Punjab-Haryana High Court
Mahesh Kumar vs State Of Haryana on 15 February, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 689-DB of 2007 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Criminal Appeal No. 689-DB of 2007
Date of Decision: 15.2.2012.
Mahesh Kumar .......Appellant
Vs.
State of Haryana ......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Raj Mohan Singh, Advocate
for the appellant.
Mr. Sandeep Vermani, Addl. A.G., Haryana.
.....
SABINA, J.
Appellant Mahesh Kumar has preferred this appeal challenging his conviction and sentence as ordered by the trial court vide judgment/order dated 23.5.2007/25.5.2007 under Section 302/307 of the Indian Penal Code ('IPC' for short) and 27 of the Arms Act, 1959 ('Act' for short).
Complainant Daler Kaur stated in her statement before Sub Inspector Jitesh Kumar that her husband Baljit Singh was serving in the office of Additional Deputy Commissioner, Faridabad. Presently, he was under suspension. He was a social worker and looked after the cleaning of the area/mohalla . House of Santi was opposite to their house. Mahesh, brother-in-law of Santi, was residing in the said house and was running a photography shop and S.T.D. On many occasions, dispute had arisen qua cleaning of drain between them. On 17.11.2005, Crl. Appeal No. 689-DB of 2007 - 2- Mahesh Kumar had collected garbage in front of their house. Baljit Singh had cleaned the drain and at this occasion, hot words were exchanged between her husband and Mahesh Kumar. Her husband came on a motor cycle No. HR-51P-6506 from Daya Nand Public School, Sector-16, Faridabad where their son Kamalpreet Singh was studying. On seeing the motor cycle, Vicky and Shehnaz (children of her tenant) came out and sat on the motor cycle. When she reached near the gate of the house along with her tenant Razda, she saw that Mahesh was standing in front of her house. Dev Kumar was standing at a distance of about four paces from Mahesh Kumar. Mahesh Kumar fired a shot at her husband. The bullet, after passing through the chest of her husband, hit Shehzad and then Vicky. Mahesh and Dev Kumar then fled away from the spot. The occurrence had taken place at about 12.45 P.M. Baljit Singh fell from the motor cycle and died.
On the basis of the statement of the complainant, formal FIR No. 399 dated 17.11.2005 was registered at Police Station Old Faridabad under Section 302, 307, 120-B IPC and 25 of the Act.
Inspector Jitesh Kumar then inspected the spot and prepared the rough site plan. He prepared the inquest report qua the dead body and then it was sent for post mortem examination. On the same day, the doctor handed over one parcel containing clothes of injured Vicky along with a sealed vial containing bullet and the same was taken in possession. He also took in possession medico legal reports qua injured Vicky and Shehnaz. He lifted blood stained earth from the spot and took in possession the motor cycle of the deceased. The appellant was Crl. Appeal No. 689-DB of 2007 - 3- arrested on 19.11.2005 after he surrendered himself before the court of Additional Chief Judicial Magistrate, Faridabad. On 20.11.2005, during interrogation, appellant suffered a disclosure statement and got recovered one pistol alongwith one empty cartridge from the disclosed place.
After completion of investigation and necessary formalities challan was presented against the appellant.
During trial prosecution moved an application under Section 319 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) seeking summoning of Dev Kumar and Santi as additional accused. Vide order dated 05.10.2006, the application was allowed qua summoning of Dev Kumar and was dismissed qua Santi.
In order to prove its case, prosecution examined 15 witnesses during trial.
After the close of prosecution evidence, appellant when examined under Section 313 Cr.P.C. pleaded that he was innocent and false case had been got registered against him.
The appellant examined four witnesses in his defence. Vide the impugned judgment, the trial court acquitted accused Dev Kumar by giving him benefit of doubt and convicted the appellant for commission of offence under Section 302, 307 IPC and 27 of the Act.
Learned counsel for the appellant has submitted that the presence of the complainant at the spot was doubtful. The complainant was working in ESI Dispensary at Tigaon. Her duty hours were from 8.00 A.M. to 4.00 P.M. Hence, she could not have been present at the spot. PW-5 Razda and PW-6 Jamil had not supported the prosecution case. The recovery of pistol and Crl. Appeal No. 689-DB of 2007 - 4- empty cartridge had been falsely foisted on the appellant.
Learned state counsel, on the other hand, has submitted that although PW-5 and PW-6 had not supported the prosecution case, yet the same was duly established from the testimony of PW-4. PW-4 had left the dispensary at 10.30 A.M. and hence, her presence at the spot was duly established. As per the report of Forensic Science Laboratory ('FSL' for short) Ex. PBB, the bullet, which had been recovered from the shoulder of injured Vicky, had been fired from the pistol recovered from the appellant on the basis of his disclosure statement.
The present case rests on an eye witness account. The complainant, while appearing in the witness box as PW-4, has deposed as per the contents of the FIR. Although PW-5 Razda and her husband PW-6 Jamil, parents of injured Vicky and Shezad, have not supported the prosecution case, yet the statement of PW-4 inspires confidence. There is no force in the argument raised by the learned counsel for the appellant that the presence of the complainant at the spot was doubtful. DW-1 Dr. Anup Kumar deposed that the complainant was working as Multipurpose Health Worker in ESI Dispensary, Tigaon. The working hours of the complainant were from 9.00 A.M. to 4.00 P.M. The complainant used to go for the field job with his permission. On 17.11.2005, complainant had left the dispensary after entering her departure in the movement register at 10.30 A.M. As per this witness, the complainant had left for B.K. Hospital for family planning cases at 10.30 A.M. on 17.11.2005. As per DW-2 Meena Kumari, who was also working as Multipurpose Health Worker at Primary Health Center, Tigaon, Sub Center Neemka, she had gone to B.K.Hospital on Crl. Appeal No. 689-DB of 2007 - 5- 17.11.2005 with two family planning cases. She had reached B.K.Hospital, Faridabad at 12.30 P.M. Further the said witness deposed that she had met the complainant in the hospital. Thereafter, they had reached ESI Hospital, NH-3, Faridabad at about 1.00 P.M. After 30/45 minutes, the complainant received a phone call on her mobile phone that her husband had been murdered. Then she went to the house of the complainant along with her at 1.45 P.M. Thereafter, she again reached B.K.Hospital, Faridabad at 2.30 P.M. with the complainant. In her cross examination, she deposed that she had not brought the movement register. Entries were made in the B.K.Hospital qua their arrival if any case was operated in the said hospital.
Thus, from the statement of DW-1 it is evident that the complainant had left the dispensary, Tigaon at 10.30 A.M. So far as DW-2 is concerned, the fact that she had arrived in B.K.Hospital on 17.11.2005 is not substantiated on record as the said witness has not proved on record her departure from Sub Center Neemka. Further, there is nothing on record to suggest that on 17.11.2005 any family planning operations were conducted at B.K.Hospital, Faridabad. Further, it is not substantiated on record that the complainant had received a phone call on her mobile phone at about 1.30 P.M. at ESI Hospital, NH-3, Faridabad. The entries qua the presence of the complainant in B.K.Hospital, Faridabad or ESI Hospital, NH-3, Faridabad at or about the time of occurrence have not been proved on record. It is probable that the complainant after leaving the ESI Dispensary, Tigaon at 10.30 A.M. had reached home before the occurrence took place. Further, the complainant had no reason to shield the real culprit and involve the appellant Crl. Appeal No. 689-DB of 2007 - 6- falsely in this case. The complainant was cross examined at length but her testimony qua the manner of occurrence could not be shaken. In these circumstances, we are of the considered opinion that DW-2 fails to rebut the testimony of the complainant. The presence of the complainant at the spot cannot be doubted.
DW-3 Ramesh Chand has given a new version qua the occurrence. The said witness deposed that on 17.11.2005 at about 12/12.30 P.M., he had rushed towards the house of the complainant after hearing a fire shot. Four/five persons had run away from the spot in a car and he had seen Baljit Singh lying in an injured condition. As per this witness, the complainant was not present at the spot at that time. The statement of the said witness fails to inspire confidence. During investigation, statement of this witness was not recorded by the police. The said witness did not approach the police regarding false involvement of the appellant in this case. As per this witness, the appellant and Dev Kumar were neighbours of the complainant. It appears that the said witness has deposed in favour of the appellant with a view to help him in this case.
The statement of the complainant is duly corroborated by medical evidence. PW-10 Dr. R.K.Sharma deposed that on 18.11.2005, he had conducted post mortem examination on the dead body of deceased Baljit Singh Bal along with Dr. S.K. Manocha and Dr. A.K.Gupta and they had found following injuries on his person:-
1. Wound of entry maximum diameter 2.2 cm and minimum diameter 1.5 cm. Margins were inverted Crl. Appeal No. 689-DB of 2007 - 7- and abraided present in right chest 2.5 cm medial to right nipple. Rounded notch seen in upper and lateral part of the wound. Margins of wound were blackened. Syngeing of chest hair present around the would margin. Clotted blood seen trickling downward lateral side of wound on chest. Wound going obliquely downward, backward and medially. A probe could easily be passed in the same direction. Reddening was present in a circle approximately 3 cm around the wound.
2. Exit wound 2 cm x 1 cm elliptical situated 4 cm to left of T9 to T10 spine. Margins everted. Fluid blood reddish in colour coming out of wound.
Clotted blood also seen around the wound.
Holes corresponding to wound of entry and exit seen On underlying clothes i.e. Black jersey, white T-shirt and white baniyan.
In their opinion, the cause of death in this case was due to shock and hamerrohage due to injury to heart and aorta as a result of fire-arm injury which was ante mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was within few minutes and between death and post mortem was within 12 to 36 hours.
PW-1 Dr. Lokvir deposed that on 17.11.2005, he had medico legally examined Shehnaz aged 5 years and had observed following injuries on her person:-
1. Lacerated wound of size 6 x 1.2 cm muscle deep Crl. Appeal No. 689-DB of 2007 - 8- present on left side of face from cheek to upper lip left side with fresh bleeding. Tender swelling present on all around. Margins were slightly blackened at places. Patient was advised x-ray face and surgeon's opinion.
On the same day, he had medico legally examined Vicky aged 4 years and had observed following injuries on his person:-
1. Lacerated wound of 1.2 x 1 cm present on left side of chest 4 cms below left clavicle near armpit with fresh bleeding. Margins and base of wound were slightly blackened. Tender swelling was present and the patient was advised x-ray chest and surgeon's opinion.
PW-15 Dr. B.D.Pathak deposed that on 10.1.2006, an application was moved before him seeking opinion with regard to nature of injuries on the person of Vicky. He gave the opinion that vide MLX No. 2040 dated 17.11.2005 showed a radio opaque shadow in the left shoulder region which on exploration revealed a metallic foreign body resembling a bullet and he had handed over the same to the police on that day itself. He further deposed that on the same day he also gave opinion Ex. PZ/1 with regard to injuries on the person of Shehzad.
Memo Ex. PV has been proved by the investigating officer while appearing in the witness box as PW-13. A perusal of the same reveals that the clothes as well as vial containing bullet duly sealed with seal bearing impression "MS BKH" were taken in possession by him.
Crl. Appeal No. 689-DB of 2007 - 9-
A perusal of the FSL report (Ex. PBB) reveals that the country made pistol marked W/1 (chambered for .315'' cartridges) was a fire-arm as defined in the Act. Its fire mechanism was found in working order. It was further opined that .315'' bore fired cartridge case marked C/1 and .315'' bore fired bullet marked BC/1 (taken out from the body of Vicky) had been fired from country made pistol W/1 and not from any other fire-arm even of the same make and bore/caliber because every fire-arm had got its own individual characteristic marks. From the said report (Ex.PBB) it is further evident that the blood stained earth lifted from the place of occurrence and the clothes of deceased as well as injured Vicky and fired bullet taken out from the body of Vicky, had been sent to Serology Division in original packing after they were received in the Ballistics Division on 19.12.2005. The said articles were received in the Serology Division on 17.2.2006 through Ballistics Division as is evident from the FSL report (Ex. PAA). As per the serological report, the stains of blood were found on the clothes of the deceased and the earth, lifted from the spot. However, on the metallic piece, traces of blood were too small for serological analysis. A combined reading of Ex. PAA and Ex. PBB reveals that thereafter, the bullet was sent to the Ballistic Division and it was examined with the country made pistol recovered from the appellant during investigation.
Thus, the ocular version is duly corroborated by medical evidence as well as the FSL report.
We do not find any force in the argument raised by the learned counsel for the appellant that the recovery of the pistol had been falsely foisted on the appellant. The appellant Crl. Appeal No. 689-DB of 2007 - 10- was arrested on 19.11.2005 as he had surrendered before the Additional Chief Judicial Magistrate, Faridabad. Thereafter, his police remand was obtained from the Area Magistrate by PW-13 Inspector Jitesh Kumar. PW-13 further deposed that on 20.11.2005, the appellant was interrogated and during interrogation he suffered a disclosure statement (Ex. PE) wherein he stated that he had kept concealed one country made pistol .315'' bore along with one empty cartridge. On the basis of the said disclosure statement, the appellant got recovered the pistol and the empty cartridge from the disclosed place. He further deposed in his cross examination that no person was present at the time of recovery. Statement of PW-13 in this regard is corroborated by PW-3 Assistant Sub Inspector Pal Singh. The official witnesses were acting in discharge of their official duty and had no reason to falsely foist the recovery of the pistol and empty cartridge on the appellant. The official witnesses had no ill will or enmity against the appellant to have falsely involved him in this case.
The fact that owner of the place of recovery was not joined at the time of recovery of pistol and empty cartridge on the basis of disclosure statement suffered by the appellant is not fatal to the recovery proceedings. DW-4 deposed that on 20.11.2005 no police official had visited the fields. DW-4 Dharambir fails to advance the case of the appellant as the said witness was not the owner of the place of recovery. The said witness deposed in his cross examination that he was cultivating the fields on batai under the owner Raja Ram. The fact that the said person had only taken the fields on batai is not substantiated from record. In these circumstances, it would not Crl. Appeal No. 689-DB of 2007 - 11- be safe to place reliance on the testimony of DW-4 Dharambir and, thus, his statement fails to advance the case of the appellant.
Thus, in the present case, the prosecution had been successful in proving its case. The eye witness account is duly corroborated by the medical evidence as well as the FSL report qua involvement of the appellant in the crime. The defence witnesses fail to rebut the prosecution evidence on record. Hence, the learned trial court had rightly ordered the conviction and sentence of the appellant for commission of offence under Section 302, 307 IPC and 27 of the Act.
No ground for interference is made out.
Dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
February 15, 2012
Gurpreet