Himachal Pradesh High Court
Sanjeev Kumar S/O Sh. Mangal Singh vs Of on 13 April, 2016
Author: P. S. Rana
Bench: Sanjay Karol, P. S. Rana
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 275/2011 and Cr. Appeal
No.404/2011
Judgment reserved on: 28th March, 2016
.
Date of judgment: April 13, 2016
(1) Cr. Appeal No. 275/2011
Sanjeev Kumar s/o Sh. Mangal Singh ....Appellant
Versus
of
State of H.P. ...Respondent
For appellant : Mr. P. P. Chauhan, Advocate
For respondent : Mr. V. S. Chauhan, Addl. A.G. with
rt Mr. Vikram Thakur, Dy. A.G.
(2) Cr.Appeal No.404/2011
Kulwant Singh s/o Sh. Pohu Lal ....Appellant
Versus
State of H.P. & Ors. ...Respondents
For appellant : Mr. Ramakant Sharma, Sr. Advocate
with Mr. Basant Thakur, Advocate
For respondents : Mr. V. S. Chauhan, Addl. A.G. with
Mr. Vikram Thakur, Dy. A.G. for
respondent No.1, Mr. P. P. Chauhan,
Advocate for respondent No.2 &
Mr. Anoop Chitkara, Advocate for
respondents No.3 to 6
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting? Yes
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2
P. S. Rana, J.
Judgment:
.
Cr. Appeal No.275 of 2011 title Sanjeev Kumar vs. State of H.P. and Cr. Appeal No.404 of 2011 title Kulwant Singh vs. State of H.P. & Others filed against the same judgment and sentence passed by learned Trial Court in Sessions Trial No.9-NL/7 of 2010 title State of H.P. vs. Sanjeev Kumar and others decided on 28.07.2011. As both of the appeals have been filed against the same judgment and sentence hence both the appeals are consolidated and disposed of together in rt order to avoid conflicting judgments.
Brief facts of the case:
2. It is alleged by the prosecution that in the month of May 2009 all the accused persons constituted criminal conspiracy to kill deceased Kirpal Singh. It is further alleged by the prosecution that in the intervening night of 19th/20th May 2009 at about 11.30 PM in pursuance of criminal conspiracy hatched by accused persons deceased Kirpal Singh was murdered at place Androla bridge by accused persons. It is further alleged by the prosecution that co-accused Sanjeev Kumar @ Sanju in connivance with PW Dhruv Kumar got his duty card punched for the period 18.05.2009 to 21.05.2009 without being present in the factory premises known as Ravira Home Finishing Company Panipat in order to cause disappearance of evidence. It is further alleged by the prosecution that co-accused Sanjeev Kumar @ ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 3 Sanju was found in possession of fire arm and live cartridge and shot dead deceased Kirpal Singh with the help of fire arm on the intervening night of 19th/20th May 2009. It is further alleged by the prosecution .
that on 20.05.2009 a telephonic information was received in the police station that dead body was lying over Androla bridge and thereafter entry was recorded in daily diary and thereafter police officials went to the spot and statement under Section 154 Cr.PC of PW-1 Kulwant of Singh recorded. It is further alleged by the prosecution that FIR was registered and inquest reports prepared at the spot. It is further alleged by the prosecution that photographs took and thereafter dead rt body was sent for post mortem and thereafter after post mortem dead body was handed over to father of the deceased. It is further alleged by the prosecution that during investigation motorcycle Hero Honda No.HP-12-B-0323 alongwith documents, driving licence, identity card of deceased Kirpal Singh were taken into possession from the spot vide seizure memo. It is further alleged by the prosecution that during investigation blood stained soil and controlled sample of soil lifted from the spot and took into possession vide seizure memo in the presence of witnesses. It is further alleged by the prosecution that during investigation blood stained lying over parapet also took into possession. It is further alleged by the prosecution that as per post mortem report cause of death of deceased was hemorrhagic shock due to injury to major blood vessel. It is further alleged by the prosecution ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 4 that as per opinion of PW-25 Dr. Puneet Sharma injuries observed over the dead body of deceased could be caused with close range of fire with country made pistol. It is further alleged by the prosecution that .
co-accused Sanjeev Kumar @ Sanju also made disclosure statement disclosing that he had concealed country made pistol. It is further alleged by the prosecution that as per disclosure statement country made pistol alongwith used cartridge and live cartridge were recovered of and taken into possession vide seizure memo. It is further alleged by the prosecution that sketch of country made pistol and photographs of the place of recovery also took into possession. It is further alleged by rt the prosecution that statement of witness Dhruv Kumar also recorded under Section 164 Cr.PC. It is further alleged by the prosecution that co-accused Jaspal Singh made a disclosure statement that he alongwith other co-accused hatched conspiracy to kill deceased Kirpal Singh. It is further alleged by the prosecution that co-accused Vikram Singh made a disclosure statement disclosing that payment of Rs.20,000/- (Rupees twenty thousand) made by co-accused Sodhi Singh to co-accused Sanjeev Kumar @ Sanju as part payment to kill deceased Kirpal Singh. It is further alleged by the prosecution that motorcycle Hero Honda No.PB-10AZ-1004 also took into possession. It is further alleged by the prosecution that during investigation co-
accused Jaspal Singh produced his clothes T-shirt and lower and same took into possession vide seizure memo. It is further alleged by the ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 5 prosecution that co-accused Vijender Singh @ Vicky produced his clothes shirt and pant and same took into possession vide seizure memo. It is further alleged by the prosecution that co-accused Jasbeer .
Singh produced his clothes shirt T-shirt and pant and same took into possession vide seizure memo. It is further alleged by the prosecution that during investigation co-accused Sanjeev Kumar @ Sanju produced his clothes T-shirt and pant and same took into possession vide seizure of memo in the presence of witnesses. It is further alleged by the prosecution that during investigation motorcycle No.HP-12-A-3318 took into possession from courtyard of Mangal Singh vide seizure memo rt alongwith documents i.e. copy of RC. It is further alleged by the prosecution that during investigation Smt. Kaushalya Devi produced mobile phone alongwith Sim card No.09958347400 and same took into possession vide seizure memo. It is further alleged by the prosecution that during investigation copies of jamabandi relating to Khasra No.106 and Khasra No.35 also took into possession. It is further alleged by the prosecution that Aksh Sajra prepared by Patwari Ram Dayal and same also took into possession. It is further alleged by the prosecution that case property was deposited in malkhana and thereafter same was sent to State Forensic Science Laboratory. It is further alleged by the prosecution that dead body was lying over Androla bridge alongwith motorcycle. It is further alleged by the prosecution that during investigation spot map also prepared.
::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 63. Learned Trial Court framed charge against co-accused Sanjeev Kumar @ Sanju under Sections 120-B, 302 & 201 IPC and under Arms Act on dated 08.06.2010. Learned Trial Court also framed charge .
against co-accused Vikram Singh, Sodhi Singh, Jasbeer Singh, Vijender Singh, Jaspal Singh & Shashi @ Kali @ Sonu under Sections 120-B and 302 IPC. Accused persons did not plead guilty and claimed trial.
4. Prosecution examined forty oral witnesses and accused persons of examined two defence witnesses. Prosecution also adduced documentaries evidence. Learned Trial Court convicted co-accused Sanjeev Kumar @ Sanju under Sections 302 & 201 IPC read with rt Section 25 of Arms Act and learned Trial Court acquitted co-accused Vikram Singh, Jasbeer Singh, Vijender Singh, Jaspal Singh, Sodhi Singh and Shashi @ Kali @ Sonu.
5. Feeling aggrieved against the judgment and sentence passed by learned Trial Court convict Sanjeev Kumar filed Criminal Appeal No.275/2011 title Sanjeev Kumar vs. State of H.P. and father of deceased Kulwant Singh filed Cr. Appeal No.404 of 2011 title Kulwant Singh vs. State of H.P. & Others.
6. We have heard learned Advocate(s) appearing on behalf of appellant(s) in both the appeals and learned Additional Advocate General appearing on behalf of State and learned other Advocates in both appeals. We have also perused the entire record carefully.
7. Following points arise for determination in both criminal appeals:
::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 71) Whether conviction and sentence of convict are based upon non appreciation of evidence properly and whether judgment and sentence passed by learned Trial Court are perverse as mentioned in .
memorandum of grounds of Cr. Appeal No.275 of 2011?
2) Whether acquittal of other co-accused is based upon non appreciation of evidence properly by learned Trial Court and is perverse as mentioned of in memorandum of grounds of Cr. Appeal No.404 of 2011?
3) Final order.
rt
8. Findings upon Point No.1 with reasons.
8.1 PW-1 Kulwant Singh has stated that he has three sons and
deceased Kirpal Singh was his eldest son. He has stated that deceased was working in factory. He has stated that deceased Kirpal Singh used to go for his duty at 2.00 PM upon his motorcycle and used to come back during mid night. He has stated that his deceased son Kirpal Singh had gone to factory for his duty at 2.00 PM on motorcycle. He has stated that at about 11.50 PM he received a telephone call but no conversation took place. He has stated that deceased Kirpal Singh did not return during night. He has stated that in the morning Devi Ram told him that deceased was lying over Androla bridge. He has stated that thereafter he immediately went to the spot and found that his son Kirpal Singh was lying dead ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 8 over Androla bridge. He has stated that he also saw injuries over the body of deceased. He has stated that motorcycle of the deceased was also lying on other side of the road. He has stated that thereafter .
police officials came at the spot and his statement under Section 154 Cr.PC Ext.PW1/A was recorded. He has stated that inquest reports Ext.PW1/B and Ext.PW1/C also prepared and dead body was sent for post mortem. He has stated that photographs of the spot also took into of possession and he has stated that after post mortem dead body was handed over to him vide memorandum Ext.PW1/D. He has denied suggestion that deceased had disclosed him that some officer in the rt factory had inimical relations towards him. He has admitted that writing was found written with blood as 'NI' over Androla bridge. He has denied suggestion that deceased had affair with a girl named Nisha working in the same factory. He has admitted that deceased was having Mobile Phone No.9805336714. He has admitted that deceased was having shift duties. He has denied suggestion that factory manager was having enmity with deceased on account of Nisha. He has denied suggestion that he suspected involvement of Ram Lal, Surjit Singh, Harmesh Singh, Amrik Singh, Balwinder Singh and Nisha working in the factory. He has denied suggestion that accused persons have been falsely implicated in the present case. He has denied suggestion that co-accused Sanjeev Kumar @ Sanju and Vikram Singh were not present at Nalagarh on the date of incident as they were ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 9 present at Panipat and Delhi. He has stated that there was land dispute with the family of Surjit Singh, Amrik Singh and Ram Lal. He has stated that land dispute was compromised in the year 2008. He .
has stated that he registered the case on the basis of suspicion against accused persons. He has admitted that when his statement was recorded under Section 154 Cr.PC Ext.PW1/A he did not mention name of any accused.
of 8.2 PW-2 Pawan Kumar has stated that he is Pradhan of Gram Panchayat Karsol since 2006 and he was associated by the police officials in the investigation of the present case. He has stated that on rt dated 20.05.2009 he went to the spot and found dead body of deceased Kirpal Singh lying on Androla bridge which was blood stained and motorcycle was lying at some distance. He has stated that there was injury on the body of deceased. He has stated that police officials prepared inquest reports Ext.PW1/B and Ext.PW1/C and he had signed the same. He has stated that Kulwant Singh father of deceased also signed upon inquest reports. He has stated that one ATM card and one test pen were found which took into possession vide memorandum Ext.PW2/A. He has stated that there was land dispute with co-accused Sodhi Singh which was settled by the panchayat amicably. He has stated that compromise was executed as per his intervention.
8.3 PW-3 Harinder Singh has stated that he was associated by the police officials during investigation of the present case. He has ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 10 stated that on 20.05.2009 motorcycle No.HP-12-B-0323 which was lying on the road took into possession alongwith insurance, driving licence, key, identity card, registration of the motorcycle vide .
memorandum Ext.PW3/A. He has stated that dead body of deceased Kirpal Singh was also lying with blood stained and injuries at some distance over Androla bridge.
8.4 PW-4 Randeep Singh has stated that he was associated by the of police officials during investigation of the present case on 20.05.2009.
He has stated that dead body of deceased Kirpal Singh was lying on Androla bridge which was blood stained and motorcycle was lying at a rt distance on the road. He has stated that blood was also lying on the ground which was lifted by the police officials and placed into a small bottle. He has stated that sample soil was also lifted from the spot. He has stated that police also took into possession one Purse from the pant of deceased containing three currency notes each to the denomination of Rs.100/-, one ATM card, one mobile phone and one slip over which Mobile No.9805336714 was written and one test pen found from the pocket of the deceased also took into possession vide memo Ext.PW2/A. He has stated that police also took into possession motorcycle No.HP-12-B-0323 alongwith RC, insurance, driving licence, identity card and key of the motorcycle vide memo Ext.PW3/A. He has stated that police also took into possession blood stained lying at the spot. He has stated that police also lifted blood with words 'NI' found ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 11 written near dead body. He has stated that small glass bottles Ext.P1 & P2 are the same which were lifted from the spot. He has stated that small glass bottles Ext.P3 & P4 are the same which were taken into .
possession. He has admitted that words NI were written with blood on parapet near head of the dead body which was lifted from the spot.
8.5 PW-5 Krishan Pal has stated that he is running a Courtyard used for taking liquor outside the liquor vend for the last four years at of Panjehra. He has stated that he does not know who came to take drinks in his courtyard on 19.05.2009. He has denied suggestion that on 19.05.2009 co-accused Sanjeev Kumar @ Sanju who was known to rt him visited his courtyard alongwith other four persons who came on motorcycle. He has denied suggestion that he had disclosed to the Investigating Officer that co-accused Sanjeev Kumar @ Sanju alongwith four boys in the age group of 20 to 25 years visited his courtyard and enjoyed drinks for sufficient time. He has denied suggestion that he has resiled from his earlier statement in order to save the accused persons.
8.6 PW-6 Nand Lal has stated that he is driver by profession for the last fifteen years. He has stated that he alongwith Kuldeep were coming to his house over motorcycle from Gullarwala at mid night. He has stated that other motorcycle came from opposite direction and two persons were traveling upon it. He has stated that he could not identify the persons. He has stated that he could not state age of the ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 12 motorcyclists as well as colour of their clothes. Witness was declared hostile. He has denied suggestion that he has resiled from his earlier statement in order to save the accused persons.
.
8.7 PW-7 Jagir @ Chhibar has stated that he is electrician by profession. He has stated that he was coming back to his house from the place of work at about 6.00 PM. He has stated that nothing happened in his presence. Witness was declared hostile. He has denied of suggestion that when he was coming on motorcycle from Panjehra then accused persons were standing at Androla bridge and they caught hold him and slapped him. He has denied suggestion that co-accused rt Sanjeev Kumar @ Sanju was carrying country made pistol. He has stated that accused persons are his neighbours and are residing in the adjoining village. He has denied suggestion that he has resiled from his earlier statement in order to save the accused persons.
8.8 PW-8 Raj Kumar has stated that he is running a Chemist shop at Manpura for the last two years. He has stated that deceased Kirpal Singh was son of his father's sister. He has stated that deceased used to work in Indian Herbal factory and he used to visit his shop frequently. He has stated that thereafter deceased left his job and joined Promed Pharmacy at Khera. He has stated that on 16.05.2009 deceased Kirpal Singh came to his shop and stayed in his house. He has stated that in the year 2007 during Diwali festival co-accused Sanjeev Kumar @ Sanju and Vikram Singh alongwith some boys from ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 13 Punjab picked up a quarrel/altercation with him at village Baruna and after altercation his maternal uncle Chanan Singh alongwith family members including deceased Kirpal Singh visited the house of co-
.
accused Sanjeev Kumar @ Sanju for settlement. He has stated that he registered criminal case against the assailants. He has admitted that criminal case relating to FIR No.261/2006 was compromised.
8.9 PW-9 Dilbara Singh has stated that he was working in Torant of Pharmaceutical Bhud from September 2007 to June 2010. He has stated that deceased Kirpal Singh was known to him and he was working in Promed Pharmaceutical. He has stated that on 19.05.2009 rt deceased was coming from the factory after his duty at 11.30 PM upon motorcycle. He has stated that Androla bridge falls on the way to house of deceased. He has stated that when he reached at Androla bridge at about 12.30 AM (mid night) he saw that a person was lying on the bridge. He has stated that he did not stop at the spot because of mid night. He has stated that in the morning he came to know that deceased Kirpal Singh was lying on the bridge and he was murdered.
He has stated that he did not inform any one when he saw a person was lying on the bridge smeared with blood.
8.10 PW-10 Kuldeep Singh has stated that during night period he alongwith his friend Nand Lal were coming to Baruna on motorcycle.
He has stated that at Baruna during mid night a motorcycle crossed over. He has stated that two persons were travelling upon the ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 14 motorcycle. He has stated that he dropped Nand Lal at Baruna and thereafter returned on motorcycle to his house. He has stated that he could not find out the description of the motorcycle and its riders.
.
Witness was declared hostile. He has denied suggestion that he has resiled from his earlier statement in order to save the accused persons.
8.11 PW-11 Constable Ram Piara has stated that in the month of May 2009 he was posted in Police Station Nalagarh. He has stated of that on dated 06.07.2009 co-accused Sanjeev Kumar @ Sanju disclosed during investigation that on 20.05.2009 after using country made pistol for committing crime he had concealed the same near his rt house in a broken shed in the fields and he could trace the same. He has stated that disclosure statement Ext.PW11/A of co-accused was also recorded which he signed as marginal witness. He has stated that Avtar Singh, Amar Singh and co-accused Sanjeev Kumar also signed disclosure statement. He has stated that thereafter co-accused Sanjeev Kumar led the police party alongwith the witnesses to the place in the fields near his house and he has stated that country made pistol was recovered. He has stated that thereafter sketch of country made pistol Ext.PW11/B was drawn and thereafter same was taken into possession and sealed in cloth parcel with seal impression 'A'. He has stated that spot map also prepared and photographs also obtained. He has stated that country made pistol is Ext.P6 and used cartridge is Ext.P7 and live cartridge is Ext.P8. He has denied suggestion that co-accused Sanjeev ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 15 Kumar did not make any disclosure statement. He has denied suggestion that he had signed in the police station.
8.12 PW-12 Maninder Singh has stated that he was associated .
in the investigation. He has stated that he handed over motorcycle No.PB-10AZ-1004 to the police officials alongwith RC and key. He has stated that motorcycle was purchased by him and was not purchased by his brother Jasbeer Singh. Witness was declared hostile. He has of denied suggestion that his brother Jasbeer Singh had purchased the motorcycle through affidavit. He has denied suggestion that on 19.05.2009 motorcycle was driven by his brother during night. He has rt denied suggestion that his brother Jasbeer Singh took the motorcycle on 19.05.2009 and thereafter returned to his house during mid night.
He has stated that he did not hand over motorcycle to his brother Jasbeer Singh. He has stated that on 19.05.2009 he travelled upon motorcycle to the place of his working during night duty.
8.13 PW-13 Kuldeep Singh has stated that on 06.07.2009 he visited Police Station Nalagarh. He has stated that none of the accused had put off their clothes in his presence. He has stated that clothes were already in possession of the police officials. He has stated that he had simply signed the seizure memo. He has denied suggestion that co-accused Jaspal Singh @ Rinku had given his clothes in his presence.
He has denied suggestion that co-accused Vijender Singh @ Vicky had given his clothes in his presence. He has denied suggestion that co-
::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 16accused Jasbeer Singh @ Jassi had given his clothes in his presence.
He has denied suggestion that co-accused Sanjeev Kumar @ Sanju had given his clothes in his presence. He has denied suggestion that .
he has resiled from his earlier statement in order to save the accused persons.
8.14 PW-14 Avtar Singh has stated that he is numberdar of village Karsoli. He has stated that on 06.07.2009 he alongwith Amar Singh of came to Police Station Nalagarh. He has stated that in his presence co-
accused Sanjeev Kumar has given disclosure statement that he had concealed country made pistol in a shed near his house and he could rt get it recovered. He has stated that disclosure statement Ext.PW11/A was recorded and he signed as marginal witness. He has stated that thereafter co-accused Sanjeev Kumar led the police officials towards the house and thereafter co-accused brought country made pistol from the broken shed alongwith two cartridges and same were taken into possession vide seizure memo Ext.PW11/C. He has stated that accused persons and police officials signed seizure memo. He has stated that country made pistol is Ext.P6 and used cartridge is Ext.P7 and live cartridge is Ext.P8 and same were taken into possession. He has denied suggestion that in the year 1978 he was prosecuted under Section 182 IPC for perjury. He has denied suggestion that he is a stock witness of the police. He has denied suggestion that co-accused Sanjeev Kumar did not give any disclosure statement. He has denied ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 17 suggestion that country made pistol was already lying in police station when his signatures were obtained. He has denied suggestion that he has deposed against the accused because he has inimical relation with .
the father of co-accused Sanjeev Kumar.
8.15 PW-15 Madan Lal has stated that his in-laws are in District Bilaspur. He has stated that on 19.05.2009 he was coming from his in-
laws house in his jeep at about 11.00 PM. He has stated that he of crossed Androla bridge and saw two motorcycles parked on the road side at Androla bridge and five boys were standing there. He has stated that one of them was known to him as Vicky. He has stated that rt other boys though were known to him but their names were not known to him. He has stated that he did not stop his vehicle over Androla bridge. He has stated that he crossed Androla bridge and saw these persons through head light of his vehicle. He has stated that he identified all the accused persons in Court. He has stated that all the accused persons were present at Androla bridge on 19.05.2009. He has denied suggestion that he did not see accused persons during mid night on 19.05.2009 at Androla bridge. He has stated that he crossed Androla bridge in normal speed without stopping the vehicle. He has stated that he did not stop due to odd hours and due to the reason that he had no concern with the accused persons standing on the road.
He has stated that there was no street light over bridge and he has stated that he did not talk to any accused while crossing Androla ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 18 bridge. He has denied suggestion that he did not see accused persons over Androla bridge. He has denied suggestion that he is deposing falsely at the instance of police officials.
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8.16 PW-16 Santokh Singh has stated that he visited Police Station Nalagarh. He has stated that co-accused Jaswinder Singh @ Jassu Vicky and Sanju were in police station. He has stated that co-
accused Jaspal Singh disclosed that co-accused Sanjeev Kumar, Vicky of and Sodhi Singh were involved in the murder of deceased Kirpal Singh.
He has stated that co-accused Jaspal Singh disclosed that accused persons were roaming at Panjehra and thereafter took liquor at the rt liquor shop and thereafter went to Devli Boar and again took liquor and thereafter brought liquor from liquor shop to Himachal border and again took liquor. He has stated that all the accused went to the house of co-accused Sanjeev Kumar and thereafter co-accused Sanjeev Kumar came from his house alongwith some people. He has stated that during night co-accused Sanjeev Kumar committed murder of deceased Kirpal Singh at the instance of co-accused Sodhi Singh for Rs.50,000/- (Rupees fifty thousand) out of which Rs.20,000/- (Rupees twenty thousand) were already paid and remaining were to be paid later on. Statement of co-accused Jaspal Singh recorded under Section 27 of Indian Evidence Act Ext.PW16/A. He has stated that he accompanied the police with co-accused Jaspal Singh and PW Moninder to Gullarwala stream wherein it was disclosed by co-accused ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 19 that Rs.20,000/- (Rupees twenty thousand) were paid to co-accused Sanjeev Kumar. He has stated that disclosure statement of co-accused is Ext.PW16/B. He has stated that he signed memorandum .
Ext.PW16/C. He has stated that motorcycle Hero Honda No.HP-12-A-
3318 was also taken into possession vide seizure memo Ext.PW16/E. He has stated that another motorcycle No.PB-10-AZ-1004 was also taken into possession vide seizure memo Ext.PW12/A. He has stated of that mobile phone alongwith Sim card No.09958347400 also took into possession vide seizure memo Ext.PW16/F which he signed. He has denied suggestion that accused persons did not give disclosure rt statement. He has denied suggestion that neither motorcycle nor any mobile phone recovered in his presence. He has denied suggestion that he is deposing falsely in Court because he is relative of deceased.
8.17 PW-17 Phuman Singh has stated that deceased was son of his brother who was working in Promed company. He has stated that on 19.05.2009 deceased had gone to his duty at 3.00 PM and he was supposed to return during mid night at about 12'O' clock. He has stated that on 19.05.2009 at about 11.50 PM telephone call came to his brother twice but no one responded the call. He has stated that thereafter his sister-in-law came to him and asked him to make call on mobile phone of deceased Kirpal Singh. He has stated that thereafter he made call on mobile phone of deceased Kirpal Singh but same was not responded despite ringing. He has stated that on the next morning ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 20 his paternal uncle Devi Ram informed him that deceased Kirpal Singh was lying over Androla bridge. He has stated that when they went to the spot they found that deceased was lying with blood stained having .
shot over his chest. He has stated that motorcycle was lying nearby the deceased. He has stated that there was land dispute with the family of co-accused Sodhi Singh. He has stated that family of co-
accused Sodhi Singh has enmity with them. He has stated that enmity of still remains with the family of co-accused Sodhi Singh. He has denied suggestion that there was no enmity of the family of co-accused Sodhi Singh with the family of deceased Kirpal Singh. He has denied rt suggestion that he did not make any call to the mobile phone of deceased Kirpal Singh. He has denied suggestion that he has falsely implicated the accused persons in connivance with the police officials.
8.18 PW-18 Amrinder Singh has stated that he is running a mobile repair shop in village Soban Majra and he identified co-accused Sanjeev Kumar present in Court. He has stated that co-accused Sanjeev Kumar belongs to his village. He has stated that on 19.05.2009 he was present in his shop. He has stated that at about noon co-accused Sodhi Singh came to his shop for payment of recharge. He has stated that after sometime deceased Kirpal Singh came to his shop over his motorcycle and stopped over for some time in the shop and thereafter left. He has stated that deceased Kirpal Singh was not having helmet while driving his motorcycle. He has ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 21 stated that co-accused Sanjeev Kumar and Jaspal also crossed the road in front of his shop. He has stated that on 19.05.2009 he closed his shop at 9.30 PM. He has stated that at bus stand co-accused .
Shashi was also found. He has stated that next day he came to know that deceased Kirpal Singh had died. He has stated that on 02.07.2009 he was with Santokh Singh in Police Station Nalagarh when co-accused Jaspal made a disclosure statement. He has stated that all accused of persons consumed liquor at Panjehra and thereafter went to Deoli and again consumed liquor and when the liquor finished co-accused Sanjeev Kumar went to the shop of liquor to bring more liquor and rt thereafter all accused persons went to the house of co-accused Sanjeev Kumar and thereafter co-accused Sanjeev Kumar brought pistol and came to Deoli bridge and when deceased Kirpal Singh was returning from his duty he was shot dead by co-accused Sanjeev Kumar. He has stated that statement of co-accused Jaspal Singh Ext.PW16/A was recorded. He has stated that motorcycle Hero Honda No.PB-10AZ-1004 alongwith RC was also taken into possession vide seizure memo Ext.PW12/A. He has denied suggestion that co-accused Sodhi Singh did not recharge his mobile phone. He has denied suggestion that no recharge payment given to him. He has denied suggestion that he had an altercation with co-accused Sanjeev Kumar in marriage. Voluntarily stated that some altercation took place in marriage. He has denied suggestion that co-accused Jaspal Singh did ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 22 not make disclosure statement Ext.PW16/A. He has denied suggestion that he is deposing falsely at the instance of police officials. He has denied suggestion that his signatures were obtained in police station .
subsequently.
8.19 PW-19 Chanan Singh has stated that deceased Kirpal Singh was from his village. He has stated that he came to police station on 13.09.2009 when co-accused Vikram Singh disclosed to the police that of co-accused Sodhi Singh had agreed to pay Rs.50000/- (Rupees fifty thousands) for the murder of deceased Kirpal Singh. He has stated that Rs.20000/- were given and statement of co-accused Vikram Singh to rt this effect Ext.PW16/B was recorded. He has stated that in pursuance of disclosure statement Ext.PW16/B co-accused Vikram Singh alongwith police officials identified the place where money was delivered in river Gullarwala. He has stated that Sim card No.09958347400 was produced by the mother of co-accused Vikram Singh which was taken into possession vide seizure memo Ext.PW16/F. He has stated that T-shirt Ext.P11 and lower Ext.P12 are the same which were produced by co-accused Jaspal Singh. He has stated that Shirt Ext.P14 and pants Ext.P15 are the same which were taken into possession vide seizure memo Ext.PW13/B. He has stated that T-shirt Ext.P17 and pants Ext.P18 are the same which were taken into possession vide seizure memo Ext.PW13/C. He has stated that T-shirt Ext.P20 and pants Ext.P21 are the same which were taken into ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 23 possession vide seizure memo Ext.PW13/D. He has stated that he cannot say as to which clothes were produced by which accused because all the clothes were mixed together. He has admitted that his .
sister is married to the maternal uncle of deceased Kirpal Singh. He has denied suggestion that co-accused Vikram Singh did not make any disclosure statement. He has denied suggestion that he is deposing falsely on account of enmity with accused.
of 8.20 PW-20 Dhruv Kumar has stated that he is working as operator in the company since 1999. He has stated that co-accused Sanjeev Kumar @ Sanju was also working in the same company. He rt has stated that he did not mark any punching regarding presence of co-accused Sanjeev Kumar @ Sanju in the factory whenever co-
accused Sanjeev Kumar @ Sanju remained absent. Witness was declared hostile. He has stated that his statement was recorded under Section 164 Cr.PC before Judicial Magistrate Ist Class Nalagarh Ext.PW20/A. He has stated that his statement Ext.PW20/A is correct which was duly signed by him before Judicial Magistrate. He has admitted that he was brought before Judicial Magistrate for recording his statement under Section 164 Cr.PC. He has stated that he was forced to make statement Ext.PW20/A. He has stated that threats were given to him that he would be implicated in the case. He has stated that he remained under constant fear of the police officials as the police officials remained outside Court throughout the time when his ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 24 statement was recorded. He has stated that co-accused Sanjeev Kumar remained present in the factory w.e.f. 18.05.2009 to 21.05.2009 and prepared progress report which was verified in the factory.
.
8.21 PW-21 Ashok Sharma has stated that he is working in Ravira Home Finishing Company since 2002 as personal manager. He has stated that company deals in home finishing items. He has stated that presence in the factory is marked by computerised time machine with of the help of I.D. card. He has stated that I.D. card is shown to the machine and if it is accepted then presence is marked. He has stated that in the month of July 2009 some relation of co-accused Sanjeev rt Kumar requested him telephonically to send the record of presence of co-accused Sanjeev Kumar for the month of May 2009 and he obtained computerised record and sent the same through fax as co-accused Sanjeev Kumar was working in factory. He has stated that presence of the person can be accepted by the machine if I.D. card of some other employee is shown to the machine. He has voluntarily stated that security verifies the identity of the person whose presence is marked by manual checking. He has stated that presence taken by the machine of all employees is checked up daily. He has stated that he cannot say that co-accused Sanjeev Kumar remained absent from factory w.e.f. 09.05.2009 to 15.09.2009 and thereafter from 18.05.2009 to 20.05.2009. Witness was declared hostile. He has denied suggestion that he has resiled from his earlier statement in ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 25 order to save the company from stigma. He has stated that I. D. card of each employee is having photographs and security guard verifies their identity cards. He has stated that physical verification is also .
conducted relating to presence of employees.
8.22 PW-22 Ajay Kumar has stated that he is working as security guard for the last three years in Ravira Home Finishing Company Panipat. He has stated that on the gate employee is allowed to enter of by checking his photo identity card. He has stated that no other person is allowed to enter inside the factory if the name of employee does not match with the check list and I. D. card. He has stated that guard used rt to stand nearby the punching machine. He has stated that presence is marked by the punching machine after showing the identity card. He has stated that co-accused Sanjeev Kumar is working in factory. He has denied suggestion that any person can mark the presence of others by showing the I.D. card of others to the punching machine. He has denied suggestion that w.e.f. 18.05.2009 to 20.05.2009 he did not see co-accused Sanjeev Kumar in the company. He has denied suggestion that he has resiled from his earlier statement in order to save co-accused Sanjeev Kumar being co-worker in the company. He has stated that moment presence is marked by the machine after due verification of the person with identity card report is submitted to the authority before 11.00 AM.
::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 268.23 PW-23 Sukhdev Singh has stated that in the year 2009 he remained posted as supervisor in Promed factory at Khera. He has stated that deceased Kirpal Singh was also working in the factory. He .
has stated that duty period of deceased Kirpal Singh was from 3.00 PM to 11.00 PM. He has stated that on 19.05.2009 deceased Kirpal Singh was present on his duty. He has stated that he used to come to the factory over his motorcycle. He has stated that attendance report of of Promed factory w.e.f. 15.05.2009 to 20.05.2009 is Ext.PW23/A.s He has stated that at Sl. No.24 deceased Kirpal Singh has been shown to be present on 19.05.2009. He has stated that he has not brought rt original record of Ext.PW23/A and he does not remember name of the manager of the factory. He has stated that he does not know whether any girl named Nisha was also working in the factory.
8.24 PW-24 Pawan Singh has stated that in the year 2009 he was working with Fiem Industry Bhatian as Store Manager. He has stated that his duty hours were from 9.00 AM to 5.30 PM. He has stated that due to heavy rush of work he used to sit late during night.
He has stated that on 19.05.2009 he left his company during mid night at about 12 'O' clock over his motorcycle No.HP-12B-0521. He has stated that when he reached Androla bridge he saw one boy lying over left side and motorcycle was also lying at some distance. He has stated that he did not stop as some motorcycle was coming behind him. He ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 27 has stated that people used to come and go over motorcycle during night as a routine being industrial area.
8.25 PW-25 Dr. Puneet Sharma has stated that he remained .
posted as Medical Officer Nalagarh in the year 2009. He has stated that on 20.05.2009 police filed post mortem application Ext.PW25/A. He has stated that he conducted post mortem of deceased aged 25 year. He has stated that death of deceased occurred due to deep injury of in left shoulder due to some weapon. He has stated that deceased was averagely built adult male of height around 5 feet 09 inches. He has stated that clotted blood was present over anterior abdominal wall. He rt has stated that entry wound was present through and through left side upper part of rib cage and anterior axillary line 1 cm x 1 cm with blackish charred margin exit wound. He has stated that cause of death was hemorrhagic shock due to injury to major blood vessel. He has stated that probable time between injury and death was few minutes to few hours. He has stated that probable time between death and post mortem was 12 hours to 24 hours. He has stated that he had issued post mortem report Ext.PW25/B with his signatures 8.26 PW-26 Harjinder Singh has stated that he is working as motorcycle mechanic at Baruna for the last five years. He has stated that his elder brother deceased Kirpal Singh was working in Promed factory at Khera. He has stated that on 19.05.2009 deceased Kirpal Singh had gone on duty and in the evening he had gone to Ropar for ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 28 purchasing and returned to his house in mid night. He has stated that his mother and father and paternal uncle Phuman Singh were present in the house and told that deceased did not return home from his .
working place. He has stated that his maternal uncle made a call to the deceased but the same was not responded. He has stated that on the next morning his paternal uncle Devi Ram informed that dead body of deceased Kirpal Singh was lying over Androla bridge and motorcycle of was also lying there. He has stated that thereafter they went to the spot and found dead body of deceased Kirpal Singh having a shot over his chest. He has stated that photographs mark A1, A2, A3 and A4 rt belong to his deceased brother. He has stated that co-accused Sanjeev Kumar is also known to him. He has stated that he has enmity with the family of co-accused Sodhi Singh relating to land. He has denied suggestion that there was no enmity with co-accused Sodhi Singh. He has denied suggestion that he is deposing falsely at the instance of police officials and on account of the fact that deceased was his brother.
8.27 PW-27 Constable Des Raj has stated that in the year 2009 he remained posted in Police Post Jogon. He has stated that on 20.05.2009 he alongwith police party visited spot and took photographs Ext.PW27/A-1 to Ext.PW27/A-14. He has stated that thereafter he took photographs Ext.PW27/A-15 to Ext.PW27/A-41 at Gullarwala. He has stated that photographs took with the help of ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 29 digital camera. He has denied suggestion that photographs Ext.PW27/A-15 to Ext.PW27/A-41 were not taken at the spot.
8.28 PW-28 HC Neelam Kumar has stated that in the year 2008 .
he remained posted in Police Post Jogon. He has stated that copy of complaint under Section 107/150 Cr.PC is Ext.PW28/A. He has stated that complainant is Devi Ram and Harmesh Kumar, Jeet Ram and Ram Lal are accused. He has stated that statements of witnesses and copy of of MLC are Ext.PW28/A-1, A-2, A-3, A-4, A-5 and A-6. He has stated that proceedings under Sections 107/150 were initiated. He has stated that he does not know that matter was compromised between parties.
8.29 rt PW-29 Ram Dayal has stated that in the year 2009 he remained posted as patwari in Patwar circle Kashmirpur and he was associated during investigation. He has stated that he prepared copy of jamabandi for the year 1998-99 of khasra No.106 Mauja Androla Ext.PW29/A. He has stated that he also prepared copy of jamabandi for the year 1999-2000 of khasra No.35 Mauja Rahia Ext.PW29/B and alsoprepared Aksh Sajra Ext.PW29/C and same are true as per original record.
8.30 PW-30 HHC Kamal Chand has stated that he was discharging the duty of MC at Police Post Jogon and he has brought the diary of police post dated 20.05.2009. He has stated that Rapat No.17 dated 20.05.2009 is true and correct as per original record. He has stated that on 27.05.2009 he handed over the case property vide RC to MHC ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 30 Mansu Ram with the direction to deposit in State Forensic Science Laboratory and thereafter he deposited the same and brought receipt and handed over the same to MHC. He has stated that no interference .
was caused in the case property during the period case property remained in his possession. He has denied suggestion that no case property was handed over to him with the direction to deposit in State Forensic Science Laboratory.
of 8.31 PW-31 MHC Mansu Ram has stated that case property was deposited in malkhana. He has stated that all the sealed parcels alongwith impression of seal were sent to State Forensic Science rt Laboratory vide RC through C. Kamal Chand. He has stated that some parcels of case property were sent to State Forensic Science Laboratory through C. Devinder Singh. He has stated that parcels remained intact during his custody. He has denied suggestion that no sealed exhibits were deposited by S.I.Om Parkash. He has denied suggestion that exhibits were not duly sealed.
8.32 PW-32 Devinder Kumar has stated that in the year 2009 he remained posted in Police Station Nalagarh. He has stated that on 21.07.2009 MHC Mansu Ram handed over to him five sealed parcels to be handed over in State Forensic Science Laboratory. He has stated that after depositing the parcels in the office of State Forensic Science Laboratory he brought the receipt on RC. He has stated that parcels remained intact in his possession. He has denied suggestion that ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 31 parcels were not handed over to him. He has denied suggestion that he did not deposit the parcels in State Forensic Science Laboratory.
8.33 PW-33 C. Mohan Singh has stated that entry in daily diary .
were incorporated in the computer with certificate and FIR Ext.PW33/C was also registered. He has stated that computer was in working condition. He has admitted that whenever any entry incorporated in the computer the certificate is appended.
of 8.34 PW-34 SI Amar Singh has stated that on 19.05.2009 he remained posted in Police Station Nalagarh. He has stated that on 20.05.2009 FIR Ext.PW33/C was registered on the basis of statement rt recorded under Section 154 Cr.PC Ext.PW1/A of Kulwant Singh.
8.35 PW-35 Sanjeev Lakhanpal has stated that he remained posted as SDPO Nalagarh. He has stated that on 13.06.2009 he received a letter addressed to Dy.SP Nalagarh Ext.PW35/A and thereafter he handed over the same to I.O. Om Parkash. He has stated that when he received a letter Ext.PW35/A at that time investigation was in progress in the present case. He has stated that he did not conduct any inquiry relating to the source of letter. He has stated that he did not hand over the letter through any seizure memo to the investigating officer.
8.36 PW-36 Randeep Thakur has stated that he has brought record of case FIR No.113/2009. He has stated that District Magistrate Solan has given sanction against co-accused Sanjeev Kumar @ Sanju ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 32 under Arms Act Ext.PW36/A. He has stated that he identified the signatures of then District Magistrate Solan. He has stated that Dr. Amandeep Garg is presently working as Deputy Commissioner Mandi.
.
8.37 PW-37 Bhajan Singh has stated that he was posted as Patwari in Patwar Circle Karsoli. He has stated that demarcation was given by Kanungo in his presence. He has stated that land in Khasra No.365 was found in possession of Devi Ram and exchange took place of between parties qua Khasra No.365 and 366 vide mutation No.1689 dated 28.02.2008. He has stated that demarcation report was signed by parties and Kanungo and he also signed.
8.38 rt PW-38 ASI Yash Pal has stated that he conducted partly investigation and recorded statement of Bhajan Singh Patwari and thereafter handed over the file to Inspector SHO Ramesh Chand who prepared supplementary challan.
8.39 PW-39 SI Ram Asra has stated that he remained posted in Police Station Nalagarh and he partly investigated the case. He has stated that on dated 10.09.2009 he arrested co-accused Vikram Singh.
8.40 PW-40 Inspector Om Parkash has stated that he remained posted as SHO in Police Station Nalagarh and conducted investigation.
He has stated that on 20.05.2009 he received a telephonic information that dead body was lying over Androla bridge. He has stated that he proceeded to the spot alongwith police officials and took photographs of dead body and also took motorcycle into possession. He has stated ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 33 that he prepared inquest reports and recorded statement of Kulwant Singh father of deceased under Section 154 Cr.PC Ext.PW1/A and sent the same to police station for registration of FIR. He has stated that .
he prepared spot map and dead body was sent for post mortem. He has stated that mobile of deceased, ATM card and purse containing three notes to the denomination of Rs.100/- took into possession vide seizure memo. He has stated that motorcycle alongwith documents, of driving licence, identity card also took into possession. He has stated that he also took blood stained soil and controlled sample of soil. He has stated that words NI were written with blood nearby dead body of rt deceased. He has stated that anonymous letter Ext.PW35/A was received. He has stated that he made inquiry on the basis of anonymous letter and found that on 19.05.2009 co-accused Sanjeev Kumar @ Sanju, Vikram @ Vicky, Jaswinder @ Jassi, Vijender @ Vicky and Jaspal @ Rinku were found roaming around the liquor shop at Panjehra. He has stated that he interrogated all the persons and arrested the accused persons. He has stated that during investigation it emerged that co-accused Sodhi Singh had agreed to give Rs.50,000/-
(Rupees fifty thousand) to co-accused Sanjeev Kumar @ Sanju for the murder of deceased Kirpal Singh as there was land dispute between family of deceased Kirpal Singh and co-accused Sodhi Singh. He has stated that Rs.20,000/- (Rupees twenty thousand) were paid by co-
accused Sodhi Singh to co-accused Sanjeev Kumar @ Sanju as part ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 34 payment to kill deceased. He has stated that on 19.05.2009 when deceased came upon his motorcycle over Androla bridge where all the accused persons were present then deceased was stopped and .
thereafter co-accused Sanjeev Kumar @ Sanju had given fire shot with country made pistol upon body of deceased over his chest and thereafter deceased fell down from the motorcycle. He has stated that thereafter accused persons tried to drag dead body of deceased from of the bridge with the intention to throw the dead body into river but due to flash light of the moving vehicles dead body of the deceased was left upon the bridge. He has stated that co-accused Jaspal has made a rt disclosure statement. He has stated that co-accused Sanjeev Kumar @ Sanju also made a disclosure statement relating to concealment of country made pistol. He has stated that in pursuance of disclosure statement country made pistol was recovered. He has stated that country made pistol Ext.P6, used cartridge Ext.P7 and live cartridge Ext.P8 were recovered as per disclosure statements given by accused.
He has stated that T-shirts, lowers and pants of accused persons were taken into possession. He has stated that on 13.09.2009 co-accused Vikram Singh had given disclosure statement that he could disclose the place where payment of Rs.20,000/- (Rupees twenty thousand) given to co-accused Sanjeev Kumar @ Sanju by co-accused Sodhi Singh to kill deceased. He has stated that after receiving report from SFSL final report was prepared. He has admitted that there is no eye witness of ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 35 the incident. He has stated that deceased was not last seen with any of the accused. He has stated that he did not lift any finger print or foot print from the spot. He has stated that nothing was visible to lift the .
prints. He has stated that complainant did not mention name of any accused when the statement of complainant was recorded under Section 154 Cr.PC. He has denied suggestion that he did not conduct fair investigation. He has denied suggestion that accused persons did of not give any disclosure statement. He has denied suggestion that none of the accused were roaming in and around the place of incident on the date of death. He has denied suggestion that recovery of country rt made pistol was fabricated recovery. He has stated that he did not obtain call details of mobile of accused. He has denied suggestion that PW Dhruv Kumar was threatened to implicate him in false case. He has denied suggestion that he had recorded statements of prosecution witnesses as per his own suitability. He has denied suggestion that accused persons have been falsely implicated in the present case. He has denied suggestion that co-accused Sodhi Singh did not agree to pay Rs.50,000/- (Rupees fifty thousand) to co-accused Sanjeev Kumar @ Sanju to kill deceased. He has denied suggestion that statements of accused persons were recorded after torturing them.
9. Statements of accused persons under Section 313 Cr.PC. were recorded. Accused persons have stated that they are innocent and have been falsely implicated in the present case.
::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 3610. Following defence witnesses examined:
10.1 DW-1 Jarnail Singh has stated that he is numberdar for village Karsoli, Bhatoli Tapria and he is in possession of identity card issued by .
Tehsildar Nalagarh and copy is Ext.DW1/A. He has stated that there is no numberdar in the village in the name of Avar Singh s/o Rattan Singh. He has stated that Avtar Singh is wrongly proclaiming himself as numberdar of the village. He has stated that there are 2-3 numberdars of in the village namely Milkhy and father of Avtar Singh. He has denied suggestion that Avar Singh s/o Rattan Singh is also numberdar. He has denied suggestion that he is not residing in the village for the last rt two years. He has denied suggestion that co-accused Sanjeev Kumar @ Sanju is son of his real brother. He has denied suggestion that he is deposing falsely because he is relative of co-accused Sanjeev Kumar @ Sanju.
10.2 DW-2 Mangal Singh has stated that he had dispute with Chanan Singh and compromise took place. He has stated that altercation took place on the issue of reversing vehicle when the vehicle parked by Chanan Singh was not removed. He has stated that matter was reported to the police and compromise mark D was executed. He has stated that co-accused Sanjeev Kumar @ Sanju is his son and altercation took place with Mandeep s/o Jaimal Singh, Raj Kumar s/o Gudev and Harjeet Singh s/o Chanan Singh. He has stated that he was on duty when the incident took place. He has denied ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 37 suggestion that he was creating nuisance under the influence of liquor.
He has denied suggestion that in the year 2007 his son Sanjeev Kumar had an altercation with Raj Kumar. He has admitted that matter was .
compromised after registration of FIR against his son Sanjeev Kumar.
He has denied suggestion that there was inimical relation towards complainant even after compromise.
11. Following documentaries evidence produced by the prosecution:
of (1) Ext.PW-1/A is statement of PW-1 Kulwant Singh recorded under Section 154 Cr.PC. (2) Ext.PW1/B and Ext.PW1/C are inquest reports.
(3) Ext.PW1/D is memo qua handing over of dead body of deceased to rt his relative. (4) Ext.PW2/A is memo relating to articles recovered from dead body of deceased. (5) Ext.PW2/B is complaint filed by Devi Ram before Gram Panchayat Karsoli against Ram Lal, Jeet and Harmesh and report filed by Pradhan Gram Panchayat Karsoli to police station against quarrel between two parties at the spot. (6) Ext.PW2/C is family compromise. (7) Ext.PW3/A is seizure memo of motorcycle Hero Honda No.HP-12-B-0323 alongwith documents, driving licence and identity card. (8) Ext.PW4/A is seizure memo of blood clotted soil and sample of controlled soil. (9) Ext.PW4/B is seizure memo of writing NI with blood from parapet of Androla bridge. (10) Ext.PX is death certificate of Kuldeep Kumar. (11) Ext.PW11/A is disclosure statement recorded under Section 27 of Indian Evidence Act of co-accused Sanjeev Kumar @ Sanju relating to recovery of 12 bore country made ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 38 pistol. (12) Ext.PW11/B is sketch of country made pistol alongwith one live cartridge. (13) Ext.PW11/C is seizure memo of 12 bore country made pistol alongwith used cartridge and live cartridge. (14) .
Ext.PW12/A is recovery of motorcycle Hero Honda No.PB-10AZ-1004 alongwith RC and key. (15) Ext.PW13/A is recovery of clothes of co-
accused Jaspal Singh worn at the time of incident. (16) Ext.PW13/B is recovery of clothes of co-accused Vijender Singh @ Vicky worn at the of time of incident. (17) Ext.PW13/C is recovery of clothes of co-accused Jasveer Singh @ Jassi worn at the time of incident. (18) Ext.PW13/D is recovery of clothes of co-accused Sanjeev Kumar @ Sanju worn at the rt time of incident. (19) Ext.PW16/A is disclosure statement recorded under Section 27 of Indian Evidence Act of co-accused Jaspal Singh.
(20) Ext.PW16/B is disclosure statement recorded under Section 27 of Indian Evidence Act of co-accused Vikram Singh relating to payment of Rs.20000/- (Rupees twenty thousands) by co-accused Sodhi Singh to co-accused Sanjeev Kumar @ Sanju to kill deceased. (21) Ext.PW16/C is disclosure statement recorded under Section 27 of Indian Evidence Act of co-accused Vikram Singh wherein co-accused Sodhi Singh given Rs.20000/- (Rupees twenty thousands) to co-accused Sanjeev Kumar @ Sanju to kill deceased. (22) Ext.PW16/D is statement of co-accused Jaspal Singh relating to location of incident. (23) Ext.PW16/E is recovery of motorcycle Hero Honda No.HP-12-A-3318. (24) Ext.PW16/F is seizure memo of Mobile C117 alongwith sim card. (25) Ext.PW17/A ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 39 is recovery of RC of motorcycle Hero Honda No.HP-12-A-3318. (26) Ext.PW17/B is driving licence of Bhoop Chand Sharma relating to motorcycle Hero Honda No.HP-12-A-3318. (27) Ext.PW20/A is .
statement of PW Dhruv Kumar recorded before Judicial Magistrate Ist Class Nalagarh under Section 164 Cr.PC. relating to punching of attendance card of co-accused Sanjeev Kumar @ Sanju from 18.05.2009 to 20.05.2009 in the absence of co-accused Sanjeev Kumar of @ Sanju in the factory. (28) Ext.PW23/A is copy of attendance register.
(29) Ext.PW25/A is application filed by I.O. for post mortem of deceased. (30) Ext.PW25/B is post mortem report of deceased. As rt per mortem report deceased aged 25 years had died due to hemorrhagic shock due to injury to major blood vessel. (31) Ext.PW25/C, Ext.PW25/D, Ext.PW25/E and Ext.PW25/F are State Forensic Science Laboratory reports. (32) Ext.PW25/G is ballistics expert report. As per ballistics expert report no opinion regarding firing of exhibit E/1b used cartridge Ext.P7 from country made pistol Ext.P6 could be given because metal base of used cartridge Ext.P7 on which firing pin and breech face marks developed were missing. (33) Ext.PW27/A-1 to Ext.PW27/A-41 are photographs. (34) Ext.PW28/A is complaint filed under Section 107/150 Cr.PC by Devi Ram against Hermesh Kumar, Jeet Ram and Ram Lal. (35) Ext.PW28/A-1 is rapat No.4. (36) Ext.PW28/A-2 is statement of Devi Ram. (37) Ext.PW28/A-3 is statement of Kulwant Singh. (38) Ext.PW28/A-4 is statement of ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 40 Phuman Singh. (39) Ext.PW28/A-5 is MLC of Kulwant Singh. (40) Ext.PW28/A-6 is MLC of Devi Ram. (41) Ext.PW29/A is copy of jamabandi for the year 1998-1999 qua khasra No.106 Mauja Androla .
Upperla. (42) Ext.PW29/B is copy of jamabandi for the year 1999-2000 qua khasra No.35 Mauja Raiya. (43) Ext.PW29/C is nakal aksh sajra kisatbar. (44) Ext.PW30/A is copy of rapat No.17 dated 20.05.2009.
(45) Ext.PW30/B is road certificate. (46) Ext.PW31/A, Ext.PW31/B, of Ext.PW31/C and Ext.PW31/D are extracts of malkhana register. (47) Ext.PW33/A is certificate relating to report No.6A dated 20.05.2009 taken through computer. (48) Ext.PW33/C is FIR No.133 dated rt 20.05.2009 registered under Section 302 IPC. (49) Ext.PW35/A is letter written to Dy.SP Nalagarh. (50) Ext.PW35/B is outer cover of letter written to Dy.SP Nalagarh. (51) Ext.PW36/A is permission given by District Magistrate Solan (H.P.) to prosecute co-accused Sanjeev Kumar @ Sanju under Arms Act. (52) Ext.PW40/B, Ext.PW40/C, Ext.PW40/D & Ext.PW40/E are site plans. (53) Ext.PW40/F-1, F-2, F-3, F-4 & F-5 are specimens of seal taken upon plain clothes. (54) Ext.PW40/G is site plan. (55) Ext.PW40/H is letter written to Halqua patwari by Addl. SHO Nalagarh. (56) Ext.PW40/J is site plan. (57) Ext.PW40/K-1, K-2, K-3, K-4, K-5, K-6, K-7, K-8 & K-9 are statements of witnesses relating to contradiction purpose. (58) Ext.DW1/A is identity card of Jernail Singh.
::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 41Findings in Cr. Appeal No.275 of 2011 title Sanjeev Kumar vs. State of H.P.
12. Submission of learned Advocate appearing on behalf of .
appellant Sanjeev Kumar that chain of circumstances against appellant/co-accused Sanjeev Kumar is not completed is accepted for the reasons hereinafter mentioned. Present case is not based upon eye witnesses but entirely based upon circumstantial evidence. PW-5 of Krishan Pal did not support the prosecution case when he appeared in witness box. PW-5 has specifically stated that he is running a courtyard used for consuming liquor outside liquor shop for the last four years at rt Panjehra. PW-5 has stated in positive manner that he does not know who came to take drinks in his courtyard on 20.05.2009. He has stated that he does not remember all the visitors. PW-5 did not state that all the accused persons came to his courtyard and consumed liquor.
Hence it is held that testimony of PW-5 has broken the chain of circumstantial evidence.
13. We have also perused the testimony of PW-6 Nand Lal. PW-6 Nand Lal has specifically stated when he appeared in witness box that he could not identify the persons travelling upon motorcycle who crossed during night. He has stated that he could not state age of the motorcyclists as well as colour of their clothes. Witness was declared hostile. We are of the opinion that testimony of PW-6 has also broken the chain of circumstantial evidence in the present case. Similarly ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 42 we have also perused the testimony of PW-7 Jagir @ Chhibar. PW-7 Jagir has specifically stated when he appeared in witness box that nothing had happened in his presence. PW-7 did not support the .
prosecution case as alleged by the prosecution. Witness was declared hostile. We are of the opinion that testimony of PW-7 has also broken the chain of circumstantial evidence in the present case. Similarly we have also perused the testimony of PW-10 Kuldeep Singh. PW-10 has of specifically stated in positive manner that he could not trace out description of motorcycle riders who crossed during mid night. Witness was declared hostile. We are of the opinion that testimony of PW-10 rt has also broken the chain of circumstantial evidence in the present case.
14. We have also perused the testimony of PW-12 Maninder Singh. PW-12 also did not support the prosecution case as alleged by the prosecution and witness was declared hostile. We are of the opinion that testimony of PW-12 has also broken the chain of circumstantial evidence in the present case. PW-12 has stated that motorcycle No.PB-10AZ-1004 was used by him on night duty on 19.05.2009 and was not used by co-accused Jasbeer Singh. Similarly we have also perused the testimony of PW-13 Kuldeep Singh. PW-13 also did not support the prosecution case as alleged by the prosecution and witness was declared hostile. We are of the opinion that testimony of PW-13 has also broken the chain of circumstantial ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 43 evidence in the present case. PW-13 has stated in positive manner that clothes were not given by accused persons in his presence. Similarly we have also perused the testimony of PW-20 Dhruv Kumar. PW-20 .
also did not support the prosecution case as alleged by the prosecution and witness was declared hostile. We are of the opinion that testimony of PW-20 has also broken the chain of circumstantial evidence in the present case. PW-20 has stated that he was forced to of give statement under Section 164 Cr.PC by way of threats. He has stated that he had made statement under Section 164 Cr.PC as directed by police officials. PW-20 has stated that he was threatened rt by police officials that he would be implicated in present case as accused in case he would not give statement under Section 164 Cr.PC as directed by police officials. Prosecution did not examine Judicial Magistrate in the present case who recorded statement of PW-20 under Section 164 of Code of Criminal Procedure. Similarly we have also perused the testimony of PW-21 Ashok Sharma. PW-21 also did not support the prosecution case as alleged by the prosecution and witness was declared hostile. We are of the opinion that testimony of PW-21 has also broken the chain of circumstantial evidence in the present case. PW-21 has denied suggestion that co-accused Sanjeev Kumar was not present in factory w.e.f. 18.05.2009 to 20.05.2009.
Similarly we have also perused the testimony of PW-22 Ajay Kumar.
PW-22 also did not support the prosecution case as alleged by the ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 44 prosecution. We are of the opinion that testimony of PW-22 has also broken the chain of circumstantial evidence in the present case. PW-22 was security guard in company. He has stated that he could not state .
that co-accused Sanjeev Kumar was absent from duty w.e.f.
18.05.2009 to 20.05.2009. As per duty chart co-accused Sanjeev Kumar was present in factory on 19.05.2009 and 20.05.2009.
15. We have also carefully perused the ballistic expert report of Ext.PW25/G placed on record. Ballistic expert has specifically mentioned in his report Ext.PW25/G that no opinion regarding firing of exhibit E/1b (Used cartridge) from country made pistol could be given rt because metal base of used cartridge on which firing pin and breech face marks developed were missing. In the present case ballistic expert has not given any definite opinion that deceased had sustained injuries upon his body due to used cartridge Ext.P7 produced by prosecution in Court. In view of the above stated facts it is held that chain of circumstantial evidence is broken in the present case as per report of Ballistics expert relating to used cartridge Ext.P7 placed on record. In the present case no finger prints and foot prints of appellant took into possession in order to connect the appellant with the commission of offence with country made pistol Ex.P6 beyond reasonable doubt as required under criminal law.
16. We are of the opinion that chain of circumstantial evidence is broken in the present case when view is given by ballistic expert that ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 45 no opinion regarding firing of exhibit E/1b (Used cartridge) Ext.P7 from country made pistol Ext.P6 could be given because metal base of used cartridge on which firing pin and breech face marks developed were .
missing. We are of the opinion that in view of the opinion given by ballistic expert Ext.PW25/G cited supra chain of circumstantial evidence is broken in the present case and disclosure statements of accused persons are not sufficient for conviction because disclosure statements of are not substantive evidence. It is well settled law that disclosure statements are only corroborative in nature and are not conclusive circumstances. Disclosure statement merely raises strong suspicion.
rt See AIR 1971 Apex Court 2016 title Bakshish Singh vs. State of Punjab. See AIR 1979 Apex Court 1042 title Babboo & Others vs. State of Madhya Pradesh.
17. We are of the opinion that statement given by PW Dhruv Kumar under Section 164 of Code of Criminal Procedure can be used for contradiction and corroborative purpose only and we are of the opinion that if witness resiled from his earlier statement then perjury case can be instituted against the witnesses in accordance with law. In view of the opinion of ballistic expert Ext.PW25/G placed on record chain of circumstantial evidence is broken in present case.
18. Even prosecution did not recover Rs.20,000/- (Rupees twenty thousand) from co-accused as part payment of killing deceased. Hence chain of circumstantial evidence is broken in present case. It is held ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 46 that in view of opinion of ballistic expert that no opinion regarding firing of exhibit E/1b (Used cartridge) from country made pistol could be given because metal base of used cartridge on which firing pin and .
breech face marks developed were missing. Conviction given by learned Trial Court could not be sustained.
19. It was held in case reported in 2013 Cr. Law Journal 2040 title Parkash Chand vs. State of Rajasthan Apex Court that there of are five golden principles in case of circumstantial evidence. (i) Circumstances from which the conclusion of guilt is to be drawn should be fully established and the accused must be and not merely may be rt guilty (ii) Facts so established should be consistent only with guilt of the accused (iii) Circumstances should be of a conclusive nature. (iv) Chain of evidence should be completed. (v) Innocence of accused should be ruled out. It is well settled law that circumstantial evidence is combination of all facts creating a net through which accused could not escape. See AIR 2010 Apex Court of India 762 title Musheer Khan @ Badshah Khan and Another vs. State of Madhya Pradesh. Also See AIR 2009 Apex Court of India 56 title Shivaji @ Dadya Shankar Alhat vs. State of Maharashtra.
20. It is well settled law that last seen theory comes into play where time gap between point of time when accused and deceased were last seen together and when deceased found dead is so small that possibility of any person other than the accused being author of ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 47 crime becomes impossible. See AIR 2008 Apex Court of India 2819 title Kusuma Ankamarao vs. State of Andhra Pradesh. In the present case dead body of deceased was found upon the bridge which was .
approachable to the public easily and even vehicles were passing from the bridge where the dead body was lying. Place of dead body was accessible to the general public and even in the present case as per ballistic expert report Ext.PW25/G doubt is created relating to injuries of sustained by the deceased from used cartridge Ext.P7 placed on record. Hence it is held that prosecution did not prove circumstantial evidence against the appellant beyond reasonable doubt and rt conclusive in nature. Hence point No.1 framed in Cr. Appeal No.275 of 2011 title Sanjeev Kumar vs. State of H.P. is answered in affirmative in favour of appellant Sanjeev Kumar @ Sanju.
Findings in Cr. Appeal No.404 of 2011 title Kulwant Singh vs. State of H.P.
21. Oral and documentaries evidence in Cr. Appeal No.275/2011 will be read as oral and documentaries evidence in Cr. Appeal No.404/2011 because both appeals have been filed against same judgment and sentence passed by learned trial Court and oral and documentaries evidence is not repeated again in order to avoid repetition.
22. Submission of learned Advocate appearing on behalf of appellant that other co-accused should be convicted in view of the testimonies of PW-1 to PW-8 is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that chain of ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 48 circumstantial evidence is not proved against other co-accused as mentioned in findings in Cr. Appeal No.275/2011. Reasons are not repeated again in order to avoid repetition. Reasons mentioned in Cr.
.
Appeal No.275/2011 be also read as reasons mentioned in Cr. Appeal No.404/2011.
23. Submission of learned Advocate appearing on behalf of appellant that in view of disclosure statements Ext.PW16/A, of Ext.PW16/B & Ext.PW16/C co-accused No.2 to 7 be punished is also rejected being devoid of any force for the reasons hereinafter mentioned. It is held that in the present case chain is not completed rt and it is held that in the present case ballistics expert has given opinion Ext.PW-25/G that no opinion regarding firing of exhibit E/1b (Used cartridge) Ext.P7 from country made pistol Ext.P6 could be given because metal base of used cartridge Ext.P7 on which firing pin and breech face marks developed were missing. Hence it is held that chain against accused persons is broken as per opinion of ballistic expert. It is the case of prosecution that only one shot injury was given to the deceased from 12 bore country made pistol Ext.P6 with used cartridge Ext.P7.
24. Submission of learned Advocate appearing on behalf of appellant that as per testimony of PW-20 Dhruv Kumar and as per statement recorded under Section 164 of Code of Criminal Procedure Ext.PW20/A it is proved on record that murder of deceased was pre-
::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 49planned and it is proved on record that co-accused Sodhi Singh had given part payment to co-accused Sanjeev Kumar @ Sanju to kill deceased Kirpal Singh and on this ground appeal filed by the appellant .
be accepted and other co-accused be also convicted is also rejected being devoid of any force for the reasons hereinafter mentioned.
We have perused the testimony of PW-20 Dhruv Kumar carefully.
PW-20 has specifically stated when he appeared in witness box that he of was kept in police station for three days. He has stated in positive manner that he was forced to make statement Ext.PW20/A by way of threats that he would be implicated in present case. He has stated that rt he remained under constant fear of the police officials as the police officials were present outside Court throughout the time when his statement was recorded by Judicial Magistrate. In view of above stated facts it is not expedient in the ends of justice to allow Criminal Appeal No.404 of 2011 title Kulwant Singh vs. State of H.P. & Others.
25. Submission of learned Advocate appearing on behalf of appellant that criminal conspiracy to kill deceased under Section 120-B of IPC between all the accused is proved beyond reasonable doubt is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that to bring home the charge of criminal conspiracy it is necessary to establish that there was an agreement between the parties for doing an unlawful act. See AIR 1999 Apex Court 1086 title Vijayan vs. State of Kerala. Also see JT ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 50 2010 (13) Apex Court 284 title John Pandian vs. State. In the present case criminal conspiracy is not proved beyond reasonable doubt as required under criminal law. Consideration amount of .
Rs.20,000/- (Rupees twenty thousand) as part payment to kill deceased not produced in Court.
26. Submission of learned Advocate appearing on behalf of appellant that as per testimonies of PW-15, PW-16 and PW-18 all the of accused persons were present at the spot on the intervening night and on this ground appeal filed by the appellant be accepted is also rejected being devoid of any force for the reasons hereinafter rt mentioned. It is proved on record that dead body of deceased was found upon Androla bridge which was accessible to the general public at large and it is also proved on record that many vehicles also crossed from the bridge where dead body of deceased was found. It is not proved on record that used cartridge Ext.P7 was used for murder of deceased from country made pistol Ext.P6 as per ballistic expert opinion Ext.PW25/G. Hence it is held that chain of circumstantial evidence is broken in the present case against accused persons.
27. Submission of learned Advocate appearing on behalf of appellant that learned Trial Court has not properly appreciated oral as well as documentaries evidence placed on record qua co-accused No.2 to 7 is also rejected being devoid of any force for the reasons hereinafter mentioned. It is held that in the present case PW-6 Nand ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 51 Lal, PW-7 Jagir, PW-10 Kuldeep Singh, PW-12 Maninder Singh, PW-13 Kuldeep Singh, PW-20 Dhruv Kumar, PW-21 Ashok Sharma and PW-22 Ajay Kumar did not support the prosecution case as alleged by the .
prosecution and they have been declared hostile by the prosecution. It is held that as per testimonies of above stated witnesses chain of circumstantial evidence against accused persons is broken in the present case. It is well settled criminal law that prosecution must stand of or fall on its own legs and it cannot derive any strength from weakness of defence. It is well settled law that moral conviction however strong or genuine cannot amount to legal conviction sustainable in law. See rt 2005 (9) SCC 765 title Anjlus Dungdung vs. State of Jharkhand.
In view of above stated facts point No.2 is decided against appellant Kulwant Singh.
Point No.3 (Final order).
28. In view of my findings on points No.1 & 2 above Cr. Appeal No.275 of 2011 title Sanjeev Kumar vs. State of H.P. is allowed and appellant Sanjeev Kumar is acquitted qua offences punishable under Sections 302, 201 IPC read with Section 25 of Arms Act by way of giving him benefit of doubt. Cr. Appeal No.404 of 2011 title Kulwant Singh vs. State of H.P. & Others is dismissed. Certified copy of judgment will be placed in Cr. Appeal No.404 of 2011 title Kulwant Singh vs. State of H.P. & Others. Files of learned Trial Court alongwith certified copy of judgment be sent back forthwith. Learned Registrar ::: Downloaded on - 15/04/2017 20:07:18 :::HCHP 52 (Judicial) will issue release warrant in favour of Sanjeev Kumar s/o Sh.
Mangal Singh forthwith in accordance with law if Sanjeev Kumar is not required in any other case. Both Criminal Appeals i.e. Cr. Appeal .
No.275 of 2011 title Sanjeev Kumar vs. State of H.P. and Cr. Appeal No.404 of 2011 title Kulwant Singh vs. State of H.P. & Others are disposed of. Pending application(s) if any also disposed of.
of (Sanjay Karol), Judge.
(rana)
rt
April 13, 2016 (P. S. Rana),
Judge.
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