Punjab-Haryana High Court
Crl. Appeal No.127-Db Of 2009 vs State Of Punjab on 17 October, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
Crl. Appeal No.127-DB of 2009 and
Crl. Appeal No.83-DB of 2009 and
Crl. Appeal No.928-DB of 2008
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Crl. Appeal No.127-DB of 2009
Surjit Singh @ Raju Jattiwala ..... Appellant
Versus
State of Punjab
..... Respondent
2. Crl. Appeal No.83-DB of 2009
Paramjit Singh @ Pamma ..... Appellant
Versus
State of Punjab
..... Respondent
3. Crl. Appeal No.928-DB of 2008
Satnam Singh @ Satta and others ..... Appellants
Versus
State of Punjab
..... Respondent
Date of Decision: 17.10.2012
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Vikram Chaudhary, Advocate,
for the appellant in Crl. Appeal No.127-DB of 2009.
Mr. Veneet Sharma, Advocate,
for the appellant in Crl. Appeal No.83-DB of 2009.
Ms. Neha Jain, Advocate,
for Ms. Deepa Dubey, Advocate.
Mr. Karanjit Singh, Advocate and
Mr. Sarabjit Singh, Advocate.
Ms. Ravinder Kaur Nihalsinghwala, Addl. AG, Punjab.
Crl. Appeal No.127-DB of 2009 and
Crl. Appeal No.83-DB of 2009 and
Crl. Appeal No.928-DB of 2008
-2-
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
This order will dispose of Crl. Appeal No.127-DB of 2009, Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 as they relate to the same occurrence and arise out of the common judgment dated 25.11.2008 passed by the Additional Sessions Judge, Amritsar.
Crl. Appeal No.127-DB of 2009 has been filed by Surjit Singh @ Raju Jattiwala, s/o Gurnam Singh, r/o Gali Masitwali, Police Station D- Division, Lohgarh Gate, Amritsar, Crl. Appeal No.83-DB of 2009 has been filed by Paramjit Singh @ Pamma, s/o Tehal Singh, r/o Satnam Nagar Colony and Crl. Appeal No.928-DB of 2008 has been filed by Satnam Singh @ Satta, s/o Mukhtiar Singh, r/o Chawinda, P.S. Lopoke, District Amritsar, Joginder Singh @ Jinda, s/o Sucha Singh, r/o Village Dhodhe, P.S. Jhabal, District Taran Taran, Jaspreet Singh @ jassa @ Gali, s/o Hian Singh, r/o Master Colony, Tarn Taran & Baljinder Singh, s/o Gian Singh, r/o Master Colony, Taran Taran against the judgment and order dated 25.11.2008 passed by the Additional Sessions Judge, Amritsar convicting and sentencing the accused for offences punishable under Section 302 IPC read with Section 396 IPC for committing dacoity and murder of Sunil Kumar @ Bhola at night in a bazaar near Jain Mandir, Khooh Korhian, Amritsar while the deceased and his brother Satish Kumar were returning on a rickshaw from their jewellery shop while two of the accused snatched the bag containing ornaments from Sunil Kumar deceased. The death has been caused by fire arm injury. Satish Kumar complainant was injured in the Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -3- incident. The accused Surjit Singh @ Raju Jattiwala, Paramjit Singh @ Pamma, Satnam Singh @ Satta, Joginder Singh @ Jinda, Jaspreet Singh @ Jassa @ Gali and Baljinder Singh - appellants have been sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for six months. All the accused - appellants have also been sentenced under Section 396 IPC to undergo imprisonment for life and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for six months. Both the substantive sentences have been ordered to run concurrently.
The case of the prosecution as revealed in FIR No.33 dated 22.04.2006 registered at Police Station Kotwali, Amritsar on the statement of Satish Kumar brother of the deceased is that both the brothers ran a jewellery shop in the name and style of Bhatia Jewellers in Guru Bazar, Amritsar. On 22.04.2006 at about 8.45 PM both the brothers closed business for a day at their shop and started returning to their residence at Majitha Road, Amritsar in a rickshaw. They carried gold ornaments and cash in two bags one with each of them. When they came near Jain Mandir, Khoo Korhian, Amritsar, three youth came in front of them riding a motor cycle make Hero Honda and two youth riding on a white scooter, while another Hindu gentleman wearing a dark coloured cap was also there on a Hero Honda motor cycle and another clean shaven youth was standing at the place of occurrence of the incident. One of them was a sikh youth wearing pochvin turban (a particular kind and style of wearing turban) while the other was wearing a patka on his head. The one Hindu youth had put a red Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -4- and white cap on his head and two Hindu gentlemen were without any headgear. Though they wore a short beard on their faces, they all appeared to be of the age group of 25 to 30 years. They started snatching the bags from the hands of the brothers. When they protested, a turban wearing youth took out a small sword from his pocket and came running towards the complainant and his brother to attack them while the cap wearing youth took out a revolver from his socks and fired two shots at the complainant and his brother. One shot passed by the head of the complainant while the other hit Sunil Kumar @ Bhola on his chest between the right side of the shoulder. Upon this, two youth snatched the bag from his brother. The complainant tried to flee clutching his bag but his foot slipped and he fell to the ground. He was then hit by a small sword on his head by the turban wearing youth and his bag was also snatched. All the appellants fled away from the place of occurrence on their motor cycles firing shots in the air. The accused were seen by Ajay Kapoor (PW-10) who had witnessed the commission of crime in the street light. The complainant rang up his brother Pawan Bhatia to bring a car to the spot for aid and help. However, while the complainant's brother, the victim Sunil Kumar was being removed to Guru Nanak Dev Hospital, Amritsar for medical treatment, the victim unfortunately succumbed to the firearm injury in the shoot out and died on the way.
On the basis of the statement of the complainant, FIR was registered and ruqa was sent to the Illaqa Magistrate and special report to the higher Police officers through HC Ajit Singh as required by law. The Control Room was informed through telephone of the occurrence. On Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -5- registration of the criminal case, investigation was started. The autopsy of the body was performed on 23.04.2006 by PW-1 Dr. Deepak Walia who found the following single injury on the body of the deceased:-
"A lacerated wound with inverted margin 1.5 cm x 1 cm on right side of chest in the infra clavicular Fosa 15 cm above right nipple and 16 cm from middle eye. Abrasion collar was present on the infra lateral margin on the wound. On dissection, the track was directed upwards medially and slightly backward. Through the anterior chest wall mussel on right side and behind the manubrium sternite injuring the great vessels in the superior medeostenm going through left side ending in interior chest wall mussels in the infra clavicular fosa. The metallic bullet recovered this site which was preserved in dry viol. Infiltration of blood and clothes present in the roof of neck and anterior chest wall on both sides. Left parietal pleura injured at the apex about literal of flid and clotted blood present in the left pleural cavity. Stomach contained about 150 CC of fluid. Liver spleen and kidneys were found pale.
Injury was ante mortem in nature and caused by fire arm discharge. The cause of death in this case was haemorrhage and shock as a result of the injury which was sufficient to cause death in ordinary course of nature. The time between injury and death was within few minutes. Time between death and post mortem was within 12 to 24 hours."
During the autopsy, a bullet was recovered from the body of the deceased which was taken into possession by recovery memo.
The sequence of events leading to the arrest of the accused is narrated in the statement of PW-7 DSP Dilbagh Singh. On 22.04.2006, he was SHO of Police Station East Division, Amritsar and had recorded the statement of the complainant on the basis of which the formal FIR Ex.P-17 was recorded by Baljit Singh ASI. Dilbagh Singh had investigated the case and visited the place of occurrence to prepare rough site plan Ex.P-18. He picked up blood stained earth from the spot and made it into a parcel for Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -6- analysis. One empty cartridge was picked up from the place of occurrence and made into parcel and sealed. A bullet was also picked up from the place of occurrence and made into parcel. He carried out the other formalities with respect to the case property. He stated that on 21.05.2006, he made the first arrest of appellant Satnam Singh from the area of DAV College, Amritsar and from his possession one country made pistol with three live cartridges was recovered. The arrest of the other accused followed and recoveries effected. During the interrogation Satnam Singh, who was identified by IO in Court later, made a disclosure statement on 24.05.2006 that he had hidden a golden 'pandle' (pendant ?) in some clothes lying in a trunk in his house and that no one knew about it and he could get it recovered. His disclosure statement Ex.P-20 was recorded and duly attested by witnesses. Recovery was effected from the place pointed out. The gold item recovered was found in a container with the name of Bhatia Brothers, Jewellers inscribed. Both the pandle and container were taken into possession. Accused-appellant Joginder Singh was interrogated on the same day during which he made disclosure statement that he had kept the gold in his house concealed in a trunk. He further stated that ear tops and rings were also concealed by him together with a kripan near the gate of his house and the same could be got recovered. His disclosure statement Ex.P8 was recorded and recovery of the gold ornaments and kripan was effected from the place disclosed and was taken into possession as case property. On 23.05.2006 the accused Surjit Singh was arrested on production warrant. On interrogation, he disclosed on 29.05.2006 that 8 pieces of jewellery, Rs.2500/- in cash, 2 mobiles phones, one country made pistol and 3 cartridges were concealed Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -7- by him in a trunk lying in his house and he could get it recovered. The recovery was effected accordingly and objects found taken into possession as case property. On 25.05.2006 accused Paramjit Singh @ Pamma was arrested. On 26.06.2006 the Investigating Officer was transferred.
The report of the Forensic Science Laboratory, Punjab, Chandigarh with respect to Parcels A and B recovered from the spot and taken in sealed packets was certified as having been found intact and tallied with the specimen pre-seal of the Investigating Officer etc. Parcel A contained 7.65 mm KF cartridge case marked c/1 in the lab and Parcel B being jacketed bullet marked CB/1 also of 7.65 mm in the lab. The result of the examination was that the caliber of one K.F. cartridge case marked C/1 contained in parcel A, is 7.65 mm. Such cartridges are normally fired from a 7.65 mm pistol. The caliber of one jacketed bullet marked CB/1 is of 7.65 mm. Such bullet is normally fired from 7.65 mm pistol. The caliber of one K.F. cartridge case marked C/1 and one jacketed bullet marked CB/1 is same.
On completion of the investigation, a final report under Section 173 Cr.P.C. was presented in Court. A supplementary challan filed by the State vide order dated 26.02.2007 against one of the accused namely, Jaspreet Singh and Baljinder Singh was ordered to be attached with the sessions case as their involvement in the crime was found during continued investigation. Charge sheet / amended charge sheet was framed against the accused for murder and dacoity. On committal all the accused pleaded innocence and false implication and claimed trial.
In support of its case, the prosecution examined as many as 12 Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -8- witnesses.
PW-1, Dr. Deepak Walia deposed to the nature of the injury caused to the deceased being single fire arm injury and the cause of death due to haemorrhage and shock as a result of the said injury which was sufficient to cause death in the ordinary course of nature. The injuries were ante mortem in nature.
PW-2, Gurparshad who is a witness to the extra judicial confession turned hostile in the witness box and said that none of the accused had come to him to make a confession on 06.05.2006. He stated that he was not at Amritsar on that day and had in fact gone to Dyal Bagh, Agra.
PW-3, PW-4, PW-6, PW-7 and PW-8 are formal witnesses of the Police who supported their respective roles in handling of case property and as recovery witnesses etc and need not detain us any further.
PW-5, Ashwani Kumar was a local jeweller and a witness of recovery who turned hostile at the trial.
PW-9, Satish Kumar, complainant was the eye witness brother of the deceased and an injured witness in the case by his previous statement. During examination as a witness, he recounted the happenings of the fateful night of 22.04.2006. He stated that there were 6/7 persons who came armed with weapons and attacked both the brothers. Their ages were between 35 to
40. They started firing. His brother received firearm injuries. He received injury on his head (there is no medical evidence of injury though). Both the bags were snatched by the assailants and they fled on their respective vehicles. He said that he could identify those persons but they were not Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -9- among the accused present in Court. He also said that occurrence had been seen by many people in the bazaar. He said that his supplementary statement was not recorded. However, his statement Ex. P-15 was recorded by the police which was signed by him after admitting it as correct. On this, a request was made by the public prosecutor to declare the witness hostile. In his cross-examination on being declared hostile, he however made a significant and crucial statement that he had identified some gold ornaments in the Police Station but he could not tell the details. He supported the identification memo Ex.P-9 and Ex.P-10 and that they bear his signatures. He, however, denied the suggestion that he has changed his statement due to fear of the accused.
PW-10, Ajay Kapoor is an eye-witness, a jeweller by profession, who has unfortunately resiled from his previous statement after admitting once that he was present at the spot at the time of the incident. He denied the time of occurrence at night and sought to shift the time to 11.30 AM and deposed that he did not see any one injuring anyone else. He was declared hostile and was cross-examined by the prosecution. Not much has come out of it.
PW-11, SI Joginder Singh conducted the investigation and the interrogation of the appellant Jaspreet Singh @ Jassa @ Gali during which the accused made a disclosure statement which led to recovery of 9 live cartridges of 30 bore and four mobile phones used for committing the crime and evading arrest thereafter which led to recovery of the same from his Aunt's (father's sister's) house in village Jamarai. One such was a Nokia mobile phone model 3220 which was recovered and used during the Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -10- occurrence on 22.04.2006 (MO 22/Ex.P-12).
The star witness of the prosecution is PW-12, Rajesh Kumar Bhatia, also a jeweller at Sheesha Market, Guru Bazar, Amritsar. He is an eye-witness to the occurrence. He knew Satish Kumar complainant and his brother Sunil Kumar deceased. He deposed that on 22.04.2006 at 8.45 PM he was proceeding towards his home after closing his jewellery shop. He was on a motor cycle. When he reached near B.K. School and took a turn, he saw both the brothers going on a rickshaw. When he reached near Jain Mandir, he saw in all 6/7 persons committing the crime and snatching bags from Satish Kumar and Sunil Kumar. He deposed that one of them hit a khanjar blow on the head of Satish Kumar complainant. He deposed that at the time he was only 10 yards away from the rickshaw. He saw one of the accused firing two shots. He tried to save himself. One of the shots hit Sunil Kumar on the right side near the neck and chest. People from the market gathered. He recognized all the accused present in Court during recording of his statement in court on SA on 10.09.2008. He identified the accused in Court as the persons who snatched the bags of Sunil Kumar and Satish Kumar that night. The people gathered and he tried to chase the accused. The motor cycle of one of the accused fell down. One of the accused had a mobile phone and he heard him saying that they had snatched the bag and had fired at the person. He also fired in the air to disburse the mob following the gang. The accused, however, escaped from the place of occurrence. It was this witness who took Sunil Kumar and Satish Kumar to Civil Hospital when Sunil Kumar succumbed to his injuries on his way. In his cross-examination, he stated that he had been meeting the police after Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -11- 22.04.2006 and the accused were identified by him when shown to him by the then SSP, Amritsar. In his further cross-examination through learned counsel of accused Jaspreet Singh and Baljinder Singh, he stated that it was after 10/15 days of the alleged occurrence that he identified the accused before the then SSP Srivastava. He deposed that he had twice visited the police station after a week and was called again after a month of the alleged occurrence. Thereafter, he was not called by the police.
On conclusion of the prosecution evidence, the incriminating evidence gathered against the accused thus far was put to them under Section 313 Cr.P.C. All the accused pleaded false implication in the case and stated that the recoveries were planted on them. Two of them i.e. appellants Baljinder Singh and Jaspreet Singh @ Jassa @ Gali in their statements took the defence that they had been brought from Central Jail, Amritsar and falsely implicated in the case. Accused Paramjit Singh @ Pamma took the defence that at the time of occurrence, he was in judicial custody at Central Jail, Amritsar. He produced defence evidence which was led in the shape of DW-1, Baldev Singh, Constable who produced register No.1 as summoned record containing the entries relating to the entries and release of under trials. In his examination, he stated that Paramjit Singh @ Pamma remained in custody in Central Jail, Amritsar from 01.02.2006 to 15.05.2006 and that there were as many as 14 cases registered against the accused and that he was released from the Jail on 15.05.2006. In his cross- examination, he admitted that the entries regarding his release on bail do not find mention that the accused after release on bail has been detained in other cases. He admitted it correct that there is no entry regarding the presentation Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -12- of the accused for rehnumai in different Courts in different cases and that these entries were made in the Adalat Book. Thereafter, the defence evidence was closed.
We have heard the learned counsel for the parties at length and have perused the record.
Mr. Vikram Chaudhary, led the arguments as counsel for the appellant Surjit Singh @ Raju Jattiwala. Thereafter, the other learned counsel for the remaining accused were heard.
Mr. Chaudhary would submit that the accused was not named in the FIR. Their arrest were made after a month of the occurrence and disclosure statements from the respective accused were extracted by the police and recoveries forced upon them. No test identification parade was conducted in the present case. The alleged star witness PW-12, Rajesh Kumar Bhatia himself did not name the accused in his deposition inasmuch as there is no identification by him of the accused person-wise and role- wise, that is, who was who and who was where and who did what. He would further submit that there is no clinching evidence on record as to the mode and manner in which the accused were got identified by PW-12 Rajesh Kumar Bhatia, and whether procedure applied was legally permissible. He submits that there is a material discrepancy in the statement of PW-12, Rajesh Kumar Bhatia and PW-9, Satish Kumar complainant with respect to the weapon of offence causing head injury on the accused which creates doubt of the incident. While PW-12 uses the word Khanjar, PW-9 Satish Kumar in the FIR stated that he was hit by a small sword and, therefore, the ocular evidence is not consistent with respect to Satish Kumar Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -13- PW-9 who albeit later resiled (though admitted that he was on the spot and that he identified some gold ornaments recovered). Mr. Chaudhary would submit with force that the weapon used qua PW-9, Satish Kumar was neither recovered nor produced in Court. He points out that no MLR of alleged injury on person of the complainant was done. The further argument is that no particulars of the ornaments stolen stand established on record and in any case, their identity is not forthcoming from the evidence of brother of the deceased allegedly present at the time of occurrence.
Mr. Veneet Sharma, learned counsel appearing for appellant Paramjit Singh @ Pamma has pressed the defence that his client was not present at the scene of occurrence since he was lodged in Central Jail, Amritsar and, therefore, has been falsely roped in the case. Besides, no recovery has been effected from him and, therefore, his presence is doubtful from this angle as well. The other learned counsel Ms. Neha Jain, Advocate has supported the arguments raised by Mr. Vikram Chaudhary, learned counsel for appellant Surjit Singh @ Raju Jattiwala.
On the contrary, Ms. Ravinder Kaur Nihalsinghwala, learned Addl. AG, Punjab has argued that there is a direct eye-witness account of the commission of crime at the hands of the accused - appellants in the clear and candid deposition of PW-12 Rajesh Kumar Bhatia. PW-12 was known to both the deceased and his brother Satish Kumar complainant. It is her submission that conviction can be based on the sole testimony of PW-12, Rajesh Kumar Bhatia who spoke fearlessly of what he saw on the fateful night. He cannot be said to be an interested or tutored witness. His presence on the spot cannot be doubted as a mere chance witness. The deposition of Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -14- PW-12 according to her should be read in the light of the material part of the examination-in-chief of PW-9 Satish Kumar before he declared hostile. We cannot rule out the possibility that he may not have wanted to put his life to peril at the hands of a gang of criminals that attacked him and killed his brother and stole there property. She would also refer to the deposition of Satish Kumar that he admitted the occurrence; he admitted the firing. He admitted that the bags containing jewellery were snatched from them. He alone resiled from recognizing the accused in Court maybe for fear of retribution. The learned counsel hammered before us the admission in cross- examination after the witness was declared hostile that he had identified some gold ornaments in the police station but he could not tell the details. He admitted that he received injury on his head and his brother received fatal injuries on the chest. The witness admitted the identification in memos Exs. P-9 and P-10 bore his signatures. She submits that the accused did not further examine Satish Kumar PW-9 after the cross-examination by the public prosecutor. The onus had clearly shifted on the accused in the face of the evidence of PW-12 Rajesh Kumar Bhatia and part evidence of PW-9 Satish Kumar.
In Govindaraju alias Govinda vs. State by Sriramapuram P.S. & Anr., AIR 2012 SC 1292, the Supreme Court while dealing with the evidence of a hostile witness has observed that it does not have to be discarded forthwith but the Court has to act with greater caution and accept such evidence with greater degree of care in order to ensure that justice alone is done. It has been cautioned (in paragraph 20 of the judgment) as follows:-
Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -15- "It is also not always necessary that wherever the witness turned hostile, the prosecution case must fail. Firstly, the part of the statement of such hostile witnesses that supports the case of the prosecution can always be taken into consideration. Secondly, where the sole witness is an eye-witness who can give a graphic account of the events which he had witnessed, with some precision cogently and if such a statement is corroborated by other evidence, documentary or otherwise, then such statement in face of the hostile witness can still be a ground for holding the accused guilty of the crime that was committed. The Court has to act with greater caution and accept such evidence with greater degree of care in order to ensure that justice alone is done. The evidence so considered should unequivocally point towards the guilt of the accused."
Thus, the learned State counsel argues that the prosecution has examined all the official witnesses successfully and they have proved the documents contained in the challan satisfactorily. The link evidence in the chain is without any chink. Besides, entry Ex.D1 of the Jail record does not prove that accused Paramjit Singh @ Pamma was lodged in Jail on the date of occurrence. She submits that the reasoning recorded by the learned Additional Sessions Judge, Amritsar in the order is correct and commends it as worthy of acceptance. The learned trial Court in the impugned judgment has recorded as follows:-
"The entries of the register Ex.D1 to prove that accused Paramjit Singh @ Pamma was in jail on the day of occurrence on 22.4.2006 do not inspire any confidence because Ex.D1 does not show the entry of accused Paramjit Singh in the jail. As having under trial no.8622, there are entries of ten cases. Out of these ten entries, six entries relate to March, 2006 and in the entries of the said month, he was detained only in two cases, in which, he was released on bail on 6.3.2006 and 10.3.2006. The other entries related to the month of May, 2006. It cannot be inferred from any angle from Ex.D1 that accused Paramjit Singh was in jail on the day of occurrence."
She would support this reasoning and urge that the alibi set up Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -16- by Paramjit Singh @ Pamma accused is untenable. When alibi fails the results can be disastrous to the accused. She would further submit that PW- 2, Gurparshad before whom the extra judicial confession was made by the accused has resiled from his previous statement and turned hostile can be ignored in view of the direct ocular evidence of PW-12, Rajesh Kumar Bhatia and the disclosure statements made by the accused leading to recoveries of incriminating objects/evidence connecting the accused with the crime. She refutes the argument raised with respect to the test identification parade and submits that it was not necessary. This test is only required when the identity of the accused remains unknown. The only way then to shed light linking the accused with the crime may require such a parade.
We have given our thoughtful and anxious consideration to all the facts and circumstances of the case from all conceivable angles as arising from the evidence on record and the contentions urged before us on either side.
We do not, however, find ourselves in agreement with the argument advanced by Mr. Vikram Chaudhary, and his respective colleagues in defence of the other co-accused. The unshaken evidence of eye-witness account of PW-12, Rajesh Kumar Bhatia is sufficient to connect the accused with the crime and to establish their identity at the place of occurence. The fact that PW-12, Rajesh Kumar Bhatia did not name the accused person-wise adds even greater credibility to his statement and the argument therefore lacks substance. We do not find that there is even a whisper in cross-examination or any suggestion put to the witness to Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -17- disprove the identity of the accused or that they were not at the spot. This serious lacuna in the defence at the time of deposition and cross examination in court amounts to a tacit admission of the presence of the accused at the spot. However, in the present case, the identity of the accused is not really in dispute. The accused though may not have been named in the FIR but were found and rounded up on investigation at the earliest opportunity and their names identified as the perpetrators of commission of crime of dacoity with murder through other link evidence as well. All the accused were identified by PW-12, Rajesh Kumar Bhatia, an eye-witness, in Court during his examination as prosecution witness. His cross-examination has remained unshaken. No suggestion was put to PW-12, Rajesh Kumar Bhatia with respect to the identity of the accused. This is a very material circumstance against the accused.
A test identification parade in the presence of the statements of PW-12, Rajesh Kumar Bhatia and the reliable part of statement of complainant PW-9, Satish Kumar was not required which statements are sufficient to identify the accused. They were no longer unknown persons when their names surfaced during the investigation and arrests made. Still further, the issue of test identification parade raised by the learned counsel in defence, pales into insignificance since PW-12, Rajesh Kumar Bhatia was pointedly asked in his cross-examination by the appellants and he responded without demur that the accused had been identified by him when they were shown to him by the SSP, Amritsar during investigation. The SSP has been identified by name by PW-12 in the further cross-examination at the hands of appellants Jaspreet Singh @ Jassa @ Gali and Baljinder Singh. No Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -18- suggestion was put to the witness as to his presence or otherwise on the spot or to dislodge it. We wonder what more is needed to connect the appellants to the crime committed.
The disclosure statements also do not appear to us to have been obtained unlawfully; nor the recoveries made on such disclosure statements untenable. The recovery of the bullet from the body of the deceased establishes connection with the ocular evidence. Recovery of the bullet from the spot and blood stained earth there appears to us no material contradiction or improvement or padding in the FIR or in the depositions of PW-12 and PW-9 (partly). PW-12, Rajesh Kumar Bhatia has clarified and explained in his deposition as to what transpired on the fateful night. The FIR is not required to be a thesis on the crime alleged or committed. It is not possible to discard the statement of PW-12 Rajesh Kumar Bhatia. The statement of PW-9 and PW-10 are supported by the statements of PW-4, PW-7, PW-8 and PW-11. The connecting evidence by way of statements of PW-3 and PW-6 are there on record as they have tendered affidavits Ex. P-3 and Ex.P-14 in support of their statements with respect to deposit of case property at FSL, Chandigarh. No defect could be pointed out in these two affidavits. Ex.PX confirms presence of human blood.
In the face of the evidence on record, it is not possible to arrive at a conclusion of innocence of the accused. The chain of events supported by ocular evidence have been clearly established by the prosecution pointing conclusively to the guilt of the appellants without any reasonable doubt, and by ruling out any other plausible theory or possibility a finding is returned that the appellants jointly and in concert participated in the Crl. Appeal No.127-DB of 2009 and Crl. Appeal No.83-DB of 2009 and Crl. Appeal No.928-DB of 2008 -19- commission of crime with common intention to commit dacoity and murder after sunset on two defenceless persons killing one of them senselessly. The charge framed under Sections 302 and 396 IPC stand amply proved.
For the foregoing reasons, we do not find any substance or merit in the three appeals which accordingly fail. The impugned judgment of conviction and sentence of life imprisonment recorded by the learned Additional Sessions Judge, Amritsar in FIR No.33 dated 22.04.2006 against the appellants is upheld.
(HEMANT GUPTA) (RAJIV NARAIN RAINA)
JUDGE JUDGE
17.10.2012
manju