Punjab-Haryana High Court
Gurdeep Singh @ Kala And Others vs State Of Haryana on 16 November, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.228-DB of 2008 1
Criminal Revision No.1651 of 2008
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:November 16, 2011
Criminal Appeal No.228-DB of 2008
Gurdeep Singh @ Kala and others ......Appellants
Versus
State of Haryana .......Respondent
Criminal Revision No.1651 of 2008
Ashok Kumar ......petitioner
Versus
State of Haryana and others .......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Baldev Singh, Sr. Advocate with
Mr.Daldeep Singh, Advocate,
Mr.Aman Pal, Advocate and
Mr.Namit Kumar, Advocate,
for the appellants.
Mr.Sandeep Vermani, Addl.A.G.Haryana.
Mr.Alok Mittal, Advocate and
Mr.Hiten Nehra, Advocate for
Mr.Akshay Bhan, Advocate
for the complainant.
****
Criminal Appeal No.228-DB of 2008 2
Criminal Revision No.1651 of 2008
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned criminal appeal as well as criminal revision would be disposed of as these have arisen out of one judgment.
Prosecution story, in brief, is that on 21.10.2003 at about 9 am, complainant Ashok Kumar was present in Labour Chowk, Rohtak in connection with some personal work. Chaudhary Ram was going to his house on a bicycle. Suddenly three young boys namely Joginder @ Juggi, Kala @ Gurdeep and Lalit @ Lalli came on a black motorcycle and Kuldeep along with his son Sonu @ Mandeep came on a scooter from Gandhi Camp side towards Labour Chowk. When they reached near Mohit tent house, Joginder @ Juggi, Kala @ Gurdeep and Lalit @ Lalli, who were armed with pistols started firing at Chaudhary Ram from their pistols. Chaudhary Ram fell on the ground on account of firearm injuries. Kuldeep and his son, who were sitting on a scooter gave a lalkara that Chaudhary Ram be not allowed to go alive as he was the main witness in the murder case of Rajinder @ Titu. Chaudhary Ram died at the spot. On the basis of the statement of the complainant, formal FIR No.524 dated 21.10.2003 was registered at Police Station, Civil Lines, Rohtak under Sections 302/ 148/ 149 of the Indian Penal Code, 1860 (IPC for short) and Section 25 of the Arms Act, 1959.
After completion of investigation and necessary formalities, challan was presented against the accused. Accused Kuldeep Singh was declared a proclaimed offender vide order dated Criminal Appeal No.228-DB of 2008 3 Criminal Revision No.1651 of 2008 9.2.2001. During trial, accused Kuldeep Singh was arrested and supplementary challan was presented against him. Prosecution, in order to prove its case, examined 18 witnesses.
After the close of prosecution evidence, accused Gurdeep @ Kala, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) prayed that the case was false and the witnesses had falsely deposed against them.
Accused Lalit @ Lalli, when examined under Section 313 Cr.P.C., stated as under:-
"The case is false one and the witnesses have deposed falsely against me and my co-accused. I am not known as Lalli in any document what so ever as well as in any form. In fact, my father had got a case registered against the deceased and Anil and Vijay sons of Bansi PW vide case FIR No.480 dated 26.9.2003 under Sections 406, 420 IPC, Police Station Civil Lines, Rohtak prior to the present occurrence. There was a dispute regarding a Tata Safari owned by my father and that the same was released on superdari on 16.1.2004. This vehicle was the case property of above referred case FIR No.480. The vehicle in question was released to my father and that revision petition against the order of CJM, Rohtak dated 16.1.2004 was also dismissed by Shri V.P.Bishnoi, the then learned Additional Sessions Judge, Rohtaok vide order dated 16.7.2005. I have been falsely implicated on account of aforesaid reasons."Criminal Appeal No.228-DB of 2008 4
Criminal Revision No.1651 of 2008 Accused Joginder @ Juggi when examined under Section 313 Cr.P.C., stated as under:-
"The case is false one and the witnesses have deposed falsely against me and my co-accused. I was injured eye witness in the murder case of the son of Chaudhary Ram and complainant wanted from me that I should falsely involve more persons by giving names in that case and upon my refusal and to oblige them in that case, I have been falsely implicated in this case. I was admitted at Civil Hospital, Sirsa from 20.10.2003 to 22.10.2003. I am innocent."
Accused Kuldeep Singh, when examined under Section 313 Cr.P.C., stated as under:-
"The case is false one and the witnesses have deposed falsely against us. I have been falsely implicated in this case as my sons have been falsely implicated as accused in murder case of Titu, who was son of Chaudhary Ram deceased. I am innocent."
Accused examined four witnesses in their defence. The trial Court vide judgment/ order dated 28.1.2008/ 30.1.2008 convicted and sentenced accused Gurdeep Singh @ Kala, Lalit @ Lalli and Joginder @ Juggi for commission of offence under Section 302/34 IPC. Accused Kuldeep Singh was acquitted of the charge framed against him by giving him benefit of doubt vide judgment dated 28.1.2008. Hence, the present appeal and revision.
Learned senior counsel for the accused has submitted Criminal Appeal No.228-DB of 2008 5 Criminal Revision No.1651 of 2008 that no occurrence as alleged had taken place. As per the prosecution case, the occurrence had taken place at 9 am. PW-1 had conducted the postmortem examination on the dead body of the deceased at 12.10 pm and found rigor mortis present in upper half of the body. This showed that the occurrence had not taken place at 9 am because in such a short span the rigor mortis could not have spread to upper half of the body. The eye witnesses had not witnessed the occurrence. They were close relatives of the deceased and had falsely involved the accused in this case due to previous enmity. Three fired bullets were recovered from the spot and as per the opinion of the expert, the same had not been fired from the firearm recovered from accused Lalit @ Lalli. Bullet, which was recovered from the body of the deceased, had not been fired from the pistol recovered from accused Gurdeep @ Kala. Appellant Joginder Singh was admitted in the General Hospital, Sirsa on the alleged date of occurrence and hence, he could not have been present at the spot. The recovery of weapons has been falsely foisted on the accused.
Learned State counsel, who is assisted by the counsel for the complainant, on the other hand, has submitted that as per the medical opinion, rigor mortis in this part of the country started appearing within 1 to 3 hours in the month of October. The eye witnesses had witnessed the occurrence and had withstood the test of lengthy cross-examination.
The present case relates to an eye witness account. The complainant, while appearing in the witness box as PW-9, and Bansi Criminal Appeal No.228-DB of 2008 6 Criminal Revision No.1651 of 2008 Lal, while appearing in the witness box as PW-10 have deposed qua the manner of occurrence. As per the said witnesses, accused Gurdeep @ Kala, Lalit @ Lalli and Joginder @ Juggi had fired from their respective pistols on the person of Chaudhary Ram.
Dr.Sharanjit Singh, PW-1, who had conducted the postmortem examination on the dead body of deceased on 21.10.2003 at 12.10 pm had found following injuries on his person:-
"Injuries:
1. Oval wound of size 0.75 x 0.5 cms over medial end of lower right eye lid with irregular inverted margins with a collar of abrasions around it and there was blackening around the wound (wound of entry).
2. Oval wound 1.5 x 1.0 cms present below left lower eye lid with irregular inverted margins with collar of abrasions around it and blackening was present around the wound (wound of entry).
3. A wound of size 1 x .5 cms with irregular inverted margins, 1 cm lateral to the right angle of mouth with collar of abrasions present (wound of entry).
4. Wound of size 0.5 x 0.5 cms with irregular inverted margins with collar of abrasions around the wound.
There was blackening around the wound (wound of entry) over the supra sterna notch area 2 cms above upper border of sternum. Injury was at the height of 140 cms above the right heel.
5. Wound of size 0.5 cm x 0.5 cm over the left lower Criminal Appeal No.228-DB of 2008 7 Criminal Revision No.1651 of 2008 chest in the 6th intercostal space about 2 cm left to xiphi sternum. Wound having the feature of irregular inverted margins with collar of abrasion and surrounded with blackening. Injury was 122 cm above left heel (wound of entry).
6. A wound of size 0.75 x .5 cms in the right hypochondria 3 cms right to mid line and about 2 cms below sub costal margins, wound was with irregular invertged margins with collar of abrasions. (wound of entry). The injury was at the height of 108 cms from the right heel.
7. Wound of size 1.5 cms x .75 cms with irregular everted margins over the right occipital area 3 cms up and 5 cms behind the root of upper side of right pinna and 10 cms from the midline ( Exit wound).
8. Wound of size 1.5 x .75 cms with irregular and everted margins present over the left side of tempora parietal region, 2 cms above and 3 cms behind the upper root of left ear and 10 cms from the midline.
9. Wound of size 1.0 x 0.5 cms just anterior to left tragus (ear) with everted and irregular margins.
10. A wound of size 1x .75 cms with everted and irregular margins on the back of neck approximately 2 cms from the midline left and at the level of 7th vertebra.
11. Wound of the size of 1.5 cms x .75 cm with irregular and everted margins on the back of the right side of Criminal Appeal No.228-DB of 2008 8 Criminal Revision No.1651 of 2008 chest, above 2.5 cms from midline and 6 cms below the inferior angle of right scapula."
Injuries Nos. 1, 2 and 3 on dissection showed ecchymosis while injuries No.4, 5 and 6 showed deep ecchymosis. Path of the injuries (on dissection):
1. Injury No.1 piercing through right eye ball completely damaging it fracturing posterior part of orbital fossa and entering middle cranial fossa of skull piercing through temporal and occipital part of brain then fracturing (multiple) occipital bone (near parieto occipital suture) meets injury No.7 (wound of exit). Path was anterior to posterior slightly upwards.
2. Injury No.2 started from below lower lid of left eye going through lower part of orbital fossa and fracturing its posterior part and then entering middle cranial fossa, going posteriorly, laterally and then fracturing temporal bone (multiple) meets injury No.8 (wound of exit). Path showed mild ecchymosis.
3. Injury No.3 starting from 1 cm from right side of angle of mouth going posteriorly and laterally shattering upper border of maxilla bone and mandibular bone (near tempo mandible joint) and meets injury No.9 (wound of exit).
4. Injury No.4 starting through anteriorly in the supra sternal notch going posteriorly and slightly laterally left side piercing through trachea, esophagus and posterior Criminal Appeal No.228-DB of 2008 9 Criminal Revision No.1651 of 2008 muscles of neck and meets injury No.10 (wound of exit.)
5. Injury No.5 started from 6th intercostal space, left side chest piercing through pericardium and anterior wall of left ventricle and then posterior wall of left ventricle and then going posteriorly and then slightly laterally and upward travelling through plura and lower lobe of left lung and then bullet was found lodged in 6th intercostal space. Path showed deep ecchymosis. Thoracic cavity was full of blood.
6. Injury No.6 starting from the right hypo chondrium piercing through right lobe of liver then going posteriorly and then slightly medially and traversing through posterior muscles of abdominal wall and meets injury No.11. Path showed deep ecchymosis Projectile recovered:
From the sub cutaneous tissues in the region of injury described No.5 parth (6th intercostal space left side posteriorly), a greyish black bullet was recovered. The same was preserved and handed over to the police." The said witness further opined that the death had occurred on account of firearm injuries. The injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. Rigor mortis was present only in the upper half of the body. Thus, the ocular version to the effect that the deceased had suffered firearm injuries is duly corroborated by the medical Criminal Appeal No.228-DB of 2008 10 Criminal Revision No.1651 of 2008 evidence. The occurrence in this case had taken place at 9 am on 21.10.2003. The postmortem examination was conducted by PW-1 at 12.10 pm on 21.10.2003.
As per Modi's Medical Jurisprudence and Toxicology, Cadaveric Rigidity, which was also known as death stiffness, comes on immediately after the muscles had lost the power of contractility , and is due to irreversible changes in the muscles of the body both voluntary and involuntary. The rigor mortis generally occurs whilst the body is cooling. In Northern India, usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summers. In the bodies of children and old people, the occurrence of rigor mortis is rapid.
In the present case, the deceased was 70 years old. It appears that the rigor mortis had set in rapidly. PW-1, in his cross- examination, deposed that in this part of the region, in the month of October, normally rigor mortis starts appearing within 1 to 3 hours and completes within 24 hours. Hence, we are not inclined to agree with the argument raised by the learned senior counsel for the accused that the occurrence in the present case had not taken place at 9 am.
The eye witnesses PW-9 and PW-10 were cross- examined at length but their testimonies qua the manner of occurrence could not be shaken. The complainant is related to the deceased as his sister was married to the son of the deceased. PW- 10 Bansi Lal is also related to the deceased being his (PW-10) father-in-law. Merely because the deceased was related to the eye Criminal Appeal No.228-DB of 2008 11 Criminal Revision No.1651 of 2008 witnesses is no ground to discard their testimonies. The only duty cast on the Court is to scrutinize the statements of the related witnesses with due care and caution. We have carefully gone through the statements of PW-9 and PW-10. Their statements inspire confidence. The said witnesses have deposed in a natural manner. Moreover, they had no reason to falsely involve appellants Gurdeep @ Kala, Lalit @ Lalli and Joginder @ Juggi falsely in this case and shield the real culprits.
The argument raised by learned senior counsel for the accused that the firearm recovered from accused Gurdeep @ Kala and Lalit @ Lalli had not been used at the time of occurrence in view of the report of the Forensic Science Laboratory appeared to be very convincing on its face value but when examined carefully the same has failed to convince us.
During investigation, PW-16 Ram Parkash interrogated accused Gurdeep @ Kala on 17.11.2003 after he was arrested on 14.11.2003. On the basis of the disclosure statement suffered by accused Gurdeep @ Kala one country made revolver Ex.P-40 along with two live cartridges and one fired revolver bullet was got recovered by him from the disclosed place. PW-16 arrested accused Lalit @ Lalli on 7.12.2003. The said accused was interrogated on 9.12.2003 and on the basis of his disclosure statement, one country made revolver Ex.P-47 along with two live cartridges was got recovered by him.
Report of the Forensic Science Laboratory, Haryana, Madhuban, Karnal is Ex.P-51. The relevant portion of the report is Criminal Appeal No.228-DB of 2008 12 Criminal Revision No.1651 of 2008 reproduced hereinbelow:-
Description of article (s) contained in parcel(s) Parcel No. and Description of parcel(s) No. seal impressio n 7 of RP Stated to contain blood stained earth lifted from place of occurrence (sent to Serology Division in original packing.) 1 5 of RP Contained three .38" fired revolver bullets and one .32 fired revolver bullet stated to have been collected from place of occurrence (.38" bullet marked BC/1 to BC/3 and .32 bullet BC/4 by me) 2 2 Fm Contained one .32' fired bullet stated to have been taken out from the body of deceased Chaudhri Ram (Bullet marked BC/5 by me) 3 5 of Fm Contained clothes of deceased Chaudhary Ram (first examined in Ballistics Division and then sent to Serology division).4
3 of RP Contained one country made revolver (chambered for .
32" cartridges) along with one .32" fired cartridge case and two .32 live cartridges stated to have been recovered from accused Gurdeep @ Kala. (Revolver marked W/1 and cartridge case C/1 by me).
55 of RP Contained one country made revolver (chambered for .38" cartridges) along with two .38" fired cartridge cases and two .38" live cartridges, stated to have been recovered from accused Lalit @ Lalli. (Revolver 6 marked W/2 and cartridge cases C/2 and C/3 by me.) Result:
1. The countrymade revolvers marked W/1 (chambered for .32 cartridges) and W/2 (chambered for .38"
cartridges) are firearms as defined in Arms Act 54 of 1959. Their firing mechanism were found in working Criminal Appeal No.228-DB of 2008 13 Criminal Revision No.1651 of 2008 order.
2. .32" fired revolver cartridge case marked C/1 has been fired from country made revolver marked W/1 and not from any other firearm even of the same make and bore/ calibre because every firearm has got its own individual characteristic marks.
3. .38" fired revolver cartridge cases marked C/2 and C/3 have been fired from country made revolver W/2 and not from any other firearm even of the same make and bore/calibre, because every firearm has got its own individual characteristic marks.
4. .38 fired bullets marked BC/1 to BC/3 have been fired from one and the same rifled firearm but not from country made revolver W/2
5. No opinion could be found regarding linkage of .32 fired bullets marked BC/4 and BC/5 in respect of country made revolver W/1 due lack of sufficient individual characteristic marked. However, BC/4 and BC/5 have been fired from country made firearm."
Thus, as per the expert opinion, the fired revolver bullets BC/1 to BC/3 of .38" revolver had not been fired from .38" revolver (W-2) recovered from accused Lalit @ Lalli. No definite opinion was given qua fired revolver bullet BC/4 and bullet BC/5 recovered from the dead body of Chaudhary Ram to have been fired from .32"
revolver (W-1) recovered from accused Gurdeep @ Kala In the present case, the occurrence had taken place on Criminal Appeal No.228-DB of 2008 14 Criminal Revision No.1651 of 2008 21.10.2003, whereas, the accused were arrested in the mid November, 2003. It is possible that accused Gurdeep @ Kala and Lalit @ Lalli with a view to mislead the Investigating Officer, produced before him different firearms than the one used at the time of occurrence. Moreover, if any defective investigation is conducted by the Investigating Agency, the accused cannot be acquitted solely on account of the said defect as it would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Ballistic report is in the nature of an expert opinion without any conclusiveness attached to it. In the present case, testimonies of the eye witnesses corroborated by medical evidence fully establish the prosecution version. Any negligence on the part of the Investigating Officer cannot effect the credibility of the prosecution version in the facts and circumstances of the present case.
The Apex Court in Binay Kumar Singh vs. State of Bihar, 1997 AIR(SC) 322, regarding the plea of alibi held as under:-
"We must bear in mind that alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in S.11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context:
`The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."Criminal Appeal No.228-DB of 2008 15
Criminal Revision No.1651 of 2008 The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his Criminal Appeal No.228-DB of 2008 16 Criminal Revision No.1651 of 2008 presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandet v. State of Uttar Pradesh, (1981) 2 SCC 166: AIR 1981 SC 911; State of Mahrashtra v. Narsingrao Gangaram Pimple, AIR 1984 SC 63)."
So far as the plea of alibi taken up by accused Joginder @ Juggi is concerned, the same was rightly discarded by the trial Court. Accused Joginder @ Juggi is resident of Rohtak. There is no explanation as to why he got himself admitted in General Hospital, Sirsa for treatment. In this regard accused Joginder @ Juggi has not given any explanation when he was examined under Section 313 Cr.P.C..
DW-4, Dr.Govind Gupta has deposed that patient Joginder @ Juggi son of Ram Parkash was admitted in General Hospital, Sirsa on 20.10.2003 and was discharged on 22.10.2003. Test was conducted on the patient on 20.10.2003. He did not take the round on 20.10.2003 and 21.10.2003 in the morning but he took the round only in the evenings of the said dates. No test was conducted qua the patient on 21.10.2003. The said witness had failed to identify accused Joginder @ Juggi. In these circumstances, Criminal Appeal No.228-DB of 2008 17 Criminal Revision No.1651 of 2008 accused Joginder @ Juggi cannot get any benefit of the plea of alibi taken by him as he has neither been identified by the doctor nor the doctor had examined him in the morning on 21.10.2003. Moreover, no test was conducted qua accused Joginder Singh @ Juggi in the morning on 21.10.2003. We are of the considered opinion that the plea of alibi taken by accused Joginder Singh @ Juggi is liable to be dis-believed in the facts and circumstances of the present case and fails to rebut the eye witness account qua the presence of accused Joginder Singh @ Juggi at the spot at the time of occurrence.
Joginder Singh was admittedly an eye witness in the murder case of son of deceased Chaudhary Ram. It has transpired during the course of arguments that he had not appeared as a witness in the murder case of the son of the deceased. The possibility that some differences might have arisen between the deceased and accused Joginder Singh @ Juggi during the pendency of the murder trial of the son of the deceased cannot be rule out. Accused Joginder Singh @ Juggi due to this reason had joined hands with his co-accused at the time of commission of murder of deceased Chaudhary Ram. Deceased Chaudhary Ram was to appear as a witness in the murder case of his son and was murdered by the accused before he could do so. Accused Gurdeep @ Kala, Lalit @ Lalli and Joginder Singh @ Juggi had, thus, come to the spot armed with firearms and had committed the murder of deceased Chaudhary Ram in connivance with each other.
So far as accused Kuldeep is concerned, he is attributed a lalkara by the eye witness. A perusal of the FIR reveals that the Criminal Appeal No.228-DB of 2008 18 Criminal Revision No.1651 of 2008 exhortation had been given by accused Kuldeep after the shots had been fired by the other accused, whereas, the eye witnesses, while appearing in the witness box, improved their statements in this regard and stated that the firing had been done by the other accused at the exhortation of accused Kuldeep. In these circumstances, learned trial Court rightly held that the possibility that accused Kuldeep had been falsely involved in this case could not be ruled out especially when the son of Kuldeep was lodged in Gwalior jail at that time and hence, the story of exhortation by Kuldeep and his son was doubtful.
Accordingly, criminal appeal as well as criminal revision are dismissed.
Appellants Gurdeep Singh @ Kala, Lalit @ Lalli and Joginder @ Juggi, who are on bail, be taken in custody forthwith to undergo the remaining part of their sentence.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
November 16, 2011
anita