Punjab-Haryana High Court
Mritunjay vs State Of Haryana on 19 March, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No. 81-DB of 2008 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No. 81-DB of 2008
Date of decision:March 19, 2012
Mritunjay
......Appellant
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Baldev Singh, Sr. Advocate with
Mr.Deepender Singh, Advocate
for the appellant.
Mr.Sandeep Vermani, Addl.A.G.Haryana.
****
JUDGMENT
SABINA, J.
Appellant, who is in custody for the last six years, has preferred this appeal challenging his conviction and sentence for commission of an offence under Sections 302 of the Indian Penal Code, 1860 (IPC for short) and 25 of the Arms Act, 1959 (the 'Arms Act' for short), as ordered by the trial Court vide judgment/ order dated 19.12.2007/ 21.12.2007.
Prosecution case was set in motion on the basis of the statement of complainant Narayan Singh. In his statement before Assistant Sub Inspector Girdhari Lal, complainant stated that his Criminal Appeal No. 81-DB of 2008 2 brother Gopi Chand was living alone. Durga, wife of Gopi Chand, was residing with her sons Mritunjay and Daya Nand. Some domestic dispute was pending between his brother and his family members for quite some time. On 6.3.2006 at about 2.30/ 3 pm, he was informed by Ved Parkash that Mritunjay had fired a shot at Gopi Chand. He reached the spot and saw that Gopi Chand was lying dead. Many persons had gathered at the spot. Mritunjay was armed with a country made pistol and he fled away from the spot on a scooter. Daya Nand also fled away from the spot. His nephew Mritunjay had murdered Gopi Chand with the help of his country made pistol.
On the basis of the statement of the complainant, formal FIR No. 109 was registered on 6.3.2006 at police station Sohna District Gurgaon under Section 302 IPC and 25 of the Arms Act.
Assistant Sub Inspector Girdhari Lal reached the spot and got the place of occurrence photographed. He took in possession one country made pistol .315 bore from the spot. He un-loaded the same and took in possession one empty cartridge from the pistol. He lifted one empty cartridge and one live cartridge from the spot. He also lifted blood stained earth from the spot. He prepared rough site plan qua the place of occurrence. He prepared inquest report qua the dead body of Gopi Chand and sent the same to Civil Hospital Sohana for postmortem examination.
On 12.3.2006, Udaivir Singh produced accused Daya Nand and Mritunjay before Inspector Rajiv Kumar. Both the accused were arrested. On 13.3.2006, during interrogation, accused Daya Criminal Appeal No. 81-DB of 2008 3 Nand suffered a disclosure statement and got recovered one pepper spray from the disclosed place. During interrogation, on the same day, appellant Mritunjay also suffered a disclosure statement and got recovered one country made pistol .315 bore, two live cartridges and one empty cartridge from the disclosed place. The said articles were taken in possession and were sealed with seal bearing impression 'JP'.
After completion of investigation and necessary formalities, challan was presented against the accused.
In order to prove its case, prosecution examined 16 witnesses during trial.
The accused, when examined under Section 313 of the Code of Criminal Procedure, 1973, after the close of prosecution evidence, pleaded that they were innocent and had been falsely involved in this case. No recovery had been effected from them.
The accused did not examine any witness in their defence.
Trial Court vide judgment dated 19.12.2007 convicted appellant Mritunjay for commission of offence under Sections 302 IPC and 25 of the Arms Act, whereas, accused Daya Nand was acquitted of the charges framed against him. Vide order dated 21.12.2007, appellant Mritunjay was sentenced to undergo imprisonment for life and fine of ` 10,000/- for offence under Section 302 IPC and was sentenced to undergo rigorous imprisonment for a period of two years and fine of ` 1,000/- for offence under Section 25 of the Arms Act.
Criminal Appeal No. 81-DB of 2008 4
Learned senior counsel for the appellant has submitted that the material witnesses had not supported the prosecution case during trial. Appellant had been convicted only on the basis of recovery effected from him. As per the report of the Forensic Science Laboratory (FSL for short) (Ex.PT), the bullets recovered from the dead body of the deceased matched with the country made pistol recovered from the appellant. However, the evidence as to who had taken the bullets recovered from the dead body to the FSL was missing. Further there was discrepancy qua the impression of the seal on the parcel containing fired cartridge case qua oral evidence and Ex.PT. As per PW-10 Assistant Sub Inspector Girdhari Lal, the recovery memos had been prepared at the police station itself and hence, no sanctity could be attached to the same.
In support of his argument, learned senior counsel has placed reliance on Mustkeem @ Sirajudeen vs. State of Rajasthan AIR 2011 SC (Crl.) 1683, wherein, it was held as under:-
"If the recovery memos were prepared at the police station itself then the same would lose its sanctity as held by this Court in Varun Chaudhary vs. State of Rajasthan reported in AIR 2011 SC 72."
Learned state counsel, on the other hand, has submitted that although complainant and the other witnesses had not supported the prosecution case yet it was established on record from the report of the FSL that one of the bullets recovered from the dead body of the deceased had been fired from the country made pistol recovered from the appellant.
Criminal Appeal No. 81-DB of 2008 5
After hearing learned senior counsel for the appellant as well as learned State counsel and going through the record available on the file carefully, we are of the considered opinion that the present appeal deserves to be allowed.
In the present case, the material witnesses i.e. complainant PW-2 Narain Singh, PW-3 Ved Parkash, PW-4 Amira Singh and PW-16 Laxmi have not supported the prosecution case during trial. The said witnesses were declared hostile but nothing fruitful could be elicited by the learned public prosecutor during their cross-examination. The prosecution case, thus, mainly rests on the report of the FSL (Ex.PT).
PW-5 Dr.Gurvinder Singh deposed that on 7.3.2006, he had conducted the postmortem examination on the dead body of deceased Gopi Chand along with Dr. Vijay Kumar and had found following injuries on his person:-
"1. A lacerated oval wound of size 0.75 x 1 cm. Over the left temporal region, 1.5 cm. Above left pinna's upper margin. Margins were inverted. Collar of abrasion was present. A metallic cylindrical body was found embedded in the wound. Partially visible outside. Its direction was medially interiorly and posteriorly. Body was removed and sealed. Commuted fracture was present below the wound. Probe could not be passed. Clotted blood was present in the vicinity.
2. A lacerated oval wound of size 0.75 x 1 cm x .75 cm.
Infero posteriorly to injury No.1. Margins were inverted. Criminal Appeal No. 81-DB of 2008 6 Collar of abrasion was present. Clotted blood was present in the vicinity.
3. A lacerated irregular wound of size 17x 8 cm. In right occipital region. Margins were inverted. Irregular fracture of occipital bone was present. Brain matter coming out of wound with infiltration of blood. On probing wound of entry (no.2) and wound of exit (no.3) medially, inferiorly and posteriorly. On the section of skull there was track of laceration starting from wound No.2 with a whole of size 1 x 1.25 cm. In left temporal bone, duramater, meninges, brain matter and upto wound of exit No.3. Infiltration of blood was present. Both frontal right occipital and parietal bones were fractured and broken into many pieces. Brain matter and meninges at sight of wound No.3 were badly lacerated Hematoma was present.
4. A lacerated oval wound of size .75 x 1 cm. Present on postero-lateral aspect of left arm, 25 cm. Below tip of shoulder collar of abrasion was present. Corresponding hole was present in the worn kurta. Clotted blood was present in vicinity . A metallic cylindrical body found embedded in the wound obliquely upwards, partially visible outside. Body was removed and sealed margins of wound were inverted.
5. A lacerated oval wound of size 1.25 x 1.5 cm. With inverted margins present on medial aspect of left arm, Criminal Appeal No. 81-DB of 2008 7 23 cms from tip of shoulder. Infiltration of blood was present. Corresponding hold was present in worn kurta. On probing wound No.4 and 5 were continuous direction being from lateral to medial upwards and anteriorly. On dissection there was track of laceration starting from wound No.4 involving skin subcutaneous tissues, fat and muscle."
In their opinion, the cause of death was due to shock and haemorrhage as a result of fire arm injuries, which were ante mortem in nature and sufficient to cause death in the ordinary course of nature. After postmortem examination, the bullets recovered from the dead body were handed over to the police after sealing them.
PW-7 EHC Jai Chand deposed that on 24.3.2006, one sealed parcel containing a glass bottle having pepper spray sealed with seal bearing impression 'JP' and another parcel containing country made pistol .315 bore with empty cartridge sealed with seal bearing impression 'JP' were handed over to him by MHC police Station Sohna and he had deposited the same with FSL Madhuban on the same day. The statement of the said witness is not corroborated by the report of the FSL. A perusal of Ex.PT, report of the FSL, reveals that the sealed parcels bearing seal impression 'JP' had been handed over in the laboratory by Constable Surender Singh on 27.3.2006, dispatched by police station Sohna vide R.C. No.172 dated 27.3.2006. Thus, the sealed parcels containing country made pistol .315 bore allegedly recovered from the appellant had not been deposited in the laboratory by PW-7. PW-7 had Criminal Appeal No. 81-DB of 2008 8 deposited a parcel containing pistol on 24.3.2006, whereas, the parcel, containing pistol allegedly recovered from the appellant, was deposited in the laboratory on 27.3.2006 by Constable Surender Singh. Constable Surender Singh has not been examined during trial. Rather the prosecution case is that EHC Jai Chand deposited the parcel containing pistol recovered from the appellant with the FSL on 24.3.2006. This discrepancy is fatal to the prosecution case as it has not been duly established on record as to who had deposited the pistol recovered from the appellant during investigation with the FSL for comparison.
PW-8 Constable Hakimuddin deposed that on 10.3.2006, he had been handed over four parcels by MHC Devender Kumar for depositing the same with the FSL, i.e. one parcel contained empties (recovered from the place of occurrence), one parcel contained country made pistol (recovered from the place of occurrence), one parcel containing blood stained earth sealed with seal bearing impression 'GS' and one parcel containing clothes of the deceased sealed with seal bearing impression 'GB'. The said witness had not deposed qua handing over of the parcels containing bullets recovered from the dead body of the deceased to him for depositing the same in the laboratory.
A perusal of the report of the FSL (Ex.PT) shows that these parcels were received in the said laboratory through Constable Hakimuddin on 10.3.2006, which had been dispatched by police station Sohna vide RC No.144. A perusal of the report further shows that one parcel contained country made pistol recovered from the Criminal Appeal No. 81-DB of 2008 9 spot bearing seal impression 'GL', one parcel contained two fired cartridge cases, recovered from the spot, bearing seal impression 'GL', one parcel contained blood stained earth, lifted from the spot, bearing seal impression 'GL' and one parcel contained clothes of the deceased bearing seal impression 'GB'. So far as the receipt of the said parcels in the laboratory is concerned, the same is duly corroborated by PW-8. It appears that due to some typographical error, the seal impression has been mentioned on three parcels as 'GS' instead of 'GL' while recording evidence. However, the fact remains that PW-8 has not deposed qua deposit of two parcels bearing seal impression 'GB' containing fired bullets recovered from the dead body of the deceased with the FSL. The said fact is fatal to the prosecution case especially when the material witnesses have not supported the prosecution case during trial and we are only left with the report of the FSL to connect the appellant with the crime.
Further in the present case PW-13 Assistant Sub Inspector Janki Parsad deposed that they had reached the police station at 12.45 P.M. and, thereafter, the documents with regard to recovery etc. were prepared and the memos were signed in the police station. In view of the decision of the Apex Court in Mustkeem's (supra), the recovery memos qua recovery of articles prepared at the police station lose its sanctity.
Thus, in the present case, after carefully examining the evidence on record, we are of the considered opinion that the prosecution has failed to prove its case against the appellant beyond the shadow of reasonable doubt. Since the complainant and the Criminal Appeal No. 81-DB of 2008 10 other material witnesses have not supported the prosecution case, the fact that the pistol recovered from the appellant during investigation and the bullets recovered from the dead body had reached the laboratory for examination gains significance. However, in the present case, the witness, who took the pistol alleged to have been recovered from the appellant to the FSL, has not been examined. Rather PW-7 Jai Chand examined during trial creates doubt in the prosecution case as his testimony is not corroborated by the FSL report (Ex.PT). Further PW-8 Constable Hakimuddin has not deposed to the effect that he has deposited the bullets recovered from the dead body of the deceased with the FSL. As per PW-13, the recovery memos were prepared in the police station. All these facts, when taken together, render the prosecution case doubtful.
Accordingly, this appeal is allowed. The impugned judgment/ order of conviction and sentence dated 19.12.2007/ 21.12.2007 are set aside. Consequently, the appellant is acquitted of the charges framed against him by giving him benefit of doubt. The appellant, who is in custody, be set at liberty forthwith, if he is not required in any other case.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
March 19, 2012
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