Punjab-Haryana High Court
Criminal Appeal No. 663-Db Of 2008 vs State Of Haryana on 16 May, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 663-DB of 2008 - 1-
Crl. Revision No. 136 of 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
1. Criminal Appeal No. 663-DB of 2008
Date of Decision: 16.5.2012
Manoj and others .........Appellants
Vs.
State of Haryana .......Respondent
2. Criminal Revision No. 136 of 2009
Subhash .........Petitioners
Vs.
State of Haryana and others .......Respondents
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. R.S.Cheema, Senior Advocate with
Mr. Pawan Girdhar, Advocate
for the appellants.
(in Criminal Appeal No. 663-DB of 2008)
Mr. Pardeep Singh Poonia, Addl. A.G., Haryana.
Mr. S.K.Garg Narwana, Senior Advocate with
Mr. Naveen Gupta, Advocate
for the complainant.
(in Criminal Revision No. 136 of 2009)
.....
SABINA, J.
Vide this judgment above mentioned criminal appeal and criminal revision would be disposed of as these have arisen out of the same incident/judgment.
Sub Inspector Babu Ram on receipt of telephonic information from Police Post PGIMS, Rohtak on 28.5.2006 reached the said hospital. He sought opinion from the doctor qua fitness of injured Anil and Subhash. The doctor declared Crl. Appeal No. 663-DB of 2008 - 2- Crl. Revision No. 136 of 2009 injured Subhash fit to make the statement. Thereafter, statement of Subhash was recorded by Sub Inspector Babu Ram wherein he stated that Anil, Amit and Sunil were his nephews. Out of them, Anil was married. His nephews were residing together and he was also residing in the same house separately. His nephews were running a shop which they had taken on rent from his cousin Roshan. House of Manoj was situated near the said shop. Whenever ladies would come to buy sarees from the shop of his nephews, Manoj would pass some indecent comments against them. His nephews stopped Manoj from doing so but he did not mend his ways. On 26.5.2006, in the evening, Manoj had come in front of the shop of his nephews after consuming liquor and had said that he would shoot them in case they defamed him. They had sent Manoj away from there with folded hands. On 27.5.2006 at about 9.20 P.M., when he was going home after finishing his duty as a Clerk, he met his nephews Anil and Ankit near their shop. After closing the shop he was going home along with Anil and Ankit. At about 9.30 P.M. when they reached near the house of Manoj, they found him standing in front of his house. On seeing them, he started hurling abuses and said that they had defamed him alleging that he was teasing the ladies and so he would teach them a lesson. Then he went inside his house and asked his wife Sudha to give him his gun. Then Sudha brought the gun and handed over the same to Manoj. Then Manoj came in the street from his house. Ram Niwas father of Manoj, Mukesh brother of Manoj, Prem Lata mother of Manoj also came in the street. The parents of Manoj raised lalkara that he should teach a lesson to Ankit, Anil and Crl. Appeal No. 663-DB of 2008 - 3- Crl. Revision No. 136 of 2009 the complainant for defaming him and further said that they would save him and he should eliminate the complainant, Ankit and Anil. Manoj fired a shot at Anil which hit him on his chest and finger. As a result of this, Anil fell in the drain. Manoj fired a second shot towards them which hit Ankit on his forehead. Ankit also fell in the drain. He (complainant) raised alarm. On hearing his alarm, Roshan came to the spot from his house. Mukesh provoked Manoj to eliminate him (complainant). Manoj fired a third shot from his gun which hit him (complainant) on his left shoulder. Many persons gathered at the spot. Thereafter, all the accused fled away from the spot. Injured were removed to PGIMS, Rohtak. Ankit died at about 12.30 A.M. on 28.5.2006.
On the basis of the statement of the complainant, formal FIR No. 115 dated 28.5.2006 was registered at Police Station Julana District Jind under Section 302, 307, 114 of the Indian Penal Code ('IPC for short) and 25, 27 of the Arms Act, 1959 ('Act' for short).
Thereafter, Sub Inspector Babu Ram prepared inquest report qua the dead body of Ankit. The dead body was sent for post mortem examination. He reached the spot and prepared rough site plan at the instance of the eye witness Roshan. He lifted blood stained earth from the spot. Two fired cartridges were also recovered from the spot and the same were taken in possession. All the accused were arrested on 28.5.2006. On 30.5.2006, during interrogation, accused Manoj suffered a disclosure statement and got recovered his licensed 12 bore double barrel gun and a belt containing 19 live cartridges of the same bore and the same were taken in possession. Crl. Appeal No. 663-DB of 2008 - 4- Crl. Revision No. 136 of 2009
After completion of investigation and necessary formalities challan was presented against the accused.
In order to prove its case, prosecution examined 20 witnesses during trial.
After the close of prosecution evidence, appellants when examined under Section 313 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) pleaded that they were innocent and a false case had been planted on them.
The accused did not examine any witness in their defence.
The trial court vide judgment dated 14.8.2008 acquitted accused Sudha of the charges framed against her. Accused Manoj was convicted for commission of offence under Section 302/307 IPC and 25 of the Act. Accused Ram Niwas and Prem Lata were convicted qua commission of offence under Section 109 read with Section 302 IPC and 111 IPC read with Section 307 IPC. Accused Mukesh was convicted for commission of offence under Section 111 IPC read with Section 307 IIPC. The impugned order of sentence qua the convicts was passed on 19.8.2008. Hence, the appeal has been filed by the convicts challenging their conviction and sentence whereas the complainant has filed the criminal revision challenging the acquittal of accused Sudha.
Learned senior counsel for the accused has submitted that the prosecution had failed to establish its case. There was unexplained delay in lodging of the FIR because injured Subhash has stated that the police had reached the spot before they were shifted to PGIMS, Rohtak. However, the statements of the Crl. Appeal No. 663-DB of 2008 - 5- Crl. Revision No. 136 of 2009 witnesses were not recorded immediately at the spot. The prosecution had hidden the genesis of the occurrence. In fact, appellant Manoj was returning back from Delhi and had reached Railway Station, Julana at 9.30 P.M. along with cash. Parveen, Sunil and Sonu had snatched the bag containing cash from Manoj. Due to this reason, a shot was fired accidentally from the gun carried by Manoj as appellant Manoj was grappling with Anil and Ankit. The gun, in fact, came in the hands of Anil and while he was trying to fire at Manoj, the shot hit Ankit. Manoj had no motive to commit the offence as he used to return home late in the evening from Delhi. The statements of the eye witnesses do not inspire confidence as they had not deposed to the effect that the gun had been reloaded after first two shots were fired by Manoj.
Learned State counsel and the learned senior counsel for the complainant, on the other hand, have submitted that the case of the prosecution rests on eye witness account. The presence of PWs Anil and Subhash at the spot could not be doubted as they had also suffered injuries in the occurrence. Further there was no occasion for the complainant party to shield the real culprit and falsely involve the accused in this case. Learned senior counsel for the complainant has further submitted that the trail court had erred in acquitting accused Sudha of the charges framed against her as she had brought the gun from the house at the instance of her husband Manoj. Thus, her participation in the crime was duly established.
We have carefully gone through the evidence on record. The present case rests on eye witness account. PW-7 Crl. Appeal No. 663-DB of 2008 - 6- Crl. Revision No. 136 of 2009 Subhash and PW-8 Anil had suffered injuries in the occurrence. Hence, their presence at the spot cannot be doubted. As per the ocular version, accused Manoj had fired three shots from his licensed gun whereas the other accused had instigated him to do so.
PW-18 Dr. Amarjit Singh proved the medico legal reports of Ankit, Anil and Subhash which had been prepared by Dr. Deepak Sharma.
PW-13 Dr. S.P.S. Bhatia deposed that on 28.5.2006 he had conducted post mortem examination on the dead body of Ankit at 10.00 A.M. and had found following injuries on his person:-
1. A stitched wound 4 cm x 1.5 cm on lateral angle of right thigh was present. Blackening and burning of the margins of the wound were present.
2. Three stitched wounds were present above the nose approximately 1 cm in size.
3. Two stitched wounds on upper lip 1 cm x .2 cm one in the centre and other on the lateral side was present, tracheostomy incision was present.
On exposure of the skull, right parietal bone was fractured. Brain was severely contused on parietal and frontal region of skull of right side.
He further deposed that six pellets were removed from the right side of the brain. In his opinion, the cause of death was severe shock and haemorrhage due to injuries which were ante mortem in nature and sufficient to cause death in the ordinary course of nature.
Crl. Appeal No. 663-DB of 2008 - 7-Crl. Revision No. 136 of 2009
PW-16 Dr. Ram Baksh Sharma, who had examined the X-ray films on 27.5.2006 qua injured Anil and Subhash, deposed that he had seen multiple radio opaque shadow of metallic density in the chest region of patient Anil and in the left shoulder region of injured Subhash.
PW-19 Dr. Virender Baswana deposed that on 27.5.2006 he had operated Subhash and the patient was discharged on 5.6.2006.
PW-20 Dr. Rajesh Godara deposed that on 28.5.2006 he had operated Anil and the patient was discharged on 1.6.2006.
Thus, as per the medical evidence, the injured as well as the deceased had suffered fire arm injuries. The pellets were recovered from the brain of the deceased and were also noticed in the shoulder region of PW-7 Subhash and in the chest region of PW-8 Anil. So far as the use of licensed gun of accused Manoj in the occurrence is concerned, the same is not in dispute. Suggestions were put to PW-7 Subhash qua the defence version that the gun had accidentally fired while Anil and Ankit were grappling with Manoj. Further, suggestion was put to the said witness that Anil had taken the gun from Manoj and was about to fire at Manoj but it hit Ankit who had intervened at that time. Although the said defence version put to PW-7 is not established on record nor it was taken by the accused during their examination under Section 313 Cr.P.C. but the fact remains that the use of licensed gun of Manoj in the occurrence is not in dispute. Further as per the report of the Forensic Science Laboratory, the empty cartridges recovered from the spot had Crl. Appeal No. 663-DB of 2008 - 8- Crl. Revision No. 136 of 2009 been fired from the left and right barrel of .12 DBBL gun recovered from Manoj. It was further opined that the pellets which had been taken out from the dead body of Ankit formed part of a 12 bore cartridge. Thus, it is clearly established on record that the deceased as well as the injured had suffered fire arm injuries from the licensed gun belonging to accused Manoj.
The next question that requires consideration is qua the participation of the accused at the time of commission of crime.
In this regard, the ocular version as deposed by PW-7 Subhash and PW-8 Anil is that at the time of occurrence Manoj accused was standing in front of his house and on seeing the complainant party, he went inside the house and asked his wife to bring his gun. Thereafter, his wife Sudha gave him the gun. In the meantime, the parents and brother of accused Manoj also reached in the street. At the provocation of his parents that the complainant party be eliminated, Manoj had fired a shot which had hit Anil on his chest and finger. Manoj fired another shot which hit on the forehead of Ankit. Thereafter, at the provocation of accused Mukesh, Manoj fired the third shot at Subhash which hit him on his left shoulder.
From the ocular version it is evident that shots had been fired by accused Manoj from his licensed gun. The said ocular version is duly corroborated by medical evidence. Since the present case rests on eye witness account, the motive qua the occurrence loses its significance. In these circumstances, the participation of accused Manoj in the crime is duly established. The participation of other accused in the crime appears to be Crl. Appeal No. 663-DB of 2008 - 9- Crl. Revision No. 136 of 2009 doubtful. As per PW-7 and PW-8, Manoj was standing in the street when they reached near his house along with Ankit. Thereafter, accused Manoj entered his house and asked his wife to give him the gun. It is not believable that PW-7 and PW-8, who were standing in the street, had been able to overhear what was happening inside the house of accused Manoj. Further, in case PW-7, PW-8 and deceased Ankit had come to know that Manoj was asking for his gun from his wife, then in the meantime they could have fled away from the spot to save themselves. There was no occasion for the complainant party to have waited in the street for Manoj to bring his gun from his house especially when they had heard Manoj telling his wife to give him his gun. In these circumstances, the trial court had rightly acquitted accused Sudha of the charges framed against her.
The statements of PW-7 and PW-8 to the effect that the parents of accused Manoj and his brother Mukesh had provoked him to fire at the complainant party fail to inspire confidence. It appears that with a view to involve all the members of the family of accused Manoj, the complainant party has attributed provocation to the parents of accused Manoj and his brother Mukesh.
The complainant in his cross examination deposed that he did not know who had informed the police but when they were lifted to PGIMS, Rohtak, the police had reached the spot. Police had recorded his statement. They had started from the spot at 10.00 or 10.15 P.M. for PGIMS, Rohtak. He did not remember the time when the police had reached PGIMS, Rohtak. Crl. Appeal No. 663-DB of 2008 - 10- Crl. Revision No. 136 of 2009
Thus, as per the complainant himself the police had reached the spot before they were taken to the hospital. However, as per PW-15 Inspector Babu Ram, he had gone to the hospital on receipt of information from Police Post PGIMS, Rohtak. The occurrence had taken place on 27.5.2006 at 9.30 P.M. whereas the statement of the complainant was recorded at 5.00 A.M. on 28.5.2006. In view of the statement of the complainant in his cross examination that police had reached the spot before they were shifted to the hospital, the possibility that the delay in recording of the FIR might have been utilized to involve the other family members of accused Manoj cannot be ruled out. In these circumstances, after carefully considering the evidence on record, we are of the considered opinion that the possibility that accused Ram Niwas, Prem Lata, Mukesh and Sudha had been falsely involved in this case cannot be ruled out.
Accordingly, the Criminal Appeal No. 663-DB of 2008 is partly allowed and conviction and sentence of accused Ram Niwas, Mukesh and Prem Lata, as ordered by the trial court vide the impugned judgment/order dated 14.8.2008/19.8.2008, are set aside and they are acquitted of the charges framed against them. So far as appellant Manoj is concerned, the appeal qua him is dismissed and his conviction and sentence as ordered by the trial court are maintained. The Criminal Revision No. 136 of 2009 is dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
May 16, 2012
Gurpreet