Punjab-Haryana High Court
Dheeraj vs State Of Haryana on 13 November, 2014
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CRA No.753-DB-2002.
Date of decision:13.11.2014.
Dheeraj Singh
.....Appellant
Versus
The State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE DARSHAN SINGH
1. Whether Reporters of the local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest? Present: Mr.Deepinder Singh, Advocate for appellant.
Mr.H.S. Sran, Addl. A.G. Haryana for respondent-State. DARSHAN SINGH J.
The present appeal has been preferred by accused-appellant Dheeraj Singh against the judgment dated 06.09.2002 passed by the then learned Sessions Judge, Gurgaon vide which accused-appellant was held guilty and convicted for the offence punishable under Section 302 of Indian Penal Code, 1860 ('IPC' for short) read with Section 25 of the Arms Act, 1959 and the order of quantum of sentence dated 11.09.2002, vide which the accused-appellant was sentenced to undergo SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -2- imprisonment for life and to pay Rs.2000/- as fine for the offence punishable under Section 302 IPC. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of three months. He was also sentenced to undergo rigorous imprisonment for one year under Section 25 of the Arms Act, 1959.
2. The brief facts giving rise to this prosecution are that on 04.09.2000 PW-13 SI Murari Lal on receipt of medical ruqqa Ex.PO, went to General Hospital Gurgaon and recorded the statement of Jai Singh Chowkidar, Haryana Roadways, Gurgaon Ex.PA, wherein he stated that on 03.09.2000, his duty was at Bus Stand Gurgaon as Chowkidar. He was present outside the bus stand. At about 11:30 p.m., a rickshaw entered the bus stand towards the exit gate. A person of young age wearing Pajama and shirt and of medium height was sitting on the rickshaw, which was being plied by Ramjan, who was known to him. The person who was sitting on the rickshaw took out a pistol and all of a sudden fired a short which hit on the neck of Ramjan, the rickshaw- puller. The said person after firing alighted from the rickshaw and ran towards city through Tonga Wali lane. Complainant Jai Singh raised alarm 'Pakro-Pakro'. In the meantime, Head Constable Shree Chand, Constable Yahaha Khan and Billu Balmiki arrived at the spot. Ramjan the rickshaw puller on receipt of the firm arm injury fell down on the ground. The complainant along with Yahaha Khan put him in the rickshaw. At that time he was gasping. Billu Balmiki plied the rickshaw and they proceeded towards the hospital. However, Ramjan died on the SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -3- way and was taken to the hospital. On the basis of statement Ex.PP made by Jai Singh, formal FIR Ex.PP/2 was registered at Police Station City Gurgaon and investigation was started. The Investigating Officer carried out the inquest proceeding. The post-motrem examination was got conducted on the dead body vide request Ex.PB. The rickshaw was taken into possession vide memo Ex.PH. The Investigating Officer visited the spot and prepared the rough site plan of the place of occurrence Ex.PQ. He lifted the blood stained earth from the spot vide memo Ex.PJ in a sealed parcel. The belongings of the deceased were also taken into possession vide memo Ex.PM.
3. On 10.09.2000 accused-appellant Dheeraj was arrested. On his search a country-made .315 bore pistol was recovered. On interrogation he suffered disclosure statement Ex.PJ/1. In pursuance of his disclosure statement, he pointed out the place of occurrence vide memo Ex.PL and on completion of the investigation, the report under Section 173 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) was presented in the Court. The case was committed to the Court of Sessions for trial. The accused-appellant was charge-sheeted for the offence punishable under Section 302 IPC and 25 of the Arms Act, 1959 to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution examined as many as 13 witnesses.
5. After the close of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -4- innocence and false implication. He denied having made any disclosure statement. However, he led no evidence in his defence.
6. After appreciating the material on record and contentions raised by the parties the accused-appellant was held guilty and convicted for the offence punishable under Section 302 IPC and 25 of the Arms Act and was awarded the sentence as mentioned in the upper part of the judgment.
7. Aggrieved from the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred by the accused- appellant.
8. We have heard Shri Deepinder Singh, Advocate learned counsel for the appellant, Shri H.S. Sran, learned Additional Advocate General for the State of Haryana and have meticulously examined the recorded of the case.
9. Learned counsel for the appellant contended that the name of the accused-appellant is not mentioned in the FIR. The sole eye- witness of the occurrence namely Jai Singh has not been examined. The entire case of the prosecution is based on the statement of PW9 Head Constable Shree Chand and PW10 Constable Yahaha Khan. They are not the eye-witnesses of the occurrence. It is alleged that they had seen the assailant while running. He contended that the identity of the assailant is not established at all. PW9 Head Constable Shree Chand and PW10 Constable Yahaha Khan have seen a person running at about 11:30 p.m. in the night. It is not possible that they could have identified the running SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -5- person in the dark. He further contended that the prosecution has tried to improve its case by introducing the version that the accused-appellant was earlier known to the aforesaid witnesses but from the cross- examination of these witnesses it is established that this version has been introduced only to implicate the accused. PW10 Constable Yahaha Khan has made a material improvement in his statement as to how he came to know about the identity of the appellant.
10. He further contended that it is alleged that .315 bore country-made pistol was recovered from the possession of the accused but as per the report of the FSL the pistol was .303 bore. He further contended that it comes out from the statement of PW13 SI Murari Lal the Investigating Officer of the case that the statement of Head Constable Shree Chand and Constable Yahaha Khan were recorded after about 18 hours of the occurrence when for the first time the name of the accused- appellant was introduced. If PW9 and PW10 were earlier known to the accused-appellant, the name of the accused-appellant could have been revealed earlier. He further contended that no identification parade of the accused has been held after his arrest. Both PW9 Head constable Shree Chand and PW10 Constable Yahaha Khan have not even specifically identified the appellant in the Court while making the statements. There is also no motive for the accused to kill Ramjan the rickshaw-puller. Thus he pleaded that the appellant has been falsely implicated in this case only to solve a blind murder.
11. On the other hand learned Additional Advocate General SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -6- for the State of Haryana pleaded that complainant Jai Singh could not be examined as he was won-over by the accused. PW9 HC Shree Chand was earlier known to the accused as he was a vagabond and identified by him while he was running away from the spot after commission of the crime. The appellant was also identified by PW10 Yahaha Khan as he had also seen him while fleeing away from the spot after the commission of the crime. The ocular evidence is also corroborated from the medical evidence as the deceased has suffered the fire arm injury. The country- made pistol has been recovered from the possession of the accused. As per the report of the FSL, the fire has been shot from this pistol. Thus he contended that the appellant has been rightly convicted by the learned trial Court.
12. We have given our thoughtful consideration to the aforesaid contentions.
13. As per the basic story of the prosecution, complainant Jai Singh the Chowkidar Bus Stand Gurgaon was the eye witness of the occurrence but he had not been examined by the prosecution and was given up by the learned Public Prosecutor vide statement dated 28.02.2001 as having been won over by the accused. In the absence of the testimony of Jai Singh the sole eye witness of the occurrence the case of the prosecution is based on the circumstantial evidence.
14. The Hon'ble Supreme Court in case Krishan Vs. State (2009) 3 Supreme Court cases (Crl.) 1029 after taking into consideration large number of its earlier judgments laid down the following golden SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -7- principles for the proof of the case on the basis of circumstantial evidence:
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
3) the circumstances, taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4) the circumstantial evidence in order to sustain conviction must be completed and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
15. Similarly in Sharad Birdhichand Sasrda Vs. State of Maharashtra 1984 Supreme Court Cases (Criminal) 487 the Hon'ble Supreme Court has also reiterated the principles of law to prove the cases based on circumstantial evidence as under:
1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -8-
2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3) the circumstances should be of a conclusive nature and tendency;
4) they should exclude every possible hypothesis except the one to be proved; and
5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
16. It is further the settled principle of law that there should be a complete chain of circumstances to connect the accused with commission of offence. A single circumstance is not sufficient to establish the guilt. The prosecution in this case is relying upon the following circumstances:
(i) the accused was seen running away from the spot by PW9 Head Constable Shree Chand and PW10 Constable Yahaha Khan after the commission of the crime.
(ii) recovery of the weapon of offence and
(iii) the medical evidence.
17. In order to establish the first circumstance it was SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -9- incumbent upon the prosecution to establish the identity of the person seen by PW9 and PW10 running away from the spot meaning thereby the prosecution was required to establish that it was the appellant who was seen running away after the commission of the offence by PW9 Shree Chand and PW10 Constable Yahaha Khan. But in our opinion the prosecution has failed in this regard. As already mentioned the name of the accused-appellant does not figure in the statement of Jai Singh Ex.PP on the basis of which the FIR has been registered. Complainant Jai Singh the Chowkidar Bus Stand Gurgaon has also not been examined. PW9 Head Constable Shree Chand and PW10 Yahaha Khan admittedly are not the witnesses of occurrence. They had not seen the accused firing shot at the deceased. As per the prosecution version, they were only attracted towards the spot on hearing the alarm raised by the complainant Jai Singh and thereafter they had seen the assailant running away though Tonga Wali lain.
18. In order to fix the identity of the appellant, it has been alleged that he was earlier known to PW9 Head Constable Shree Chand and PW10 Yahaha Khan but on appraisal of the evidence brought on record this version of the prosecution is not substantiated. PW9 Head Constable Shree Chand has not been able to tell as to how he was earlier acquainted with the accused-appellant. In his examination-in-chief he simply stated that Dhreeraj was known to him earlier as he is vagabond. In the cross-examination he stated that he never challaned the accused under Section 109 of Code of Criminal Procedure, 1973. He further SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -10- deposed that he had never visited the house of the accused. Accused had also not come to his house at any point of time. Thus PW9 Head Constable Shree Chand had not come into contact with the assailant. Thus it is not believable that he was earlier known to the accused. Head Constable Shree Chand had stated that he and Yahaha Khan chased Dheeraj but he managed to escape taking benefit of darkness. If PW9 Shree Chand was earlier known to the appellant and had seen him running from the spot, he must have told his identity to PW10 Constable Yahaha Khan, who was also accompanying him while chasing the appellant.
19. Ex.DA is the copy of statement of Constable Yahaha Khan recorded under Section 161 Cr.P.C. by the Investigating Officer and even in that statement it has been mentioned that accused was earlier known to Constable Yahaha Khan. As per the prosecution version PW10 Constable Yahaha Khan has accompanied complainant Jai Singh and the deceased to the hospital and in that case he could have easily inform the identify of the assailant to complainant Jai Singh. PW13 SI Murari Lal has categorically deposed in the cross examination that when he went to the hospital, Constable Yahaha Khan had met him. So Constable Yahaha Khan could also have disclosed the identity of the assailant to the Investigating Officer, but it is very surprising that in spite of the fact the accused-appellant was allegedly earlier known to PW9 Head Constable Shree Chand and PW10 Constable Yahaha Khan the name of the appellant does not figure in the statement of complainant Jai Singh Ex.PP SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -11- on the basis of which FIR was registered.
20. PW10 Constable Yahaha Khan while appearing in the witness box has introduced a new story. He stated that the name of the person who was running was told to him by Jai Singh whereas in his statement Ex.DA recorded under Section 161 Cr.P.C. he has stated that he was earlier known to the accused. In the cross-examination he was confronted with the improvement made by him in his statement. He denied in the cross-examination that he had told to the police that Dheeraj was known to him earlier so PW10 Constable Yahaha Khan has himself disowned the prosecution version that accused-appellant was earlier known to PW10 Yahaha Khan. His improved version that the name of the accused was disclosed to him by Jai Singh also has no legs to stand. If that would have been so Jai Singh must have mentioned the name of the assailant/accused in his statement Ex.PP on the basis of which the FIR has been registered or in the inquest report. The non-mentioning of the name of the accused-appellant by Jai Singh in his statement to the police and even during the inquest proceeding clearly shows that he was not known to the accused-appellant and was not having knowledge about the particulars/identity of the assailant, so there was no question of his disclosing, the identity of the assailant to PW10 Yahaha Khan.
21. As per the statement of PW13 SI Murari Lal, the Investigating Officer of the case he recorded the statement of Constable Yahaha Khan at bus stand at about 06:00 p.m. on 04.09.2000. He further deposed that Constable Yahaha Khan remained with him in the hospital SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -12- for 15 minutes. PW9 Head Constable Shree Chand had stated that SI Murari Lal visited the place of occurrence on the next day at 05:00 p.m. throughout the night he remained at bus stand. Meaning thereby his statement has been recorded by SI Murari Lal the Investigating Officer after 05:00 p.m. on 04.09.2000. PW9 HC Shree Chand categorically stated that he has mentioned the name of the running person as Dheeraj for the first time at the time of recording his statement under Section 161 Cr.P.C. PW13 SI Murari Lal the Investigating Officer of the case has also admitted in the cross-examination that in the inquest the name of the accused is not mentioned. He further admitted that he prepared the rough site plan at about 04:00 p.m. He further admitted that in the site plan the name of the accused is not mentioned and further stated that by that time the name of the accused was not revealed so the name of the accused was only incorporated for the first time in the statement of PW9 Head Constable Shree Chand and PW10 Constable Yahaha Khan after about 18 hours of the occurrence even though the accused is alleged to be earlier known to the witnesses. This inordinate delay in mentioning the name of the accused creates a serious doubt about veracity of the prosecution case.
22. As per the admitted version of the prosecution on hearing the alarm raised by complainant Jai Singh PW9 Head Constable Shree Chand and PW10 Constable Yahaha Khan were attracted. They had seen a person running from the place of occurrence in the street known as Tonga Wali Gali. PW9 Head Constable Shree Chand has stated that he SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -13- and Constable Yahaha Khan followed Dheeraj but he managed to escape taking the benefit of darkness. The occurrence is alleged to have taken place at about 11:30 p.m. in the month of September. The darkness at the time of occurrence is admitted by the prosecution witness. PW10 Constable Yahaha Khan has stated that Head Constable Shree Chand and he came out of the building simultaneously on hearing the gun shot fired. He further deposed that injured was lying at a distance of about 10 yards from the gate of building from which they came out. He further deposed that Tonga Wala Gali is at a distance of 250 yards from the place of occurrence. As per scaled site plan Ex.PE both the witnesses were at a distance of 105 feet from the place where the assailant was present. It is highly impossible that a person running from the spot in the night at about 11:30 p.m. that is in the dark could be identified by the witnesses from a distance of 105 feet. So the version of the prosecution that PW9 Head Constable Shree Chand and PW10 Yahaha Khan had seen and identified the assailant is highly improbable and is unworthy of credence. It appears that this version has only been introduced to strengthen the prosecution case and to create the evidence.
23. Thus in view of the aforesaid facts and circumstances the prosecution has not been able to establish that PW9 Head Constable Shree Chand and PW10 Constable Yahaha Khan were earlier known to the accused-appellant and they were in a position to see the assailant who was running at the night time after committing the crime. So this incriminating circumstance relied upon by the prosecution is not SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -14- established.
24. The second circumstance relied upon by the prosecution is about the recovery of weapon of offence. As per the prosecution version on 10.9.2000 accused-appellant was apprehended by SI Murari Lal in presence of PW9 Head Constable Shree Chand and one Head Constable Devender Singh. At the time of his arrest on his search a country-made .315 bore pistol was recovered which is alleged to be the weapon of offence.
25. The recovery memo Ex.PK/1 also depicts that .315 bore pistol was recovered from the accused but the case of the prosecution is contradicted by the report of the FSL Ex.PS, which shows that the country-made pistol which was sent to Forensic Science Laboratory Haryana, Madhuban was .303 bore. SI Murari Lal was a Police Officer having sufficient experience. He might be conversant with the description of fire arms. In the seizure memo Ex.PK/1 he has described that country-made pistol was .315 bore but in the report of the FSL the pistol sent to the FSL was .303 bore. This material contradiction even renders the recovery of weapon of offence doubtful. Moreover, no cartridge has been recovered from the spot by the Investigating Officer. In the absence of the cartridge it is not established that this very pistol was used to fire at the deceased. In the report of the FSL simply this fact has been mentioned that country-made pistol had been fired through but it has been further categorically mentioned that however, scientifically the time of its last fire cannot be given. In view of this report of FSL it SUNIL YADAV 2014.11.20 12:49 I attest to the accuracy and authenticity of this document Chandigarh CRA-753-DB-2002 -15- cannot be stated that the pistol allegedly recovered from the possession of accused was the weapon of offence. Moreover, as already mentioned even the recovery of the pistol from the possession of the accused is not established.
26. The third circumstance is medical evidence. No doubt as per the medical evidence the deceased has suffered the fire arm injury but in the absence of the identity of the assailant the presence of the fire arm injury on the person of deceased cannot establish the case of the prosecution.
27. Thus keeping in view our aforesaid discussion the prosecution has not been able to establish its case beyond shadow of reasonable doubt against the appellant and he deserves the benefit of doubt.
28. Consequently the present appeal is allowed. The impugned judgment of conviction dated 06.09.2000 and order of sentence dated 11.09.2002 are hereby set aside. Accused-appellant stands acquitted of the charges as a result of benefit of doubt.
( S.S. SARON )
JUDGE
13.11.2014 ( DARSHAN SINGH )
sunil yadav JUDGE
SUNIL YADAV
2014.11.20 12:49
I attest to the accuracy and
authenticity of this document
Chandigarh