Punjab-Haryana High Court
Suresh Chand vs State Of Haryana on 20 April, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 80-DB of 2007
DATE OF DECISION : 20.04.2011
Suresh Chand
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
Crl. A. No. 698-DB of 2007
DATE OF DECISION : 20.04.2011
State of Haryana
.... APPELLANT
Versus
Suresh Chand
..... RESPONDENT
Crl. A. No. 1046-DB of 2007
DATE OF DECISION : 20.04.2011
State of Haryana
.... APPELLANT
Versus
Sonu alias Viresh and another
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE M. JEYAPAUL
Present: Mr. Baldev Singh, Senior Advocate, with
Mr. A.D.S. Sukhija and Mr. Deepinder Singh, Advocates,
for the appellant.
(in Crl. A. No. 80-DB of 2007) and
for the respondents
(in Crl. Appeals No. 698-DB & 1046-DB of 2007)
Mr. S.S. Randhawa, Addl. A.G., Haryana.
Mr. Bijender Dhankar, Advocate,
for the complainant.
***
Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -2-
SATISH KUMAR MITTAL , J.
1. This judgment shall dispose of Criminal Appeal No. 80-DB of 2007, filed by accused Suresh Chand (hereinafter referred to as `A-1') against his conviction and sentence; Criminal Appeal No. 698-DB of 2007, filed by the State of Haryana for enhancement of sentence of A-1; and Criminal Appeal No. 1046-DB of 2007, filed by the Sate of Haryana against the acquittal of two accused, namely Sonu alias Viresh and Shiv Parkash alias Poli (hereinafter referred to as `A-2 and A-3'), who are son and employee of A-1.
2. In the present case, A-1 to A-3 were tried under Sections 302/34, 307, 307/34 IPC and Section 25 of the Arms Act, for committing the murder of three persons, namely Amit, Vikas and Rajesh, by firing pistol shots at them. Vide judgment dated 23.11.2006, passed by the court of Additional Sessions Judge, Chandigarh, A-1 has been convicted for the offences under Section 302 IPC for committing murder of three persons; and Section 25 of the Arms Act on two counts, firstly for having used a pistol .762 MM, being carried by him without any licence or permit and secondly for having been in conscious possession of a country made .315 bore pistol, whereas A-2 and A-3 have been acquitted of the charges, while giving them benefit of doubt. Vide order dated 29.11.2006, passed by the trial court, A-1 has been sentenced to undergo life imprisonment and to pay a fine of ` 3 lakhs or to undergo rigorous imprisonment for three years in default of payment of fine under Section 302 IPC; and to undergo rigorous Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -3- imprisonment for five years and to pay a fine of ` 5,000/- or to undergo rigorous imprisonment for a period of one year in default of payment of fine, each on both the aforesaid counts, under Section 25 of the Arms Act. Case of the prosecution
3. As per the prosecution version, which is based upon the statement (Ex.PB) of Ajit Singh (PW.15), who was serving as a Social Studies Teacher in Government Senior Middle Standard School, Barwali, on 31.8.2002 (a day before the occurrence), his nephew Varinder alias Monu (PW.13), when he was beaten by A-2, had gone to City Sonepat in connection with Janam Ashtami festival. He told him (complainant) and his brother about this incident in the morning of 1.9.2002. On the same day, at about 3.15 PM, to protest against the said incident, the complainant and his younger brother Kuldip (PW.16), who was serving as Head Constable in Delhi Police, along with his son Rajesh, nephew Vikas and Amit (friend of Vikas) went on two motor cycles, to the Pepsi Agency of A-1 (father of A-
2), which was situated in Aggarwal Enclave, Mirch Mandi, Sonipat, where A-1, A-2 and A-3 met them. When the complainant side protested against the incident of previous day, A-1 asked them as to how they have dared to visit his agency to make a complaint against his son (A-2). When they told him that they had come just to lodge a protest and he should not indulge in rowdism, A-1 got enraged. He exhorted A-2 and A-3 to bring out their weapons to kill them. On this, A-3 brought out a pistol from the agency and handed over the same to A-1. A-2 also brought out a country made pistol Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -4- from inside. Then A-1 with an intention to kill Amit, Vikas and Rajesh fired from his pistol towards them. The shots landed at the face and chest of Amit, at the head and back of Vikas and in the chest and head of Rajesh. A- 2 also fired a shot from his country made pistol towards the complainant with an intention to kill him, but the shot did not hit the complainant. Amit, Vikas and Rajesh fell down. The complainant and his brother Kuldip ran away from the spot to save themselves, while leaving their motor cycles at the place of occurrence. After some time, when they returned on the spot, they found Amit, Rajesh and Vikas were lying dead. The pistol, from which A-1 had fired shots, was lying near the feet of Amit and the country made pistol of A-2 was lying near the dead body of Vikas. According to the complainant, this incident had taken place at about 3.30/3.45 PM. After the incident, the complainant first went to his house to inform about the occurrence to his family members and from there, he went to Police Station City Sonipat for lodging the report. At the gate of the Police Station, Inspector Darshan Lal (PW.17) met him, who recorded the statement (Ex.PB) of complainant Ajit Singh at 5.00 PM, on the basis of which the formal FIR (Ex.PB/1) was registered against A-1 to A-3 at 5.10 PM, and the special report was sent to the Ilaqa Magistrate, which was received by him at 12.15 AM (mid-night).
4. After recording the statement of Ajit Singh and sending the ruqa for registration of case, Inspector Darshan Lal along with the police party went to the spot. From the spot, he picked up a pistol (Ex.PW8/D) Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -5- carrying a live cartridge of 7.62 MM, lying near the feet of the dead body of Amit; a country made pistol (Ex.PW8/F) carrying a live cartridge (Ex.PW8/H) of .315 bore, lying near the dead body of Vikas; eight empty cartridges of 7.62 MM (Ex.PW17/1 to Ex.PW17/8); two pieces of bullet (Ex.PW17/9 and Ex.PW17/10); a piece of jacket of bullet (Ex.PW17/11); a plastic crate of Pepsi (Ex.PW17/12), lying near the head of deceased Vikas, which was having mark of bullet landing upon it; broken pieces of glass lying near the dead body of Rajesh; three separate blood soaked earth from besides the dead body of Amit, near the dead body of Vikas and besides the dead body of Rakesh; and two motor cycles. All these articles were taken into possession vide recovery memo (Ex.PW8/B), which was attested by Sub Inspector Rajinder Singh (PW.14) and Sube Singh (PW.8). Thereafter, Inspector Darshan Lal prepared rough site plan (Ex.PW17/17) of the place of occurrence and the inquest reports (Ex.PW17/18 to Ex.PW17/20) qua dead bodies of Amit, Vikas and Rajesh, which were attested by Bhim Singh (PW.5) and Dharamvir Singh. The dead bodies were sent to Civil Hospital, Sonipat for post mortem examination.
5. On 2.9.2002 at 11.15 AM, Dr. S.S. Bhogal, Medical Officer, Civil Hospital, Sonipat (PW.3), being a member of the Board of Doctors constituted by the Medical Superintendent, Sonipat, conducted post mortem examination on the dead body of Amit, and found the following injuries on his person :
1. A lacerated punctured wound of a diameter of 1 cm having inverted Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -6-
margins and in front of lobule of left ear with clotted blood. Blackening was present near the wound in an area of 2 cm diameter with multiple punctate pin head size blackish spots all around the wound in an area of 4 cm diameter. The wound was explore to find under-lying subcutaneous muscles were lacerated with lot of haemetoma formation. The track was going medially, downward and posteriorly towards the right side damaging the vessels and deeper part of tongue, oropharynx and vessels of the right side of neck.
2. A punctured lacerated wound of the size of 1.5 cm diameter with everted margins was found present on the right side of the neck just below the angle of mandible. Rigor mortis of the mandible was found fractured and right neck muscles and vessels were found lacerated.
3. A lacerated punctured wound of the size of 1 cm diameter with inverted margins with blackening around the wound was found present on the lateral aspect of the right arm 20 cm below the tip of the right shoulder. The wound was explored to find the track going medially with laceration in the subcutaneous tissue and muscle. Clotted blood was found present in the muscles.
4. A punctured lacerated wound of the size of 1 cm diameter was found present with everted margins on the medial aspect of the right arm 5 cm below the right axilla. Fat was coming out of the wound and clotted blood was present.
5. A punctured lacerated wound of the size of 1 cm diameter was found present on the right side of the chest and the level of the mid axillary lying 4 cm below the right axilla. On exploration the track was going medially posteriorly passing through the subcutaneous tissue muscles and entering the right pleural cavity injuring the right lung posteriorly. Right pleural cavity was full of blood and right lung lacerated. Left lung was also lacerated and 5th rib on the left side was found fractured besides the fracture of left scapula and the wound Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -7- track was coming out posteriorly on the left scapular area.
6. A punctured lacerated wound of the size of 1.25 cm diameter was found present with everted margins was noticed on the posterior lateral aspect of the upper part of the left side of the chest, 5 cm below the left axilla. Clotted blood was present at the site and all the internal visceral organs were found pale but healthy.
6. Injuries No.1, 3 and 5 were entry wounds, whereas injuries No. 2, 4 and 6 were exit wounds. As per the Post Mortem Report (Ex.PE) of deceased Amit, the cause of death was due to shock and haemorrhage as a result of injuries to vital organs of the body. All the injuries were found to be ante mortem in nature and sufficient to cause death in the normal course of life. The probable duration between injuries and the post mortem was between 6 to 36 hours, and death must have occurred within a few minutes from receiving the injuries.
7. On the same day at 12.15 PM, Dr. S.S. Bhogal, conducted post mortem examination on the dead body of Vikas, and found the following injuries on his person :
1. Multiple reddish brown contusions were present on the lateral aspect of the left leg, left wrist and right iliac-crest.
2. A circular lacerated wound of the size of 1 cm diameter with inverted margins and blackening all around the wound on the right temporal area of skull lying 5 cm above the right pinna was noticed. On exploration haemotema was noticed on the subcutaneous area and the under-lying wound was fractured. The skull was opened to find track of wound going towards the left side of the skull which was slightly downward and backward and had caused laceration of the brain Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -8-
tissue. Cranial cavity was found full of blood and the track of wound was going posteriorly on the left side of the skull just on the left side of the occiput. The dimensions of the wounds were 4 x 2 cm with everted margins and clotted blood was present and occiput wound was fractured.
3. Wound of the size of 0.8 cm diameter with inverted margins was found on the left side of the chest lying 6 cm supro medial aspect of the left memory area with surrounding subcutaneous haemotema. The wound was explored to find underline 4th and 5th ribs fractured. Track of the wound was going through the left lung, auricle of the heart and then passing through the right lung and coming out of the back side of the right side of chest at right subscapular area of the chest where it joined the wound with dimensions of 1.25 cm x 1 cm with everted margins. All of the internal visceral organs were healthy but paled. Both of the lungs were found lacerated.
4. A circular lacerated wound of the size of 1.25 cm diameter was found in the supra clavicular area with inverted margins with clotted blood with blackening all around the wound. On exploration, the track of the wound was noticed going downward and backward and medially traversing through the left pleural cavity, right lung along with visceral of heart and the track ended at the wound with dimension of 1.25 cm diameter on the back with everted margins.
8. Injuries No.2, 3 and 4 were entry and exit wounds. As per the Post Mortem Report of deceased Vikas (Ex.PG), the cause of death was due to shock and haemorrhage as a result of injuries to brain, lungs and heart. All the injuries were found to be ante mortem in nature and sufficient to cause death in the normal course of life. The probable duration between between injuries and the post mortem was between 6 to 36 hours, and death Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -9- must have occurred within a few minutes from receiving the injuries.
9. On the same day, Dr. A.S. Ahlawat, Medical Officer (PW.4) being a member of the Board of Doctors constituted by the Medical Superintendent, Sonipat, conducted post mortem examination on the dead body of Rajesh, and found the following injuries on his person :
1. Wound of entry with inverted margins of the size of 1.5 cm x 1 cm on the left side of neck, 6 cm below the angle of left mandible was found. Abraded collar with blackening of the margins was also present.
2. A wound of exit was present on the left side of scalp in the left temporal occipital region measuring 3.5 cm x 1.5 cm with everted and lacerated margins. On dissection of the dead body of Rajesh, injury No.1 was found to have caused, inter alia, fracture of left temporal and occipital bone and subcutaneous tissue of the neck and ending at injury No.2 was found present. On removing the vault extradural haemotema was found on the temporal occipital region of left side.
3. Wound of entry of the size of 1 cm in diameter was found present on the upper part of right side of chest in the mid clavicular lying 5 cm below the clavicle margins.
4. The wound of exit was found present in the left lateral wall of the chest in the mid axillary line 3 cm below the apex of the axilla with lacerated and everted margins.
5. A wound of entry was noticed in the medial side of upper part of the left arm 7 cm below the apex of the left aximlla whose margins were inverted. On exploration of chest and left arm the track of the wound was found going towards the left and slightly downward and after entering into the wound of exit, above said, entered into injury in the medial size of the upper part of the left arm. A blood stained bullet was found lodged 2 cm below injury No.5 caused by wound of entry Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -10-
in the medial side of the upper part of left arm. A blood stained bullet was found lodged 2 cm below the injury caused by wound of entry in the medial side of upper part of left arm which was removed, put in a sealed bottle and handed over to the police. This bullet had injured upper part of right lung and upper half of the left lung.
6. Two reddish brown abrasions on left side of fore-head each measuring 1.5 cm x 0.25 cm.
7. Three reddish brown line abrasions on chin.
10. Injuries No.1, 3 and 5 were entry wounds, whereas injuries No. 2 and 4 were exit wounds. As per the Post Mortem Report (Ex.PJ) of deceased Rajesh, the cause of death was due to shock and haemorrhage as a result of multiple fire arm injuries, which were ante mortem in nature and sufficient to cause death in the normal course of nature. The probable duration between injuries and the post mortem was between 12 to 36 hours, and death must have occurred within a few minutes from receiving the injuries. A bullet was removed from the body of the deceased and was handed over to the police.
11. On 2.9.2002, A-2 was arrested from a place near Octroi Post, Kalupur. A-3 surrendered before the learned Judicial Magistrate Ist Class, Sonipat and was formally arrested on 5.9.2002. A-1 was arrested on 5.9.2002 from Jaipur Golden Hospital, Rohini, New Delhi, and during interrogation, he suffered a disclosure statement (Ex.PW9/A) in the presence of ASI Ranjit Singh (PW.9) and Head Constable Rajbir Singh, in pursuance whereof he got recovered a country made pistol of .315 bore (Ex.PW9/1), kept concealed by him in the godown of his Pepsi Agency, Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -11- which was taken into possession by the police vide memo Ex.PW9/C in the presence of both the aforesaid witnesses.
12. All the arms and ammunition as well as the other articles, including the clothes of the deceased, recovered in this case, were sent to FSL, Haryana, Madhuban. As per the report (Ex.PC), the pistol of 7.62 MM (Ex.PW8/D) as well as two other country made pistols (Ex.PW8/F and Ex.PW9/1) were found in working order. It was further reported that out of eight empty cartridges of 7.62 MM, recovered from the spot, four cartridges were fired only and only from the pistol of 7.62 MM (Ex.PW8/D). Similarly, two pieces of bullets, recovered from the spot (Ex.PW17/9, Ex.PW17/10), and one bullet removed from the body of deceased Rajesh, were also fired only and only from the said pistol. It was found that out of eight empty cartridges of 7.62 MM, three cartridges were fired from one and the same regular fire-arm, but not from 7.62 MM pistol (Ex.PW8/D). Similarly, one piece of jacket (Ex.PW17/11) recovered from the spot was also reported to have been fired from a regular fire-arm, but not from the aforesaid 7.62 MM pistol.
13. After completion of investigation, the police filed challan against the accused and charges under Sections 302/34, 307/34 IPC and 25 of the Arms Act were framed against all the accused, to which they did not plead guilty and claimed trial.
Prosecution evidence
14. In support of its case, the prosecution examined eighteen Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -12- witnesses.
15. PW.1 Constable Inderpal proved the scaled site plan (Ex.PA) of the spot, prepared by him on 19.9.2002.
16. PW.2 ASI Bhagwan Sarup proved the FIR (Ex.PB/1), recorded by him on 1.9.2002.
17. PW.3 Dr. S.S. Bhogal and PW.4 Dr. A.S. Ahlawat, who conducted autopsy on the bodies of deceased Amit, Vikas and Rajesh, proved their Post Mortem Reports Ex.PE, Ex.PG and Ex.PJ, respectively.
18. PW.5 Bhim Singh, who identified the dead bodies of all the three deceased persons, is witness to the inquest reports (Ex.PW17/18 to Ex.PW17/20).
19. PW.6 Constable Rajesh Kumar, who took photographs of the place of occurrence on 1.9.2002, proved the negatives (Ex.PW6/1 to Ex.PW6/23) and the photographs (Ex.PW6/24 to Ex.PW6/38).
20. PW.7 Constable Parveen Kumar is a formal witness, who delivered special reports to the office of DSP, Sonipat, SP, Sonipat and the Ilaqa Magistrate.
21. PW.8 Sube Singh and PW.14 SI Rajinder Singh are witnesses to the recovery at the spot on 1.9.2002.
22. PW.9 SI Ranjit Singh is witness to the disclosure statement of A-1 and recovery of the country made pistol at his instance.
23. PW.10 HC Jai Bhagwan and PW.11 ASI Randhir Singh are the formal witnesses.
Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -13-
24. PW.12 Ram Parkash, Reader to the District Magistrate, Sonipat, proved sanction orders (Ex.PW12/C and Ex.PW12/D) accorded under Section 39 of the Arms Act to prosecute A-1 and A-2 under the Arms Act.
25. PW.13 Varinder alias Monu, nephew of complainant Ajit Singh, is the witness, who is alleged to have been given beatings by A-2 in Sonipat, one day prior to the occurrence in this case. He has stated that on 31.8.2002, A-2 gave fist blows and slaps to him and the people, who rescued him, asked A-2 as to why he had given beatings to him, then A-2 had stated that he gave beatings to this witness under the mistaken identity. This witness further stated that on that very day, he went to his house, and on the next day, he disclosed this incident to his elder brother Vikas Dahiya, who pacified him.
26. PW.15 Ajit Singh (complainant) and PW.16 Kuldip, the alleged eye witnesses, have supported the prosecution version, regarding the occurrence.
27. PW.17 Inspector Darshan Lal, the Investigating Officer, has proved the statement of the complainant (Ex.PB), recorded by him, recoveries from the spot, arrest of the accused and all the relevant documents, prepared by him, during the investigation.
28. PW.18 SI Ram Avtar is a formal witness.
Statements of accused under Section 313 Cr.P.C.
29. In their statements under Section 313 Cr.P.C., all the three Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -14- accused denied the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. A-1 specifically stated that one day prior to the occurrence, no quarrel had taken place between Varinder alias Monu (PW.13) and A-2. He pleaded that his son A-2 was a student of Law from Rajiv Gandhi Law College, Bhopal and was not doing any work in the Pepsi Agency, where a large number of employees and labourers were employed by him. On the day of occurrence, he was present at his Pepsi Agency along with 15 other persons, but A-2 and A-3 were not present there. Five persons, namely Amit, Vikas, Rajesh, Mahesh and one more person came to his agency to pressurise him not to appear as a witness in a criminal case against Mahesh, Ashok and three others, to which he refused. Thereafter, he was fired at his left foot by one of those five persons and he was taken to Civil Hospital, Sonipat, by his brother Ramesh. A-1 further pleaded that those five persons were seen by him being checked by his workers and others. Subsequently, he came to know that three of the five assailants had died at the spot. He denied of having fired any shot on either of those deceased and further pleaded that he had no enmity with them, rather he was attacked by them having gone perturbed with his pursuing the aforesaid criminal case against Mahesh, Ashok and three others. He further stated that he was referred from Civil Hospital, Sonipat to PGI, Rohtak, but he was got admitted in Jaipur Golden Hospital, New Delhi, where the Sonipat police reached on 1.9.2002 and remained there throughout his stay in the hospital. A-1 further pleaded that even if some Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -15- false cases were lodged against him, he has been acquitted in all those cases and was leading a peaceful life for several years. He stated that the complainant faction belonged to the party of Om Parkash Chautala, the then Chief Minister, Haryana. After the alleged occurrence, all of his property was destroyed and looted at the behest of Government. All of the records of his Pepsi agency were destroyed by the Administration and property worth crores of rupees was destroyed, regarding which news items appeared in the news papers as well.
30. In support of his plea, A-1 examined seven witnesses.
31. DW.1 Dr. Alankrita, Medical Officer, Civil Hospital, Sonipat, had medico legally examined A-1 on 1.9.2002, being brought to the hospital by his brother at about 4.40 PM.
32. DW.2 Manoj Kumar, nephew of A-1, stated that on 1.9.2002, he got admitted A-1 in Jaipur Golden Hospital, Rohini, New Delhi.
33. DW.3 Harinder Rapria, a News Correspondent in Amar Ujala newspaper, has proved the news item Ex.D1/A carried out in the 8.9.2002 issue of daily Amar Ujala, Noida (Ex.D1).
34. DW.4 Ramesh Chander, brother of A-1, supported the plea, taken by his brother A-1, regarding his taking to Civil Hospital, Sonipat, where he was medico legally examined.
35. DW.5 Ram Chander, a Pharmacist at General Hospital, Sonipat, proved the MLR of A-1 as Ex.DC.
36. DW.6 Dr. Ravi Arya, an Orthopedics Surgeon at Jaipur Golden Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -16- Hospital, Rohini, New Delhi, proved the OPD slip (Ex.DD) and copy of admission form (Ex.DE).
37. DW.7 L.A. Kumar, Deputy Director (retired). FSL, Haryana, proved the report (Ex.PC), relied upon by the prosecution itself. The findings of the trial court
38. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the testimonies of two eye witnesses, namely PW.15 Ajit Singh (complainant) and PW.16 Kuldip; the medical evidence; and report (Ex.PC) of the FSL, Haryana, Madhuban; and disbelieving the defence version of A-1, the trial court convicted and sentenced A-1, as mentioned in the earlier part of the judgment. However, while taking into consideration the delay occurred in reaching the copy of the special report to the Ilaqa Magistrate; the possibility of utilising the said delay by the PWs to falsely implicate A-2, who allegedly fired shot towards the complainant with intention to kill him, and A-3, who allegedly brought pistol and handed over the same to A-1; the report of the FSL, Haryana, Madhuban, relied upon by the prosecution and explained by DW.7 L.A. Kumar, Deputy Director (retired), FSL, Haryana, wherein the country made pistol was found to be not used in the incident; and the fact that A-3 was alleged to have only brought the gun and handed over the same to A-1 without there being any further allegation against him that he had exhorted either to A-1 or to A-2 to fire shot at Amit, Vikas and Rajesh, or committed any overt act, A-2 and A-3 have been acquitted by the trial court, by giving Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -17- them the benefit of doubt.
Arguments of learned counsel for the appellant
39. Learned counsel for the appellant argued that in the instant case, the prosecution has failed to prove the charges against all the accused beyond reasonable doubt, therefore, the conviction of even A-1 by the trial court is illegal and unjustified. While elaborating the arguments, learned counsel submitted that there is a long unexplained delay in sending special report to the Ilaqa Magistrate, which clearly indicates that in the instant case, the FIR was registered anti-time and by taking benefit of the said time, Ajit Singh and Kuldip were called and introduced as eye witnesses with a twisted version. Secondly, he argued that the prosecution has failed to prove the alleged motive and the genesis of the occurrence, i.e. the previous day incident, where Varinder alias Monu (PW.13) was given beatings by A-2. According to the learned counsel, no such occurrence had taken place at all. The story was concocted by the complainant party, in order to justify their going to Pepsi agency of A-1. In fact, Amit, Vikas and Rajesh (all deceased) along with Mahesh and one more person came to the agency of A-1 to pressurise him not to appear as a witness in a criminal case against Mahesh. Learned counsel argued that as per the statement of PW.13 Varinder alias Monu, A-2 gave beatings to him under the mistaken identity and he was apologetic. If that was the position, then there was no occasion for five persons to go to A-1 at his agency to lodge protest against the incident of beating given by A-2 to the nephew of the complainant. Thirdly, learned Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -18- counsel argued that both the alleged eye witnesses, namely Ajit Singh complainant (PW.15) and Kuldip (PW.16), are the made up witnesses. Actually, they were neither present at the time of the occurrence, nor they witnessed any occurrence. By taking the benefit of delay in lodging the FIR, they were called from their houses and introduced as witnesses to the occurrence. Learned counsel, while referring to the statements of these two witnesses, argued that their conduct at the time of the alleged occurrence and the fact that they did not suffer any injury at all, further indicate that they were not present at the time of the occurrence. He further argued that both the witnesses are related and interested witnesses. The prosecution did not examine any independent witness, though as per the prosecution version, many independent witnesses had also witnessed the occurrence. Keeping in view these facts, learned counsel argued that the trial court has committed grave illegality while convicting A-1 for the offence of murder, on the basis of testimony of such witnesses, who are not reliable and trust- worthy. Fourthly, learned counsel argued that it has been established on record that in the occurrence, A-1 had also suffered a grievous injury on his left thigh, but the prosecution has failed to explain as to how A-1 had suffered the said injury. On the same day, at about 4.40 PM, A-1 was medico legally examined by DW.1 Dr. Alankrita, Medical Officer, Civil Hospital, Sonipat, and she found one punctured lacerated wound with inverted blackened margins on the left thigh, above the knee joint, with everted margins on the back of left knee joint. While referring to some Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -19- observations from Modi's Textbook of Medical Jurisprudence and Texicology, learned counsel submitted that the said injury could not be self inflicted or suffered by a friendly hand. Therefore, the trial court has committed grave illegality while believing the prosecution version that the said injury was self suffered. Learned counsel further argued that if the medical evidence, the report of the FSL, Haryana, Madhuban as well as the statement of DW.7 L.A. Kumar, who is a Ballistics Expert, are closely examined, then the entire prosecution version becomes doubtful. According to the learned counsel, these documents clearly indicate that in the occurrence, more than one weapon was used by more than one person, for causing fatal injuries to three persons, who died at the spot. If that is the position, then the entire prosecution version stands falsified and in that situation, according to the learned counsel, the benefit should be given to all the accused. Fifthly, learned counsel argued that the trial court has completely failed to consider the fact that in the present case, the complainant party was aggressor. While duly armed with a fire-arm weapon, they went to the business premises of the accused, with a motive to pressurise A-1 not to appear as a witness in a criminal case pending against Mahesh, to which he refused, and further caused fire-arm injury to A-1. In that situation, even if A-1 has not taken the plea of private defence in his statement under Section 313 Cr.P.C., the court can consider the said plea, if it is established from the evidence led by the prosecution.
40. On the basis of the aforesaid arguments, learned counsel for the Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -20- appellant argued that in the facts and circumstances of the present case, conviction of A-1 under Section 302 IPC and Section 25 of the Arms Act is not sustainable.
Arguments of learned State counsel
41. While refuting the aforesaid arguments, raised by learned counsel for the appellant and relying upon the reasoning recorded by the trial court regarding conviction of A-1, learned Additional Advocate General, Haryana, argued that the prosecution has successfully proved its case against all the accused beyond reasonable doubt and the trial court was not justified in acquitting A-2 and A-3, whose presence and participation in the occurrence with common intention to commit the murder of Amit, Vikas and Rajesh, has been established from the testimonies of two eye witnesses. Learned counsel further argued that in the facts and circumstances of the case and particularly keeping in view the number of deaths caused by A-1, the instant case falls under the category of rarest of rare case, which warrants the capital punishment to him. Thus, the trial court was also not justified in awarding life imprisonment to A-1.
Discussion
42. From the medical evidence, i.e. the Post Mortem Reports (Ex.PE, Ex.PG and Ex.PJ); and the statements of PW.3 Dr. S.S. Bhogal and PW.4 Dr. A.S. Ahlawat, it has been proved that three persons, namely Amit, Vikas and Rajesh, had died due to fire-arm injuries, received by them, which were sufficient to cause death in the ordinary course of nature. As per Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -21- the statement of PW.17 Inspector Darshan Lal, the Investigating Officer of the case, these bodies were found lying in the agency of A-1. Two pistols, i.e. of 7.62 MM (Ex.PW8/D) and a country made .315 bore (Ex.PW8/F) were found lying near the dead bodies of Amit and Vikas, respectively. Eight empty cartridges of 7.62 MM (Ex.PW17/1 to Ex.PW17/8), two pieces of bullet (Ex.PW17/9 and Ex.PW17/10), one piece of jacket of bullet (Ex.PW17/11), one plastic crate of Pepsi (Ex.PW17/12) having a mark of bullet, and two motor cycles were also recovered from the spot during the spot inspection. According to PW.15 Ajit Singh (complainant) and PW.16 Kuldip, the eye witnesses, the firm-arm injuries to the deceased were caused by A-1 from the pistol (Ex.PW8/D). According to them, from the country made pistol (Ex.PW8/F), an attempt was made by A-2 to kill complainant Ajit Singh. However, the shot fired by A-2 from his country made pistol did not hit the complainant. As far as A-3 is concerned, the only allegation against him is that on the asking of A-1, he had brought the pistol (Ex.PW8/D) from inside the agency and handed over the same to A-1. According to both the eye witnesses, in order to lodge protest against the beatings given by A-2 (son of A-1) to Varinder alias Monu (nephew of complainant Ajit Singh (PW.13), on the previous day of the occurrence, they along with Amit, Vikas and Rajesh went to the agency of A-1. When they reached the agency of A-1, he exhorted as to how they had dared to visit his agency to make complaint against his son. When both the eye witnesses and the deceased persons asked A-1 to behave properly and not to Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -22- indulge in rowdism, A-1 asked his son (A-2) and employee (A-3) to bring the weapons to kill them. A-3 brought the pistol of A-1 and handed over to him. Thereupon, A-1 fired several shots upon Amit, Vikas and Rajesh from the pistol. A-2 also fired one shot, from his country made pistol, towards the complainant, which did not hit him. During spot inspection, eight empty cartridges of 7.62 MM were recovered, which were examined in FSL, Haryana, Madhuban, and as per the report (Ex.PC), given by L.A. Kumar, a Ballistics Expert, four cartridges were found to be fired from the pistol (Ex.PW8/D). Further, two pieces of bullets recovered from the spot and one bullet removed from the body of deceased Rajesh were also found to be fired from the said pistol. The other empty cartridges and one piece of jacket, recovered from the spot, were reported to have been fired from a regular fire-arm, but not from the pistol (Ex.PW8/D). In the report (Ex.PC), it has also been mentioned that the country made pistol, which was recovered from the spot with a live cartridge, was in working order, but the same was not used in the occurrence. The trial court, while relying upon the testimonies of both the eye witnesses; statement of PW.13 Varinder alias Monu, who proved the motive and the genesis of the occurrence; the medical evidence and the report (Ex.PC), given by a Ballistics Expert of FSL, Haryana, Madhuban, convicted A-1 for the offences under Section 302 IPC for committing murder of three persons; and Section 25 of the Arms Act. However, while giving benefit of doubt, A-2 and A-3 have been acquitted.
Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -23-
43. During the course of arguments, learned counsel for the appellant questioned the presence of both the eye witnesses at the time of the occurrence; and the alleged motive, i.e. the previous day occurrence of the alleged beating given by A-2 to the nephew of the complainant. By putting much emphasis on the delay of delivery of special report to the Ilaqa Magistrate, learned counsel argued that one of the eye witnesses was employed as a Social Studies Teacher in Government Senior Middle Standard School, Barwali and the other was serving as a Head Constable in Delhi Police. According to the learned counsel, both these Government employees were called and planted as eye witnesses, though they were not present at the time of the occurrence. Secondly, learned counsel put strong reliance on the MLR (Ex.DC) of A-1, according to which when A-1 was medico legally examined by Dr. Alankrita (DW.1) on 1.9.2002 at 4.40 PM in Civil Hospital, Sonipat, one punctured lacerated wound with inverted blackened margins on the left thigh, above the knee joint, with everted margins on the back of left knee joint, was found, which was not properly explained by the prosecution. While relying upon this evidence and the report of FSL, Haryana, Madhuban (Ex.PC), which has been explained by DW.7 L.A. Kumar, a Ballistics expert, learned counsel for the appellant vehemently argued that the occurrence had not taken place in the manner, in which it has been stated by both the eye witnesses, therefore, their presence at the time of the occurrence was doubtful and their testimonies are not truthful and reliable. He submits that in the occurrence, more than one Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -24- weapon were used by more than one person for causing injuries to three persons, who died at the spot. Therefore, according to the learned counsel, the whole version, given by the prosecution witnesses is doubtful and in that situation, benefit of doubt should be given to the accused.
44. Keeping in view the fact that both the eye witnesses are related to deceased Rajesh and Vikas, we have carefully examined their statements, in the light of the other evidence, led by the prosecution. In our view, the prosecution has clearly established beyond a reasonable doubt that A-1 has intentionally caused the death of Rajesh, Vikas and Amit, by firing shots from 7.62 MM, which was found lying at the spot, where both the eye witnesses, namely Ajit Singh (PW.15) and Kuldip (PW.16), along with the aforesaid three deceased persons, had gone to lodge protest with regard to the beating given by A-2 to Varinder alias Monu (PW.13), nephew of Ajit Singh.
Genesis of the occurrence
45. As per the prosecution version, on 31.8.2002 (the day of Janam Ashtami festival), a day before the occurrence, when Varinder alias Monu (PW.13), nephew of complainant Ajit Singh, was coming out of the Shiv Mandir at Sonipat, he was given beatings by A-2. According to PW.13 Varinder alias Monu, after the beatings, when he asked A-2 as to why he had given beatings to him, he told that under a mistaken identity, he gave beatings to him. But the fact remains that PW.13 Varinder alias Monu was given severe beatings, without any reason. He reported this matter to his Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -25- family members on the morning of the next day, i.e. 1.9.2002. Thereupon, his family members, namely Ajit Singh, Kuldip, Rajesh and Vikas, and one Amit (friend of Vikas), went to the Pepsi agency of A-1, where the occurrence had taken place. While referring to some contradictions with regard to the time of telling about the previous day occurrence to his elder brother Vikas and his uncle Ajit Singh, it has been argued by learned counsel for the appellant that no occurrence had taken place at all, and it was a concocted story, in order to justify the visit of the complainant side to the agency of A-1. In his statement under Section 313 Cr.P.C., A-1 has admitted part of the occurrence. According to him, three deceased persons, namely Amit, Vikas and Rajesh, Mahesh and one more person came to his agency, in order to threat and pressurise him not to appear as a witness in the criminal case, pending against Mahesh and three others, to which he refused, upon which he was fired at his left foot by one of those five persons, but he does not specify as to out of those five persons, who had fired upon him.
46. We have carefully examined the prosecution version as well as the defence version with regard to the genesis of the occurrence. In our view, the prosecution version is probable one and is to be believed. The prosecution version with regard to the previous day occurrence has been narrated in detail in the initial statement (Ex.PB) made by complainant Ajit Singh to Inspector Darshan Lal, immediately after the occurrence. There was no time with the complainant to concoct the said version. PW.13 Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -26- Varinder alias Monu has proved the previous day occurrence. On the other hand, the version given by A-1 in his statement under Section 313 Cr.P.C., that five persons came to his agency to pressurise him and one of them fired shot, does not inspire any confidence. It has come on record that in the said occurrence, A-1 had received one gun shot injury on his left thigh. According to PW.16 Kuldip, after causing gun shot injuries to all the three deceased persons, A-1 had also shot himself from his pistol on his left thigh. Thus, according to the prosecution, the said injury was self suffered, whereas it is the defence of A-1 that the said injury was caused to him by one of the shots fired by the persons who came to his agency. Learned counsel for the appellant, while referring to the nature of injury and the statement of DW.7 L.A. Kumar, Ballistics Expert, wherein he stated that shape of the wound on the person of A-1 was circular, argued that the said injury could not be self suffered and appears to have been fired from a distance by other person. He referred to Modi's Textbook of Medical Jurisprudence and Texicology, wherein it has been said that "The wound of entrance in distant shot is usually smaller than the projectile due to the elasticity of the skin, and round when the projectile strikes the body at a right angle and oval when it strikes the body obliquely." He also referred to the Textbook of Identification of Firearms, Ammunition and Firearm Injuries, published by Bureau of Police Research and Development, Ministry of Home Affairs, wherein it has been stated that "If the bullet strikes with its axis perpendicular to the skin surface, it produces an opening Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -27- which is roughly circular with slightly ragged edges. In case of angular firing, the opening is oval. This ovality is found to increase as the angle between the bullet axis and the skin surface is made more and more accurate." Learned counsel argued that the wound on the person of A-1 is circular one and not oval, therefore, it could not be self suffered. This contention of learned counsel for the appellant is not factually correct. If the MLR (Ex.DC) of A-1 and the statement of DW.1 Dr. Alankrita, are closely examined, then it is clear that the wound is of oval shape and it was a case of angular firing and not of circular firing. As per the MLR (Ex.DC), the injury was punctured lacerated wound of the size of 1.0 x 0.7 cm with inverted blackened margins on the left thigh. If we see the track of this injury, it entered on the left thigh on anterior aspect, which was placed 5.0 cm above knee joint and it exited on the back of left knee joint, laterally placed. The exit wound is of the size of 1.5 x 1 cm. DW.7 L.A. Kumar, Ballistics Expert, at one stage of his statement before the court, has stated that shape of the wound on the person of A-1 was circular, but he has also categorically stated that from the entry point and exit point of wound on the person of A-1, as mentioned in MLR (Ex.DC), the direction of angle of fire arm used was from higher angle of fire pointing downwards and thus, possibility of injury on the person of A-1 having been caused from a friendly hand is there and there is possibility of the injury having been self suffered. Not only the shape of injury is oval, but the direction of the injury is from upwards to downwards, which clearly indicates that it was a self Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -28- suffered injury and this fact corroborates the version given by PW.16 Kuldip. Merely because Ajit Singh, neither in his statement before the police (Ex.PB) nor in his statement, while appearing as PW.15 in the court, has mentioned about this injury on the person of A-1, it cannot be inferred that the prosecution has failed to explain this injury. PW.15 Ajit Singh might not have seen A-1 causing injury to himself, because after the indiscriminate firing at three persons, he ran outside the agency and had hidden himself, but it is a fact that PW.16 Kuldip, in his statement made before the police on the very same day of the occurrence, had stated this fact, which finds mention in his statement. It is further an important fact that regarding this injury, no suggestion was put to PW.15 Ajit Singh. Secondly, there is no material either in the evidence led the prosecution or the defence, which establish that there was a criminal case, pending against Mahesh and three others, in which A-1 was to appear as a witness. This version was not put even to the prosecution witnesses. For the first time, it was introduced by A-1 in his statement under Section 313 Cr.P.C. If any criminal case against Mahesh and others was pending, in which A-1 was cited as a witness, the same could have been easily proved by A-1. Further, it has not been stated by A-1 in his statement that who was Mahesh and what was the relation of Mahesh with complainant Ajit Singh, his brother Kuldip or the third deceased person. In the absence of all these facts, it clearly reflects that the defence taken by A-1 that the three deceased persons along with Mahesh and one more person came to his agency to pressurise him not to appear as a Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -29- witness, is after-thought. Thus, the prosecution has successfully established the motive/genesis of the occurrence.
Presence of the eye witnesses at the time of occurrence
47. It is true that both the eye witnesses are related to deceased Rajesh and Vikas. Learned counsel for the appellant has questioned the presence of both the eye witnesses at the time of the occurrence. It has been argued that the FIR was recorded late in the night by giving anti-time and in the meantime, both the witnesses, who were not present at the time of the occurrence, were called and introduced as eye witnesses. As per the statements of these witnesses, the occurrence had taken place at about 3.30/3.45 PM. After the occurrence, the complainant first went to his house to inform his family members and then to the Police Station to lodge report, where his statement was registered at 5.00 PM and the FIR was registered at 5.10 PM. It is true that there is some delay in delivering the special report to the Ilaqa Magistrate, which was delivered at 12.15 AM (mid-night). Though PW.7 Constable Parveen Kumar has tried to explain this delay, but even if there is delay in delivering the special report, it might have taken place due to the fact that after the murder of three persons during the day time in the agency of A-1, the people had collected at the spot and the mob had demolished the agency of A-1, therefore, the police had been busy to control the mob, due to which the delay in delivering special report to the Ilaqa Magistrate might have taken place. On the basis of such delay, it cannot be inferred that both the eye witnesses were planted by the investigating Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -30- agency. On material aspects, statements of both the eye witnesses are consistent. Merely because, both the eye witnesses did not receive any injury in the occurrence, or they did not make any attempt to save any of the deceased persons, it does not make their presence at the occurrence doubtful. It all depends upon person to person and situation to situation. In the present case, when A-1 was having pistol in his hand and was firing indiscriminately upon three persons, then the conduct of both the eye witnesses to hide themselves in order to save themselves cannot be said to be improbable. Both the eye witnesses have been cross-examined at length but nothing material could be elicited, therefore, their presence at the place of occurrence cannot be said to be improbable, and merely on account of delay in delivering the special report to the Ilaqa Magistrate, their presence at the spot cannot be said to be doubtful. Thus, in our opinion, the trial court has rightly relied upon the testimonies of these two eye witnesses, which are reliable and trust-worthy, while convicting A-1 for committing the murder of three persons.
48. In view of the aforesaid discussion, we do not find any illegality or perversity in the judgment of the trial court qua conviction of A-1 under Section 302 IPC and Section 25 of the Arms Act. Acquittal of A-2 and A-3
49. We have examined the reasoning, recorded by the trial court while acquitting A-2 and A-3. It has been noticed that A-3 was an employee of A-1. At the time of occurrence, he was asked by A-1 to bring his pistol Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -31- from inside the agency, upon which he (A-3) brought the 7.62 MM pistol and handed over the same to A-1. Except this, there was no overt-act attributed to A-3. When both the eye witnesses and three deceased persons were protesting to A-1 and exchanging hot words, A-3 was asked to bring the pistol. At that time, there was no common intention to kill the aforesaid three deceased persons. In that situation, in our view, the learned trial court has rightly acquitted A-3. We do not find any illegality or perversity in the said conclusion, arrived at by the learned trial court. Against A-2, who was a student of Law from Rajiv Gandhi Law College, Bhopal, allegation is that he had fired one shot from his country made pistol towards the complainant with intention to kill him, which did not hit him. Thereafter, A-2 threw the pistol at the spot and ran away with his father (A-1). The learned trial court found that the country made pistol (Ex.PW8/F), which was found lying at the place of occurrence, though was found to be in working order, was not used in the occurrence, therefore, this fact itself falsifies the version, given by the eye witnesses regarding the shot fired by A-2 upon the complainant. The trial court, thus separated the chaff from corn to find out the truth from the testimony of PWs, and while taking into consideration the delay in delivering special report to the Ilaqa Magistrate, gave benefit of doubt to A-
2. We are of the opinion that in the facts and circumstances of the case, keeping in view the fact that A-2 was a student of Law from Rajiv Gandhi Law College, Bhopal, the possibility of false implication of A-2, because of the previous day altercation between him and nephew of the complainant, Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -32- cannot be ruled out. In our opinion, the view taken by the trial court is one of the possible view and the same cannot be said to be perverse. It has been held by the Hon'ble Supreme Court in State of Rajasthan v. Sohan Lal and others, (2008) 2 SCC (Cri) 53 that the High Court should interfere in the judgment of acquittal only when it finds that the evidence on record clearly and absolutely indicate the guilt of the accused. The High Court should not interfere merely on the basis that from the evidence on record a different view as to the trial Court is possible. Thus, we do not find any ground to interfere with the judgment of the trial court, qua acquittal of A-2 and A-3. Enhancement of sentence of A-1
50. The State of Haryana has filed Criminal Appeal No. 698-DB of 2007 for awarding capital punishment to A-1. Learned Additional Advocate General, Haryana, argued that in the facts and circumstances of the case, the trial court has awarded inadequate sentence to A-1. According to him, in the present case, without any motive, A-1 has killed three young persons, with whom he was having no enmity, and they had come to his agency to protest against the beating given by his son (A-2) to nephew of complainant Ajit Singh. Learned counsel argued that A-1 is a known criminal and he has murdered three persons in order to send a message to the public that he is free to do any thing and nobody can lodge protest against him and his associates. According to the learned counsel, the present case falls in the category of rarest of rare case, where the death sentence should be awarded to A-1.
Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -33-
51. On the other hand, learned counsel for A-1 argued that the present case does not fall in the category of rarest of rare case, as the deceased along with two eye witnesses had gone to the agency of A-1 with intention to fight with him, where in the occurrence, three persons have died. Learned counsel further argued that merely because three persons were killed, the case in hand cannot be said to be rarest of rare case, which warrants the capital punishment to the accused.
52. We have considered the submissions made by learned counsel for the parties and have also taken into consideration the mitigating as well as aggravating circumstances and various other factors, as discussed in the main part of the judgment. In Haru Ghosh v. State of West Bengal, (2009) 15 Supreme Court Cases 551, it was held by the Supreme Court that for awarding the death sentence to an accused, there cannot be a straitjacket formula depending on the number of murders committed or the manner in which the murder was committed. The findings of the rarest of rare case would have to be judged in the light of the circumstances brought up and proved by the prosecution. In Om Parkash v. State of Haryana, 1999 (3) S.C.C. 19, the Supreme Court has observed that the doctrine of rehabilitation along with the doctrine of proportionality should also be taken into consideration. Further, in a case of triple murder, like the case in hand, in Dilip Premnarayan Tiwari and another v. State of Maharashtra, 2010 (1) RCR (Criminal) 230, the Supreme Court has observed that mere number of persons killed is not by itself a circumstance justifying award of death Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -34- sentence.
53. In the present case, after considering all the factors, keeping in view the age of A-1, manner and the circumstances in which the occurrence had taken place and the fact that there is nothing on record to show that A-1 could not be reformed and rehabilitated by awarding the life sentence, we are of the opinion that the present case is not a rarest of rare case, where the capital punishment is to be awarded. Thus, the trial court has rightly convicted and sentenced A-1.
Conclusion
54. For the reasons recorded above, all these three appeals are dismissed. The impugned judgment and order, passed by the trial court, is upheld.
( SATISH KUMAR MITTAL )
JUDGE
April 20, 2011 ( M. JEYAPAUL )
ndj JUDGE