Punjab-Haryana High Court
Sher Singh And Others vs State Of Haryana on 29 March, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl.Appeal No.205-DB of 2003 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.205-DB of 2003
Date of decision: 29.3.2010
Sher Singh and others
... Appellants
versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.R.S.Cheema, Sr.Advocate, with
Ms.Tarannum Cheema, Advocate &
Mr.Rajbir Sherawat, Advocate,
for the appellants.
Mr.H.S.Hooda, Advocate General, Haryana, with
Mr.S.S.Randhawa, Addl.AG, Haryana.
...
JORA SINGH, J.
Sher Singh son of Gian Ram, Rambir son of Sube Singh, Satpal son of Ram Lal, Vinod son of Balwan Singh and Rajiv son of Ram Lal, all residents of Village Kansala, District Rohtak, were sent up for trial by the SHO, Police Station Sampla, on the allegation that on 23.5.2001 at 5.00 PM in Village Kansala, Pawan Kumar, aged about 22, years, was murdered by them. Vide judgment dated 25.1.2003 in Sessions Case No.68 of 2001, arising out of FIR No.112 dated 23.5.2001 under Sections 148/149/307/302 IPC and Section 25 of the Arms Act, Police Station Sampla, they were convicted under Sections 302/307/148/149 IPC, and sentenced to undergo RI for life and to pay a fine of Rs.20,000/-, in default of payment of fine, to further undergo RI for three years, each, under Section 302 read with Section 149 IPC. They were further ordered to undergo RI for eight years Crl.Appeal No.205-DB of 2003 2 and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for two years, each under Section 307 read with Section 149 IPC, and to undergo RI for two years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for six months, each, under Section 148 read with Section 149 IPC. All the sentences were ordered to run concurrently.
After the case was committed to the Court of Session, one of the accused Om Pal failed to appear in the Court on the date of hearing and later on, he was declared proclaimed offender. Still he is proclaimed offender.
Crl.Revision No.838 of 2003 was filed by Sanjiv Kumar son of Suraj Bhan for enhancement of sentence awarded to the accused but the same has been dismissed as withdrawn being not pressed vide separate order dated 29.3.2010.
Case of the prosecution, in brief, is that Sanjiv Kumar son of Suraj Bhan, complainant, is the resident of Village Kansala. In the month of March, 2001, he had contested election for the post of Sarpanch of Village Kansala, but Sher Singh had won the election by 8-9 votes. Criminal case was registered against Sher Singh for lifting of ballot boxes. FIR No. 50 of 2001under Sections 323/325 IPC and FIR No.541 of 2001 under Sections 323/324 IPC were registered at Police Station Sampla. Case under Sections 107/151 Cr.P.C. was also pending in the Court of DRO, Rohtak. An election petition was also filed by complainant against Sher Singh and for this reason, Sher Singh felt offended. Sher Singh with his party members had caused injuries to the complainant and his family members.
Crl.Appeal No.205-DB of 2003 3
On 23.5.2001 at about 5.00 PM, Sanjiv Kumar along with Lachman Singh was present on the other side of road, opposite to the shop of Kaptan (Hair Dresser). Pawan Kumar, brother of Sanjiv Kumar- complainant, was getting himself shaved in the shop of Kaptan. In the meantime, a black Esteem Car came from the side of Village Kharkhoda and had stopped by the side of Sher Singh, who was already present near the shop of Kaptan. Vinod @ Lakhmi, Rajiv and Rambir, armed with pistols, and Satpal, armed with iron rod, came out of the car. Driver of the car had stopped the car after taking a turn towards the side of Village Kharkhoda. Sher Singh raised a lalkara that Pawan was sitting inside the shop of Kaptan and he be eliminated. Satpal has also exhorted the co-accused that real enemy was also sitting on the other side of the road and he should also be taken along. Vinod, Rajiv and Rambir had entered into the shop of Kaptan. Complainant and Lachman Singh had rushed towards the shop of Kaptan. Vinod fired a shot hitting at the neck of Pawan Kumar. Rambir had also fired a shot hitting at the back side of right ear of Pawan Kumar. Complainant tried to save Pawan Kumar. Then Rajiv fired a shot at the complainant, but was escaped. Shot had hit the front side of glass of the shop. Pistol was reloaded by Vinod and fired at the complainant, but it had missed. Bullet fell on the spot. Complainant and Lachman Singh raised an alarm and tried to catch hold of the accused, but the accused had fled away from the spot with their respective weapons. Lachman son of Nathu Ram and Rohtash son of Tek Chand came to the spot. With the help of above said persons, complainant had shifted his brother Pawan Kumar to PGIMS, Rohtak.
Police party headed by ASI Lekh Ram, Police Station Sampla, Crl.Appeal No.205-DB of 2003 4 received information that firing had taken place in Village Kansala. Police party had gone to Village Kansala, but near Bus Stand, Kansala, ASI Lekh Ram came to know that Pawan Kumar was shifted to PGIMS, Rohtak. Then ASI Lekh Ram along with party had gone to PGIMS, Rohtak. MLR (Ex.PF) and ruqa were collected. Application (Ex.PX) was moved to obtain an opinion from the doctor regarding fitness of Pawan Kumar, but vide endorsement (Ex.PX/1), patient was declared unfit to make statement. Sanjiv Kumar was present there. Then his statement (Ex.PA) was recorded. After making endorsement (Ex.PA/1) at 9.00 PM, statement was sent to the Police Station, on the basis of which, formal FIR was registered under Sections 307/148/149 IPC and Section 25 of the Arms Act. At 10.20 PM, information was received regarding death of Pawan Kumar. Then offence punishable under Section 302 IPC was added. Special report was delivered to the Ilaqa Magistrate at 10.00 AM on 24.5.2001.
On 24.5.2001, Dr. A.K.Goyal had conducted postmortem examination on the dead body of Pawan Kumar. After postmortem examination, dead body was handed over to the relatives of deceased for cremation.
On 24.5.2001, police party headed by SI Rajinder Singh had gone to Village Kansala. Place of occurrence was got photographed. Missed cartridge was lifted from the spot and made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. Blood stained earth was lifted from the spot and made into a sealed parcel. Parcel was taken into police possession vide separate memo attested by the witnesses. Blood stained towel was also lifted from the spot and made into a sealed parcel. Parcel was taken into police possession vide Crl.Appeal No.205-DB of 2003 5 separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. On return to the police station, case property was deposited with the Incharge of Malkhana.
On 25.5.2001, accused Sher Singh and Rajiv were arrested from Village Kansala. On 26.5.2001, they were interrogated. In pursuance of disclosure statement (Ex.PC) suffered by Rajiv, he got recovered one country made pistol along with empty cartridge. Pistol and cartridge were made into a sealed parcel and thereafter taken into police possession vide separate memo attested by the witnesses.
On 31.5.2001, Esteem Maruti Car bearing No.DL-6-CA-4917 was taken into police possession from Police Station Malviya Nagar, New Delhi.
On 1.6.2001, intimation was received by the police that Rambir and Vinod have surrendered in the Court of JMIC. After permission of the Court, they were formally arrested in this case. Rambir, in pursuance of his disclosure statement (Ex.PAF), got recovered one country made pistol and one empty cartridge. Rough sketch of the pistol was prepared. Pistol and empty cartridge were made into a sealed parcel and then taken into police possession vide memo attested by the witnesses. Vinod, in pursuance of his disclosure statement (Ex.PAG), got recovered one country made pistol and one empty cartridge from the specified place. Sketch of pistol was prepared. Pistol and empty cartridge were made into a sealed parcel and thereafter taken into police possession vide memo attested by the witnesses. On return to the police station, case property was deposited with the Incharge of Malkhana.
On 7.6.2001, Satpal was arrested in this case and in pursuance Crl.Appeal No.205-DB of 2003 6 of his disclosure statement, he got recovered iron rod from the specified place. Sketch of rod was prepared and the same was taken into police possession vide memo attested by the witnesses.
After completion of investigation, challan was presented in the Court.
Accused were charged under Sections 302/307/148/149 IPC. Accused Rambir, Vinod and Rajiv were also separately charged under Section 25 of the Arms Act. They pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined 18 witnesses.
PW1 Sanjiv Kumar is the complainant and supported the prosecution story by saying that in his presence, his brother Pawan Kumar was murdered by the accused while present at the shop of Kaptan on 23.5.2001 at 5.00 PM.
PW2 Dr. Raman Gupta on 23.5.2001 had medico legally examined Pawan and found the following injuries on his person:-
"1. Lacerated wound 1 cm x .5 cm oval in shape, margins inverted present over posterior aspect of the neck, 4 cm below the knuckle, tattooing was present.
2. Lacerated wound 5 cm x 3 cm with averted margins present over right side of parietal region involving face of right ear pinna and upper part of right ear pinna.
3. Incised wound 1 cm x .2 cm was present over right side of the cheek, over right angle of mandible."
PW3 ASI Kartar Singh had delivered special report to the Ilaqa Magistrate on 24.5.2001 at 10.00 AM.
Crl.Appeal No.205-DB of 2003 7
PW4 Lachman Singh is the second eye witness. He has supported the version of Sanjiv Kumar.
PW5 Bijender Singh had identified the dead body of Pawan Kumar in the mortuary of PGIMS, Rohtak.
PW6 Constable Sumit Kumar had prepared scaled site plan (Ex.PH) with its correct marginal notes.
PW7 Shri Niwas, Reader to the District Magistrate, stated that videExs. PJ, PK and PL, sanction was accorded to launch prosecution under the Arms Act.
PW8 Vijay Kumar, Ahlmad, brought the record and stated that Election Petition No.10 of 17.4.2000, titled as Sanjeev s/o Suraj Bhan versus Sher Singh and others, was pending for 11.10.2002.
PW9 ASI Jagphool Singh stated that on receipt of statement of Sanjiv Kumar, he had recorded formal FIR.
PW10 Constable Suresh Kumar tendered his affidavit (Ex.PO). PW11 Rajpal stated that on 23.5.2001, as per police request, he had gone to the spot to click photographs. Photographs are Ex.P2 to Ex.P4.
PW12 HC Satpal Singh stated that on 4.6.2001, SI Rajinder Singh along with three applications had produced sealed parcels of country made pistols and empty cartridges. After examining the weapons mechanically, he has submitted his reports (Ex.PP/1 to Ex.PR/1).
PW13 HC Darshan Singh stated that DDR No.14 dated 23.5.2001, copy of which is Ex.PS, is true copy of the original.
PW14 HC Ram Parkash stated that Ex.PT is the copy of FIR No.50 dated 12.3.2001 under Sections 323/325/34 IPC.
PW15 Bijender Singh, Clerk, stated that he was working with Crl.Appeal No.205-DB of 2003 8 Dr.A.K.Goyal and was seeing him while writing and signing. Dr. A.K.Goyal is no more and has proved postmortem report (Ex.PV).
PW16 HC Sant Ram tendered his affidavit (Ex.PW).
PW17 ASI Lekh Ram had initially investigated the case. PW18 SI Rajinder Singh had also investigated the case after ASI Lekh Ram.
After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that they were falsely implicated due to previous enmity qua panchayat election. In the last election, Sanjiv Kumar was defeated. He was a candidate for the post of Sarpanch. In fact, some unknown person had murdered Pawan by firing a shot. Later on, Sanjiv Kumar and Lachman son of Daya Chand were shown as eye witnesses. Story was concocted. Opportunity was given to lead evidence, but no defence was led.
After hearing learned Public Prosecutor for the State and defence counsel for the accused and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid.
We have heard learned counsel for the appellants, State counsel and gone through the evidence on the file.
Learned counsel for the revisionist states that parties have effected compromise, so in view of the compromise, no objection if appeal is accepted.
Learned counsel for the appellants argued that place of occurrence was in the shop of Kaptan. There were number of shops around the shop of Kaptan. Immediately after the occurrence, Rohtash and Crl.Appeal No.205-DB of 2003 9 Lachman son of Nathu Ram came to the spot, but they were not examined. Injured was shifted to PGIMS, Rohtak, by Lachman. Non-examination of Rohtash, Lachman and owner of the shop, namely, Kaptan, shows that prosecution story is not natural one. Complainant Sanjiv Kumar is the real brother of deceased. Second witness Lachman is also related to the deceased, but their presence at the time of occurrence was not natural. They had strong motive to implicate the appellants because complainant had contested election against Sher Singh-appellant, but he lost the election. Place of occurrence is not near to the house of deceased, so Sanjiv Kumar and Lachman are the chance witnesses. Occurrence was at 5.00 PM; injured was shifted to PGIMS, Rohtak and medico legally examined at 5.30 PM, whereas statement of Sanjiv Kumar was recorded at 9.00 PM. Special report was received by the Ilaqa Magistrate on the next day at 10.00 AM. Delay in lodging the FIR was utilized to concoct the story. If the appellants had a motive to commit the crime, then Sanjiv Kumar was the real target. Appellants should have caused injuries to Sanjiv Kumar. There was no idea to murder Pawan. When Sanjiv Kumar came to the spot at the time of occurrence, then some injuries should have been caused to him, who was present at the opposite side of the shop of Kaptan. Medical evidence is contrary to the ocular evidence. Vinod, Rambir and Rajiv were armed with pistols. Only lalkara was attributed to Sher Singh. Satpal was armed with iron rod, but no injury was caused by him either to the deceased or the witnesses. According to the MLR and postmortem examination, injury No.1 was the entry wound and this injury was attributed to Vinod. Second injury was near the right ear. This injury was with averted margins. Dr. A.K.Goyal had conducted the autopsy but on account of his death, he failed Crl.Appeal No.205-DB of 2003 10 to appear in the Court. Postmortem report was exhibited in the statement of Bijender Singh, Clerk. No expert was examined nor opinion of any doctor was obtained to establish that injury No.1 was separate from injury No.2. In case of injury No.1, it was a shot fired from a close range as indicated by the tattooing, shot should have caused extensive damage. Only one entry wound was noticed. Averted margins in case of injury No.2 suggest that injury No.2 was the exit wound. Injury No.3 was a small incised wound. Possibility of injury No.3 was by small splinters of bones passing through fleshy portions. Second injury was attributed to Rambir. Rajiv had also fired a shot but did not hit anyone. Complainant stated that when shot was fired by Rajiv, then he escaped himself but in Court stated that by fall he escaped. So, shot fired by Rajiv did not hit him. Occurrence was witnessed by Lachman, but no statement of Lachman under Section 161 Cr.P.C. When ocular evidence is contrary to the medical evidence, then benefit should go to the appellants. Medical evidence shows that only one shot was fired by Vinod, hitting on the back of neck of Pawan. Meaning thereby, occurrence was not witnessed by Sanjiv Kumar and Lachman. In fact, some unknown assailants had caused injuries. Due to party faction, the appellants were implicated.
Sh.Hawa Singh Hooda, Advocate General, Haryana, assisted by Sh. S.S. Randhawa, Additional Advocate General, Haryana, argued that there was election dispute amongst the complainant and Sher Singh- appellant. Sher Singh was declared elected. After the present occurrence, 4-5 cases amongst the parties. Few persons were murdered from the side of complainant. Similarly, some persons from the side of appellants were murdered. With great efforts of the respectables, there was a compromise Crl.Appeal No.205-DB of 2003 11 amongst the parties. At least two years were taken to settle the dispute. Under Sections 320 and 321 Cr.P.C., offence punishable under Section 302 IPC is not compoundable. State is responsible to maintain law and order. Except in some marginal cases, Court should not allow composition of offences, but when parties have settled their dispute and are ready to live in peace in future, when there is a marginal case, then as per evidence on the file, appeal may be disposed of. Revision was instituted by the complainant to enhance the sentence but revision was got dismissed as withdrawn by learned counsel for the revisionist. So, keeping in view all these facts, a lenient view may be taken.
We have considered the submissions made by the learned counsel for the parties and have gone through the record of the case.
Pawan (deceased) was the real brother of Sanjiv Kumar complainant. He had gone to the shop of Kaptan, Barber, to get himself shaved. Suggestion was given to the witnesses that some unknown assailants had caused injuries. That means, no dispute regarding the occurrence in the shop of Kaptan, Barber. The only dispute is whether crime was committed by the appellants or some body else.
Sanjiv Kumar had contested election for the post of Sarpanch against Sher Singh. Sher Singh was declared elected. Sanjiv Kumar had filed election petition. Cases were registered against Sher Singh and others for causing injuries to Sanjiv Kumar, i.e., FIR Nos.50 of 2001 and 541 of 2001. Security proceedings under Sections 107/151 Cr.P.C. were also initiated and pending in the Court. That means appellants were not having cordial relations with the complainant party.
On 23.5.2001 at about 5.00 PM, Pawan was present at the shop Crl.Appeal No.205-DB of 2003 12 of Kaptan, Barber. Evidence on the file shows that there were number of shops around the shop of Kaptan. Rohtash and Lachman son of Nathu Ram came to the spot after the occurrence. Injured was shifted to the hospital by Lachman. But Rohtash, Lachman and Kaptan were not examined. Non- examination of above said witnesses is not fatal because occurrence is an admitted fact at the shop of Kaptan. Nothing on the file that Kaptan was not present in his shop at the time of occurrence. Rohtash and Lachman came to the spot after injuries had been caused to Pawan. They had not seen the appellants while causing injuries, but they came to the spot on hearing raula. Occurrence was witnessed by Sanjiv Kumar and his uncle Lachman son of Daya Chand. So, non-appearance of Rohtash and Lachman son of Nathu Ram is not fatal because they were not the eye witnesses. Admittedly, shop of Kaptan was in the bazar but it is not the case of the prosecution that anyone else had witnessed the occurrence. When there are number of eye witnesses, then all are not to be examined by the prosecution. Quality of evidence is to be seen and not quantity of evidence. If the occurrence was witnessed by any of the adjoining shop keeper, then he could easily be produced in evidence. So, prosecution story is not to be ignored in the absence of statements of Rohtash, Lachman and Kaptan (Barber). Sanjiv Kumar is the real brother of deceased. Second eye witness Lachman son of Daya Chand is also related to the deceased. But the occurrence was during the day time at the shop of Kaptan, situated in the bazar. Before the present occurrence, there was dispute amongst the parties. No doubt, complainant had lost the election against Sher Singh. He had filed election petition against Sher Singh. Cases were also registered against Sher Singh and others for causing injuries to the complainant. When appellants were Crl.Appeal No.205-DB of 2003 13 inimical towards the complainant party before the present occurrence and occurrence was during the day time, then there was no reason to name the appellants by leaving the real culprits. Eye witnesses are the residents of Village Kansala. Place of occurrence was in the shop of Kaptan situated in Village Kansala. Presence of both the eye witnesses near the shop of Kaptan was natural. Something could be said if place of occurrence was far away from the residence of eye witnesses. In that case, learned counsel for the appellants was right to argue that witnesses were the chance witnesses. When there was litigation amongst the parties, then there was a motive to cause injuries. Motive is a double edged weapon. Appellants being inimical towards the opposite party had a motive to commit the crime. At the same time, complainant party can also have a motive to implicate the appellants but the question is why the complainant party had left the real culprits and named the appellants. Admittedly, eye witnesses were related to the deceased, but statements of eye witnesses are not to be ignored simply on the ground that they are related to the deceased Allegation of the complainant party was that at the time of election in the month of March, 2000, ballot boxes were taken away by appellant Sher Singh and his supporters. Case was registered against them. Sanjiv Kumar had also field election petition. If the complainant party had the motive, then they could easily cause injuries to the appellants, but no injury was caused to the appellants. On the other hand, appellants had caused injuries to the complainant party. Two FIRs were registered against Sher Singh and others. Statements of eye witnesses being related to the deceased are not to be ignored simply on the allegation of relationship. Common experience shows that when there is an occurrence in the presence of independent Crl.Appeal No.205-DB of 2003 14 witness, then independent witness fails to appear in the Court to support the prosecution story. When appeared in Court, then seldom supported the prosecution story. Only the close relations are to appear in Court and support the prosecution story. When complainant party had no enmity with anyone else, then no question of attack by unknown assailants. Due to previous enmity, appellants had the motive to commit the crime. Presence of eye witnesses near the shop of Kaptan was natural because place of occurrence was within the revenue estate of Village Kansala.
Occurrence was at 5.00 PM. Immediately after the occurrence, Pawan was shifted to PGIMS, Rohtak. Police party headed by ASI Lekh Ram came to know that there was a firing in Village Kansala. He along with party had gone to Village Kansala, but near the bus stand, he came to know that Pawan was shifted to PGIMS, Rohtak. Then he along with party had gone to PGIMS, Rohtak. At 5.30 PM, Pawan was medico legally examined. Three injuries were noticed by Dr. Raman Gupta on the person of Pawan. No question was put to Dr. Raman Gupta that injury Nos. 1 and 2 are the result of a single shot. After collecting MLR, police party recorded the statement of Sanjiv Kumar at about 9.00 PM. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was registered at 9.50 PM. Special report was handed over to Ilaqa Magistrate at 10.00 AM on the next day. All this shows that there is no delay in lodging the FIR. Delay, if any, stands explained because when there is a firing and condition of the injured is critical, then first priority of the attendants is to shift the injured to the nearest hospital for medical aid. No prudent man is expected to leave the injured in critical condition on the spot and visit the police station to lodge a report. So, delay, if any, is not Crl.Appeal No.205-DB of 2003 15 fatal. Delay is one of the suspicious circumstances to scrutinize the evidence with great care and caution.
Main contention of learned counsel for the appellants is that it is a case of single shot. Injury No.1 is entry wound, whereas injury No.2 is exit wound. Injury No.3 is possible by small splinters of bones passing through fleshy portions. That means, first shot was fired by Vinod. Sher Singh, Rambir, Rajiv and Satpal were implicated due to party faction. Medical evidence is contrary to ocular evidence. We have gone through the evidence on file and are of the opinion that submission of learned counsel for the appellants does not seem to be reasonable one. After occurrence at 5.00 PM, Pawan was medically legally examined at 5.30 PM. Three injuries were noticed by the doctor At the time of postmortem examination, three injuries were noticed by the doctor, but the doctor, who had conducted the postmortem examination, was not examined on account of his death. Postmortem report was exhibited in the statement of an employee of the hospital, but evidence shows that at the time of occurrence, Pawan was sitting on the chair and was getting himself shaved. When first shot was fired while standing hitting on the back side of neck of Pawan, when Pawan was sitting on the chair, then Injury No.2 over right side of parietal region cannot be the exit wound. When victim is standing and the assailant is sitting and shot is fired hitting the back side of victim, even in that case exit wound can not be near the right ear. Seat of injuries suggests that injury Nos.1 and 2 noticed by the doctors at the time of medico legal examination and postmortem examination cannot be with a single shot. That is why, no question was put to the doctor, who had medico legally examined Pawan, that Injury No.1 and 2 are the result of a single shot. From the very Crl.Appeal No.205-DB of 2003 16 beginning, case of the prosecution is that Vinod fired shot hitting back side of neck and second shot was fired by Rambir, hitting near the back side of right ear, but knowingly no question was put to the Doctor that Injury No.1 and 2 are with a single shot. Unfortunately, Dr. A.K.Goyal was not examined by the prosecution because he had expired. In that eventuality, prosecution was at liberty to summon any doctor, who was the colleague of Dr. A.K.Goyal, but no doctor was summoned to exhibit the report. A Clerk was summoned, who had seen Dr. A.K.Goyal while writing and signing. In the statement of the employee, postmortem report was exhibited but in defence, appellants had a chance to summon any expert to opine that injury No.1 and 2 noticed by the doctor are result of a single shot. No case of the prosecution that injuries were caused with a pistol, but as per report, injuries were noticed with gandasa. In that case, learned counsel for the appellants was right to argue that medical evidence is contrary to ocular evidence. Injuries noticed cannot be self suffered or self inflicted. Occurrence was in the shop of Kaptan, Barber, and area of the shop was about 7 feet x 12 feet. When there is a firing by number of accused, then it is very difficult for the eye witnesses to note as to which shot had hit which portion of the body. If we presume that only one shot was fired and injury No.1 was entry wound, then it means that injury No. 2 and 3 are the exit wounds. Injury No.2 was near the upper part of right ear pinna, whereas injury No.3 was incised wound over right side of cheek, over right angle of mandible. When medical evidence is contrary to ocular evidence, then medical evidence, i.e., expert opinion, is not to be accepted as gospel truth when there is eye witnesses account and presence of the witnesses was natural. As per suggestion to the eye witnesses, one pistol was recovered from the shop of Crl.Appeal No.205-DB of 2003 17 Kaptan. One pistol was recovered in pursuance of disclosure statement suffered by Vinod. In pursuance of disclosure statement of Rambir, one pistol with one empty cartridge was recovered. Similarly, in view of the disclosure statement of Rajiv, one pistol with cartridge was recovered. When one pistol was recovered in pursuance of disclosure statement suffered by Vinod and the second pistol was lying in the shop of Kaptan, as per suggestion to the witnesses, then it means that occurrence had taken place as per prosecution story and it is not a case of single shot.
Sher Singh had contested election against Sanjiv Kumar. Sher Singh was present near the shop of Kaptan, when Vinod and others came in a car. Sher Singh had raised a lalkara by saying that Pawan was inside the shop of Kaptan. Vinod and others after alighting from the car had gone inside the shop of Kaptan and fired shots with their respective weapons. Satpal was armed with iron rod, but he has not caused injury to anyone. Satpal had participated in the commission of crime by saying that Sanjiv Kumar was sitting on the other side of the road. Rajiv had fired a shot to hit the complainant, but complainant had escaped when he had a fall. If no injury by Sher Singh, Rajiv or Satpal, then they are not to be given benefit of doubt, because they had participated in the commission of crime, after they came in a car and as pointed out by Sher Singh, Vinod and others had gone inside the shop of Kaptan and then fired with their respective weapons. After committing the crime, they had fled away from the spot in black Esteem Maruti Car, which was later on recovered on 31.5.2001.
Last submission of learned counsel for the appellants and learned State counsel was that after the present occurrence, number of cases were amongst the parties. Few persons were murdered from the side of Crl.Appeal No.205-DB of 2003 18 complainant. Similarly, some persons from the side of appellants were murdered. In view of the law laid down in Satbir Singh and others vs. State of Uttar Pradesh, 2009(2) RCR (Crl.) 232, present case falls in the category of marginal cases. When parties have settled their dispute and are ready to live in peace in future, then lenient view be taken.
No dispute about the law laid down by Hon'ble Supreme Court in the above cited authority. Under Sections 320 and 321 Cr.P.C., when the offence is not compoundable, then accused are not to be acquitted on the basis of compromise. From the perusal of evidence on the file, we are of the opinion that present case does not fall in the category of marginal cases. Cases which were got registered by one party or the IInd party after the present occurrence resulted into acquittal because eye witnesses did not support the prosecution story, but on the file, there is no documentary proof as to how the accused were acquitted. Whether eye witnesses had resiled from their statements or not. Suppose in all cases registered against one party at the instance of second party, then acquittal of the accused in all cases and withdrawal of criminal revision on the allegation that parties have effected compromise by settling all their disputes and are ready to live in peace in future, then the appellants are not to be acquitted of the charges levelled against them. In case parties have compromised and are willing to live peacefully in future, then we are happy and hope that parties to reside peacefully in future, but in view of the compromise amongst the parties, we are not in a position to ignore the prosecution story by giving benefit of doubt to the appellants and acquit them.
Impugned judgment is to be set aside if the same is perverse and against law, but after going through the evidence on file, we are of the Crl.Appeal No.205-DB of 2003 19 opinion that evidence was rightly scrutinized and there is no scope for interference in the impugned judgment.
For the reasons recorded aforesaid, appeal being without merit is dismissed.
As accused-appellants Sher Singh, Satpal, Vinod and Rajiv are on bail, so their bail bonds stand cancelled. They are directed to surrender themselves before the jail authorities immediately for completing their remaining part of sentence, failing which the concerned authority shall proceed against them in accordance with law.
( JORA SINGH )
JUDGE
29.3.2010 ( SATISH KUMAR MITTAL )
pk JUDGE