Punjab-Haryana High Court
Vishnu Kumar vs State Of Haryana on 9 September, 2014
Author: Surinder Gupta
Bench: Rajive Bhalla, Surinder Gupta
CRA-D-171-DB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.D-171-DB of 2003
Date of Decision: September 09, 2014.
Vishnu Kumar
..........APPELLANT(s).
VERSUS
State of Haryana
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Atul Lakhanpal, Senior Advocate with
Mr. Ranjan Lakhanpal and Mr. G.S. Chahal, Advocates
for the appellant (s).
Mr. Sandeep Vermani, Addl.A.G. Haryana.
*******
SURINDER GUPTA, J.
This appeal has been preferred against the judgment dated 01.02.2003 in Sessions case No.36 of 2001/2002 passed by Additional Sessions Judge, Sirsa convicting the appellant for the offence punishable under Sections 307 of Indian Penal Code (for short 'IPC') and 25 of Arms Act, 1959 and sentencing him as follows:-
Convicted for the offence Sentence
punishable under Section Rigorous Imprisonment Fine
307 IPC For life `20000 in default of payment
of fine to further undergo
rigorous imprisonment for
two years.
25 Arms Act Three years `5000 in default of payment
of fine to further undergo
rigorous imprisonment for
six months.
The prosecution case, in brief, is that on the intervening night of SACHIN MEHTA 2014.10.09 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -2- 19th/20th February 2001, complainant Manphool Singh was sleeping with his family in his house situated near Bus Stand of village Rupana. At about 10.30 p.m., there was a call outside his house to open the door at which he and his wife got up. When the complainant opened the door, he found appellant Vishnu son of Rameshwar along with two other persons on the motorcycle. The appellant fired a shot with his pistol which hit right side of the chest of the complainant and the bullet crossed through the chest of the complainant from right side. The appellant along with other two unidentified persons decamped from the spot. The complainant was taken to Civil Hospital, Sirsa, where he was medically examined by Dr. Dharmender Singh (PW1), who found following injuries on his person:-
"1. A lacerated wound oval shaped 0.5 x 0.5 cm in size.
Margins were inverted, 9 cm below the right side of nipple. Fresh bleeding was present. Collar of abrasion was present surrounding the wound. Corresponding hole was present in shirt and sweater. X-ray was advised.
2. A lacerated wound 1½ x 1 cm in size, margins were everted, corresponding whole was present in shirt and sweater, bleeding was present. Probing was not done due to pain."
In the opinion of doctor, both the injuries were caused by fire- arm. He prepared the medico-legal report Ex.PA with pictorial diagram Ex.PA/1 and sent ruqa (information) to the police station regarding admission of complainant Manphool in the hospital. The shirt Ex.P1 and sweater Ex.P2 of Manphool were taken into possession by the doctor and put in a parcel and sealed. Later these were handed over to the police. SACHIN MEHTA 2014.10.09 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -3-
On receipt of intimation from the hospital, ASI Man Singh reached Civil Hospital, Sirsa and recorded the statement of complainant Ex.PD on the basis of which FIR No.21 dated 20.02.2001 (Ex.PD/2) was recorded. The motive for occurrence was the land dispute between the complainant and Rameshwar father of appellant. The sealed parcel containing clothes of Manphool was taken into possession vide recovery memo Ex.PQ. He thereafter visited the place of occurrence and prepared the rough site plan Ex.PR. He lifted a mutilated bullet and blood stained earth from the spot, put them in separate parcels and sealed with his seal impression 'MS'. Both the parcels were taken into possession vide recovery memo Ex.PS. The blood stained piece of mattress was also taken, put in a parcel, sealed and taken into possession vide recovery memo Ex.PT. A piece of door having bullet mark was taken into possession vide recovery memo Ex.PU. The statement of Santro eyewitness was recorded on the next day.
On 29.03.2001 Sub Inspector Dharambir arrested the appellant. On 31.03.2001, investigation of the case was handed over to ASI Dharampal. The appellant suffered a disclosure statement (Ex.PH) that he had kept concealed countrymade pistol of .315 bore and two cartridges in a corner near southern wall of Primary School of village Rupana and then led the police party and got recovered the pistol and cartridges which were taken into possession, vide recovery memo Ex.PK after preparing rough sketch of the pistol Ex.PJ. Rough site plan of the place of recovery Ex.PL was also prepared. Ruqa Ex.PM was sent to the police station, on the basis of which formal FIR No. 47 dated 31.03.2001 (Ex.PM/1) for offence punishable under Section 25 of the Arms Act, 1959 was recorded.
SACHIN MEHTA2014.10.09 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -4-
On completion of investigation, challan against the appellant was presented in the Court by Sub Inspector Dharambir (PW7). The copies of documents as required under Section 207 Code of Criminal Procedure (for short 'Cr.P.C.') were supplied to the appellant. As the final report submitted by the police disclosed commission of offence punishable under Section 307 IPC, the Judicial Magistrate Sirsa vide order dated 30.07.2001 committed the case to the Court of Sessions for trial.
Vide order dated 3.4.2001, both the cases i.e. FIR No.21 dated 20.02.2001 and FIR No.47 dated 31.3.2001 were consolidated and it was ordered that proceedings in respect of both the cases will be recorded in case FIR No.21 of 20.02.2001.
On finding a prima facie case, the appellant was charge-sheeted separately for the offences punishable under Sections 307 IPC and 25 of Arms Act, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined complainant Manphool as PW3, his wife and eyewitness of the occurrence Santro Devi as PW4, Dr. Dharmender Singh, who medico-legally examined the injured, as PW1. ASI Man Singh, ASI Dharampal and Sub Inspector Dharambir, who had conducted the investigation of the case, were examined as PW9, PW8 and PW7 respectively. Head Constable Dharampal and Bijender Singh formal witnesses appeared as PW5 and PW6, while Constable Mohan Lal Draftsman, who had prepared the scaled site plan Ex.P1, appeared as PW2.
On conclusion of prosecution evidence, the entire incriminating evidence was put to the appellant in his statement under Section 313 Cr.P.C. which he denied and pleaded his false implication. He stated in his defence SACHIN MEHTA 2014.10.09 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -5- as follows:-
"I am innocent. On the night of occurrence I was present in my fields for irrigation from 10.00 A.M. on 19.2.2011 to 2.30 A.M. on 20.2.2001. My maternal grand father Sohan Lal had executed a will of his land in my favour as I had been living with him and serving him. Manphool PW is the son-in-law of Sohan Lal and he wanted that the land should be transferred in his name. So, he got this false case registered against me though he was fired at by some unknown assailant in the darkness as he had enmity with many other persons. My father has given applications to the police regarding my innocence."
In support of his case, the appellant examined Mani Ram as DW1, Bhagwan Dass, Complaint Clerk, S.P. Office, Sirsa as DW2.
Learned counsel for the appellant has argued that the incident took place at 10.30 p.m. on 19.02.2001 and the statement of complainant was recorded at about 3.40 a.m. at which FIR was registered at 5.15 a.m. on 20.02.2001. However, the special report was sent to the Illaqa Magistrate with a delay of more than two days. The occurrence took place at night and it is doubtful that complainant and his wife had identified the assailants. The wound on the person of complainant had no blackening which belies the statement of complainant that the shot was fired from a distance of 12 feet as shown in the site plan Ex.PC. The pistol recovered from the appellant was also tested in the Forensic Science Laboratory (for short 'FSL') after a period of two months and this delay has not been explained by the prosecution.
Learned State counsel has argued that the appellant was not a stranger to the complainant. He is the son of his sister-in-law (wife's sister). SACHIN MEHTA 2014.10.09 17:53 The complainant being close relative, could easily identify him. Moreover, it I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -6- has been stated by the complainant and was also found by the Investigating Officer that there was light of electric bulb at the place of occurrence. There is no delay in taking the injured to the hospital, reporting the matter to the police and registration of the FIR. The delay in conveying the FIR to the Illaqa Magistrate is not relevant in this case as it has not been suggested to the Investigating Officer that the FIR in this case was ante-dated. The pistol and other articles were sent to the FSL within ten days of the occurrence with seals intact. The pistol recovered from the appellant was found in working order. The seals on the parcels sent to the FSL were intact. Even if, the examination of the weapon and other articles was carried out after two months, it does not effect the prosecution case in any manner. The statement of complainant, supported by his wife Smt. Santro being eyewitness, corroborated by recovery of brass portion of the bullet at the spot, recovery of pistol of .315 bore from the appellant and the FSL report shows that shot was fired from this pistol, prove the case of the prosecution beyond shadow of doubt.
We have considered the submissions of learned counsel for the appellant, learned State counsel and have carefully gone through the record.
The complainant while appearing as PW1, has stated that the appellant is the son of his sister-in-law (wife's sister). On 19.09.2001 at about 10.30 p.m. the appellant knocked the door of his house and called him. When he opened the door, the appellant fired at him with pistol which hit on his chest. His wife Santro was also with him and had opened the door of adjoining room of the house. The fired shot hit on the right chest and thereafter the appellant along with two other persons, whom the complainant SACHIN MEHTA 2014.10.09 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -7- could not identify, sped away from the spot on motorcycle. From the spot, the complainant was taken to Civil Hospital, Sirsa, where he reached at about 12.40 a.m. and was medically examined at 12.45 a.m. on 20.02.2001. The ruqa was sent to the police station at about 01.05 a.m. and the police reached the hospital and recorded the statement of complainant at 03.40 a.m. The FIR was registered at 05.15 a.m. on 20.02.2001. There was no delay on the part of complainant while going to the hospital or reporting the matter to the police. Even if, there is some delay in sending the special report to the Illaqa Magistrate, it is immaterial, as it, at the most, was a lapse on the part of police and the testimony of complainant and eyewitness cannot be disbelieved due to inaction or any lapse on the part of police.
It is not disputed that there was land dispute between the parties. The appellant had alleged that his maternal grand father had executed a will of his land in his favour in which the complainant was claiming share. Sohan Lal, father-in-law of complainant had three daughters namely Santro wife of complainant, Mamta mother of appellant and one Bimla. The complainant had admitted that appellant was living with his father-in-law from his childhood and a will was executed by his father-in-law in favour of appellant. Santro while appearing as PW4 stated that she is cultivating land measuring 14 kanals belonging to her father after his death. The appellant and her sister Bimla were also cultivating 14 kanals of land each. She had denied that appellant was cultivating entire land left by her father. From the above testimony of complainant and his wife, it is clear that there was animosity between the parties over the possession of land left by the father of Santro i.e. maternal grand father of appellant and litigation between the SACHIN MEHTA 2014.10.09 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -8- parties was pending.
In the medical-examination, doctor had found two injuries on the person of complainant caused by fire-arm. The margin of injury No.1 were inverted and injury No.2 everted. There was corresponding hole in the shirt and sweater which the deceased was wearing. This appears to be the reason that there was no blackening at the face of the injury. The shirt and sweater were sent to the FSL. The laboratory examination of the sweater, shirt, pistol and fired bullet as mentioned in report of FSL Ex.PX are as follows:-
" LABORATORY EXAMINATION Products of combustion of smokeless powder were detected from the barrel of countrymade pistol marked W/1. Test firings were done in the laboratory from countrymade pistol W/1. Its firing mechanism was found in working order.
The class as well as individual characteristic marks present on .315" fired bullet marked BC/1 and those on test fired bullets fired from countrymade pistol W/1 were examined and compared under stereo and comparison microscope.
Clothes contained in parcel No.1 were examined to detect the presence of firearm discharge residue. Lead was detected in the margins of holes in shirt and sweater contained in parcel No.1. Clothes were also examined under stereo microscope.
Dent mark on cut piece of wooden door contained in parcel No.V was also examined for the presence of firearm discharge residue. Lead was detected on dent mark area. Piece of wooden door was also SACHIN MEHTA examined under stereo microscope.
2014.10.09 17:53I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -9-
Based on the examination carried out in the laboratory, the result of analysis is as under:-
RESULT
1. The countrymade pistol marked W/1 (Chambered for .315" cartridges) is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working order.
2. .315" fired bullet marked BC/1 has been fired from countrymade pistol W/1 and not from any other firearm even of the same make and bore/caliber, because every firearm has got its own individual characteristics marks.
3. Holes in shirt and sweater contained in parcel No.1 have been caused by bullet projectile.
4. Dent mark on cut piece of wooden door contained in parcel No.V has been caused by bullet projectile."
The above report supports and corroborates the testimony of the complainant. The bullet had also hit the wooden door. The paint removed from the bullet and on the piece of wood removed from the door also tallied and the report of the FSL to this effect states as follows:-
" LABORATORY EXAMINATION Paint removed from bullet marked exhibit-2 and paint removed from piece of wood marked exhibit-5 were examined physically and under optical microscope. They were found similar in respect of colour, physical and microscopic appearance and element composition. They have the same UV fluorescence."
On perusal of the statement of complainant, his wife Santro and other witnesses examined by the prosecution, which find corroboration from SACHIN MEHTA 2014.10.09 17:53 the medical evidence, report of FSL and on perusal of the judgment of the I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -10- trial Court, we feel no hesitation while reaching the conclusion that the prosecution has been able to prove the commission of offence punishable under Section 307 IPC and 25 of Arms Act, 1959 against the appellant and he has been rightly convicted for the same.
Here, learned counsel for the appellant has requested for leniency in the quantum of sentence. He has submitted that the appellant was a young boy of the age of about 20 years at the time of commission of offence. He has no adverse antecedents. The property dispute was the cause of the occurrence. The sentence of imprisonment for life as awarded by the trial Court is on higher side. The appellant has already suffered for the offence committed, by undergoing two years seven months and twenty days of imprisonment. He has requested for modifying the sentence of the appellant by awarding him the sentence of imprisonment for the period already undergone by him.
Learned State counsel has argued that the sentence awarded by the trial Court commensurate with the offence committed by the appellant. It was the sheer luck of the complainant that he got saved, otherwise the bullet had pierced his body. The intention of the appellant was to kill the complainant. He was possessing a countrymade pistol which was an unlicensed weapon and showed his bent of mind for commission of the offence.
On perusal of file, we find that the appellant was a young boy of the age of about 20 years at the time of commission of offence. He had no previous criminal record and is the only son of his parents.
In case Bishnu Deo Shaw Vs. State of West Bengal, 1979 CAR SACHIN MEHTA 2014.10.09 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -11- 385 (SC), the Apex Court has underlined the factors, which are to be kept in mind while awarding the sentence :-
"Criminal justice is not a computer machine. It deals with complex human problems and diverse human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget. Like the rest of us they too are the creatures of circumstance. Heredity, environment, home neighbourhood, upbringing, school, friends, associates, even casual acquaintances, the books that one reads, newspapers, radio and TV, the economics of the household, the opportunities provided by circumstances and the calamities resulting therefrom, the success and failure of one's undertakings, the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extra-ordinary incidents of life contribute to a person's personality and influence his conduct. Differently shaped and differently circumstanced individuals react differently in given situations. A Judge has to balance the personality of the offender with the circumstances the situations and the reactions and choose the appropriate sentence to be imposed. A judge must try to answer a myriad questions such as was the offence committed without premeditation or was it after due deliberation ? What was the motive for the crime ? Was it for gain ? Was it the outcome of a village feud ? Was it the result of a petty, drunken, street brawl, or a domestic bickering between a hapless husband and a helpless wife ?
Was it due to sexual jealousy ? Was the murder committed under some stress, emotional or otherwise ?SACHIN MEHTA
2014.10.09 17:53 What is the background of the offender ? What is his I attest to the accuracy and integrity of this document Chandigarh CRA-D-171-DB of 2003 -12- social and economic status ? What is the level of his education or intelligence ? Do his actions betray a particularly callous indifference towards the welfare of society or, on the other hand, do they show a great concern for humanity and are in fact inspired by such concern ? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society ? Or is he a person who is patently amenable to reform ? Well, may one exclaim with Prof. Vrij "What audacity is involved in these three tasks : to interpret life, explain an act, predict the latest inclination of a human mind."
Keeping in view the age, antecedents of the appellant and the fact that the injury caused by the appellant did not prove fatal, we modify the sentence awarded to the appellant for offence punishable under Section 307 IPC from imprisonment for life to rigorous imprisonment for seven years and to pay a compensation of `1 lac under Section 357 Cr.P.C. to the complainant, which shall be deposited by him within a period of four weeks. The sentence awarded to the appellant under Section 25 of the Arms Act, 1959 and the sentence of fine are kept intact.
The sentence of the appellant was suspended vide order dated 22.10.2004. The bail bond and surety bond furnished by the appellant in pursuance to the order dated 22.10.2004 are cancelled. He be taken into custody and sent to jail to undergo remaining sentence awarded to him.
( RAJIVE BHALLA) ( SURINDER GUPTA )
JUDGE JUDGE
September 09, 2014.
Sachin M.
SACHIN MEHTA
2014.10.09 17:53
I attest to the accuracy and
integrity of this document
Chandigarh