Punjab-Haryana High Court
Rahul @ Shashi Partap And Others vs State Of Haryana on 30 November, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.302-DB of 2007 1
Criminal Appeal No.300-DB of 2007
Criminal Appeal No.269-DB of 2007
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:November 30, 2011
Criminal Appeal No.302-DB of 2007
Rahul @ Shashi Partap and others ......Appellants
Versus
State of Haryana .......Respondent
Criminal Appeal No.300-DB of 2007
Banti @ Yogender Singh ......Appellants
Versus
State of Haryana .......Respondent
Criminal Appeal No.269-DB of 2007
Bharat ......Appellant
Versus
State of Haryana .......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vinod Ghai, Advocate,
Mr.Sunil Panwar, Advocate,
for the appellants.
Mr.Sandeep Vermani, Addl.A.G.Haryana.
Mr.APS Deol, Sr.Advocate with
Mr.Vishal Rattan Lamba, Advocate and
Mr.R.B.Gupta, Advocate,
for the complainant.
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Criminal Appeal No.302-DB of 2007 2
Criminal Appeal No.300-DB of 2007
Criminal Appeal No.269-DB of 2007
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned three appeals would be disposed of as these have arisen out of a common incident/ judgment.
FIR No.414 dated 6.11.2004 was registered at police Station City Bhiwani under Sections 302, 120-B, 34 of the Indian Penal Code, 1860 (IPC for short) and 25 of the Arms Act, 1959 (the Act for short) at 1.15 A.M. on the basis of the statement made by Pawan Kumar Masta. Complainant Pawan Kumar Masta stated in his statement that on 5.11.2004 at about 7.30 pm, he was sitting near the Panwari Wala Mandir near Police Station City Bhiwani along with his elder brother Ramesh Masta, Dinesh Kumar and Sonu Masta. They were all talking to each other. Ramesh Masta was president of City Congress of District Bhiwani. Ramesh Masta received a phone call on his mobile No.9812027194 and he started attending to the same after moving away from his accomplices to a distance of about 4-5 paces. In the meantime, three young boys came on a motorcycle of a silver colour without bearing any number plate. Rahul @ Shashi Partap fired a shot on the head of Ramesh Masta with his pistol. Rahul @ Shashi Partap was accompanied with a thin boy, who was wearing a blue check shirt, aged 22-24 years and was of wheatish complexion. The boy, who had kept the motorcycle in a running condition, was having a normal body and was aged about 22-24 years. He could identify the other two persons along with Sonu and Dinesh, if they were brought before Criminal Appeal No.302-DB of 2007 3 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 them. All the three persons after firing the shot had sped away on the motorcycle. The cause of grudge was that Ramesh Masta was running a private school at Bawari Gate, Bhiwani. Karambir wanted to get the illegal possession of the said school. In this regard, they had done some firing in the school and in the said incident, Ramesh Masta had escaped un-injured. On 9.2.2004, Ramesh Masta was again attacked and he suffered a fire shot. A criminal case was registered on the basis of the statement of Ramesh Masta. A writ petition had been filed in this Court by Ramesh Masta seeking proper investigation of the case from another agency. The prosecution, in order to prove its case, examined 20 witnesses.
After the close of prosecution evidence, appellant Rahul @ Shashi Partap, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), pleaded as under:-
"I am innocent. It was a blind murder case. A revenue litigation was decided between my father Karambir and Ramesh Masta since deceased, by the Hon'ble Court of Assistant Collector Ist Grade, Bhiwani, in which, Ramesh Masta preferred an appeal before Hon'ble Collector, Bhiwani and that appeal of Ramesh masta was also dismissed by the Collector. My father Karambir has contested two elections of MC, Bhiwani, against deceased Ramesh Masta and that is why Ramesh Masta and his family members were having nursing grudge against me and my family members. Other accused persons except my father Karambir are not known to me Criminal Appeal No.302-DB of 2007 4 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 and my family members. That is why I have been falsely implicated in this case."
Appellant Satender, when examined under Section 313 Cr.P.C. pleaded as under:-
" I am innocent and falsely implicate in this case on the behest of police station City, Bhiwani. I do not know another accused person in this case."
Appellant Bharat Singh, when examined under Section 313 Cr.P.C. pleaded as under:-
" I am innocent and falsely implicate in this case. I do not know other accused persons in this case. I have neither brought any motor cycle on dated 5.11.2004 from any person nor I know how drives that motorcycle. I was arrested by police persons of police station City Bhiwani on 6.11.2004 and they falsely implicated me in this case."
Appellant Karambir, when examined under Section 313 Cr.P.C. pleaded as under:-
"I am innocent and falsely implicated in this case. A revenue litigation was decided between me and deceased Ramesh Masta regarding land which is situated near Aggarsen Chowk, Circular Road, Bhiwani, Lohar bearing Khasra No.363, 368 which was decided by Hon'ble Court of Assistant Collector Ist Grade, Bhiwani, in which Ramesh Masta preferred an appeal before Hon'ble Court of Collector which was also dismissed by Collector, Criminal Appeal No.302-DB of 2007 5 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 Bhiwani. I had contested two elections against the deceased Ramesh Masta of Municipal Committee, Bhiwani, in the same ward. That is why he and his family members were having nursing grudge against me and my family members. Another accused persons in this case are not known to me except my son Rahul. I am falsely implicated in this case."
Appellant Manjit Singh, when examined under Section 313 Cr.P.C. pleaded as under:-
" I am innocent and falsely implicate in this case. I do not know other accused persons in this case.
Appellant Banti @ Yogender Singh, when examined under Section 313 Cr.P.C. pleaded as under:-
" I am innocent and falsely implicate in this case. I do not know other accused persons in this case.
Accused examined one witness in their defence. Vide judgment dated 22.2.2007, the trial Court held as under:-
"So, in view of the evidence and law discussed above and reasons recorded therein, I am of the view that the prosecution has successfully proved the allegations contained in the charge sheet against the accused that on 5.11.2004 at about 7.30 in the area of near Panwari Wala Mandir, police Station City Bhiwani, accused Rahul, Satender and Bharat in furtherance of their common intention committed murder of Ramesh Masta and Criminal Appeal No.302-DB of 2007 6 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 thereby committed an offence punishable under Section 302, read with section 34 of the IPC, that on the same date, time and place, accused Rahul, Satender and Bharat had committed the murder of Ramesh Masta and accused Karambir, Manjit and Banti @ Yogender Singh had abetted the said accused in the said offence and thereby committed an offence punishable under Section 109 of the IPC, read with Section 302 of the IPC, that accused Rahul, Satender, Bharat, Karambir, Manjit Singh and Banti @ Yogender Singh, prior to the date of occurrence hatched the conspiracy in order to commit the murder of Ramesh Masta and thereby committed an offence punishable under Section 120-B of the IPC, that on 10.11.2004 in the area of Sanjarwas, accused Rahul was found in possession of one country made pistol of . 315 bore without any permit or licence and thereby committed an offence punishable under Section 25 of the Arms Act and that on 11.11.2004 in the area of near Sheela by-pass, Rohtak, accused Satender was found in possession of one pistol .315 bore and one missed cartridge, without any permit or licence and thereby committed an offence punishable under Section 25 of the Arms Act, so I found all the accused guilty for the offence charges against them and convict them thereunder, respectively."
Sentence was awarded to the appellants by the trial Court Criminal Appeal No.302-DB of 2007 7 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 vide order dated 23.2.2007. Hence, the present appeals by the accused/ appellants.
Medical evidence:
PW-12 Dr.Rajender Rai deposed that on 5.11.2004 Ramesh Masta was brought in the emergency ward of General Hospital, Bhiwani in an injured condition. There was history of gun shot head injury. The patient was not fit for making statement. After giving first aid, the patient was referred to PGIMS Rohtak. He had sent ruqa (Ex.PT) to police post of General Hospital, Bhiwani.
PW-6 Dr. S.S.Malik deposed that on 5.11.2004 Ramesh Masta was brought in the emergency ward of PGIMS Rohtak with alleged history of gun shot injuries. Patient expired at 9.55 pm in spite of treatment given to him. The patient had been referred by General Hospital, Bhiwani. He sent ruqa Ex.PM to Incharge, Police Post, PGIMS Rohtak at 10 P.M. PW-14 Dr.Ritu Kaura deposed that on 6.11.2004, she conducted postmortem examination on the dead body of Ramesh Masta and found following injuries on his person:-
"1. Stitched wound 7 cm horigental was present in the lower part occipital 3 cm below occipital protuberance. On further dissection, subcutaneous tissue blackened in the middle. Skull bone fractured. Brain matter was coming out. Echymosis were present.
2. Stitched wound of size 7 cm present in right parietal region obliquely placed. Front end 6 cm right to middle line and 7 cm above the middle of right eyebrow. Criminal Appeal No.302-DB of 2007 8 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 Posterior end 8 cm from the midline. On further dissection skull bone fractured Everett. Brain matter was coming out. Echmosis were present."
In his opinion, the cause of death was due to haemorrhage and shock and injury to vital organ i.e. brain which were sufficient to cause death in the normal course of nature. The injuries were ante mortem in nature.
Ocular version:
The complainant, while appearing in the witness box as PW-1, has deposed as per the contents of the FIR. The complainant identified appellant Bharat as driver of the motorcycle and appellant Satender as pillion rider.
PW2 Dinesh has corroborated the statement of the complainant qua the manner of occurrence. Evidence qua conspiracy:
PW-3 Ghanshayam Dass has deposed that he was neighbour of Ramesh Masta as well as appellant Karambir's family. He knew both the families. Two days prior to the death of Ramesh Masta, he had gone to the house of appellant Karambir along with Satish. They heard the talk through window of the house of Karambir. Appellant Karambir was telling appellants Bharat, Rahul, Satender, Banti and Manjit that he was having old enmity with Ramesh Masta, who had been saved in previous two incidents but this time, he should not be able to go alive. Karambir told Banti and Manjit to supply weapons to Rahul, Satender and Bharat and said that the rest would be done by the said accused. Then they entered Criminal Appeal No.302-DB of 2007 9 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 the house of Karambir and talked about their work with him but Karambir said that he was busy with his guests and they should come again. They narrated the facts to the police on 30.1.2005 as earlier they were scared from the accused persons. Investigation PW-13 Sub Inspector Satyavir Singh has deposed that on 5.11.2004 he received a message from General Hospital, Bhiwani qua admission of Ramesh Masta in the hospital in an injured condition. He made the necessary entry in the Daily Diary Report and then went to the General Hospital, Bhiwani along with other police officials. He received a ruqa from Medical Officer, General Hospital, Bhiwani and came to know that the patient had been referred to PGIMS Rohtak and then he reached the said hospital and came to know that Ramesh Masta had died. Thereafter, he met the complainant and recorded his statement. On the basis of the statement of the complainant, formal FIR was registered. He conducted inquest proceedings qua the dead body of the deceased and sent the same for postmortem examination. Thereafter the dead body was handed over to the relatives of the deceased. He visited the spot and got the same photographed. He lifted blood from the spot and took it in possession after converting it into a sealed parcel.
He prepared the rough site plan and recorded the statements of the witnesses. On 29.11.2004 he arrested accused Banti.
PW-18 Inspector Darshan Lal deposed that on 6.11.2004 he inspected the spot and verified the facts. Thereafter, the investigation was transferred in the evening to Sh.Ram Avtar, Criminal Appeal No.302-DB of 2007 10 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 Inspector and on 10.11.2004, he was again handed over the investigation of the case. He interrogated accused Rahul, Satender and Bharat. At that time, accused Satender and Bharat were in muffled faces. After recording the disclosure statement of accused Rahul, all the three accused were produced before the Magistrate. An application was moved for seeking test identification parade of accused Satender and Bharat but they refused to participate in the same. During interrogation, accused Rahul got recovered motorcycle bearing No. HR 16-D 5461, one pistol of .315 bore and mobile phone from the disclosed place on the basis of his disclosure statement. Accused Bharat also suffered a disclosure statement and had pointed out the place of recovery of the motorcycle. Accused Satender also suffered a disclosure statement and got recovered a pistol from the disclosed place.
PW-19 Inspector Ram Avtar deposed that on 6.11.2004, the investigation of the case was handed over to him. On 7.11.2004, he got a secret information qua mobile phone numbers of Rahul, Bawani and Karambir. The mobile phone number of Karambir was disclosed to him as 9416128690; mobile phone number of Rahul was disclosed to him as 9813196292 and mobile phone of Bawani was disclosed to him as 9813117468. He deputed a Constable to get the call details of the said mobile numbers. On 9.11.2004, he arrested accused Satender, Bharat and Rahul. He directed accused Satender and Bharat to cover their faces and interrogated them and thereafter, produced them before Deputy Superintendent of Police, Bhiwani. Accused Bharat and Satender were kept with muffled faces in the Criminal Appeal No.302-DB of 2007 11 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 police lock up.
PW-11 J.B.Gupta, Chief Judicial Magistrate, deposed that on 10.11.2004, accused Satender and Bharat were produced before him with muffled faces along with an application for holding an identification parade. However, accused declined to join the identification parade.
PW-8 Inspector Dharampal deposed that on 11.11.2004, accused Satender got recovered .315 bore country made pistol from the disclosed place and the same was taken in possession.
PW-7 Rameshwar Dhariwal deposed that on 8.11.2004 on receipt of police application Ex. PN, he took out the print of call details of mobile No.9416128690 from 1.10.2004 to 8.11.2004. Other evidence:
PW-5 Punit Masta deposed that on 29.1.2005, copies of two FIRs , four applications and three writ petitions were handed over by him to the police and the same were taken in possession.
PW-17 Head Constable Dalbir proved on record FIR No.33 dated 27.1.2001 under Sections 148, 149, 427, 323 IPC registered at Police Station City Bhiwani. FIR No.48 dated 9.2.2004 registered under Sections 307, 34 IPC and Section 25 of the Act registered at Police Station City Bhiwani. He further deposed that in the later FIR, challan had been presented against the accused including Karambir and his son Bhawani Singh. Defence evidence:
DW-1 Parbhu Ram proved on record Ex.DW/1, copy of the order passed by the Collector, Ex.DW/2 copy of the decision Criminal Appeal No.302-DB of 2007 12 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 dated 31.1.2002 and Ex.DW/3 copy of grounds of revision. Submissions:
Learned counsel for the appellants have submitted that the prosecution had miserably failed to prove its case. The presence of the eye witnesses at the spot was doubtful. There was no evidence on record qua conspiracy. The statement of PW-3 had been recorded on 30.1.2005 although his name was duly mentioned in the final report prepared on 6.1.2005. So far as PW Satish, who had allegedly heard the talk regarding conspiracy with PW Ghanshayam Dass is concerned, his statement was neither recorded under Section 161 Cr.P.C. nor he was examined during trial. Hence, no reliance would be placed on the un-corroborated testimony of PW Ghanshayam Dass. It has further been averred that no overt act has been attributed to appellant Satender by the eye witnesses. It was only during investigation, it was tried to be portrayed that the shot fired by Satender had missed. Appellant Karambir had been involved in this case merely because of his relationship with appellant Rahul being his father. It has further been submitted that appellant Bharat had been falsely involved in this case. There was no material on record to substantiate that he was owner of the motorcycle in question. The call details placed on record failed to connect appellant Bharat with the alleged crime.
Learned State counsel, who is assisted by the learned senior counsel for the complainant, has submitted that the case rested on eye witness account. The eye witnesses had deposed qua the presence of appellant Rahul, Satender and Bharat at the spot. In Criminal Appeal No.302-DB of 2007 13 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 fact, all the appellants in conspiracy with each other had committed the murder of Ramesh Masta. In this regard, the statement of PW Ghanshyam Dass was liable to be relied upon. Appellants Banti and Manjit Singh had supplied weapons to their co-accused. Sim card pertaining to appellant Bharat was recovered from accused Rahul as he had destroyed his own sim card after the occurrence. From the perusal of the call details, it was evident that appellant Bharat had been called by Rahul on a motorcycle. On an earlier occasion appellant Karambir had fired on deceased Ramesh Masta and he had been tried along with others for commission of offence under Section 307 IPC. The offence had been committed by the appellants due to old enmity between the parties.
Discussion:
The present case rests on eye witness account. PW-1 and PW-2 are the eye witnesses of the occurrence. As per the said witnesses, appellants Bharat, Satender and Rahul had come to the spot on a motorcycle driven by appellant Bharat. Appellant Rahul was sitting in between appellants Bharat and Satender. Appellant Rahul had fired from his pistol on the head of Ramesh Masta. Thereafter, the assailants had sped away from the spot on their motorcycle. The eye witnesses have not attributed any over act to appellant Satender. So far as appellant Bharat is concerned, he was driving the motorcycle and appellant Rahul, who was armed with a pistol, had fired a shot on the head of the deceased. The eye witnesses have not deposed that appellant Satender was armed with any weapon. The investigating agency, however, during Criminal Appeal No.302-DB of 2007 14 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 investigation, tried to introduce a version that the shot fired by appellant Satender had missed and it has been alleged that recovery of pistol was made on the basis of disclosure statement suffered by appellant Satender. It appears that during investigation the investigating agency, with a view to strengthen its case against appellant Satender, tried to build up the said story. Since, no overt act has been attributed to appellant Satender by the eye witnesses and there is no such allegation in the FIR also, the possibility that he has been falsely involved in this case cannot be ruled out. Appellant Satender was not identified by the complainant at the first instance and the fact that he was not attributed any overt act makes the prosecution case qua him doubtful. Hence, he is liable to be acquitted.
So far as the evidence led by the prosecution qua conspiracy is concerned, the statement of PW-3 Ghanshayam Dass fails to inspire confidence. The said witness had gone to the house of appellant Karambir a couple of days prior to the death of Ramesh Masta. Ramesh Masta had died on 5.11.2004 at 9.55 p.m.. However, the statement of PW-3 was recorded by the police on 30.1.2005 for the first time. The said witness in his cross-
examination deposed that he had never met the police prior to recording of his statement. The Investigating Officer had also not met him. He had not been called by the police. The said witness resides near the houses of Karambir and the deceased. He further deposed that he had gone to the hospital to enquire about the health of injured Ramesh Masta but had not attended the cremation of Criminal Appeal No.302-DB of 2007 15 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 deceased Ramesh Masta nor had gone to his house to offer condolence. He was joined by the police during investigation of the previous incident. Thus, from the statement of PW-3, it is evident that he did not disclose the talk heard by him to anybody prior to recording of his statement on 30.1.2005. Surprisingly, the name of the said witness was duly mentioned in the list of witnesses in the final report prepared by the investigating officer on 6.1.2005. The said report is available on record as Ex.DA/1. A perusal of the same reveals that the names of Satish Kumar and Ghanshayam Dass are mentioned at serial Nos. 9 and 10 in the list of witnesses (Ex.DC). Since PW Ghanshayam Dass had not met the police prior to recording of his statement on 30.1.2005, then how his name could be mentioned in the list of witnesses in the final report prepared on 6.1.2005. Learned State counsel, who is assisted by the learned senior counsel for the complainant, has failed to reconcile the said discrepancy. In these circumstances, the statement of PW-3 Ghanshayam Dass fails to inspire confidence. It appears that the said witness has been introduced by the prosecution to involve appellants Karambir, Manjit Singh and Banti in this case. Hence, appellants Karambir, Manjit Singh and Banti are liable to be acquitted.
So far as appellants Rahul and Bharat are concerned, the statements of the eye witnesses qua their involvement in the crime inspire confidence. Both the said appellants had come to the spot on a motorcycle driven by appellant Bharat and appellant Rahul had fired on the head of deceased Ramesh Masta from his pistol. The Criminal Appeal No.302-DB of 2007 16 Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 eye witness account in this regard could not be shaken during lengthy cross-examination. Appellant Rahul was duly identified by the eye witnesses at the first instance. So far as appellant Bharat is concerned, he had declined to participate in the identification parade. However, he has been duly identified by the eye witnesses as driver of the motorcycle at the time of occurrence.
Learned counsel for the appellants have drawn our attention to Ex.DX at point 'A' and mark 'B' and Ex.DZ at mark 'A' and mark 'B' to substantiate their argument that in fact the accused had been arrested much prior to 9.11.2004 and due to this reason there were cuttings on the arrest memo of appellants Bharat and Rahul. We have carefully gone through the said exhibits at the relevant mark/points shown to us. There is an over writing qua the date but it appears that the said omission was due to a clerical error. Moreover, if any lapse had been committed by the Investigating Officer during investigation, the same in itself cannot be said to be fatal to the prosecution case. In the present case, the statements of the eye witnesses qua the involvement of appellants Bharat and Rahul in the crime inspire confidence. The eye witness account in this regard is duly corroborated by the medical evidence.
Accordingly, Criminal Appeal No.300-DB of 2007 is allowed and appellant Banti @ Yogender Singh is acquitted of the charge framed against him.
Criminal Appeal No.269-DB of 2007 is dismissed and the conviction and sentence of appellant Bharat as ordered by the trial Court are upheld.
Criminal Appeal No.302-DB of 2007 17Criminal Appeal No.300-DB of 2007 Criminal Appeal No.269-DB of 2007 Criminal Appeal No.302-DB of 2007 is dismissed qua appellant Rahul @ Shashi Partap and his conviction and sentence as ordered by the trial Court are upheld. The said appeal qua appellants Satender, Karambir and Manjit Singh is allowed and they are acquitted of the charge framed against them.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
November 30, 2011
anita