Seva Singh Deputy Superintendent Jail (PW-25) that two gates are to be crossed from the main gate to the barracks. Checking is done of the inmates if they cross the main gate in the portico. It is also stated that during rush hours when inmates numbering 50 to 60 enter together in the portico, they intermingle with each other and it is not possible for the jail authorities to check the inmates thoroughly. Therefore, due to lack of staff, rush during peak hours and intermingling of inmates, did help the accused to take the weapons with them in the barrack; besides, the fact that these were recovered from them soon after the murder of Jasbir alias Jassu goes to show that these were taken in the barrack. In the circumstances, the contention of the learned counsel for the appellant that Azad Singh Warder (PW10) had checked Parmod on 07.04.2004 and Sunda Ram (PW9) had checked him (Parmod) on 19.04.2004 and it had been established that they did not bring anything from outside the jail is inconsequential as the weapons, that is, the revolver and 'ustra' were brought in the barrack by Parmod and were recovered from Parmod and Satish.
Chander Pal Head Warder (PW11) was in barrack No.15 when the shots were fired at about 9.00 am and he reached there where there was panic amongst the inmates. He saw that Jasbir alias Jassu was lying on the floor of the barrack in an injured condition and blood was coming out from his body. At this stage, he was declared hostile. Nevertheless, Seva Singh Deputy Amit Kaundal Superintendent Jail (PW25) does state that when he went in the 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...37...
portico, Chander Pal Head Warder (PW11) met him and he told him that Parmod and Satish had committed the murder of Jasbir Singh alias Jassu. So the fact of noticing the commission of murder though denied by Chander Pal Head Warder (PW11) in his deposition in Court stands established from the deposition of Seva Singh, Deputy Superintendent Jail (PW25); besides, Jasbir Singh (PW6) Head Warder who was also declared hostile does state that he was on duty in barracks No.7, 8, 9 and 10 and at about 9.00 am on 26.04.2004, when he heard sound of fire arm shots from the side of barrack No.16. He rushed there and found Head Warder Chander Pal (PW11) standing in the 'verandah' of the barrack. He (PW11) told Jasbir Singh (PW6) that fire shots had taken place and the matter should be reported to the concerned officer. Then he (PW6) made a report to Head Warder Rajbir Singh (PW19). Jasbir Singh Head Warder (PW6) does not support the prosecution case but nevertheless he does accept the presence of Chander Pal (PW11) when he (PW6) went near barrack No.16. The accused (appellants) were apprehended by the jail officials and this fact is also established; besides, the appellants handing over the weapons to Seva Singh Deputy Superintendent Jail (PW-25) is also established.
The postmortem examination conducted by Dr. Varsha (PW8) and the other doctors goes to establish the cause of death being due to shock and excessive haemorrhage as a result of the injuries as mentioned in the postmortem report, which according to Amit Kaundal the doctor (PW8) were ante mortem in nature and were sufficient to 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...38...
cause death in normal course of life. Injuries were caused with fire arm and four bullets were recovered from injuries No.1, 5, 6 and 7 which were handed over to the police. As per FSL report Ex.PX, the bullets marked BC to BC/4 of .380 bore had been fired from the .38 revolver marked W/1 and not from any other firearm even of the same make and calibre because every firearm has got its own individual characterstic marks. Therefore, the four recovered bullets from the dead body of Jasbir alias Jassu tallied with the revolver which was handed over by Parmod (appellant) to Seva Singh Deputy Superintendent Jail (PW-25); besides, injuries No.2, 3 and 4 are incised injuries which could be caused with the razor ('ustra') that was recovered from the appellant Satish.
In the circumstances, the procurement of weapons by the appellants i.e. .38 bore revolver and 'ustra' (razor), the taking of the weapons in the jail by the appellants, the use of the weapons, the recovery of the weapons after the incident, the fact of Chander Pal (PW-11) informing Seva Singh Deputy Superintendent Jail (PW-25) of the murder of Jasbir alias Jassu being committed by the appellants soon after the incident, the presence of Chander Pal (PW11) being established by Jasbir Singh Head Warder (PW6) coupled with the postmortem report and the FSL report clearly go to show that the chain of circumstances are so complete that the Court is satisfied that the murder of Jasbir alias Jassu had been committed by none else than the appellants and there is no link in the chain of Amit Kaundal circumstances which can be said to be incomplete so to rule out any 2013.11.11 13:54 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.177-DB of 2007 and Criminal Appeal No.178-DB of 2007 ...39...
possibility of the innocence of the appellants.
The discrepancies mentioned by the learned counsel for the appellants as regards the number of cartridges not tallying with the recovery and the cartridges taken in possession is inconsequential as such discrepancies do occur. In any case, the the bullets recovered from the dead body of Jasbir alias Jassu being fired from the recovered .38 revolver is established. Therefore, not much reliance can be placed on such discrepancies as has been pointed out by the learned counsel for the appellant.
Accordingly, there is no ground made out to interfere with the findings reached at by the learned Additional Sessions Judge, Sonepat. However, the learned trial Court in respect of Parmod in addition to sentence of imprisonment for life; besides, pay a sum of Rs.5000/- as fine for the offence under Section 302 read with Section 34 IPC, has imposed sentence of rigorous imprisonment for two years; besides, pay a fine of Rs.2000/- for the offence under Section 25 of the Arms Act. The said sentences, however, have not been ordered to run concurrently. The same shall run concurrently. With the sentence of Parmod (appellant) being ordered to run concurrently, there is no merit in the appeals and the same are accordingly dismissed.
(S.S.SARON)
JUDGE
February, 25, 2012 (M.JEYAPAUL)
P.Singh/A.Kaundal JUDGE
Amit Kaundal
2013.11.11 13:54
I attest to the accuracy and
integrity of this document
Chandigarh