Punjab-Haryana High Court
Rakesh Kumar Alias Boxer vs State Of Punjab on 13 May, 2019
Author: Harinder Singh Sidhu
Bench: Harinder Singh Sidhu
CRA-D-345-DB of 2016 ( O&M ) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-345-DB of 2016 ( O&M )
Reserved on : 08.05.2019
Date of decision : 13.05.2019
Rakesh Kumar alias Boxer
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE RAJIV SHARMA
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: Mr. Vinod Ghai, Senior Advocate, with
Ms. Kanika Ahuja, Advocate,
for the appellant.
Mr. S.P.S. Tinna, Addl. A.G., Punjab.
***
RAJIV SHARMA, J.
1. This appeal is instituted against judgment and order dated 07.01.2016, rendered by learned Additional Sessions Judge, Ludhiana, in Sessions Case No. 43 dated 22.03.2013. Appellant Rakesh Kumar alias Boxer along with co-accused Deep alias Deepak Kumar alias Deepu and Sunny alias Laddu was charged with and tried for the offences punishable under Sections 302/506/341/148/149 IPC. The appellant was convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of ` 1 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -2- 10,000/- under Section 302 IPC. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for six months. He was acquitted of other charges framed against him. Co-accused Deep alias Deepak Kumar alias Deepu and Sunny alias Laddu were acquitted of the charges framed against them, by giving benefit of doubt.
2. The case of the prosecution, in a nutshell, is that on 13.08.2012 at about 7.20 PM, Inspector/SHO Jatinderjit Singh received a telephone call from Police Post, Dayanand Medical College and Hospital (for short "DMC"), Ludhiana, to the effect that Pinku son of Mange Ram resident of Street No.5, New Shimlapuri, Ludhiana had died due to gun shot injury. Inspector Jatinderjit Singh along with other police officials reached DMC, Ludhiana. He reached at the mortuary of the hospital. The dead body of Pinku was lying in the mortuary. Mange Ram and Vikas Kumar, brother of the deceased met the police party. Mange Ram, father of the deceased, got recorded his statement. According to the averments made in the complaint, in the evening of 13.08.2012, complainant Mange Ram along with his son Pinku had gone on motor cycle to the house of Angrej Singh, resident of Street No.3, Mohalla Dhillon Colony, Lohara. They came to know that a close relative of Angrej Singh was admitted in Life Line Hospital at Gill Road. They took Angrej Singh with them and went to the hospital on motor cycle to enquire about the health of his relative. When they reached a little behind Dushera Ground, near flour mill of Rachhpal Singh at Street No.9/1, Mohalla Guru Gobind Singh, then from the roof of the house of Rachhpal Singh, they heard a lalkara. They noticed that the lalkara was raised by accused Rakesh Kumar alias Boxer. He was armed with a pistol. He along 2 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -3- with co-accused Deep alias Deepak Kumar alias Deepu armed with a pistol, Jagga son of Kala, Rinki, co-accused Sunny alias Laddu and Gagandeep Singh alias Jinda was standing on the roof. All the accused came down. They encircled the complainant party. Accused Rakesh Kumar alias Boxer raised a lalkara that Pinku should not be spared. He should be taught a lesson for keeping enmity with them. He fired at Pinku. The bullet hit at his chin and throat. All of them fell from the motor cycle. Co-accused Deepu fired in air from his pistol. All the accused raised lalkara. They ran away from the spot. The condition of Pinku was serious. He was taken to Guru Teg Bahadur Hospital, from where the doctor referred him to DMC. The doctor in DMC declared him dead. The body was sent for post mortem examination. FIR was registered. Accused were arrested. The investigation was completed and challan was put up after completing all the codal formalities.
3. The prosecution examined a number of witnesses. The accused were also examined under Section 313 Cr.P.C. They denied the case of the prosecution. According to them, they were falsely implicated. The appellant was convicted and sentenced, as noticed here-in-above. Hence, this appeal.
4. Learned counsel appearing on behalf of the appellant has vehemently argued that the prosecution has failed to prove its case. Learned counsel appearing for the State has supported the judgment and order of the learned Court below.
5. We have heard learned counsel for the parties and gone through the judgment and record very carefully.
6. PW.1 Dr. Gurbinder Kaur deposed that on 14.08.2012, the 3 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -4- Board of Doctors, consisting of Dr. Bindu Nalwar, Dr. Gurmeet Singh and herself, conducted post mortem on the body of Pinku. They found the following injuries on his body :-
(1) 1 inch x 0.75 inch elliptical wound with inverted margins with blackening of margins present at the mental region anterior side just towards right penetrating the mandible on exploration of the track 1 cm x 0.5 cm metallic piece seen (sealed and handed over to police) and second metallic piece about 0.5 cm x 0.5 cm seen. Fragments of bone found on exploration of track which is going through the neck region towards left side on further exploration, trachea has been pierced with 1.5 inch x 1 inch entry wound and exit wound of trachea measures about 1 inch x 0.75 inch, metallic piece found in the left carotid artery about 1.5 inch x 0.5 inch. About 500 KL of blood seen in the neck region.
The cause of death was result of haemorrhagic shock due to injury to the vital organs (trachea and esophagus) as a result of gun shot injury, which was sufficient to cause death in ordinary course of nature. All injuries were ante mortem in nature. The time between injury and death was immediate and between death and post mortem examination was about 18-20 hours. In her cross-examination, she admitted that margins of the wound were blackened so the nozal of the weapon must be at a distance of 1 ft. from the victim. The victim had received the injury when he was at a lower level and the assailant must be on the higher side. Point A in Ex.PA/1 was the place from where the bullet had entered. The bullet travelled up to point B and injury was from upwards to downwards.
7. PW.7 Dr. Maninder Kaur testified that on 13.08.2012, she was 4 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -5- on duty in emergency in DMC, Ludhiana. On that day, Pinku was brought dead. Information was sent to the police vide ruqa Ex.P1.
8. PW.2 Angrej Singh is the eye witness. According to him, on 13.08.2002, Pinku and his father Mange Ram came to his house on a motor cycle. His aunt mother-in-law was admitted in Life Line Hospital. He along with Pinku and Mange Ram started from his house for going to hospital. When they reached at Rachhpal Singh Di Chakki at about 5.30 PM, some body raised lalkara. He was standing on the roof of the house of Rachhpal Singh. They saw Rakesh Kumar carrying a pistol. Deepak Kumar alias Deepu was standing with him. He was also carrying a pistol. Jassa, Ricky, Sunny and Gagandeep Singh alias Jinda were standing on the roof. They came down stair in the street. They wrongfully restrained them. Rakesh Kumar alias Boxer raised lalkara "Aaj Pinku Suka Nahi Jana Chahida Isnu Sade Nal Dushmani Paun Da Maja Chakha Deo". He fired at Pinku with his pistol. They fell down. Deepu fired two shots in the air. They were raising lalkara. People started gathering there. They took Pinku to Guru Teg Bahadur Hospital, from where he was referred to DMC Hospital. Accused were having grudge with Pinku as he was boss of his area and Rakesh Kumar alias Boxer was boss of his area. Police came to DMC Hospital. Statement of Mange Ram was recorded. The accused were arrested. Rakesh Kumar made a disclosure statement Ex.PJ that he had kept concealed pistol of 315 bore, which was used by him during the occurrence, at Link Road, adjoining Lohara East Main Road. He also disclosed that he threw the empty cartridges beside the road leading from village Lohara to Satsang Road. Recovery was effected. His examination-in-chief was carried on 5 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -6- 03.04.2014. He was partly cross-examined on 04.04.2014. In his cross- examination, he admitted that he was involved in number of cases. He was re-called for further cross-examination on 25.09.2014. On that day, he did not support the case of the prosecution in entirety. He changed his version and stated that he and the deceased were at a distance of about 250-300 yards, when they heard lalkara. Mange Ram had slipped away from the spot, when lalkara was raised. He also escaped from the spot. It was very difficult to identify the persons who had raised lalkara. He had gone to the place of occurrence after about one hour. He was at a distance of 500-600 yards when the incident happened. The persons who had come from the roof of Rachhpal Singh had come on the road. They had muffled their faces. They were firing from their weapons. He took Pinku in an injured condition firstly to Guru Teg Bahadur Hospital and thereafter to DMC Hospital. Accused Rakesh Kumar did not make any statement regarding the recovery of weapon of 315 bore. The learned Public Prosecutor made a request for re- examination of the witness. Request was allowed. The witness admitted that he had made statement in the court on 03.04.2014. He deposed that he had made the statement on asking of police person who was standing outside the Court. However, he did not know name and rank of the policeman. The arms and ammunition were not recovered from the accused in his presence. However, he categorically admitted his signatures on Ex.PJ, Ex.PK, Ex.PH, Ex.PI, Ex.PG, Ex.PF and Ex.PL. Voluntarily stated that these were obtained by the police on blank papers. He further deposed that the statement made by him in the court on 25.09.2014 was correct. The statement made by him on 03.04.2004 was not correct. It was under pressure from the police. He 6 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -7- had not made complaint to any higher authority regarding the threats given by the policeman outside the court, at whose instance he had made the statement on 03.04.2014.
9. PW.3 Kuldeep Singh prepared the scaled site plan Ex.PW.3/A.
10. PW.4 HC Kulwinder Singh deposed that post mortem on the body of Pinku was got conducted. In cross-examination, he deposed that they stayed in the hospital for about 3 to 4 hours.
11. PW.5 Inspector Jatinderjit Singh was the Investigating Officer. According to him, he received the information on 13.08.2012. He along with other police officials went to DMC Hospital. He recorded statement of Mange Ram. FIR was registered vide Ex.PW.5/C. On 21.11.2012, he received secret information that accused Deepak Kumar alias Deepu and Rakesh Kumar alias Boxer were present at Dhandari Yard. They could be apprehended. He along with police party and Angrej Singh went at the above said place. Accused Deepak Kumar and Rakesh Kumar were arrested. Accused Rakesh Kumar alias Boxer made disclosure statement to the effect that he had kept concealed pistol 315 bore with which they had murdered Pinku at Lohara East Main Road. The disclosure statement is Ex.PJ. The weapon was got recovered by him. In his cross-examination, he deposed that the incident had taken place in thickly populated area. Mange Ram was residing in New Shimlapuri, which was at a distance of 2 ½ kms. from the place of incident. He had not joined Rinku in investigation of the case.
12. PW.6 ASI Gurjit Singh led his evidence by filing affidavit Ex.PW.6/A. In his cross-examination, he admitted that he did not send the bullet to FSL from 14.08.2012 till 31.08.2012. They had sent five cartridges 7 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -8- along with the pistol.
13. PW.8 ASI Jaswinder Singh testified that accused Rakesh Kumar alias Boxer and Deepak Kumar were apprehended on 21.11.2012. They were identified by Angrej Singh. The Investigating Officer had prepared their arrest memos. Accused Rakesh Kumar alias Boxer made disclosure statement.
14. According to the FSL report Ex.PX, the result of examination was that the caliber of badly deformed jacketed bullet marked CB/1 contained in parcel `A' could be 0.315 inch. The country made pistol marked W/1 contained in parcel `A' misfired live test cartridges of 0.315 inch.
15. As per the post mortem report Ex.PA, the cause of death of Tinku was result of haemorrhagic shock due to injury to the vital organs (trachea and esophagus) as a result of gun shot injury. It was sufficient to cause death in ordinary course of nature. The post mortem report has been duly proved by PW.1 Dr.Gurbinder Kaur.
16. The case of the prosecution is that the accused came down from stairs and shot dead Pinku. Thus, the bullet travelled from upwards to downwards for the simple reason that the deceased was sitting on the motor cycle. According to the FIR also, Mange Ram, Angrej Singh and Pinku (deceased) were travelling on the motor cycle. However, the fact of the matter is that Mange Ram, father of the deceased, was murdered few days before recording his statement, as is evident from the zimni order dated 26.08.2015 recorded by the trial court. It reads as under :-
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"Present : Sh. A.S. Buttar, Addl. PP for State.
Accused Deep Kumar and Rakesh Kumar in custody.
Sh. J.S. Warraich, Adv. counsel for accused Sunny.
An application has been filed on behalf of accused Sunny by Ld. Defence Counsel for exemption of his personal appearance and stated that he was arrested by police in some other case. There is a undertaking in the application to cross examine the witness. Statement of PW6 Dr. Maninder Kaur completed. A report has been received on the summons that PW Mange Ram was murdered. Remaining summons received back unserved. On request of Ld. Addl. PP for State, let PWs mentioned at serial no. 9, 11 and 17 be summoned for 18.9.2015 subject to last chance. Note of last chance be given on the summons with red ink. Accused in custody be also produced on the date fixed.
Sd/-
Gurnam Singh-II, ASJ, Ldh. 26.8.2015"
Mange Ram was the material witness. He was eliminated being a star witness in this case.
17. PW.2 Angrej Singh supported the case of the prosecution in his statement recorded on 03.04.2014. According to him, he along with Mange Ram and Pinku was going on motor cycle. They heard lalkara from the roof of the house of Rachhpal Singh. The accused came down. The appellant raised a lalkara. Thereafter, he fired a shot at Pinku. Pinku fell down. He 9 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -10- was initially taken to Guru Teg Bahadur Hospital on motor cycle and thereafter to DMC Hospital, Ludhiana. The accused were arrested. The appellant made disclosure statement. PW.2 Angrej Singh supported the case of the prosecution in his cross-examination also, recorded on 04.04.2014, though admitting that number of cases were pending against him. However, he was again called for his further cross-examination on 25.09.2014. On that day, he had tried to wriggle out from his earlier statement by diluting the earlier statement, recorded on 03/04.04.2014. He tried to give his version that he was away from the place of incident. The faces of the accused were muffled. However, he admitted that the accused came down and started firing. He also admitted that he was the person, who had taken Pinku to the hospital. He admitted his signatures on Ex.PJ, Ex.PK, Ex.PH, Ex.PI, Ex.PG, Ex.PF and Ex.PL. Ex.PJ is the disclosure statement made by the appellant. Ex.PK is the recovery memo of 315 bore country made pistol. Ex.PH and Ex.PI are memos of personal search. Ex.PF and Ex.PG are intimations of arrest of the appellant and co-accused Deepak Kumar. Ex.PL is rough sketch of the pistol. According to PW.2 Angrej Singh, his earlier statement on 03/04.04.2014 was under the police pressure. He also deposed that his signatures were obtained on blank papers. However, the fact of the matter is that he admitted in his further examination that he had not made any complaint that he was made to sign the blank papers and was pressurised to depose in a particular manner. He did not know even the name and rank of the policeman, who allegedly pressurised him. What can be concluded from his statements recorded on 03/04.04.2014 and 25.09.2014 is that he was under tremendous pressure from the accused side.
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There was considerable gap of more than five months in recording his initial statement on 03/04.04.2014 and the subsequent statement on 25.09.2014. Even as per the inquest report, he had identified the dead body. His ocular version is duly supported by the medical evidence. His statement can be relied upon, since the same has been duly corroborated by other ocular and documentary evidence, including recovery of the weapon of offence at the instance of the appellant. It is settled law that deposition of hostile witness can be relied upon at least upto the extent he supported the prosecution case, though his statement has to be examined more carefully.
18. Mange Ram, father of deceased Pinku, who was star witness in the case, was killed a few days before recording of his statement. The weapon of offence had been recovered at the instance of the appellant. The police officials have supported the recovery of the weapon of offence. Statements of the official witnesses can be relied upon. PW.2 Angrej Singh neither made any complaint before the higher police authority nor before the court that he was pressurised by the police to depose in a particular manner. Though there is some delay in sending the bullet to FSL, but it has not caused any prejudice to the appellant. There was enmity between two groups. It has come on record that the appellant had slapped the father of the deceased few days before the incident.
19. In view of the above discussion, the prosecution has proved its case against the appellant beyond reasonable doubt. There is no merit in the instant appeal. The impugned judgment and order rendered by the learned trial court is upheld. Accordingly, the appeal is dismissed.
20. However, before parting with the judgment, we would like to 11 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -12- make certain observations about the growing cult of 'gangsters' in the States of Punjab and Haryana. In the present case, there were two warring gangs trying to prove their territorial superiority. This `gang' culture promotes strife in the society and is required to be curbed with iron hand. The State of Uttar Pradesh has enacted the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, to make special provisions for the prevention of, and for coping with, gangsters and anti-social activities. Section 2 (b) of the aforesaid Act defines "Gang" as under :-
"2 (b) "Gang" means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities, namely -
(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code, or
(ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U.P. Excise Act, 1910 or the Narcotic Drugs and Psychotropic Substances Act, 1985 or any other law for the time being in force, or
(iii) occupying or taking possession of immovable property otherwise than in
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(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or
(v) offences punishable unde the Suppression of Immoral Traffic in Women and Girls Act, 1956, or
(vi) offences punishable under section 3 of the Public Gambling Act, 1867, or
(vii) preventing any person from offering bids in auction law-fully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or
(viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith, or
(ix) offences punishable under section 171-
E of the Indian Penal Code, or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or
(x) inciting others to resort to violence to disturb communal harmony, or
(xi) creating panic, alarm or terror in 13 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -14- public, or
(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or
(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or
(xiv) kidnapping or abducting any person with intent to extort ransom, or
(xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course."
The word "gangster" has been defined under Section 2 (c) as under :-
"2 (c) "gangster" means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities."
Penalty is provided in Section 3. Special Rules of Evidence have been postulated in Section 4. Section 10 provides for procedure and powers of Special Courts. Section 11 gives protection to witnesses. Section 14 provides for attachment of property.
21. In the States of Punjab and Haryana, in order to prevent and cope with gangsters and anti-social activities, making of special provisions on the analogy of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, is the need of the hour. Accordingly, we suggest/ 14 of 15 ::: Downloaded on - 10-06-2019 04:07:51 ::: CRA-D-345-DB of 2016 ( O&M ) -15- recommend to the States of Punjab and Haryana to enact special laws for the prevention of, and for coping with, gangsters and anti-social activities, within a period of six months.
( RAJIV SHARMA )
JUDGE
May 13, 2019 ( HARINDER SINGH SIDHU )
ndj JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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