Punjab-Haryana High Court
Jagbir Singh vs State Of Haryana on 17 July, 2019
Equivalent citations: AIRONLINE 2019 P AND H 925
Author: Harinder Singh Sidhu
Bench: Harinder Singh Sidhu
CRA-D-574-DB-2011 -1-
THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-574-DB-2011 (O&M)
Reserved on : May 23, 2019
Date of Decision: July 17, 2019
Jagbir Singh ...Appellant
Versus
State of Haryana ...Respondent
2. CRA-S-2871-SB-2011 (O&M)
Pushpa Rani ...Appellant
Versus
Karambir and another ...Respondent
CORAM: HON'BLE MR. JUSTICE RAJIV SHARMA,
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: Mr. Deepinder Singh Brar, Advocate for the appellant
in CRA-D-574-DB-2011.
Mr.Gagandeep Singh Wasu, Additional
Advocate General, Punjab.
Mr.Gopal Sharma, Advocate for the complainant.
***
HARINDER SINGH SIDHU, J.
Since common questions of law and facts are involved in the aforesaid appeals these are taken up together and disposed off by a common judgment.
2. Criminal Appeal No.CRA-D-574-DB-2011 has been filed by the appellant against his conviction and sentence vide judgment and order dated 11/13.05.2011 of the learned Additional Sessions Judge, Ambala in Sessions case No.9 of 2008 whereby he was charged with and tried for offences 1 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -2- punishable under Sections 302, 201, 328/34 of the Indian Penal Code (in short 'IPC') along with Karambir. For the offence under Section 302 IPC the appellant has been sentenced to imprisonment for life and fine of Rs.5000/- and in default of payment of fine to undergo further RI for three months. For offence under Section 201 IPC he has been sentenced to rigorous imprisonment for three years and fine of Rs.2000/- and in default of payment of fine to undergo further RI for one month. Under Section 25 of the Arms Act he has been sentenced to undergo rigorous imprisonment for three years and fine of Rs.2000/- and in default of payment of fine to undergo further RI for one month. The sentences were ordered to run concurrently. Karambir was acquitted.
3. Criminal Appeal No.CRA-S-2871-SB-2011 has been filed by Pushpa Rani widow of Tej Pal for enhancement of sentence of the convict Jagbir as also challenging the acquittal of Karambir.
4. The case of the prosecution in a nutshell is that on 17.12.2017 complainant Dharam Raj (PW7) moved written complaint Ex.PE to Station House Officer, Police Station Kotwali Dehat, Saharanpur (U.P.), wherein, he alleged that he was working in Haryana Police and was posted in the office of Superintendent of Police, Yamuna Nagar. His brother Tej Pal (deceased) son of Nar Singh resident of Barara was Commando in Haryana Commando Police (Naval) Karnal as M.H.C. After taking casual leave for three days i.e., from 15.12.2007 to 18.12.2007 he had come to village Barara. On 16.12.2007 Tej Pal took his son Bharat Chauhan to the house of his Bahnoi (sister's hushand) Jagbir Singh at village Dosarka, District Ambala at about 3.30 PM where he stayed for 5-10 minutes and then left his son there. He told Jagbir that he was proceeding to Ambala and would take Bharat on his 2 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -3- return. Tej Pal did not return till 10.00 PM whereupon his father Captain Nar Singh Chauhan enquired from Jagbir who told that Tej Pal had left saying that he was proceeding to Ambala and had not returned and that Bharat Chauhan was with them. Efforts were made to contact Tej Pal on his mobile phone but his phones were found switched off. They searched for Tej Pal and then made report in P.S. Barara. Around 11.00 AM a telephone call was received from SHO Saharanpur that a white colour Ford Fiesta car bearing No.HR-01-U-2123 was standing without its driver at the bank of a canal at Saharanpur. After about 15-20 minutes another call was received that a dead body was lying in the Dikki of the said car. His father sent him for the identification of dead body to Saharanpur. He identified the dead body as that of Tej Pal his brother. He also mentioned that Tej Pal was managing Angel Public School, Barara in the name of his wife. A loan amount of Rs.24 lacs was due against said School, recoverable by Punjab National Bank and deceased was busy in arranging money to deposit instalment of the loan amount as told to him by his brother-in-law Jagbir. He also alleged that as per his knowledge, Tej Pal had no enmity with any particular person. Regarding his creditors and debtors enquiry could be made from the Managing Committee of the School. He sought legal action.
5. His statement Ex.PE was recorded by the police at Dehat Kotwali, Saharanpur. On the basis thereof formal FIR No.442/965 dated 17.12.2007 Ex.PE/1 was registered at Saharanpur. The postmortem was conducted the same evening. Inquest proceedings Ex.PG were conducted.
6. The prosecution examined number of witnesses in its support. The statement of the accused under Section 313 Cr.P.C. was recorded. He denied the allegations levelled against him and pleaded innocence. He 3 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -4- stated that the deceased owed money to several persons and on account of this he might have been killed by someone. He had absolutely no animosity with the deceased. He further stated that he was a share holder in the school to the extent of 1/3rd. The deceased was his brother-in-law (sala) as deceased's sister is his wife. Had he committed the murder of Jagbir, the latter's sister would have been the last person to reside with him. The entire case has been falsely foisted on him. There was no litigation between him and Jagbir. He never suffered any disclosure statement nor got any recovery affected. He stated that false recoveries had been planted on him. The country-made revolver was planted by the Saharanpur Police from their own Malkhana. The prosecution case had not been supported by anyone on the point of motive. The alleged Gajar Ka Halwa used for committing the crime had also not been proved by any of the witnesses. He stated that his co-accused Karambir had also been wrongly roped in by the Police. Since he had not committed any crime, he would have been the last person to summon Karambir to help him to remove the dead body from the car to the dicky (boot). However, he did not lead any evidence in his defence.
7. The appellant was convicted and sentenced as referred to above. Hence, this appeal.
8. We have heard learned counsel for the parties and have gone through the judgment and record.
9. PW1 Pushpa Rani stated that on 16.12.2007 her son Bharat and her husband Tej Pal had come to her school (Angel Public School). When her husband was in the school he received a telephonic call from Jagbir accused. Her son Bharat and her husband went to the house of Jagbir at Dosarka in Ford Fiesta car. There Jagbir met them at his house. Her son 4 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -5- alighted from car at the house of Jagbir. Tej Pal and Jagbir went away in the car. She made two-three telephone calls to her husband around 6.00 PM on both his phone numbers. The call was received but later on the phone was switched off. Thereafter she could not contact him. She, her father-in-law Nar Singh and Sushil Kumar went to the house of Jagbir Singh in a car at 11.30 PM. Sanesh Pal, the brother of Jagbir opened the main door of the house and parked the car in it. Sanesh locked the door from inside. They enquired about the whereabouts of her husband from the wife of Jagbir who was her husband's sister. She informed that a short while ago Jagbir was there but now he was not. They took tea there. Then Jagbir entered the house by climbing a wall. On enquiry Jagbir told her that he had left Tej Pal at Dosarka and he had gone to Ambala. Then she came back home along with her son and father-in-law. Jagbir, her father-in-law and Sushil Kumar left in search of Tej Pal. The next day they lodged a report with the police that her husband was missing. Her husband was commando in the police. Jagbir was a partner in the school. Jagbir and her husband had a tiff a couple of times regarding money. Both of them were engaged in property dealing and their relations had become strained. This also gave rise to a tiff between them. After that she along with her father-in-law and others went to Dosarka where they met Munish Kumar, a servant of Karanwal who informed that he had seen Jagbir Singh driving the car and Tej Pal was sitting by the side and eating something. Satish informed that Jagbir and Tej Pal had taken `Gajar ka Halwa' of Rs.25/- and then both of them left. Thereafter the dead body of her husband was found in the big canal located on Ambala-Saharanpur road. Her son had also told her that Jagbir had accompanied Tej Pal in the Ford Fiesta Car.
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10. In cross-examination she stated that the school was being run by her under the name and style of 'Angel Public School'. In the School 1/3rd share was of Jagbir, 1/3rd of Dharamraj and 1/3rd belonged to her and her husband. The school is running properly for the last about eight years. In her statement dated 10.3.2008 to the Police she had stated that they had enquired about the whereabouts of her husband from the wife of Jagbir to which she replied that a short while ago Jagbir was here, but now Jagbir is not here. She was confronted with her statement Ex.DA wherein, it was not so recorded. In her statement before the police on 10.3.2008 she had got recorded that Jagbir had informed that he had left her husband at Dosarka and he had gone to Ambala. She was confronted with statement Ex.DA where it was not so recorded. She had also recorded in her statement dated 10.3.2008 that after 11.30 PM Jagbir came to the house after climbing the wall and on enquiry he told about Tej Pal having gone to Ambala. She was confronted with her statement Ex.DA wherein it was not so recorded. She had got recorded before the police that her husband and Jagbir were dealing in property and their relations had become strained on that account. She was confronted with her statement Ex.DA wherein it was not so recorded. There was a dispute between her husband and Jagbir in 2005 but there was a settlement between them. She admitted that her husband Tej Pal and her brother Dharamraj were not on speaking terms for the last many years. Dharamraj had withdrawn his share from the school about two years ago.
11. PW2 Satish Kumar transporter of Barara stated that he was sitting in the shop of Pahwa Sweet House, at Dosarka. There is a huge rush at the shop thus he could not tell who had come. He did not know if the accused present in Court had come to the shop for buying any Halwa. He 6 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -7- was declared hostile and permitted to be cross examined by the Public Presecutor.
12. PW3 Constable Dharambir P.S. Barara stated that on 19.1.2008 he was posted in Police Station Mullana. On that day he joined in the investigation of this case by SI/SHO Police Station Mullana. Accused Jagbir was interrogated by the investigating officer in his presence and in the presence of ASI Kulwant Singh. Jagbir made disclosure statement Ex.PB to the effect that mobile phone belonging to Tej Pal was not thrown by him in the canal and that he had kept concealed the said mobile wrapped in a polythene bag near bus stand Nukar behind a khoka of tea stall and could get the same recovered by demarcating the said place. The disclosure statement was signed by the accused and was attested by him along with Kulwant Singh ASI.
13. PW3 further deposed that on 05.03.2008 when he was posted in police station Mullana he was given various sealed parcels by MHC Tejbir Singh for depositing at FSL Madhuban for examination. These parcels were : a parcel containing the wearing apparel of Jagbir Singh and Karambir sealed with the seal of `PK', parcel containing baseball sealed with the seal `SKT', sealed parcel containing a shoe sealed with the seal `SKT', a parcel containing a piece of carpet sealed with the seal of `UPP', piece of carpet sealed with the seal of `UPP', sealed parcel containing a countrymade pistol of .12 bore which was having an empty shell in one of the barrels and two live cartridges sealed with the seal of `DS' along with a sample seal. He deposited the parcels on the same day and on return the receipt was handed over to MHC the same day. As long as the above said parcels remained in his custody they were not tampered with nor anyone else was allowed to 7 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -8- tamper with them.
14. PW4 HC Jora Jeet Singh stated that on 15.02.2008 he was posted in Police Station Mullana. On that day he had accompanied ASI Kulwant Singh to Saharanpur. They contacted MHC of Police Station Saharanpur who handed over articles consisting of a baseball, one shoe, one piece of carpet, another piece of carpet smeared with blood, a mobile phone, one Country Made Pistol .12 bore which had an empty cartridge in the barrel duly sealed and also a sample seal. All these articles were taken into possession vide memo Ex.PC which was signed by him and constable Jaidev Malik.
15. PW5 Bharat Chauhan alias Gullu (the son of the deceased aged about 13 years) is a material witness. He stated that on 16th December 2007 his father had got him back from Dehradun where he was studying in a Boarding School (Olympus High School). They reached Barara at approximately 2.00 PM in the afternoon on 16.12.2007. His uncle (Bua's husband) made a telephone call on his father's cellphone at about 1.00 pm. His father informed him that his uncle had told that money has since been arranged and he should meet him (his uncle). They (PW5 and his father) started from Angel Public School, Barara at about 3/3.30 pm for Dosarka in white colour Ford Fiesta car bearing No. HR01U-2123. His uncle met them on the road at Dosarka. His uncle asked his father to leave him (PW5) behind so that he could play with other children. His Bua's house is situated at a distance of one killa from the road. She was standing at the gate. He was left behind by his father and uncle. The car was being driven by his father and his uncle sat in front. They both went away in the car. His uncle returned back to his house at about 9.00 PM at night. PW5 asked about his 8 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -9- father. His uncle informed him that his father had gone to Ambala. His uncle looked perturbed when he came back. At about 11.00 PM his grandfather, his mother and Sushil Sharma came to Buaji's house. They were looking perturbed. At that time his uncle (Buaji's husband) was in the house. His grandfather asked his uncle about the whereabout's of his father. His uncle informed that he (father of PW5) had gone to Ambala. Thereafter PW5, his grandfather, mother, Sushil Sharma left his Bua's place. Sushil Sharma drove them back and dropped them. He identified Jagbir in Court. He identified the other accused present in the Court as his uncle's brother. He stated that his statements had been recorded by the police of UP and Haryana.
16. PW6 Manish stated that he was working at Karnwal General Store, Dosarka. Two persons had come to the shop to enquire regarding its owner Rajinder Kumar Karnwal. But those two boys are not present in the Court. He stated that he could not tell the make of the car. He did not know who was driving that car. He did not know what were they doing in the car. He did not know the date and the month when they had come to the shop. Next day he came to know that one of them was murdered. On the request of the prosecution, he was declared hostile.
17. In cross examination he admitted that police had made enquiries from him and had recorded his statement. Though he denied that he had named Tej Pal and Jagbir as having come to his shop but stated that two persons had definitely come to his shop on 16.12.2007 at about 4/4.15 P.M. He denied that he had stated the make of the car as Ford Fiesta or that it was driven by Jagbir and that Tej Pal was sitting by his side. He denied that he had stated that both of them were related as brother-in-law to each other. He 9 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -10- was confronted with his statement Ex PD where it was so recorded.
18. PW7 Dharamraj stated that on 16.12.2007 his brother Tej Pal had gone to Angel Public School, Barara. Tej Pal was accompanied by his son Bharat Singh Chauhan. He had gone in his Ford Fiesta Car bearing registration No.HR01-U-2123. It was around 11.00 AM or 12.00 PM. Around 3 o'clock some unknown person made a phone call to his brother that the money had been arranged and that he should come to the shop of Karnwal at Dosarka. After hearing the telephone Tej Pal along with his son left for the destination. Bharat Chauhan was left at the house of Jagbir, his brother- in-law. When Tej Pal did not return his sister made a phone call to her father that Tej Pal had not returned and he is not picking up the phone and that Bharat Chauhan is with him. His father then called on the mobile of Tej Pal which was switched off. Then his father along with Sushil Sharma and Pushpa Rani left to search for Tej Pal. First they came to the house of Jagbir accused at Dosarka. Then they went towards Saha but as they did not know as to where Tej Pal had gone they returned back to the residence of Jagbir at Dosarka. Then they took Bharat Chauhan from there and came to their house at Barara. His father then lodged the FIR/DDR at police Station Barara. Around 11.00 AM a telephone call was received from SHO Saharanpur and SHO Barara that a white colour Ford Fiesta car bearing No.HR-01-U-2123 was standing without its driver at the bank of a canal at Saharanpur. After about 15-20 minutes another call was received that a dead body was lying in the boot of the said car. His father sent him for the identification of dead body to Saharanpur. He identified the dead body as that of Tej Pal his brother. His statement Ex.PE was recorded by the police at Dehat Kotwali, Saharanpur. On the basis thereof formal FIR No.442/965 10 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -11- dated 17.12.2007 Ex.PE/1 was registered at Saharanpur. His brother was also in Haryana Police and was on leave for three days i.e. from 15.12.2007 to 18.12.2007. He moved application Ex.PF before the DM for permission for the postmortem examination of his brother. The postmortem was conducted the same evening. Inquest proceedings Ex.PG were conducted.
19. SSP Saharanpur transferred the case to SP Ambala who marked the same to SHO Mullana on 9.1.2008 whereafter FIR Ex.PH was registered. SHO Mullana called him on 12.1.2008 and recorded his statement. On 17.1.2008 he along with Nar Singh were joined in the investigation by the SHO. Accused took the police party to the spot where they had fired the shot at deceased Tej Pal after giving him some intoxicant substance in carrot pudding. Identification memo of the spot Ex. PJ was prepared by the IO. It was signed by both the accused and by him (PW7) and his father Nar Singh (PW8). On 18.1.2008 accused Jagbir suffered disclosure statement Ex.PK. Pursuant thereto he got recovered from his house the blood stained clothes which had been washed subsequently. The IO prepared parcel of the clothes i.e., a check shirt of red colour and a pant of cream colour and sealed the same with seal PK which after use was handed over to him (PW7). The parcel was taken into possession by the IO vide recovery memo Ex.PL. The same was signed by him (PW7) and Nar Singh. A sealed parcel was opened in court and clothes were taken out. He recognized the clothes as being the same which had been got recovered by accused Jagbir Singh. The shirt was Ex.MO/1 and the pant Ex.MO/2. Accused Karambir also made disclosure statement Ex.PM pursuant whereto he got recovered his clothes, which were duly sealed and taken into possession vide recovery memo Ex.PN. PW7 also identified these in Court.
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20. In cross examination he stated that before he had gone to Saharanpur on receiving information from SHO Barara about a dead body lying in the boot of the car. His father, his deceased brother's wife and other relations were present with him in the house. He stated that the sequence of events as had been disclosed to him by his father and other relations including his brother's wife were incorporated by him in his application to the police at Saharanpur which is Ex.PE. He gave his statement to the police on the same lines that day i.e., 17.12.2007. He admitted that he gave a statment on the same lines to the police of Police Station Mullana on 12.1.2008. He admitted that he was not on speaking terms with his brother for the last serveral years before his death. He admitted that Jagbir had accompanied him to Saharnpur on 17.12.2007 and after the post mortem of deceased, he and Jagbir had brought the dead body back to Barara. Jagbir was also present at the cremation. He admitted that when the dead body of Tej Pal was brought from Saharnapur Jagbir had slept with the family in their house at Barara.
21. PW8 Capt. Nar Singh Chauhan (father of deceased) stated that he had two sons and four daughters. His elder son is Dharam Raj Singh. Tej Pal deceased was the fifth of his six children. Tej Pal was posted as MHC at Naval (Karnal) in the Commando police. He had opened 'Angel Public School' at Barara. There were three share holders in the said school. 1/3 rd share was owned by his grand son Prem Prashant, 1/3rd by his daughter-in- law Pushpa wife of Tej Pal and 1/3rd by Jagbir Singh son of Sadhu Singh and his cousins. After some days of the opening of the school there started a tiff between Tej Pal and Jagbir as they were purchasing properties such as six and half acre of land in village Dheen, one red kothi in Ambala and two 12 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -13- shops at Barara. Jagbir had sold the said land measuring 6 and half acre regarding which a case FIR No.214/05 under Sections 405, 506, 420, 120-B IPC P.S. Barara was registered against him and others who were involved in sale and purchase of said property. Tej Pal sought casual leave from his unit at Karnal for three days.
22. On 15.12.2007 Tej Pal brought his son Bharat from Dehradun to Barara. On 16.12.2007 Tej Pal took his son to Angel Public School, Barara at about 10.00/10.30 am. They had come in car No.HR-01U-2123 make Ford Fiesta. Around 12.00 noon Tej Pal started receiving telephonic calls. He replied that he was busy in the school and could not come. Tej Pal Singh was to give an installment of his loan amount of Rs.22 lacs to the Punjab National Bank. Tej Pal paid Rs. one lac. Jagbir had assured that Rs. three lacs would be paid by October, 2007. Deceased kept on receiving telephonic calls that money had been arranged and he should come to Dosarka. On 16.12.2007 at about 3.30 PM Tej Pal and his son Bharat went to Dosarka in their Ford Fiesta. Jagbir met them on the road side. At the instance of Jagbir, Tej Pal left his son with his sister Madhu. Jagbir and Tej Pal left for the market (Dosarka). PW8 stated that he was in school that day. On his repeatedly asking as to who was the caller on the telephone, he was informed by Rajesh alias Tiwari the sweeper of the school that the caller was Jagbir. He last had a talk with his son at about 5.56 pm. His son was not able to talk properly. Thereafter all three phones of his son were found switched off. He (PW8) called up Jagbir several times between 6.00 pm to 9.00 pm. who informed that he had been left by Tej Pal at Dosarka crossing and that Tej Pal had gone to Ambala. PW8 asked Jagbir to enquire from his wife Madhu the whereabouts of Tej Pal but Jagbir did not give a proper 13 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -14- reply. At about 11.00 pm he (PW8) called up Sushil Sharma draftsman requesting him to get his car. Sushil Kumar arrived with the car and PW8 along with his daughter-in-law Pushpa (wife of Tej Pal) went in the car and reached the house of Jagbir Singh and Snesh Pal at about 11.30 pm. The gate was opened by Snesh Pal who asked that the car be parked inside the gate. Snesh Pal then closed the gate. Pushpa sat with the ladies. PW8 along with other male members sat in a room and inquired about whereabouts of Jagbir Singh. Snesh Pal called for Jagbir and stated that he would be here but Jagbir did not come. After about one hour Jagbir arrived by jumping over the wall. A thumping noise was heard. Jagbir was in a shabby condition. His trousers below the knees were wet on account of dew. His head was wrapped with a cloth. On asking as to where he was he replied that he had gone to the wash room as due to shortage of water he had gone outside to ease himself. At the same time he said that he was sitting with Dinesh Pal. On being asked about the whereabout of Tej Pal he said that all should search for him. At the instance of Jagbir all sat in Sushil's car and started for Saha. After crossing Saha PW8 told Sushil Sharma who was driving the car to stop as no accident had been seen on the way. Though Sushil said they could continue with the search but Jagbir suggested that they go back home and continue with the search the next day. All returned back to the house of Jagbir. After dropping him there, PW8 along with his daughter-in-law Pushpa and grand son Bharat returned back home in Sushil's car, who went to his own house after dropping them. PW8 remained restless. He could not sleep. At about 4.30 am on 17.12.2007 he called up Ajay Sharma, Accountant of the school and requested him to come. Ajay Sharma came along with Bhupinder and Pushpinder sons of Dhandu Singh.
14 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -15- They informed that they had gone to the house of Jagbir but he was not there. The wife of Snesh Pal informed that he had gone to fetch milk. At about 9.00 AM Jagbir along with his wife Madhu (daughter of PW8) came to their residence. Leaving her behind, the others went to the Police Station. SHO P.S. Barara, who was present there asked them to continue with the search. He assured police help in the search. He also made a VT message to all the police stations. Six photographs of Tej Pal Singh were handed over to SHO Barara. At about 11.00 am he (PW8) got a call from P.S. Barara intimating that the Ford Fiesta car of Tej Pal was lying in a canal about one KM from Saharanpur. Five minutes later a second call was received intimating that a dead body was lying inside the boot (dicky) of the car. Another call was received from D.K. Sharma SHO Kotwali Dehat who was present at the site. Immediately thereafter PW8 accompanied by his son Dharamraj along with his other friends including Jagbir left for the spot. The dead body of Tej Pal was identified. Other police proceedings were carried out thereafter. Dead body was taken to the hospital for the post mortem. After the postmortem the dead body was brought to the native place for funeral and last rites etc. Saharanpur police had recorded his statement.
23. PW8 further stated that on 12.01.2008 his statement was recorded by police of Barara. He had raised suspicion against Jagbir and Karambir for the murder of his son. On 17.1.2008 he was called to P.S. Mullana where the two accused Jagbir and Karambir were already in police custody. They demarcated the place of crime. Identification memo of the spot Ex.PJ was reduced into writing by the IO. It was attested by him and Dharamraj.
On 18.01.2008 he was summoned to P.S. Mullana, where both 15 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -16- the accused were present. They made disclosure statements. The disclosure statement of Karambir is Ex.PM and disclosure statement of Jagbir is Ex.PK. On the basis of his disclosure statement Jagbir Singh got recovered a shirt and pant which were already washed. IO sealed the same with the seal of `PK' and took it into possession vide memo Ex.PL. Accused Karambir got recovered a shirt and pant which were already washed. IO sealed the same with the seal `PK' and took into possession vide memo Ex.PN. PW8 identified these recoveries in court.
24. PW9 Bharat Bhushan Patwari stated that on 14.03.2008 on the directions of Tehsildar Barara he had visited the spot and prepared scaled site plan Ex.PR on demarcation of Dharam Raj with correct marginal notes. The plan had been signed by him.
25. PW10 Gama Ram deposed about delivery of special report to the Ilaqa Magistrate, SP and DSP on 9.1.2008.
26. PW11 ASI Ishwar Singh deposed about moving application Ex.PS on 27.03.2008 to Branch Manager, Punjab National Bank, Adhoya regarding the loan record on the land of Angel Public School, Barara.
27. PW12 ASI Tejbir Singh tendered his affidavit Ex.PT. He stated that on 10.1.2008, he was posted as MHC at Police Station Mulana and Malkhana of the Police Station was under his custody. On 18.1.2008, a parcel of the clothes of accused Jagbeer Singh, a parcel of the clothes of accused Karambeer Singh, a parcel of a countrymade pistol of .12 bore along wth one shell, two live cartridges of .12 bore duly sealed with 'PK', and a parcel of shoes and a baseball stick duly sealed with the seal of 'SKT'; a parcel of the carpet of the car duly cut-off, a parcel of carpet along with sample seal duly sealed with 'UPP' were deposited with him by SI Pardeep 16 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -17- Kumar. On 5.3.2008 the case property along with the sample seal was sent to FSL Madhuban through Constable Dharambir Singh, who after deposit handed over the receipt to him. Till the case property along with sample seal remained in his custody he did not tamper with it nor allowed anyone else to tamper with it.
28. PW14 Kulwant Singh SI, In-charge Police Post Housing Board Colony, Ambala Cantt. stated that on 17.01.2008 he was posted as ASI in P.S. Mullana. On that day he joined the investigation of this case with SI Pardeep Kumar. He deposed about the disclosure statements Ex.PV (dated 17.1.2008) and Ex.PB (dated 19.1.2008) of Jagbir and the disclosure statement Ex.PX (dated 17.1.2008) of Karambir.
29. He stated that on 15.02.2008, the investigation of this case was handed over to him by the SHO. On that day he along with HC Jorajit Singh went to Kotwali Dehat Saharanpur and the MHC C. Jaidev Malik of P.S. Kotwali Dehat Saharanpur produced before him sealed articles namely one base ball stick, one shoe of black colour, one sealed parcel containing piece of carpet, one sealed parcel containing Mobile Phone LG reliance, one sealed parcel containing Country Made Pistol .12 bore and two live cartridges, one sample seal which had been affixed upon aforesaid articles. He took these articles in possession vide memo Ex. PC which was signed by C. Jaidev Malik and HC Jorajit Singh.
30. He was shown the sealed parcels containing the aforesaid articles. The sealed base ball stick was Ex.MO/1, sealed shoe Ex.MO/2; sealed carpet piece Ex. MO/3; sealed carpet smeared with blood stained Ex.MO/4; sealed mobile phone Ex.MO/5 and sealed country made pistol of .12 bore along with live two cartridges along with sample Ex.MO/6. He 17 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -18- identified them as being the same which were handed over to him by Constable Jaivir Malik of P.S. Kotwali Dehat Sharanpur.
31. PW15 Dr. Ranjan Dong stated that on 17.12.2007 he was posted as Medical Officer at Civil Hospital, Saharanpur. On police request Ex.PF and under the order of DM an emergency postmortem was conducted at 8.20 PM under artificial light on the dead body of Tej Pal aged 37 years son of Narsingh Chauhan resident of Barara, P.S. Barara, District Ambala.
32. Rigor Mortis was present. The following injuries were present which were ante mortem in nature:-
"Right black eye with swelling 5cm x 4cm Abraided contusion on left forehead 11cm x 6 cm, 6 cm above lateral end of the left eybrow.
Fire arm wound 1.5cm x1.5cm on the right side of the back of the head i.e. Occipital region, 9 cm behind from right ear, blackening present and wound of entry 51 pellets with cartridge recovered from brain matter, fracture of occipital bone, right temporal and parietal bone present.
Abrasion and contusion 7 cmx 5cm on dorsum of the right hand.
Abrasion 5cm x 4 cm on the lateral side of right knee."
On internal examination, following injuries were present:
"Brain and membranes were lacerated and gross haematoma was present 51 pellets with plastic cork cartridge bullet cover recovered 100 grams digested food material was found in the stomach."
The cause of death was coma as a result of antemortem injury by firearm.
33. 51 pellets with plastic cartridge bullet cover recovered were sealed and sent to SSP Saharanpur through Constable concerned.
34. He proved the postmortem report Ex.PY which was prepared 18 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -19- and signed by him and nine police papers Ex.PF, Ex.PZ, EX.PG, EX.PZ/1, EX.PE, EX.PZ/2, EXPZ/3, EXPZ/3, EX.PZ/4, EX.PZ/5 which were handed over to the police.
35. On a sealed parcel containing pellets being opened in the Court he identified them as being the same which were sealed by him and handed over to the police after postmortem. The Pellets were Ex.MO/7 to EX.MO/57. The plastic cartridge bullet cover was Ex.MO/58.
36. PW16 SI R.K. Manik deposed that on 17.12.2007 he was posted as SI in Police Station Dehat Kotwali, District Saharanpur. That day on application Ex.PE of Dharam Raj he recorded the formal FIR Ex.PE/1 which was signed by him.
37. PW17 Jaidev Malik Constable Clerk (Assistant MHC) in Police Station Kotwali Dehaat, Saharanpur (UP) deposed that on 17.12.2007 he had recorded DDR Ex. PZ and FIR Ex. PE/1 in the presence of R.K. Manik Sub- Inspector of Police Station Kotwali Dehaat. He further deposed that on 15.02.2008 ASI Kulwant Singh and HC Jora Jit Singh of Police Station Mullana visited the Police Station Kotwali Dehaat. He produced before them various articles; i.e. Baseball Danda, Black colour shoe, a piece of carpet, a blood stained piece of carpet, a moblie hand set make LG, one Country made Pistol .12 bore with an empty cartridge embedded in its barrel and two live cartridges and sample seal, all articles were in sealed condition. Investigating Officer took into possession the same vide recovery memo Ex.PC which was signed by him (PW17) and HC Jora Jit Singh.
38. PW18 Munna Lal stated that on 19.12.2007 he was posted as SI in Police Station Kotwali Dehat Saharanpur. He was associated in investigation of this case with DK Sharma, the SHO of PS Kotwali Dehat 19 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -20- alongwith other police officials. On that day accused Jagbir got recovered a Pink polythene in which there was a country made pistol of .12 bore and two live cartridges and an empty cartridge lying embedded in the barrel of the pistol from a pond near passage which leads to village Dheen. These articles were taken into possession vide memo Ex. PAA. He also got recovered a mobile phone belonging to him from his wife which was taken into possession vide memo Ex.PBB.
39. He identified in Court the country made pistol Ex.MO/59, the empty cartridge Ex.MO/60, the pink polythene containing the country made pistol and empty cartridge Ex.MO/61, the white cloth containing above articles, is Ex.MO/62, the mobile hand set make Reliance LG Ex.MO/63 and white piece of cloth containing the mobile Ex.MO/64.
40. In cross examination he denied the suggestion that the pistol had been planted on the accused by taking it from the police station.
41. PW19 Devender Kumar Sharma SI/ SHO P.S. Chattri, District Bulandshahar (U.P.) stated that on 16/17.12.2007 he was posted as such in Police Station Kotwali Dehat Saharanpur. On that date complainant Dharam Raj moved an application Ex.PE. On basis thereof formal FIR No.965/07 under Section 302, 201 IPC Ex.PE/1 was registered by SI R.K. Manik. He conducted the investigation in this case. On 17.12.2007 he, SI Harsharan Sharma alongwith other police officials reached at the spot. The car was taken out from the canal with the help of crane. The relatives of the deceased were also present at the spot. On checking dead body was found lying in boot (dicky) of the car. He had directed H.S. Sharma, to conduct the proceedings under section 174 Cr.P.C. which is Ex.PG . He recorded the statement of complainant Dharam Raj and prepared rough site plan of the 20 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -21- spot Ex.PCC. He took into possession a wrist watch, one golden ring, another golden ring with red stone, one silver ring with white stone, cash amounting to Rs.660/-, one danda of base-ball, one shoe of black colour, one car Ford Fiesta bearing No.HR01U-2123, vide recovery memo Ex.PEE which was signed by witnesses.
42. The same day he also took into possession blood smeared carpet and simple carpet from the car vide recovery memo Ex.PFF. Harsharan Sharma moved application Ex.PZ/5 to CMS, SBD Saharanpur for conducting the postmortem on the dead body of Tej Pal deceased. The postmortem was conducted. He recorded the statement of Pushpinder son of Dhandu Singh and Captain Nar Singh Chauhan. Capt. Nar Singh Chauhan stated that his son Tej Pal and his son-in-law Jagbir Singh were running Angel Public School in Barara. There was a dispute of Rs.24 lacs of PNB Bank. Apart from this at the instance of Jagbir, Tej Pal had taken money from several money lenders. In the year 2005 Tej Pal had instituted a case against Jagbir at P.S. Barara alleging fraud. Six months before the incident Tej Pal and Jagbir had physically assaulted each other as some differences had crept in. The dispute was amicably sorted out about three months before the incident due to intervention of father of the deceased. It was on account of this dispute that family members of the deceased suspected that deceased might have been murdered by Jagbir Singh.
43. On 18.12.2007 he recorded the statement under Section 161 Cr.P.C of Bharat Chauhan son of deceased, Pushpa wife of the deceased, Satish and Manish. Thereafter he reached the conclusion that deceased Tej Pal had been murdered by Jagbir Singh with the help of his cousin Karambir.
44. On 19.12.2007 he arrested Karambir and Jagbir Singh in this 21 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -22- case. During interrogation accused Jagbir suffered the disclosure statement Ex.PGG to the effect that he had committed the murder of Tej Pal due to extortion of Tej Pal in financial dispute between them. Same day in pursuance of his disclosure statement accused Jagbir took the police party to village Rukri and got recovered country made pistol and cartridges i.e. one live and one missed cartridge. The same were converted into parcel and sealed and taken into possession vide recovery memo Ex.PAA signed by witnesses. Jagbir also signed at Mark-A. Jagbir got recovered a mobile phone make Reliance from his house which was converted into parcel and sealed and taken into possession vide recovery memo Ex.PBB signed by witnesses. Specimen of seal was also prepared. The rough site plan of the place of recovery is Ex.PSS. He identified the country made pistol that was recovered as Ex.MO/63. He stated that he had also recovered two live cartridges but they had not been produced in court. Accused Karambir suffered disclosure statement Ex.PHH on similar lines as accused Jagbir.
45. PW19 moved an application Ex.PQQ before the Chief Judicial Magistrate at Saharanpur for getting the statement of accused Jagbir recorded under Section 164 of the Cr.P.C. Similar application qua accused Karambir is Ex.PRR.
46. PW20 Dharam Singh stated that on 18.02.2008 he was posted as Head Armourer in Police Line, Ambala. On that day SI/SHO Pardeep Kumar gave him one sealed parcel (CMP). He opened the seal of CMP and took out a country made pistol .12 bore and three cartridges of .12 bore two of which were live and one was a fired cartridge. The country made pistol was found to be in working condition. He also tested two live cartridges and found to be in working condition. He put these articles in the same parcel 22 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -23- and re-sealed with the seal of DS. He prepared report Ex.PLL which bears his signature. He handed over the same to SHO P.S. Mullana.
47. He identified the country made pistol .12 bore as Ex.MO/59 and empty cartridge as Ex.MO/60. He stated that he had engraved the FIR Number on the barrel which was tested by him.
48. In cross examination he stated that he had not test fired from the pistol nor the live cartridges were tested by firing. His statement qua the working condition of the pistol was from observation only.
49. PW21 SI Narender Singh SI/SHO P.S. Mullana deposed regarding submission of report under Section 173 Cr.P.C on completion of investigation.
50. PW22 SI Harsharan Sharma stated that on 17.12.2007 he was posted as SI in Police Station Kotwali Dehat District Saharanpur. That day he visited the spot on the direction of SHO Shri D.K. Sharma. He along with other police officials reached at the spot and conducted the inquest proceedings Ex.PG. He also took into possession articles contained in Ex.PEE i.e., one watch, rings, Rs.600/- in cash and a Danda of base ball, a black shoe and a car bearing No.HR01U-2123. He also took into possession a blood smeared piece of carpet of the car No.HR01U-2123 vide memo Ex.PFF. On return to the police station he deposited the case property with the MHC.
51. He identified the aforesaid articles in Court, the danda of Base Ball was Ex.MO/1, Black shoe was Ex.MO/2, the two pieces of carpets were Ex.MO/3 and other piece of blood smeared carpet was Ex.MO/4. Ford Fiesta car was Ex.MO/4A. The wrist watch make Sonata was Ex.MO/4B, Ring of yellow metal was Ex.MO/4C, another ring yellow metal with red 23 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -24- stone was Ex.MO/4D and a ring of white colour was Ex.MO/4E, cash amounting to Rs.660/- i.e. six currency notes of the denomination of Rs.100/- each were Ex.MO/4F to Ex.MO/4K. He took into possession the same vide recovery memo Ex.PEE.
52. PW23 Bhupender Kumar Jain Bank Manager, Punjab National Bank, Adhoya brought the summoned record consisting photocopy of loan application form Ex.PVV, loan proposal form Ex.PWW, list of Governing Body of the Angel Public Society Ex.PXX, Sale deed Ex.PYY which was pledged with the bank by Jagbir Singh and others, lease deed Ex.PZZ was pledged with Angel Public Society and two mortgage deeds Ex.PZZ/A and Ex.PZZ/B which were mortgaged by Pushpa Rani, Prem Prashant and Jagbir etc, statement of account of the bank of Angel Charitable Society Ex.PZZ/C.
53. PW24 Pardeep Kumar deposed that on 09.01.2008 he was posted as SI/SHO Police Station Mullana. On that day he received information from SHO P.S. Kotwali Dehat District Saharnpur UP, through a letter Ex. PE along with record of case FIR No.442/965/07 dated 17.12.2007 under Sections 302, 201 IPC, P.S. Kotwali, Dehat, District Saharanpur (UP). As during investigation the place of occurrence was found to be within the jurisdiction of P.S. Mullana, District Ambala, therefore, FIR No.2 dated 09.01.2008 under Sections 302, 201 IPC Ex.PH was registered at P.S. Mullana by him. He discussed the matter with the SHO P.S. Kotwali Dehat, who narrated the facts of the case and also informed that accused Jagbir Singh and Karambir Singh were arrested on 19.12.2007 and were in judicial lock up.
54. He obtained production warrant from Ilaqa Magistrate on 24 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -25- 10.1.2008. On 12.1.2008, he recorded statement of Dharam Raj and Nar Singh. Both the accused were produced in the court of Ilaqa magistrate, Ambala on 17.1.2008 vide Ex.PZZ/G. Accused Jagbir was interrogated on 17.1.2008 and he suffered disclosure statement Ex.PB while accused Karambir suffered disclosure statement Ex.PX. Accused Jagbir identified the spot of commission of murder of Tej Pal vide memo Ex.PJ. Its rough site plan was Ex.PZZ/A. On 18.1.2008, accused Jagbir led the police party at Bari Nahar near Saharanpur and identified the place where Ford Fiesta car was left abandoned in that canal with dead body of Tej Pal. Memo of identification Ex.PQ was prepared. Rough site plan of that place was Ex.PZZ/K. He got examined the pistol and cartridges from the Armourer on 18.2.2008. On 10.3.2008, he recorded statements of Pushpa Devi and Bharat alias Golu son of Tej Pal and also recorded statements of Satish and Manish.
55. The report of FSL Ex.PZZ/D and Ex.PZZ/E were tendered in evidence. As per the report Ex.PZZ/D the country made pistol marked W/1 (chambered for 12-bore cartridges) was a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working order.
56. The .12-bore fired cartridge case marked C/1 had been fired from country made pistol marked W/1 (chambered for 12-bore cartridges) and not from any other firearm even of the same make and bore, because every firearm has got its own individual characterstic marks.
57. As per report Ex.PZZ/E blood could not be detected on exhibit- 1a (shirt), exhibit-1B (pants), exhibit-1e (sweater), exhibit-2a (shirt) and exhibit-2B (pants). Exhibit-2 (Danda/baseball), exhibit-4 (shoes) and exhibit-6 (carpet) were stained with blood stains. Human blood was detected 25 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -26- on the Danda/baseball, sports shoes and carpet of car but its group was 'inconclusive'. Traces of blood detected on exhibit-5 (Carpet). were too small for serological analysis were detected
58. The case is based on circumstantial evidence.
59. PW1 Pushpa Rani (the wife of the deceased) stated that on 16.12.2007 her husband Tej Pal along with her son had come to Angel Public School. While he was there her husband received a telephone call from accused Jagbir telling him that money had been arranged and that he should come. Her husband along with his minor son Bharat left for the house of Jagbir at Dosarka in a Ford Fiesta. He left his son at the house of Jagbir. The deceased and Jagbir went away in the car. PW8 Nar Singh Chauhan father of the deceased has similarly deposed regarding the deceased going to Angel Public School along with his son at about 10.10/10.30 A.M. on 16.12.2007 in Ford Fiesta car, his son receiving telephone call around 12.00 noon that money has been arranged and that he should come to Dosarka. He was informed that the call was from Jagbir. At about 3.30 PM Tej Pal left for Dosarka along with his son. He left his son at the house of Jagbir. Thereafter, Jagbir and Tej Pal left together for the market.
60. PW1 deposed that she telephoned her husband 2 to 3 times around 6.00 PM on both his numbers. The call was received, but later on it was switched off. Thereafter, she could not contact him.
61. PW8 stated that at about 5.56 PM he last had a talk with his son who was not able to talk properly. Thereafter, he tried calling his son Tej Pal on all his three phones, but they were switched off. He called up Jagbir several times between 6.00 PM and 9.00 PM to know the whereabouts of Tej 26 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -27- Pal. Jagbir only stated that after leaving him (Jagbir) at Dosarka crossing Tej Pal had gone to Ambala. At about 11.30 PM Pushpa Rani along with her father-in-law Nar Singh Chauhan (father of the deceased) and one Sushil Kumar went to the house of Jagbir. Jagbir was not present in the house. His wife informed that he was there a short while ago, but now he is not there. Jagbir arrived about one hour later by jumping over the wall. He was in a shabby condition. His head was wrapped with a cloth. When asked as to where he was he gave contradictory answers, once saying that he had gone outside to ease himself as there was water shortage. In the same breath he said that he was sitting with Dinesh Pal.
62. PW5 Bharat Chauhan, the son of the deceased, deposed that his father had brought him to Barara from Dehradun. At around 1.00 PM on 16.12.2007 his father received a telephone call. His father informed PW5 that his uncle had called to say that money had been arranged and that they should meet. At around 3.00/3.30 PM his father left along with him (PW5) from Angel Public School for Dosarka. His uncle Jagbir met them on the road. On the asking of his uncle, he (Bharat Chauhan) was left behind while his father and uncle went away in the car. His father was driving and his uncle (Jagbir) was sitting in the front. His uncle returned at about 9.00 PM. He asked him where his father was. His uncle stated that he had gone to Ambala. His uncle looked disturbed when he had come back. He also reiterated regarding the visit of his mother Pushpa Rani, grandfather (Nar Singh Chauhan) and Sushil Sharma to the house of Jagbir that night.
63. This evidence clearly establishes that on 16.12.2007 Jagbir had telephoned Tej Pal that money had been arranged and that they should meet. The same afternoon at around 3.00/3.30 PM the deceased along with his son 27 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -28- Bharat Chauhan had come to the house of Jagbir. Bharat Chauhan was left behind. Jagbir and the deceased went away in the car of the deceased. The wife and father of the deceased called up Tej Pal. Tej Pal answered his father's call around 5.56 PM. He was not speaking properly. Thereafter his phones were found switched off. PW8 (the deceased's father) called Jagbir repeatedly between 6.00 PM and 9.00 PM. Jagbir did not give a satisfactory answer about the whereabouts of Tej Pal. He only said that Tej Pal had left him at Dosarka and gone to Ambala.
Jagbir returned alone at about 9.00 PM. PW5 enquired about his father. Jagbir told him that his father had gone alone to Ambala.
64. Deeply concerned at not being able to contact Tej Pal, PW1 and PW8 came to the house of Jagbir in the car of Sushil Sharma reaching there about 11.30 PM. Jagbir was not present there. Though Jagbir's wife stated that he was just here, but he wasn't there. He came about one hour thereafter. Instead of entering through the entrance he scaled over the wall. He was in a shabby condition. His trouser's below the knees were wet. On being asked by PW8 he first stated that he had gone out to ease himself as there was shortage of water. Then said he was sitting with Dinesh Pal. On being asked about the whereabouts of the deceased, accused suggested that they search for him. At his instance PW8, Jagbir and Sushil Kumar went in search of the deceased in Sushil's car. After crossing Saha PW8 told Sushil to stop. Though Sushil wanted that they continue with the search but Jagbir said that they should return and continue the search the next day.
65. Though PW6 Manish, the employee of Karnwal General Store, Dosarka who in his statement to the police had stated he had seen Jagbir and the deceased going in a car and deceased was eating something, turned 28 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -29- hostile and refused to identify that the accused and the deceased had come to the shop however he stated that two persons had definitely come to the shop at about 4.00/4.15 PM on 16.12.2007 in a long white vehicle. He also stated that the next day he learnt that one of them was murdered. This also indicates that Jagbir and the deceased were together till about 4.00/4.15 PM. Jagbir returned alone at about 9.00 PM. When PW1, PW5 and Sushil Kumar came to Jagbir's house at around 11.30 PM he was not there. He came about one hour later after scaling the wall. Jagbir informed PW8 that deceased had left him at Dosarka and gone to Ambala. Jagbir did not explain as to where he was during the period after Tej Pal had allegedly gone to Ambala after leaving him in Dosarka. He failed to lead any evidence that he was present at his house or elsewhere during the afternoon and late evening of 16.12.2007. No member of his family, his wife or brother was examined to prove that he was present at his house. The circumstance of Jagbir missing from his house, his entry to his house after climbing over the wall post mid night, appearing in a shabby condition, with wet trousers and his wholly untenable explanation of having gone out to ease himself due to shortage of water at midnight in extreme winter is a further link in the chain of circumstantial evidence.
66. No doubt, as candidly deposed by PW8 Jagbir had gone along with them on the night of 16.12.2007 to search for Tej Pal. The next day he along with his wife Manju (daughter of PW8) had come to the house of PW8. Jagbir accompanied PW8 to the SHO, Police Station Barara to lodge complaint that Tej Pal was missing. Further as admitted by PW7 Dharam Raj in his cross-examination Jagbir had accompanied him to Saharanpur on 17.12.2017. He was also with PW7 Dharam Raj when they brought back the 29 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -30- dead body of Tej Pal to Barara. He was also present at the cremation of the dead body of Tej Pal. This conduct may only be construed as an attempt by Jagbir to keep the needle of suspicion away from him.
67. As per the postmortem report the deceased had a "Fire arm wound 1.5cm x1.5cm on the right side of the back of the head i.e. Occipital region, 9 cm behind from right ear, blackening present and wound of entry 51 pellets with cartridge recovered from brain matter, fracture of occipital bone, right temporal and parietal bone present."
The cause of death was coma as a result of antemortem injury by firearm.
On internal examination :
"51 pellets with plastic cork cartridge bullet cover recovered"
68. The accused was arrested on 19.7.2007. That day itself on his disclosure statement a pink polythene bag which contained country made pistol of .12 bore and two live cartridges and an empty cartridge lying embedded in the barrel of the pistol were recovered from near the bushes on the bank of a pond on the passage leading to village Dheen. The recovered articles were sealed with the seal of `DKS' of Devinder Kumar Sharma SI/SHO P.S. Chattri, Tehsil Diwai, District Bulandshahr (U.P.) and taken into possession vide recovery memo Ex.PAA which also bears the signatures of SI Muni Lal, then SI P.S. Kotwali Dehaat, Saharanpur. There is no reason to doubt this recovery.
69. As per report of FSL the 12-bore fired cartridge case marked C/1 has been fired from countrymade pistol marked W/1 (chambered for 12- bore cartridges) and not from any other firearm even of the same make and 30 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -31- bore, because every firearm has got its own individual characterstic marks. No doubt the pellets recovered from the body during post mortem were not sent to FSL but as rightly reasoned by the trial Court this would not dent the prosecution case as the pellets cannot be connected with a particular .12 bore cartridge.
70. The medical evidence and the FSL report support the case of the prosecution. It is stated therein that the death was caused by a fire arm injury, pellets were recovered from the head of the deceased, a .12 bore country made pistol with one fired cartridge embedded in its barrel was recovered from the accused, the 12-bore fired cartridge case marked as C/1 had been fired from countrymade pistol marked as W/1 (chambered for 12- bore cartridges) and not from any other firearm even of the same make and bore.
71. The prosecution has also been able to satisfactorily explain the motive of Jagbir to commit the crime. The wife of the deceased and the accused had 1/3rd share in 'Angel Public School'. PW8 who stated that he was the Chairman of the school and looking after its working, deposed that some days after the opening of the school there started a tiff between Tej Pal and Jagbir as they were purchasing properties such as six and half acre of land in village Dheen, one red kothi in Ambala and two shops at Barara. Jagbir had sold the said land measuring 6 and half acre regarding which a case FIR No.214/05 under Sections 405, 506, 420, 120-B IPC P.S. Barara was registered against him and others who were involved in sale and purchase of said property. PW8 got it cancelled as accused was his son-in- law. PW1 also stated that the accused and her husband have had a tiff a couple of times regarding money. It has come in evidence that the accused 31 of 32 ::: Downloaded on - 21-07-2019 14:11:35 ::: CRA-D-574-DB-2011 -32- and the deceased had to repay loan amount of Rs.22 lacs to the Punjab National Bank. The instalment of the said loan was due. Clearly the relations between them were very strained. In this background the existence of motive can very well be taken to be established.
72. Thus, the prosecution has been able to establish the case beyond reasonable doubt. The chain of circumstances points unerringly to the culpability of the accused. There is no reason to interfere with well reasoned judgement of the trial court. There is no merit in the appeal and the same is dismissed.
73. Pushpa Rani widow of Tej Pal (deceased) has filed criminal appeal bearing No.CRA-S-2871-SB-2011 against acquittal of accused Karambir. The prosecution has not led any cogent evidence to connect Karambir with the commission of crime and, therefore, there is no merit in the appeal bearing No.CRA-S-2871-SB-2011 and the same is also dismissed.
(RAJIV SHARMA) (HARINDER SINGH SIDHU)
JUDGE JUDGE
July 17, 2019
gian
Whether Speaking / Reasoned Yes
Whether Reportable Yes / No
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