Punjab-Haryana High Court
Rajender @ Naresh S/O Shyam Lal vs State Of Haryana on 29 July, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-613-DB of 2009
Date of Decision: 29.07.2013
Rajender @ Naresh s/o Shyam Lal ....Appellant
Versus
State of Haryana ..Respondent
CRA-D- 807-DB of 2009
Date of Decision: 29.07.2013
Bachhu s/o Mithun & others ....Appellants
Versus
State of Haryana ..Respondent
CRA-D- 775-DB of 2010
Date of Decision: 29.07.2013
Mukesh s/o Shyam Lal ....Appellant
Versus
State of Haryana ..Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Vinod Ghai, Senior Advocate with
Mr. Simardeep Singh Sandhu, Advocate for the appellant.
(in CRA No-D-613-DB of 2009)
Ms. Amita Arora, Advocate
for the appellants ( in CRA No-D-807-DB of 2009).
Mr. Sarabjeet Khaira, Advocate
for the appellant ( in CRA No-D-775-DB of 2010).
Mr. P.S. Poonia, Additional Advocate General,
Haryana.
FATEH DEEP SINGH, J.
During the intervening night of 31st March, 2004 and 1st Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -2- April, 2004 between 2.30/3.00 a.m. when complainant Pawan Kumar along with his family consisting of his wife Neelam daughters Shilpy and Sonam (all injured) and son Anshul (deceased) were sleeping in their rooms on the ground floor of the house situated in Sector 12, HUDA, Panipat, while his brother Ashok Kumar PW2 along with his family members were sleeping on the upper floor of the house at that time five persons entered the house after removing the iron grill of the window who were armed with knives, dat and pistol etc. and were aged around 20/22 years. All these persons went to the room where the children were sleeping and assaulted them. On hearing the commotion, complainant rushed to the room and saw two of the intruders causing injuries to Anshul with knife and thereafter, rest of the family was attracted. The wife and daughters were also given injuries by these persons and on raising raula other family members and neighbours were attracted whereupon, intruders fled away from the place with their weapons. The injured were rushed to Government Hospital, Panipat, where Anshul was declared brought dead, while the other injured were referred to D.N. Batra Hospital, Panipat. The purpose of this intrusion was to commit dacoity. It was on telephonic message received by ASI, Bachan Singh of Police Station Chandni Bagh, Panipat regarding this incident, acting on which the police force rushed to the Government Hospital, Panipat and found the dead body of Anshul lying in the mortuary and came to know that the other family members were admitted in D.N.Batra Hospital, Panipat and after seeking medical opinion as to the fitness of Pawan Kumar complainant, the Investigating Officer recorded his statement Ex.PA and made his endorsement Ex.PA/1 thereon, leading to the Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -3- registration of FIR Ex. PA. On receipt of medical ruqa Ex.PCC the police made inquest report Ex.PS and moved an application EX.PT for conducting post mortem examination of the dead body of Anshul and on the basis of which Dr.Ved Parkash Gupta PW8 conducted the same and gave his report Ex.PH opining as to the cause of death being on account of injuries which were ante mortem in nature and sufficient to cause death in ordinary course of nature. The police visited the place of occurrence and prepared rough site plan Ex.PU and from the place, the Investigating Officer, Inspector Jai Bhagwan, PW10 lifted blood stained handkerchief and samples of blood and prepared them into parcels and took into police possession through memo Ex.PV. Thereafter, Investigating Officer moved an application Ex.PW seeking medical opinion for fitness to facilitate recording of statements of the injured and after endorsement Ex.PW/1 the police recorded statements of three injured namely Neelam, Shilpy and Sonam. The medico legal examination of all the injured was got conducted by way of Ex. P1, Ex.P2, Ex.PAA and Ex.PBB.
Consequent upon post mortem examination, the articles of the dead body were handed over to the police which took into possession through memo Ex.PG and vide another police request seeking medical opinion on 2nd April, 2004 the doctor through his opinion Ex.PW/2 opined the injured fit to make statements leading to recording of the same.
During the course of investigation on 1st May, 2007 a telephonic message was received by S.I. Vikas Kumar PW11 from Police Station Chandni Bagh, Panipat that accused have been apprehended in another case bearing FIR No.138 of 2004 under Sections 395/397 IPC by Police Station Model Town Panipat, Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -4- wherein, they had disclosed commission of the present offence. It was thereafter, custody of all the accused was procured and thereafter they were interrogated on 2nd May, 2007. The accused Rajender Kumar @ Naresh demarcated the place by way of memo Ex.PJ and accused Yad Ram @ Yadu by way of memo Ex.PK; Mukesh by way of memo Ex.PL; Bansi by way of memo Ex.PM and Bachhu by way of memo Ex.PN. On 3rd May, 2007 accused Bansi, while in police custody was interrogated and suffered disclosure statement Ex.PO that he had kept concealed a knife Ex.P1 near Railway line in a ditch behind the bushes of which only he knew thereafter, accused Bachhu while in police custody made similar disclosure statement Ex.PR that he had kept concealed knife Ex.P2 near the Railway line Vikas Nagar, to which only he knew. Accused Rajender @ Naresh and Yad Ram @ Yadu made statements that the weapons used by them were already got recovered by CIA Police, Panipat. It was on the basis of their disclosure statements accused Bansi and Bachhu got recovered the respective weapons of which rough sketches Ex.PO/1 and Ex.PR/1 were prepared and taken into police possession through memos Ex.PO/2 and Ex. PR/2. Similarly on the basis of disclosure statement Ex.PQ accused Mukesh got recovered from his conscious possession knife Ex.P3 whose rough sketch Ex.PQ/1 was prepared and taken into police possession through memo Ex.PQ/2. Rough site plans of these recoveries were prepared as Ex.PR/3, Ex.PO/3 and Ex.PQ/3.
Upon completion of investigations the accused were produced before the Court along with challan for trial and finding prima facie case, charges under Sections 302 and 460 read with Section 34 IPC were framed against all the accused and besides, the charges under Section 25 of the Arms Act, were also framed Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -5- against accused Bacchu, Mukesh and Bansi and each of the accused pleaded not guilty to charges and claimed trial.
At the trial the prosecution in order to establish its case examined PW1 ASI Bachhan Singh having registered the FIR; PW2 Ashok Kumar brother of the complainant detailed the events of the occurrence and thereafter, injured couple PW3 Neelam and PW 4 Pawan Kumar gave ocular version as to the manner of this episode and had identified the accused to be the perpetrators of the crime; PW5 HC Sultan Singh proved the arrest of the accused in the previous case and to the similar effect is the testimony of PW6 S.I Virpal; PW7 ASI Krishan Kumar proved the initial investigations about recording the statements of the injured and PW8 Dr. Ved Parkash Gupta proved Post mortem examination of deceased and PW9 ASI Surat Singh detailed the investigations as an attesting witness and thereafter, Investigating Officer Inspector Jai Bhagwan PW10 proved his investigations followed by testimony of PW11 S.I. Vikas Kumar who proved the arrest of the accused. PW12 Inspector Rohtash Singh proved on the record lifting of the articles from the place of occurrence; PW13 HC Naresh Kumar proved the special reports; PW14 Dr. Sunil Kumar proved the conducting of the medico legal examination of the injured proving the reports and thereafter, prosecution closed its evidence.
When accused were put to the incriminating evidence against them at the trial while recording their statements under Section 313 Cr.P.C denied these allegations and in their defence examined DW1 Dharam Pal MMASI to prove the entry in register No.90 and through DW2 Multan Singh and DW3 Inspector Jai Bhagwan, proved lifting of prints and photographs from the place of occurrence which were never sent to the concerned expert and in Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -6- defence has proved documents Ex.DA to Ex.DE, Ex.D1 to Ex.D3 and EX.DX.
Consequently, through the impugned findings learned Additional Sessions Judge, Panipat held all the accused guilty of commission of offences under Section 460 read with Section 34 IPC and sentenced them to undergo imprisonment for life each and to pay a fine of `6000/- each and in default of payment of fine further rigorous imprisonment for two months each, besides this accused Bansi, Mukesh and Bacchu were also held guilty for commission of an offence under Section 25 of the Arms Act, and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of `1000/- each and in default of payment of fine further imprisonment for fifteen days each.
The convicts through these appeals have challenged the findings of the trial Court as per the grounds spelled out therein.
After hearing learned counsel for the appellants as well as learned counsel for the State, it ensues that allegations of the prosecution show that it was during the midnight the intruders, who were armed with deadly weapons after removing iron grill entered the house and assaulted the inmates resulting in death of young boy Anshul and injuries to complainant Pawan Kumar, his wife Neelam and daughters Shilpy and Sonam. The deposition of Dr. Ved Parkash Gupta PW8, who conducted the post mortem examination upon the dead body by means of his report Ex.PH has detailed a stab wound on the right side of the chest and incised wound on the right side of the face, reddish bruise on the right side of occipital and abrasion on the left side of chest which were ante mortem injuries and sufficient to cause death in ordinary course of Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -7- nature as the doctor has found injuries to the vital organs i.e. heart, lungs and brain. Similarly, PW14 Dr. Sunil Kumar who conducted the medico legal examination of the injured by way of his affidavit Ex.PX has proved MLRs of Neelam, Pawan Kumar, Shiply and Sonam Ex.P1, Ex.P2, Ex.PAA and Ex.PBB and sent medical ruqa Ex.PCC regarding intimation of death of Anshul and in no uncertain terms as has been pointed out by the learned counsel for the State has opined that the weapons i.e. Knives Ex.P1, Ex.P2 and Ex.P3 could possibly cause such injuries on the injured and has also opined the injuries by sharp weapon as well as blunt weapon. Thus, from these testimonies of experts, the ocular version that the intruders were carrying knives, pistol etc. stands elaborated. Since PW2 Ashok Kumar brother of Pawan Kumar complainant at the time of this occurrence was sleeping with his family on the upper floor of the house where the occurrence has taken place and the other witnesses PW3 Neelam and PW4 Pawan Kuamr who are injured and are stamp witnesses and have received injuries in their own house while they were sleeping and woke up after hearing voice of their son are thus natural and probable witnesses to this occurrence whose presence cannot be put to doubt by any means. Though, it has been hotly debated on behalf of the appellants by their counsel that by the own story of the prosecution supported by the complainant, the accused were not known to them and were not apprehended at the spot, therefore, the question of their identity is highly doubtful and which is controverted with much elance by Mr. Punia, learned counsel for the State that after their arrest it was before the Court that the witnesses have identified them. Appreciating these submissions, PW2 Ashok Kumar has stated in his examination-in- Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -8- chief that he identifies all the five accused in the Court who have committed this crime and had entered the house with a view to commit dacoity and rather as has come in his cross-examination, he has specifically stated that he had seen the accused fleeing from the house though they had partly covered their faces up to nose with handkerchiefs and when they were fleeing from the house the handkerchief of one or two of them had fallen, as per memo Ex.PV blood stained handkerchief has been lifted by the police from the place of occurrence further lends credence to this witness and it is not disputed even by the counsel representing the appellants that the accused were arrested after almost three years of this occurrence while they were apprehended in another case by C.I.A Staff, Panipat, therefore, question of holding of test identification parade was a matter of investigation and even the accused did not ask for the same. Rather PW3 Neelam who is a lady must have been traumatised at this ugly scene though initially has sought to dither over the identification but has come up with positive stand that when the intruders inflicted injuries, their faces were naked and thus, sufficient for her to identify them and has further stated that she had seen the accused running away from the house. Most material witness is the complainant PW4 Pawan Kumar who in no uncertain terms had identified all the accused and has serialised in details the manner of this occurrence and has stated that the accused who had covered their faces with handkerchiefs and when his wife pushed them a handkerchief had fallen from the face and has reiterated that all the accused had not covered their faces thus, he had the occasion to look at the accused for 2-3 minutes and thereby a sufficient and good reason for identifying the accused which could not be put to doubt by any means. No doubt, Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -9- in cases where the accused are strangers to the witnesses, generally speaking require corroboration which should be in the form of earlier identification proceedings. However, there could be exceptions to this rule where the Court is satisfied that the evidence of particular witness is such that it can safely rely on it without precaution of an earlier identification proceedings. Reliance has been placed on Vaikuntam Chandrappa and others vs. State of Andhra Pradesh AIR 1960 S.C. 1340 and State vs. Ghulam Mohiuddin AIR 1951 Allahabad 475 . Even in another view expressed by Hon'ble Supreme Court of India in Dana Yadav @ Dahu vs. State of Bihar (2002) 7 SCC 295 wherein, their Lordships relied on Vaikuntam Chandrappa's case ibid have held that the purpose of test identification parade is to test the evidence, though, it is well settled that identification parades are held ordinary at the instance of the Investigating Officer for the purpose of enabling the witness to identify either the properties which are the subject matter of alleged offence or the persons who are alleged to have been involved in the offence. Such tests or parades in ordinary course belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding on right lines. In other words, it is through these identification parades that the Investigating Agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits and it has been further held that it is also well settled that failure to held test identification parade which should be held with reasonable despatch does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -10- and in another view of this Court in Virender Singh @ Nanhu vs. State of Haryana 2005 (4) RCR Criminal 669 similar position was reiterated by placing reliance on Dana Yadav's case (supra) . There are peculiar circumstances in this case as all the accused have absconded and were arrested after three years and therefore, negates the submissions of the learned counsel for the appellants that non-holding of test identification parade is detrimental to the prosecution and to the mind of this Court absconding by the accused is certainly an adverse circumstance in terms of Section 8 of the Indian Evidence Act. More so, it is very well highlighted in the evidence of the prosecution that has come from the mouth of PW6 S.I. Virpal of CIA Staff, Panipat who has established that in another similar case of dacoity these accused were arrested, wherein, they had made disclosure statements Ex.PB, Ex.PC, Ex.PD, Ex.PE and Ex.PF certainly is a relevant and vital piece of evidence and has also come from the statement of PW11 S.I. Vikas Kumar who had interrogated the accused and it was during their interrogation the accused had suffered disclosure statements by way of Ex.PJ, Ex.PK, Ex.PL, Ex.PM and Ex.PN and it was on the basis of information provided by accused Bansi while in police custody during interrogation on 3rd May, 2007 that he has kept concealed knife Ex.P1 near the NFL Railway Line beneath the bushes of which only he knew and can get the same recovered and on the basis of this disclosure statement Ex.PO got recovered knife Ex.P1 whose rough sketch Ex.PO/1 was prepared and taken into police possession through memo Ex.PO/2 and similarly accused Mukesh made disclosure statement Ex.PQ that he had kept concealed the knife Ex.P2 beneath the bushes of NFL Railway Line Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -11- of which only he knew and can get the same recovered and on the basis of his disclosure statement got recovered this weapon whose rough sketch Ex.PQ/1 was prepared and taken into police possession through memo Ex.PQ/2. Similarly on the basis of disclosure statement of accused Bacchu Ex.PR another knife Ex.P3 was got recovered whose rough sketch Ex.PR/1 was prepared and taken into police possession through memo Ex.PR/2 regarding which rough site plans Ex.PR/3, Ex.PO/3 and Ex.PQ/3 were prepared and the other weapons used by accused Mukesh, Rajender and Yad Ram @ Yadu were already got recovered by CIA Police, Panipat in the previous case and it has been rightly contended on behalf of State that after so long a period of time it would be unexpected that the weapons could be sent to laboratory for analysis. However, such recoveries certainly lend credence to the case of the prosecution and are materially corroborating it. Not much benefit can be derived by the defence out of the testimonies of DW1 Dharampal MMASI, DW2 Multan Singh, Finger Prints, Photographer and DW3 Inspector Jai Narain and any small remises in the investigations cannot be construed as detrimental to the interest of the prosecution as it would tantamount to playing in the hands of the intentionally introduced remises which could be on account of obvious reasons. The evidence collected by the police that has been proved by PW12 Inspector Rohtash Singh, PW10 Inspector Jai Bhagwan, PW9 ASI Surat Singh, PW7 ASI Krishan Kumar and PW5 HC Sultan Singh further advances the case of the prosecution.
It needs to be reiterated here that Courts while dispensing justice are tools of social justice as well and having regard to such horrendous crimes of dacoity and robberies which are against the Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document CRA-D-613-DB of 2009, CRA-D-807-DB of 2009 & CRA-D-775-DB of 2010 -12- society at large and people look upon the Courts for justice and solace and therefore, impels the Courts to take more realistic approach into such crimes lest justice would tend to suffer. The convict appellants who have been shown to be habitual in such crimes and the casual approach of the Investigating Agency to such crimes makes the task of the Courts more onerous, especially, where it is irrefutably established that the convicts are deeply involved in such crimes leaves no scope to show any leniency towards them. Learned trial Court has correctly appreciated the evidence and has come to a justifiable conclusion holding the appellants guilty and thus, we do not find any reason to interfere in these findings and therefore, we dismiss the present appeals.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) JUDGE 29.07.2013 aarti Sharma Aarti 2013.09.10 10:30 I attest to the accuracy and integrity of this document