Punjab-Haryana High Court
Balwan Singh @ Bablu And Anr vs State Of Haryana on 29 November, 2014
Author: T.P.S. Mann
Bench: T.P.S. Mann, Shekher Dhawan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal D-867-DB of 2010
Date of Decision : November 29, 2014
Balwan Singh @ Bablu and another
.....Appellants
VERSUS
State of Haryana
.....Respondent
CORAM: HON'BLE MR. JUSTICE T.P.S. MANN
HON'BLE MR. JUSTICE DR. SHEKHER DHAWAN
Present : Mr. J.S.Bedi, Senior Advocate with
Ms. Diya Sodhi, Advocate
for appellant-Balwan Singh @ Bablu.
Mr. Vinod Ghai, Senior Advocate with
Mr. Simrandeep Singh Sandhu, Advocate
for appellant-Gopal.
Mr. Randhir Singh, Additional A.G. Haryana.
T.P.S. MANN, J.
Balwan Singh @ Bablu and Gopal, the two convicts, have filed the present appeal for challenging the judgment dated 28.7.2010 and order dated 6.8.2010 passed by the Additional Sessions Judge, Rohtak whereby Balwan Singh @ Bablu was convicted under Sections 302/34 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two years. He was also convicted under AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -2- Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2,000/- and in default of payment of fine, to further undergo simple imprisonment for six months. Gopal was convicted under Sections 302/34 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two years. Both the sentences of Balwan Singh @ Bablu were ordered to run concurrently.
The prosecution case, in nutshell is that on 8.11.2007 at 2.15 a.m., complainant-Sanjay Saini got recorded his statement to SI Lekh Ram in PGIMS, Rohtak to the effect that he was resident of House No. 360/14, Chaman Pura, Rohtak and serving as a Clerk in Saini College, Rohtak. During the night i.e. on 7.11.2007 at about 9.15 p.m., he alongwith his uncles Parveen (deceased in the case) and Anand had gone to ATM installed near Bank of India situated near Palace Theatre, Rohtak on a motor cycle bearing No.HR-12J/2097 for withdrawing the money. His uncle Parveen handed over his ATM card to the complainant for checking the balance amount in his account. The complainant alongwith his uncle Anand went inside the ATM whereas Parveen remained outside. When the complainant and his uncle Anand were coming out, they saw Bablu @ Balwan Singh-appellant AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -3- alongwith his companions, namely, Gopal-appellant, Krishan and Subhash, residents of Chaman Pura, Rohtak quarrelling with his uncle Parveen. Parveen called the complainant to send for Ravi. After rescuing himself from the clutches of the assailants, Parveen started running. Bablu @ Balwan Singh fired at Parveen while the latter was still running, who sustained fire shots and fell down on the ground. All the assailants decamped from the spot. Thereafter, the complainant alongwith his uncle Anand carried Parveen in an injured condition to PGIMS, Rohtak for treatment but the doctors declared him as dead. The complainant's other uncle Ravi also reached PGIMS, Rohtak on receipt of the information. According to the complainant, the motive behind the occurrence was differences between the parties as cases were pending in the Courts. On that account, Bablu @ Balwan Singh, Gopal, Krishan and Subhash had murdered his uncle Parveen.
Further case of the prosecution was that SI Lekh Ram sent the statement of complainant-Sanjay Saini to Police Station City, Rohtak where FIR No. 591 dated 8.11.2007 under Sections 302/34 IPC and Section 25 of the Arms Act was registered by ASI Pehlad Singh at 2.45 a.m. Special report sent through Constable Raju Singh was received by the Illaqa Magistrate on 8.11.2007 at 4.15 a.m. During the investigation of the case, SI Lekh Ram prepared inquest Ex. PC and sent the dead body of Parveen for AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -4- post-mortem. SI Lekh Ram reached the place of occurrence and prepared rough site-plan with marginal notes. After the post- mortem, he took into possession sealed parcel containing clothes of the deceased and another parcel containing bullets and four x- ray films. The investigation was, thereafter taken over by Inspector Satpal Singh of CIA Staff, Rohtak, who arrested appellants Balwan Singh @ Bablu and Gopal on 10.11.2007 and produced them before the Illaqa Magistrate and obtained their police remand. On 12.11.2007, appellant-Balwan Singh @ Bablu suffered disclosure statement regarding concealing of his licenced revolver of .32 bore in his residential house in Prem Nagar, Rohtak. In pursuance of the same, Balwan Singh @ Bablu led the police party to his house and got recovered the revolver from a bed. There were six empty cartridges in the chamber of the revolver which were taken out. The revolver and the empty cartridges were converted into a sealed parcel and taken into possession. Appellant-Balwan Singh @ Bablu also got recovered a scooter bearing registration No. HR-12C-8071 alongwith its registration certificate. He also demarcated the place of occurrence. After completion of investigation during which Krishan and Subhash were found innocent, final report under Section 173(2) Cr.P.C. was prepared against the appellants and presented in the Court. Subsequent to commitment of the case, the appellants were charged for the aforementioned AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -5- offences to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 Deepak and PW2 Jogender. In their respective testimonies they deposed that they had identified the dead body of deceased Parveen on 8.11.2007 in PGIMS, Rohtak.
PW3 Dr. Ramesh Chander testified that on 8.11.2007, when he was posted as Medical Officer at General Hospital, Rohtak, he conducted post-mortem on the dead body of Parveen at 2.00 p.m. and found the following injuries on his person:-
"1. Lacerated wound measuring .75 x .75 cm.
circular on Left submental region. .05 cm lateral to midline and 140 cm from left heel blackening present. On dissection echymosis of underlying tissue and wound track to left side neck along inferior lower border of clavicle and bullet removed from lateral end of clavicle and bullet sealed.
2. Lacerated wound measuring .75 X .75 cm.
circular shape on left side upper abdominal wall which is 4 cm lateral to midline and 106 cm from left heel. On dissection track of wound going on right side of abdomen and piecering the omentum to reach right flank region just below last floating ribs and bullet removed from abdominal wall and sealed.
3. Lacerated wound measuring .75 cm in size AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -6- oval in shape left flank region of abdomen which is 23.5 cm on left axillary apex, 105 cm from left heel with blackening. On dissection opaque track of bullet wound traced which after piercing the thorax region on posterior surface then piercing the left and right ventricle of heart and left side of liver then reaching the muscle between second and third rib on right side bullet discovered and sealed."
In the opinion of the doctor, the cause of death was due to fire arm injury and complication which was ante mortem and sufficient to cause death in the ordinary course of events.
PW4 Sanjay Saini-complainant testified that on 7.11.2007, he alongwith Parveen and Anand had gone to ATM near old Palace Theatre at around 9.15 p.m. to check the balance in the account of Parveen. When he and Anand came out from the ATM cabin, he found Balwan Singh-appellant and Parveen deceased having a verbal duel between them. Balwan Singh, who was having revolver in his hand, fired a shot which hit Parveen. Parveen was, thereafter, taken to the hospital where he was declared brought dead. As this witness did not support the prosecution case in its entirety, he was got declared hostile and cross-examined by the Public Prosecutor. During his cross- examination, he did not state a single word against Gopal- AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -7- appellant as well as Krishan and Subhash-accused.
PW5 SI Pehlad Singh testified that on 8.11.2007, he recorded the formal FIR on the basis of statement of complainant- Sanjay Saini.
PW6 Anand, the second eye witness of the occurrence, supported the prosecution version by testifying that he had found Balwan Singh and Gopal-appellants alongwith Subhash and Krishan giving beatings to Parveen. At that time, Balwan Singh and Krishan were having revolvers. Subhash was having iron rod whereas Gopal was empty handed. He also testified that Subhash and Krishan proclaimed that no one should be allowed to go. Thereafter, Krishan and Balwan Singh fired at Parveen.
PW7 Constable Raju Singh tendered in evidence his affidavit Ex. PW7/A regarding delivery of special report to the Illaqa Magistrate and senior police officers.
PW8 ASI Ram Kumar testified about depositing the case property with FSL, Madhuban.
PW9 HC Sumit Kumar proved the scaled site-plan Ex.PW9/A which he had prepared on the pointing out of Sanjay Saini.
PW10 Sub Inspector Baljeet Singh deposed about Inspector Satpal Singh recovering one scooter bearing AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -8- registration No.HR-12C-8071 alongwith its registration certificate on 12.11.2007 pursuant to disclosure statement made by Balwan Singh.
PW11 Daya Chand testified about the recovery of licenced revolver at the instance of Balwan Singh pursuant to his making of disclosure statement.
PW12 Devender Singh, Arms Licence Clerk, office of District Magistrate, Rohtak testified that arms licence had been issued to Balwan Singh on 10.7.1997 which was valid upto 9.7.2000. The licence pertained to .315 bore rifle and one revolver was added on 29.11.2005 and the purchase period was 1.6.2006. The revolver bearing No. FG00531 of .32 bore purchased from Field Gun Factory, Kanpur was entered in the licence on 6.1.2006.
PW13 Dr. Kulvinder Gill testified that on 7.11.2007 he was posted as Casualty Medical Officer in Accident and Emergency Department, PGIMS, Rohtak. On that day, Parveen was brought dead with alleged history of fire arm injury near Appu Ghar at 9.20 p.m. Accordingly, he had sent ruqa to Incharge, Police Post, PGIMS, Rohtak.
PW14 SI Lekh Ram, PW15 Inspector Satpal Singh, PW16 EHC Sukh Darshan, PW17 Inspector Pawan Kumar and PW18 Constable Jagbir deposed about the various steps taken AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -9- by them during the investigation of the case.
It may not be out of place to mention here that after examining PW6 Anand, the prosecution had made an application under Section 319 Cr.P.C. for summoning of Subhash and Krishan as additional accused. The said application was, however, dismissed by the trial Court on 4.5.2009.
When examined under Section 313 Cr.P.C., both the appellants denied their involvement in the crime and pleaded false implication. In their defence, they examined four witnesses.
DW1 HC Virbhan proved on record copy of FIR No. 646 dated 20.12.2004 under Sections 451, 324, 382 IPC, Police Station Civil Lines, Rohtak which was registered against Ravi, Parveen and Anand sons of Paras Ram.
DW2 Naresh, Additional Criminal Ahlmad in the Court of Additional Chief Judicial Magistrate, Rohtak produced the summoned file of complaint case titled 'Naresh Kumar Vs. Paras Ram' under Sections 323, 324, 148, 149, 506, 217 and 218 IPC in which deceased Parveen was also arraigned as an accused.
DW3 Constable Ravinder Kumar brought the summoned record pertaining to FIR No. 146 dated 13.3.2006 under Sections 323, 325, 34 IPC against Om Parkash, Krishan, Gopal and Karambir.
DW4 Constable Vinod Kumar produced the AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -10- summoned record i.e. DDR No. 19 dated 20.11.2007. He deposed that vide DDR No. 7 dated 19.11.2007, the case property of the present case was sent to FSL through EHC Sukh Darshan. On 20.11.2007 this case property was returned to Police Station City, Rohtak which was received vide entry No. 10 dated 20.11.2007 through Head Constable Sukh Darshan and the case property was handed over to the Investigating Officer. He tendered into evidence attested photocopy of aforesaid entries as Ex.DW4/A and Ex. DW4/B. He also proved register No. 19 and as per entry No. 1519 therein a packet of clothes of deceased, one packet of matchbox containing a bullet were sent to FSL through constable Sukh Darshan. He further produced the original register containing FIR No. 315 of 13.6.2005 under Section 25 of the Arms Act against Anand, FIR No. 229 dated 9.4.1998 under Sections 323 and 324 IPC against Ravi son of Paras Ram and Vikash son of Ram Gobind registered in Police Station City, Rohtak. He also produced original register containing FIR No. 78 dated 2.2.2001 under Sections 148, 149, 323, 506, 511 IPC read with Section 25 of the Arms Act against Ravi and proved on record photocopy of aforesaid FIRs as Ex.DW4/C to Ex.DW4/F respectively.
In addition to the above, Balwan Singh-appellant also proved on record road certificate Ex. DX, letter dated 8.4.2010, AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -11- Ex. DY and attendance register of Daya Chand Saini bearing No. 6348/A, Ex. DZ.
After hearing learned Public Prosecutor and learned defence counsel and on going through the evidence available on record, the trial Court believed the prosecution case and convicted and sentenced the appellants, as mentioned above. Hence, the present appeal.
We have heard Mr. J.S.Bedi, Senior Advocate assisted by Ms. Diya Sodhi, Advocate representing appellant- Balwan Singh @ Bablu, Mr. Vinod Ghai, Senior Advocate assisted by Mr. Simrandeep Singh Sandhu, Advocate representing appellant-Gopal and Mr. Randhir Singh, Additional Advocate General for the State of Haryana and scanned the evidence with their able assistance.
Learned counsel representing the appellants have submitted that the motive for the occurrence was alleged to be pendency of certain cases between the parties. However, no such details have been brought on record. It is also submitted that complainant-Sanjay Saini, who appeared before the trial Court as PW4, remained silent about the motive qua Gopal- appellant. PW6 Anand, the second eye-witness of the occurrence, did not utter even a single word about the motive which may have impelled the accused party to commit the crime. AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -12- It is further submitted that PW4 Sanjay Saini had no occasion to be present at the time of the occurrence. The ATM card which was said to have been handed over by deceased-Parveen to him for checking the balance amount was not produced during the investigation of the case. He had also not intervened to save his uncle Parveen from the assault nor he himself was attacked upon. PW4 Sanjay Saini admitted that during the occurrence, he went to the house of Ravi where he stayed for fifteen minutes. The house of Ravi was nearby. Possibility could not be ruled out of PW4 Sanjay Saini being not present at the place of occurrence and later on coming to the spot or reaching the hospital. As regards PW6 Anand, it is alleged that he had remained in the ATM cabin during the occurrence and, therefore, he could not have seen the occurrence. Further, the statements of PW4 Sanjay Saini and PW6 Anand were not recorded in the inquest. According to them, the firing was resorted to from a distance of 10 to 12 feet whereas blackening was noticed around the fire arm injuries suffered by Parveen-deceased. It is further submitted that as regards the recovery of the fire arm from Balwan Singh- appellant, the prosecution had examined PW11 Daya Chand, who was the maternal uncle of the deceased. From the attendance sheet Ex.DZ, it was established that said Daya Chand was in his office from 9.00 a.m. to 5.00 p.m. The second witness, namely, Ravi in support of the recovery of the fire arm was not examined AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -13- by the prosecution. Challenge has also been made to the link evidence as according to the defence, the prosecution had failed to prove that before reaching the FSL, the parcels containing the bullets and the revolver had not been tampered with. It is further submitted that Gopal-appellant was not named as accused by PW4 Sanjay Saini while deposing before the Court. Even PW6 Anand did not attribute any active participation by Gopal. PW6 Anand deposed that Gopal was empty handed. Even the exhortation for Balwan Singh and Krishan to fire at Parveen was attributed to Subhash and not to Gopal.
On the other hand, the stand of the State counsel is that the prosecution has satisfactorily proved the commission of the crime by the appellants.
In the statement Ex. PD made by complainant-Sanjay Saini before SI Lekh Ram on the basis of which FIR Ex. PE was later on registered, it was specifically averred that there used to remain differences between the parties on account of cases between the complainant and the accused party which were still pending in the Courts. While appearing before the trial Court as PW4, he remained silent about the motive. However, during his cross-examination by the Public Prosecutor, he testified that Balwan Singh had murdered Parveen due to litigation. However, that by itself is not sufficient to reject the prosecution case AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -14- especially when there is clear and consistent evidence on the record by way of testimonies of PW4 Sanjay Saini and PW6 Anand whose presence at the time of the occurrence also could not be doubted. The motive to commit the crime always lies in the mind of the accused and some time it is very difficult to bring any material on the record in that regard.
As regards the presence of PW4 Sanjay Saini and PW6 Anand, it is the prosecution case that on 7.11.2007 at about 9.15 p.m., when they alongwith Parveen, since deceased, reached ATM installed near Bank of India situated near Palace Theatre, Rohtak for withdrawing money, it was Parveen, who handed over his ATM card to Sanjay Saini for checking the balance amount. Upon this, Sanjay Saini and his uncle Anand went inside ATM cabin whereas Parveen remained outside. When Sanjay Saini and Anand came out, they saw Balwan Singh and Gopal-appellants alongwith Krishan and Subhash quarreling with Parveen. The latter asked Sanjay Saini to call Ravi, another brother of Parveen. Parveen was able to rescue himself from the clutches of the assailants and started running away. However, Balwan Singh started chasing him and fired shots from the revolver which he was carrying at that time. At the trial of the case, PW4 Sanjay Saini did not stick to the earlier version given by him qua Gopal-appellant. He testified that when he came out AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -15- from the ATM cabin, he found Balwan Singh-appellant and Parveen deceased having a verbal duel. At that time, Balwan Singh was having a revolver in his hand which he used in firing at Parveen. In the meantime, as Parveen had asked him to call Ravi, PW4 Sanjay Saini rushed to his house and after coming back, he found Anand present by the side of injured-Parveen. Both of them lifted Parveen from the spot and took him to PGIMS, Rohtak where he was declared brought dead. As this witness did not support the prosecution case qua Gopal-appellant, he was got declared hostile and cross-examined by the Public Prosecutor. Despite the same, he did not toe the prosecution line qua Gopal-appellant. He denied stating before the police regarding the participation of Gopal, Krishan and Subhash in the commission of the crime. During his cross-examination by the defence counsel, PW4 Sanjay Saini stated that he rushed to the house of his uncle Ravi and informed him about the incident whereafter Ravi went to the spot. He himself returned to the spot after fifteen minutes. He denied the suggestion that Balwan Singh had not fired at Parveen or some unknown persons had committed the murder of Parveen as the latter was having a number of enemies. He further deposed that he had reached PGIMS, Rohtak at around 9.45/10.00 p.m. PW6 Anand, the second eye-witness of the occurrence, re-iterated the prosecution version by stating that he alongwith his brother Parveen and AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -16- nephew Sanjay Saini had gone to ATM on 7.11.2007 at about 9.15 p.m. for withdrawing the money. As Parveen asked Sanjay Saini to check the balance in his account, the witness and Sanjay Saini went inside the ATM cabin while Parveen kept standing outside. After checking the balance when they returned back, they noticed Balwan Singh and Gopal-appellants as well as Subhash and Krishan beating Parveen. Balwan Singh and Krishan were having revolvers whereas Gopal was empty handed. Subhash was carrying iron rod. All of them were giving beatings to Parveen with their legs and fists. This was followed by Parveen asking this witness and Sanjay Saini to call Ravi. When Sanjay Saini ran from the spot to call Ravi, Subhash exhorted that none of the complainant party should go alive. Parveen escaped from the clutches of the accused and started running away. Balwan Singh and Krishan fired at Parveen, who fell down. They again fired at Parveen after going close to him and, thereafter, all of them ran away from the spot. Merely because PW4 Sanjay Saini and PW6 Anand did not make any attempt to rescue their near relative Parveen from the assault nor any one of them being attacked upon by the accused party is not sufficient to disbelieve their presence at the spot. Again, if Parveen had called Sanjay Saini to rush to the house and inform his brother Ravi did not mean that the firing was not resorted to by the accused for some time or till the time Sanjay Saini had run AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -17- away to a distance. The occurrence had taken place in quick succession and Sanjay Saini continued to witness the occurrence even while running away to the house of Ravi. Therefore, the presence of PW4 Sanjay Saini and PW6 Anand at the time of the occurrence stands fully established.
The weapon i.e. .32 bore revolver which was used in the commission of the crime was a licenced one in the name of Balwan Singh-appellant. Consequent upon his arrest, Balwan Singh had suffered disclosure statement Ex. PK and pursuant to the same got recovered the weapon from the bed in his house. Merely because PW11 Daya Chand was the maternal uncle of the deceased is not sufficient to reject the prosecution case. According to the defence, PW11 Daya Chand had remained in his office from 9.00 a.m. to 5.00 p.m. as was reflected in the attendance sheet Ex. DZ. During his cross-examination, PW11 Daya Chand testified that on 12.11.2007 at about 5.00 p.m., he went to the office of CIA Staff to enquire about the progress of the case whereafter, Balwan Singh was called by the Inspector and subjected to interrogation. Thus, from the cross-examination itself, the defence has brought on record that PW11 Daya Chand had left only after office hours for going to the CIA Staff for making enquiry about the progress of the case.
As per the testimony of PW16, EHC Sukh Darshan on AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -18- 23.11.2007, MMHC Ram Kumar handed over case property to him for depositing the same with FSL, Madhuban. Accordingly, on 23.11.2007 itself he deposited the case property with FSL, Madhuban and on return handed over the receipt to MMHC Ram Kumar. He testified that so long as the case property remained with him, no one tampered with the same. In his cross- examination, he deposed that he did not receive the parcels before 23.11.2007. He did not remember if he had received the parcels on 19.11.2007 vide DDR No. 7. He also did not remember that he had handed over those parcels to MMHC on 20.11.2007 vide DDR No. 10. He denied the suggestion that after tampering with the parcels, he had deposited the parcels on 23.11.2007. He could not say if the parcels were handed over to him on 19.11.2007 which he returned on 20.11.2007 to the MMHC. He also denied that after tampering with the parcels he had again deposited the same with the FSL, Madhuban on 23.11.2007.
The stand taken by EHC Sukh Darshan is reflected in report Ex. PX of FSL, Madhuban as per which 3 sealed parcels dispatched vide RC No. 171 dated 23.11.2007 through EHC Sukh Darshan were received on 23.11.2007. From the perusal of the statement of DW4 Constable Vinod Kumar it is made out that vide DDR No. 7 dated 19.11.2007 the case property was sent to FSL, AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -19- Madhuban through EHC Sukh Darshan and vide DDR No. 10 dated 20.11.2007 EHC Sukh Darshan had handed over the case property to the Investigating Officer. In his cross-examination, the witness stated that as per entry No. 1522 dated 23.11.2007, the case property was sent to FSL, Madhuban vide RC No. 171 dated 23.11.2007 through EHC Sukh Darshan. It is true that no explanation has been furnished by the prosecution regarding sending of the case property to FSL, Madhuban on 19.11.2007 and it being received on 20.11.2007 but that by itself is not sufficient to reject the prosecution case. It could at the most be a case of defective investigation for which the complainant should not suffer. Moreover, the presence of PW4 Sanjay Saini and PW6 Anand at the time of the occurrence stands fully established which fact is further corroborated by the prompt registration of the FIR and receipt of the special report soon thereafter by the Illaqa Magistrate.
However, this Court is not convinced about the involvement of Gopal-appellant in the commission of the crime. In his statement before the trial Court, PW4 Sanjay Saini did not utter a single word about the involvement of Gopal. Even after getting him declared hostile, learned Public Prosecutor could not bring any material on record so as to establish the involvement of Gopal in the commission of the crime. PW6 Anand did testify AJAY KUMAR 2015.05.04 16:18 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal D-867-DB of 2010 -20- about the presence of Gopal at the time of the occurrence but stated that he was empty handed. Even the role of exhortation was assigned to Subhash. The other role assigned to Gopal as well as to his three co-accused was of giving of beatings to Parveen with their legs and fists. The prosecution could not bring on record any material that any such injury was received by deceased-Parveen. Under these circumstances, this Court is of the considered view that Gopal-appellant deserves the benefit of doubt.
Resultantly, the conviction and sentence of Balwan Singh @ Bablu-appellant under Sections 302/34 IPC and Section 27 of the Arms Act is upheld. At the same time, the conviction and sentence of Gopal-appellant under Section 302 read with Section 34 IPC is set-aside.
The appeal is, accordingly, disposed of.
( T.P.S. MANN )
JUDGE
November 29, 2014 ( SHEKHER DHAWAN)
ajay-1 JUDGE
AJAY KUMAR
2015.05.04 16:18
I attest to the accuracy and
authenticity of this document
Chandigarh