Punjab-Haryana High Court
Sonu @ Vikas vs State Of Haryana on 8 April, 2013
Author: Surya Kant
Bench: Surya Kant
Criminal Appeal No.1068-DB of 2009 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
(I) Criminal Appeal No.1068-DB of 2009
Date of decision: April 08, 2013
Sonu @ Vikas
...Appellant
Versus
State of Haryana
...Respondent
(II) Criminal Appeal No.1102-DB of 2009
Naresh Kumar @ Neshi
....Appellant
Versus
State of Haryana
...Respondent
(III) Criminal Appeal No.29-DB of 2010
Parveen @ Dhan Singh
....Appellant
Versus
State of Haryana
...Respondent
(IV) Criminal Appeal No.117-DB of 2010
Kuldeep @ Kallu and another
....Appellants
Versus
State of Haryana
...Respondent
(V) Criminal Appeal No.132-DB of 2010
Dinesh
....Appellant
Versus
State of Haryana
...Respondent
(VI) Criminal Appeal No.3049-SB of 2009
Chhoti and another
....Appellants
Versus
State of Haryana
...Respondent
(VII) Criminal Appeal No.3087-SB of 2009
Maya and another
....Appellants
Versus
State of Haryana
...Respondent
Criminal Appeal No.1068-DB of 2009 2
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE R.P.NAGRATH
Present: Mr.Vinod Ghai, Sr. Advocate with
Mr. Mandeep Kaushik and
Mr.Ram Kumar Saini,Advocates
(in CRA-D-1068-DB of 2009)
Mr. Gurpreet Singh, Advocate
(in CRA-D-1102-DB of 2009
Mr. Kapil Aggarwal, Advocate
(in CRA-D-29-DB of 2010)
Mr. H.N.Sahu, Advocate
(in CRA-D-117-DB of 2010)
Mr. Baldev Singh,Sr. Advocate with
Mr.Depinder Singh, Advocate
(in CRA-D-132-DB of 2010)
Mr. Yash Paul Malik, Advocate
(in CRA-D-3049-SB of 2009)
Mr.Ram Pal Verma,Advocate
(CRA-D-3087-SB of 2009)
Mr. R.D.Sharma, DAG, Haryana.
1. Whether Reporters of local papers may be allowed
to see the judgment ?
2. To be referred to the reporter or not ?
3. Whether the Judgment should be reported in the Digest ?
R.P. NAGRATH, J.
Seven Appeals bearing Criminal Appeal Nos.1068-DB and 1102-DB of 2009, 29-DB, 117-DB, and 132-DB of 2010, 3049- SB and 3087-SB of 2009 arising out of the same judgment of conviction dated 18.11.2009 and order of sentence dated 19.11.2009 Criminal Appeal No.1068-DB of 2009 3 passed by learned Additional Sessions Judge, Panipat are being disposed of by this common order. 12 accused were tried of the charges for offences under Sections 120-B, 216 and 302 read with Section 34 Indian Penal Code (IPC), out of whom 10 (the appellants) were convicted under different heads and awarded sentences whereas the other two namely, Rishi Pal and Parveen Kumar alias Lala were acquitted by giving them benefit of doubt. Since there is separate role attributed individually or in a group to each of them, it would be necessary to narrate prosecution story in detail.
2. The incident in which Dr. Ved Nasha was shot dead by the assailants in his clinic, took place at about 10.40 pm on 10.9.2007. The First Information Report (FIR) was recorded on the statement of Ashish Kumar son of the deceased. Ashish Kumar was MBBS student in Meerut. On the fateful evening, he was sitting in the clinic of his father. The deceased used to sit late in the evening for attending his patients. At about 10.40 pm, three youths came to the clinic. One of them was 5' 7" tall, wearing black shirt and blue trousers entered inside the clinic and the other two kept standing outside. The culprit who entered the clinic, shot Dr. Ved Nasha on the neck while the doctor was sitting on his chair. On hearing noise of the fire arm, Ashish Kumar came out but in the meanwhile all the three culprits ran away on foot towards Balaji temple in the cover of darkness. The complainant accompanied by his mother and uncle Dr. Dev Raj took injured to Prem Hospital where the doctors declared the victim as dead.
3. PW18 Inspector Satpal Singh, SHO PS Samalkha Criminal Appeal No.1068-DB of 2009 4 received a telephonic message from Civil Hospital Panipat in this regard. The police party reached the Civil Hospital, where the complainant recorded his statement Ex.PD before the SHO on the basis of which FIR Ex. PD/1 was registered in the Police Station against unidentified assailants. Ashish Kumar, however, stated in Ex. PD that he could identify the assailants on seeing them. This statement was recorded at 1.30 am (midnight) on 11.9.2007 and the FIR Ex.PD/1 was delivered to the Area Magistrate at 3.30 am i.e. Just within two hours as per endorsement of the Duty Magistrate.
4. The inquest on the dead body was conducted by PW18 and he prepared the inquest report Ex.PU. Thereafter the dead body was taken for postmortem examination.
5. PW31 Dr. Archana Paliwal, who was posted as Medical Officer, General Hospital, Panipat, conducted autopsy on the dead body of Ved Parkash on 11.09.2007 and found the following injuries his person:
"1. One entry wound over left upper 1/3 of arm dorsoventrally approximately 1.5x2.5 c.m. with inverted margins. Blackening with abraded collar was present.
2. Exit wound over right side of neck approximately 4.5x4 c.m. badly lacerated with fresh bleeding, with everted margins was present."
Cause of death in her opinion was shock and hemorrhage due to injuries to major vessels, which were ante mortem in nature and sufficient to cause death in normal course of life. Ex.PW31/B is the Criminal Appeal No.1068-DB of 2009 5 post mortem report conducted on the police request Ex.PV. The doctor stated that injuries were caused with a fire arm weapon and in the cross-examination she stated that injuries No. 1 and 2 were the result of one bullet. It is also the prosecution story that the assailants fired one shot from the weapon with which he was armed. The seat of injury is the neck of the deceased, as earlier reported to the police by complainant in the FIR.
6. After conducting inquest on the dead body, the police party headed by PW18 reached the spot and took photographs of the place of occurrence by calling a photographer. Rough site plan Ex.PX was prepared. PW18 recovered stains of blood from the floor and prepared it into a sealed parcel. He also took sample of piece of cushion of the chair of deceased which was stained with blood by preparing a sealed parcel. These articles were taken into possession vide memo Ex. PC. PW18 also testified all these facts in the witness box.
7. On the same day i.e. 11.09.2007 PW18 also recorded the statement of Dev Raj Chopra (PW-8) who identified the three assailants armed with pistols running away from near the place of occurrence on a motor-cycle soon after the occurrence. According to PW8 the assailants are Kuldeep alias Kallu, Khushi Ram alias Khushia appellants in Criminal Appeal No. 117-DB of 2010 and Dinesh, the appellant in criminal Appeal No. 132-DB of 2010.
8. The investigation of this case was then taken over by Inspector Randhir Singh PW3 (now DSP), who joined as SHO of Police Station Samalkha on 13.09.2007. The offence under Section Criminal Appeal No.1068-DB of 2009 6 120-B IPC was added. Sonu alias Vikas appellant, Parveen Kumar alias Lala were arrested on 15.9.2007 and 16.9.2007 respectively. Satish and Naresh appellants were arrested on 19.9.2007, whereas Parveen alias Dhan Singh was arrested on 20.9.2007 for the offence of criminal conspiracy.
9. Inspector Randhir Singh also collected call details of Mobile No.9812149644 from 1.9.2007 to 12.9.2007 of Khusia, Mobile No.9996264060 for the period 9.9.2007 to 14.9.2007 of Parveen @ Dhan Singh and Mobile No. 9896536084 recovered from possession of appellant Sonu. The call details of Mobile No. 98135-17693 of appellant Kuldeep for showing call connection with Phone No. 9813789114 were also collected. Mobile No. 9996264060 statedly used in commission of the crime was taken into possession from accused Parveen alias Dhan Singh on 23.9.2007. The documents relating to Mobile No. 9912149644 of Khushia and those used in the facilitating the crime by Kuldeep Singh, Naresh and Parveen @ Dhan Singh of Mobile Nos. 9813517693, 9991526269 and 9996264060 respectively were also collected. Recovery of Mobile No. 9896536084 was made from a vacant plot of G.A.College Chulkana, Samalkha in pursuance of the disclosure statement Ex. P33/C made by Sonu accused in the presence of Ashok Kumar son of Kitab Singh.
10. On 19.09.2007, the Investigation of this case was handed over to CIA Staff, Samalkha headed by PW 32 SI Pawan Kumar. Satish appellant brother of Khushia and Maya his mother in Criminal Appeal No. 3087-SB of 2009 were arrested on 19.9.2007 under Section 216 IPC for providing shelter to Khushia, one of the main Criminal Appeal No.1068-DB of 2009 7 assailants. Sandeep brother of Kuldeep @ Kalu and Chhoti his mother, the appellants in Criminal Appeal No. 3049-SB of 2009 were also arrested for the same offence. It is the prosecution story that main assailants, accused of murder and wanted in this case escaped when the police party raided their houses.
11. The investigation was then taken over by PW28 Inspector Jaipal Singh of CIA Staff Panipat. There was allegedly an encounter between Police party of CIA staff and appellants Kuldeep, Khusia, Dinesh and one Ramesh on 31.10.2007 for which FIR No. 261 for offences under section 307 read with Section 34 IPC and Section 25 of the Arms Act, 1959, Police Station Sadar Panipat was registered. These appellants were arrested in the said encounter. Two motor- cycles, one of Honda City make and the other Discover make on which these persons came riding were taken into possession vide memo Ex. PHH. A country made .315 bore pistol with one live cartridge and an empty cartridge were recovered from Kuldeep appellant vide memo Ex. PJJ. On 01.11.2007 these appellants were interrogated by PW28 and made disclosure statements that they can demarcate the place of occurrence of the instant FIR. That part of the prosecution evidence would be inadmissible unless the discovery of fact relating to the incident is made pursuant thereto. Kuldeep @ Kalu appellant also stated that the empty cartridge used in the occurrence was kept in his pocket by unloading the pistol and the same has been concealed near a tower at Hansi Town , which he knows only and could get the same recovered as per his statement Ex. PW24/C and consequent recovery was made in pursuance Criminal Appeal No.1068-DB of 2009 8 thereof.
12. The prosecution also tendered Ex.PF, sanction granted by the District Magistrate for prosecuting Kuldeep appellant for the offence under Section 25 read with Section 3 of Arms Act, 1959 for keeping the pistol, a live cartridge and an empty cartridge without any permit or licence. This sanction is proved by PW5 Madan Lal, Deputy Superintendent in the office of the then District Magistrate, Panipat. This evidence was, however, relevant only in FIR No. 261 dated 31.10.2007 relating to Police encounter case.
13. On completion of investigation, charge sheet was presented before the Area Magistrate and the case was committed to the Sessions Court for trial. Kuldeep alias Kallu, Khushi Ram @ Khushia, Dinesh, Sonu @ Vikas, Parveen alias Lala, Naresh @ Neshi, Parveen alias Dhan Singh and Rishi alias Rishi Pal were charged of criminal conspiracy to commit murder of Dr. Ved Nasha for offence under Section 120-B IPC; Kuldeep alias Kallu, Khushi Ram alias Khushia and Dinesh for the offence under Section 302 read with Section 34 IPC, whereas Satish, Maya, Chhoti and Sandeep for the offence under Section 216 IPC. Kuldeep alias Kallu appellant was also charged under Section 25 of the Arms Act for carrying empty cartridges of .315 bore without any permit or licence. These appellants pleaded not guilty to the charges and claimed trial.
14. The prosecution examined 33 witnesses in support of its case. Vide reports Ex.PB and Ex.PB/1 of the FSL, the clothes of the deceased, a cut piece of the seat cover of the chair and the stains of earth lifted from the spot were found having stains of human blood. Criminal Appeal No.1068-DB of 2009 9
15. The accused were examined under Section 313 Cr.P.C. They denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. They did not lead any evidence in defence.
16. The learned trial Court found that recovery of empty cartridge is not covered within the definition of the term 'Arm' under the Arms Act and thus acquitted appellant Kuldeep of the Charge under Section 25 of the Arms Act. Kuldeep alias Kallu, Khushi Ram alilas Khushia and Dinesh were convicted of the charge under Section 302/34 read with Section 120-B IPC and awarded sentence to undergo imprisonment for life and to pay a fine of Rs.10,000/- each, in default of payment of fine to undergo simple imprisonment for a period of two months each. Sonu alias Vikas, Naresh alias Neshi, Parveen alias Dhan Singh convicted under Section 120-B read with Section 302/34 IPC were sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of two months each. The remaining appellants,namely Satish, Maya, Chhoti and Sandeep were convicted of the offence under Section 216 IPC and sentened to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.4,000/- each, in default of payment of fine to further undergo simple imprisonment for a period of one month each. Accused Rishi Pal, and Parveen alias Lala stood acquitted of the charges framed against them.
17. We have heard learned Counsel for the appellants, the learned State Counsel at length and have perused the record of the Criminal Appeal No.1068-DB of 2009 10 case quite carefully.
18. In view of the facts of the case and evidence adduced we will deal with the criminal appeals of different set of the accused separately.
Criminal Appeal of Kuldeep @ Kallu, Khushi Ram @ Khushia & Dinesh, bearing Nos. 117-DB and 132-DB of 2010 respectively.
19. Before dealing with rival contentions of the parties we would make a brief reference to the facts leading to arrest of appellants by the Police. The police party headed by PW28 Jai Pal Inspector of the CIA Staff, Panipat received an information on 31.10.2007 that Khushi Ram, Kuldeep, Dinesh appellants and one Ramesh armed with weapons were heading towards village Pathergarh. Naka (Roadblock) was held at Pathergarh by forming two police parties, one was headed by SI Zile Singh and the other by PW28. In the meanwhile these accused were found coming from the side of village Khurgan (UP) on motor-cycles. SI Zile Singh tried to stop them but they fired upon SI Zile Singh, who returned the fire to scare them away and the appellants were overpowered by the Police party.
20. SI Zile Singh PW30 and ASI Om Parkash PW16 a member of police party have supported this version. As per that version Kuldip appellant was driving motor cycle make "Hero Honda"
and other motor cycle make "discover" was being driven by one Ramesh and Kushi Ram appellant was the pillion rider. Ramesh aforesaid escaped under the cover of darkness. PW28 also reached there. The appellants along with motor-cycles and weapons were Criminal Appeal No.1068-DB of 2009 11 produced before PW28 Inspector Jai Pal. The above evidence basically relates to FIR No. 261 dated 31.10.2007 registered in the Police Station for the said encounter. During interrogation of the appellants in the said FIR, it was revealed that they were wanted as accused in the case in hand and therefore arrested in this case also. On search of Kuldip .315 bore pistol was recovered and by unloading the weapon one empty and one live cartridge of the same bore were recovered vide memo Ex.PJJ. Similarly recovery of weapon was made from Kushi Ram appellant also. The weapons and parcels of cartridges were produced by the prosecution during examination of PW30.
21. The other evidence collected by the prosecution is recovery of the empty cartridge of the weapon used in shooting down Dr.Ved Nasha.
22. PW28 Inspector Jai Pal stated that Kuldeep Singh appellant and the other two arrested alongwith him were taken out from the lock up for interrogation. The relevant part of the evidence comprises the statement of Kuldeep Singh appellant on the basis of which recovery of empty cartridge was made. The witness stated that this appellant made disclosure statement Ex.PW24/C that he could get recovered empty cartridge of .315 bore from near a tower in Hansi Town. Thereafter all these appellants were produced before Area Magistrate with an application for joining them identification parade which they refused. He further stated that Kuldeep Singh appellant got recovered empty cartridge, which was converted into a sealed parcel bearing seal impression "DS" and taken into Criminal Appeal No.1068-DB of 2009 12 possession vide memo Ex.PDD. The site plan of the place of recovery Ex.PDD/1 was also prepared. PW24 ASI Balwan Singh is also a witness to the disclosure statement Ex. PW24/C made by Kuldeep appellant.
23. PW26 HC Mahinder Singh was associated by PW28 when Kuldeep appellant got recovered empty cartage of .315 bore from the disclosed place i.e. near the tower in Hansi Town which was concealed under the ground. The cartridge was made into a parcel sealed with seal "DS" by PW28. The parcel containing empty cartridge Ex.P1 was produced during examination of this witness.
24. PW28 further stated that on return to the Police Station, he deposited the case property with MHC of the Police Station. The report of the FSL Ex.PA shows that the parcel containing empty cartridge was received in the laboratory on 16.11.2007 through PW11 Constable Manjit Singh No.1152 who tendered his affidavit Ex.PK to the effect that the sealed parcel containing one empty cartridge was entrusted to him by Ram Karan MHC of P.S.Samalkha on 16.11.2007. Affidavit of PW7 MHC Ram Karan is Ex. PH. The opinion of FSL in the report Ex.PA is that .315 bore fired cartridge has been fired from the country made pistol recovered in FIR No.261 dated 31.10.2007 and not from any other firearm even of the same make and bore/calibre because every firearm has its own individual characteristics.
25. The learned appellants' counsel contended and rightly so that it is difficult to connect the empty cartridge allegedly recovered at the instance of Kuldeep appellant with the present incident. The Criminal Appeal No.1068-DB of 2009 13 prosecution case is not that the bullet injury found on the dead body of the deceased could be compared with the empty cartridge recovered. In fact affidavit of MHC Ram Karan Ex. PH does not show that an empty cartridge of .315 bore was entrusted by him to Constable Manjit Kumar PW11. The affidavit of PW7 only refers to handing over of the sealed parcel of pistol to PW11 for being deposited with the FSL. Any how the investigation of the instant FIR was entrusted to PW28 on 28.10.2007 and the encounter ensued on 31.10.2007. The weapon had already been recovered from possession of the appellant on 31.10.2007 whereas the recovery of empty cartridge was made on 02.11.2007 i.e. two days later. The above evidence does not come to the aid of prosecution in support of the charge.
26. Learned Counsel for these appellants then vehemently contended that prosecution has not been able to establish their identity by leading cogent evidence. To appreciate the above contention it would be appropriate to refer to the testimony of PW8 Dev Raj Chopra the star witness of prosecution, who is running 'Balle Balle Restaurant' at G.T.Road Samalkha. The witness stated that on 10.9.2007 after closing the restaurant at about 10.30 pm, he was returning home. When PW8 reached near Balaji Market which falls just short of the clinic of Dr. Ved Nasha deceased, he saw Dinesh appellant on a motor cycle. Khushia and Kallu appellants armed with pistols came near Dinesh and they all fled from there on a motor cycle. These appellants came from the side of clinic of the doctor and went towards G.T. Road. According to PW8 all these appellants Criminal Appeal No.1068-DB of 2009 14 were already known to him as they had been coming to his restaurant for taking meals. On the same night PW8 came to know about murder of the doctor and people gathered there were saying that some motor-cyclists had killed him. The witness identified all the three appellants while appearing in the witness box.
27. It was contended that PW8 was introduced by the prosecution due to prior enmity. The names of the assailants were not mentioned in the statement of Ashish Kumar,complainant and had the version put forth by PW8 been true, the names of the suspects were bound to appear in the FIR itself as according to PW8 he immediately went to the shop of the deceased, where family members were present. He told them that he had seen the aforesaid persons fleeing on motor cycle towards G.T.Road and disclosed names of two of them, namely; Khushia and Kallu. According to PW8 the dead body of Dr. Ved Nasha was shifted to the hospital in his presence. He remained there for about 5/7 minutes and then went back home. The Police party had not come when the dead body of Dr. Nasha was shifted to the hospital.
28. The above facts coming in the cross-examination of PW8 cannot be attacked as an imaginary version. The incident in which Dr. Nasha was shot dead must be so shocking for the family, especially Ashish Kumar PW2, who was sitting at the clinic that he reported a natural version before the police about three assailants coming and running away after the incident, with a specific description that one of the assailants who was wearing black shirt and blue trousers armed with a weapon shot at his father. At that time his only concern must Criminal Appeal No.1068-DB of 2009 15 be to take his father to the hospital and save his life. It was only in the hospital that police recorded his statement on the basis of which FIR was registered. No question was put to PW2 nor to PW1 Dev Raj brother of the deceased, who also reached the spot as to whether PW8 met them in the clinic before the victim was shifted to the hospital. There is no reason to suspect the testimony of PW8 in identifying the assailants whose names were disclosed to the police in his statement under Section 161 Cr.P.C. recorded on the same day i.e. 11.09.2007 and these accused were arrested about one and half month later. The witness was making statement almost against gangsters and has shown courage to reveal the true story. The extensive cross-examination of PW8 on the identity of assailants is not shaky at all and stands the test of scrutiny.
29. The motive attributed to PW8 is in respect of some earlier criminal case in which Rishi Pal was the accused. Rishi Pal aforesaid has been acquitted in this case. If the witness was to name the assailants falsely due to such enmity, he would have named Rishi Pal among the assailants and not the appellants only. The relevant portion of cross-examination of PW8 on the basis of which motive has been attributed to him to implicate the accused falsely is reproduced thus :
"It is correct that a case was registered against accused Rishi on the complaint of my son under section 307 IPC and the case was pending at Sonepat. Again said the case remained pending at two places. Two accused (juveniles) faced trial at Sonepat and rest of the accused were tried at Criminal Appeal No.1068-DB of 2009 16 Panipat. It is correct that all the accused were acquitted in that case. Volunteered that the matter was patched up. It is correct that we had resiled from our statements which were made before the police. It is correct that I had also registered a case against accused Rishi in the year 2005. Volunteered accused Rishi had demanded ransom of Rs.4,00,000/- from me. So far my evidence has not been recorded in the said case. Volunteered that when the case was fixed for evidence. on 13.4.06, accused Rishi sent three assailants to shoot me down. It is correct I was a witness to that case. It is correct that I was a police witness in three cases against accused Rishi and others."
There is, thus, no reason to say that PW8 would name these three appellants falsely, as they are not stated to be accused persons in the previous case in which PW8 was a witness. The cross- examination of PW8 was also not diverted to the fact that the place where he saw the culprits running away does not fall in his way to the restaurant. PW8 stated that he usually closes his restaurant at 10 pm. The clinic of Dr. Nasha is about half a kilometer from the residence of the witness.
30. There is a minor contradiction with the statement made by PW8 under Section 161 Cr.P.C. Ex.D1 where the name of third culprit was not mentioned but the witness has distinctly identified these three persons who ran away on the motor cycle and two of them were armed with pistols. In the statement Ex D1 with which the witness was confronted, it is mentioned that he already knew the Criminal Appeal No.1068-DB of 2009 17 names of Kuldeep and Khusia who were calling the name of third person as Dinesh. The identity of that person as Dinesh has been proved by PW8 in the witness box. The prosecution has, thus, established the identity of appellants as assailants who fled from near the shop of the deceased on a motor cycle armed with weapons.
31. Learned Counsel for appellants further contended that it cannot be possibly inferred, that the persons who fled on the motor cycle had come from clinic of the doctor. There is no force in the above contention as PW8 immediately went to the spot from where he heard the noise of people crying. He reached the place of occurrence at 11 pm. In fact plea of the appellants is of simple denial and they have not explained the last seen theory of being present near the site soon after the occurrence armed with weapons. The statement of PW8 is in consonance with the statement Ex.PD of Ashish Kumar (PW2) on the basis of which FIR was registered, though PW2 could not identify the assailants while appearing in the witness box. PW2 on heariang noise of firearm came out and saw one person running from the clinic. PW2 was declared hostile to the prosecution and confronted with the material portions of the statement made by him to the police particularly that he could identify the culprits if shown to him. We are otherwise of the view that the version promptly recorded by PW2 Ashish Kumar to the police, could not be concocted as the assailants were not even named. Further fear must be looming large in the mind of PW2 when he appeared to make a statement in the Court.
Criminal Appeal No.1068-DB of 2009 18
32. Dr. Dev Raj is the real brother of deceased. He was also medical practitioner and running his clinic at Railway Road Samalkha. PW1 was at his clinic at about 10 pm when he received the information of his brother having been shot at by some assailants. The witness stated that the injured was taken to the hospital where his brother was declared brought dead.
33. The above evidence on the identification of assailants who fled from near the place of occurrence cannot possibility be challenged by appellants on the premise that PW8 was not associated in the test identification of the appellants because the investigation agency took necessary precaution. These appellants were arrested in a police encounter on 31.10.2007 and on the next day i.e. 1.11.2007, they were produced before the Judicial Magistrate in muffled faces and an application Ex.PKK was made before the Area Magistrate for joining them in the test identification parade. Learned Judicial Magistrate passed the order Ex.PLL dated 1.11.2007 that the appellants recorded their statements that they do not want to be associated in the test identification parade. Therefore, the application of the prosecution was disposed of as observed by the Magistrate in Ex.PLL. It is also not a plea of the appellants that they were kept illegally detained for even a single day for expressing apprehension that they had been shown to the prosecution witnesses before being produced in the Court; on 01.11.2007.
34. With these appellants refusing to join test identification parade, adverse inference against them can be drawn thereby putting strength to the testimony of PW8 who identified them to be Criminal Appeal No.1068-DB of 2009 19 the culprits fleeing from the spot on the motor bike.
35. The other important circumstance is that the appellants were named as assailants in the FIR on 11.9.2007 and the Investigating Officers on different times were making all efforts to apprehend them by raiding their houses but they were absconding for more than 1½ month and ultimately arrested on 31.10.2007. This conduct of the appellants absconding from arms of law for such a long period after they were named as assailants would also be an important circumstance.
36. From the above discussion, we find that the prosecution has successfully proved the following circumstances by leading cogent and convincing evidence:
(i) the appellants were last seen near the spot soon after the occurrence, and fled from there on a motor bike.
(ii) the assailants were armed with weapons while running away;
(iii) the appellants have not been able to explain the above circumstance of their presence near the spot rather their case is of simple denial; and
(iv) that the appellants remained absent for about one and half month after they were named in the instant FIR;
From the above circumstantial evidence, the inference of guilt of the appellants can be justified as these are incompatible with their innocence or guilt of any other person. The circumstances as discussed above are proved beyond reasonable doubt and have Criminal Appeal No.1068-DB of 2009 20 been shown to be closely connected with the principal fact i.e. the murder of Ved Parkash. The cumulative effect of the above circumstances definitely negative the innocence of appellants and bring the offence home beyond any reasonable doubt. This is a well settled principle on the subject which has also been elaborately summed up by the Hon'ble Supreme Court in Kusum Ankama Rao V. State of Andhra Pradesh (2008)13 SCC 257. We thus find that the learned trial Court rightly held the appellants liable for the offence under Section 302 read with Section 34 but their conviction under Section 120-B IPC cannot be sustained in view of the discussion in connected criminal appeals. To this extent, the conviction is to be altered to an offence under Section 302 read with Section 34 instead of Section 302/34 read with Section 120-B IPC. Criminal Appeals No.3049-SB and 3087-SB of 2009
37. The appellants in these criminal appeals have been convicted of the charge of providing shelter to Khushi Ram @ Khusia and Kuldeep @ Kallu wanted as accused in this FIR of murder of Dr. Ved Nasha.
38. Police Party headed by PW 32 SI Pawan Kumar Incharge of CIA Staff Samalkha raided the house of Khushi Ram accused on 19.9.2007, on receiving an information that the accused was present in the house with his mother. PW32 deputed EHC Jai Ram and PW12 HC Takdir Singh to reach the house of accused Khushi Ram. These head Constables heard the conversation between Khushi Ram accused, Maya, his mother, and Satish the brother. SI Pawan Kumar was called and on hearing this, Kushi Ram Criminal Appeal No.1068-DB of 2009 21 fled from there by climbing on the roof of the house. Appellant Maya and Satish were arrested under Section 216 IPC. PW32 SI Pawan Kumar and PW12 EHC Takdir Singh have been examined in support of this version.
39. Similar is the evidence against Chhoti, mother of Kuldeep Singh. PW32 stated that they raided the shop of Kuldeep alias Kallu accused on information of Satish Kumar appellant. HC Jai Ram and HC Takdir PW12 were similarly deputed and it was found that Kuldeep was talking with his mother Chhoti. Kuldeep accused ran away and Chhoti appellant was arrested.
40. No independent witness was joined by the police party while raiding the houses. We are of the view that evidence should have been lead that the appellants were aware of the fact that their relatives were wanted as accused in this case. Anyhow there could be some force in the prosecution story against these appellants, in case the wanted accused were arrested in the company of the appellants. Simply stating that both the accused on hearing the noise or on coming to know of the arrival of the police party escaped, raises suspicion against involvement of the appellants. PW12 stated that they overheard Khushi Ram telling his brother and mother that he wanted Rs.10,000/- from his family members but was paid only Rs.2,000/-. What was the nature of conversation between Chhoti with her son Kuldeep has not been brought forth in evidence.
41. The evidence against Sandeep appellant who is the brother of Kuldeep @ Kallu accused comes from ASI Lal Singh PW27 and HC Jatinder Kumar PW23. On 25.9.2007 PW27 received Criminal Appeal No.1068-DB of 2009 22 information that Kuldeep accused wanted in this FIR was present at his shop. The place was raided. Sandeep appellant warned his brother Kuldeep about arrival of police who ran away from there. Sandeep appellant was over powered and arrested by PW27. PW23 HC Jatinder Kumar has also been examined to support this version. PW27 stated that they reached the spot at about 8.00 P.M. No independent witness was associated by this police party also.
42. The above evidence comprising only police of officials does not inspire confident. The contention on behalf of these appellants, that they were arrested just to put pressure on the main accused to surrender cannot be ruled out. The charge under Section 216 IPC against the appellants is thus not proved beyond doubt and their appeals deserve to be accepted.
Criminal appeals No.1068-DB, 1102-DB of 2009 and 29-DB of 2010:
43. These appellants have been convicted of the charge of criminal conspiracy to commit murder of Dr. Ved Nasha. The story of criminal conspiracy was revealed by Sat Pal alias Satta PW4. The witness disclosed to the police that on 20.08.2007 he was present out side the Court of ACJM Sonepat, where Rishi accused (since acquitted) was to be produced. PW4 heard conversation between appellant Sonu @ Vikas, Parveen @ Dhan Singh, Naresh Kumar @ Nesha, Parveen @ Lala (since acquitted), Khusia, Kuldeep @ Kallu,Rishi ( since acquitted) and an unknown person. But PW4 turned hostile to the prosecution and despite his attention being drawn to the relevant portion of his statement at Ex.PE nothing Criminal Appeal No.1068-DB of 2009 23 could be elicited in favour of the State.
44. The rest of evidence against these appellants is based on the call details of the mobile phones used by them, particularly in reference to the calls exchanged by them, with Kuldeep and Khusia accused on or about the date of incident.
45. Investigating Agency collected evidence about the purchase of mobile phone of Khusia by PW14 Parveen son of Mahender but the witness did not support the prosecution story and nothing could come in favour of the prosecution despite his cross-
examination and being confronted with the statement Ex. PM made before the police.
46. PW33 DSP Randhir Singh was then posted as Inspector/SHO Police Station Samalkha on 15.09.2007 and during investigation of this FIR he arrested Sonu @ Vikas appellant. On interrogation of Sonu appellant on 18.09.2007, he made disclosure statement Ex. PW33/C signed by him that he has kept concealed mobile phone No. 9896536084 and led the police party to the recovery thereof from a vacant plot of G.A. College, Chulkana Road, Samalkha. The mobile hand set Ex. PW33/D was produced during examination of PW33 and according to him this mobile phone was taken into possession vide memo Ex. PW33/E and rough sketch of recovery Ex. PW33/F was also prepared. From the document Ex. P9 collected by the Investigating Agency, this mobile phone is in the name of Suresh Kumar father of this appellant. The fact that this mobile phone is owned by father of the appellant is admitted during cross-examination of PW33. The suggestion put to PW33 was that Criminal Appeal No.1068-DB of 2009 24 the mobile phone was used by Suresh Kumar father of the appellant Sonu who was a Pandit and performing religious ceremonies. This story of recovery of mobile phone of Sonu appellant brought forth by PW33 has not been corroborated. The attesting witness to the disclosure statement as well as recovery memo is Ashok - a private witness and SI Subhash Chand then posted as Police Station Samalkha. It is rather stated by PW33 that no private witness was joined at the time of interrogation of Sonu appellant nor any one was associated while effecting recovery. PW33 had also not called Chowkidar of the college to join the investigation. SI Subash Chander who appeared as PW29 did not state anything on the subject. The above version of prosecution has, thus, become doubtful.
47. Evidence has also been led to prove recovery of mobile phone from Parveen @ Dhan Singh appellant. This recovery was made by policy party headed by SI Ishwar Singh PW 25, who was then posted as ASI in the CIA Staff on 23.09.2007. He associated HC Ranbir Singh (PW21) and constable Sunil Kumar alongwith him. It is stated by PW25 that Parveen @ Dhan Singh appellant on interrogation while in custody made a disclosure statement that he has kept concealed mobile phone Nokia-1100 near Chulkana Railway crossing towards eastern side behind Government quarters. His statement Ex. PW21/C was reduced into writing. This appellant led the police party to the recovery of mobile phone from the disclosed place and memo of recovery Ex. PW21/D was prepared. Rough site plan of place of recovery Ex. PW25/A was also prepared. He is corroborated by ASI Ranbir Singh PW21. The investigating Criminal Appeal No.1068-DB of 2009 25 officer was extensively cross-examined and withstood the test of scrutiny both on the disclosure statement made by the accused and consequent recovery.
48. Ex.P9, the official communication from the service provider also proves that mobile number 9996264060 was issued in the name of Parveen S/o Roshan Lal appellant. Constable Pawan Kumar PW10 was posted in the Computer Cell of SP Office Panipat and produced this document Ex. P9 before Inspector Randhir Singh. This document was handed over to the Investigating Officer by him on 26.09.2007. The correctness of this record is not attacked in the cross-examination of PW9.
49. The other relevant evidence is that mobile phone No. 9813517693 was in the name of Kuldeep @ Kallu accused. PW10 C. Pawan Kumar also produced ID proof of mobile phone No. 9813517693 issued in the name of Kuldeep son of Gopi Ram co- accused. The application filed by Kuldeep co-accused for the issuance of mobile phone is Ex. PJ/3 and the document which was submitted as identity proof attached with this application is Ex. PJ/4, ration card of Kuldeep.
50. The evidence to establish the conspiracy could come from call connections of mobile phones of Kuldeep @ Kallu and Khushia co-accused with the alleged conspirators. An attempt was made by the prosecution to show that mobile numbers 9812149644 and 9813470641 were used by Khushia co-accused but it has been unable to connect these mobile numbers with Khushia co-accused as no recovery of these mobile phones was made and the witness cited Criminal Appeal No.1068-DB of 2009 26 to prove this aspect turned hostile to the prosecution. It is also not proved that these mobile numbers were released in the name of Khusia. The document Ex. PJ shows that mobile No. 9812149644 was issued in the name of one Shish Pal son of Zile Singh. There is no record to show call connections of mobile numbers recovered from Parveen @ Dhan Singh and Sonu @ Vikas with the mobile number of Kuldeep @ Kallu. The call connections of mobile numbers of Sonu and Parveen @ Dhan Singh with the phone members allegedly of Khusia or inter se the two numbers would not be helpful to the prosecution. There was attempt to suggest that Kuldeep @ Kallu co-accused made frequent phone calls to Sandeep and Khusia co-accused on the day of occurrence and on the following day but there is no proof that Sandeep co-accused had any connection with mobile No. 9991255791 nor this phone was recovered. There is also no record of ownership of phone in the name of Sandeep.
51. The prosecution story was also that mobile phone number 9991526269 was used by Naresh Kumar @ Neshi but as per record said phone was in the name of Ravinder son of Ram Karan. The recovery of this mobile phone has also not been made.
52. The evidence of prosecution about some of the appellants and their co-accused making disclosure about phone numbers does not require further discussion being inadmissible, there being no consequential recovery.
53. It would be relevant to refer to cross-examination of PW33, who partly investigated the case. PW33 stated in the cross- examination that the call data obtained by Investigating agency in Criminal Appeal No.1068-DB of 2009 27 this case cannot provide any detail of the conversion taking place with the subscriber of these mobile phones. It can also not be ascertained which particular number was used by which particular person.
54. We feel that collecting call details of mobile phone numbers on interrogation of suspects can lead the police party to the detection of the real culprits involved in a crime but that by itself is not a substantive evidence to connect the appellants inter-se or with the co-accused convicted of the main incident of murder, for bringing evidence of conspiracy.
55. The prosecution was obliged to bring further evidence than what it has been collected, like mobile phone towers where these person may be located at the time of making the questioned calls between all these mobile numbers.
56. From the evidence produced by the prosecution, we find it difficult to accept the involvement of these appellants for this crime. Their conviction for the offence of murder read with Section 120B IPC is not established beyond reasonable doubt. These accused are to be granted the benefit of doubt.
57. Before parting with the judgment we are constrained not to endorse the part of the sentence awarded by the trial Court in default of payment of fine as simple imprisonment for such a serious crime. The nature of the sentence ,therefore, in default of payment of fine has,to be accordingly altered as permissible under Section 386 of the Code of Criminal Procedure.
CONCLUSIONS:
Criminal Appeal No.1068-DB of 2009 28
58. From the above discussion, we find that the judgment dated 18.11.2009 rendered by the trial Court convicting Kuldeep alias Kallu, Khushi Ram alias Khushia and Dinesh appellants under Section 302 read with Section 34 IPC is based on the correct appreciation of evidence and law and the charge against them has been rightly held to be proved and those findings are affirmed. Accordingly, Criminal Appeal No.117-DB of 2010 filed by Kuldeep alias Kallu and Khushi Ram alias Khushia, appellants and Criminal Appeal No.132-DB of 2010 filed by Dinesh, appellant are dismissed except with the modification altering conviction from offence under Section 302/34 read with Section 120-B to offence under Section 302 read with Section 34 IPC and that the imprisonment awarded in default of payment of fine shall be rigorous instead of simple.
59. Criminal Appeals No. 3087-SB and 3049-SB of 2009 filed by Satish, Maya, Chhoti and Sandeep are allowed setting aside the finding in respect of their conviction under Section 216 IPC. The Criminal appeals No. 1068-DB and 1102-DB of 2009, and 29-DB of 2010 filed by Sonu alias Vikas, Naresh alias Neshi and Parveen alias Dhan Singh are also allowed setting aside finding recorded by the trial Court for their conviction under Sections 120-B read with Section 302/34 IPC and they are acquitted of the said charge. Since Sonu appellant in Criminal Appeal No.1068-DB of 2009 and Parveen alias Dhan Singh appellant in Criminal Appeal No.29-DB of 2010 are in custody, they be set at liberty forthwith if not required in any other case. Similarly Naresh Kumar appellant in Criminal Appeal No.1102- DB of 2009, Chhoti and Sandeep in Criminal Appeal No.3049-SB of Criminal Appeal No.1068-DB of 2009 29 2009, and Maya and Satish appellants in Criminal Appeal No.3087- SB of 2009 are on bail, their bail bonds stand released.
( SURYA KANT ) ( R.P. NAGRATH )
JUDGE JUDGE
April 08, 2013