Punjab-Haryana High Court
Sombir vs State Of Haryana on 8 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1169-SB of 2009
Date of decision: 8th February, 2010
Sombir
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Raj Mohan Singh, Advocate for the appellant.
Mr. Sunil Nehra, Senior Dy. Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Sombir has preferred present appeal. He was tried along with Dashrath son of Shiv Lal, who has not preferred any appeal. Present appellant along with Dashrath was convicted by the Court of Additional Sessions Judge, Jind for offence under Section 307 read with section 34 IPC. Dashrath was also sentenced for offence under Section 25 of the Arms Act.
The trial Court had sentenced both, the appellant and Dashrath, to undergo rigorous imprisonment for seven years and to pay fine of Rs.5000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 307 read with section 34 IPC. Dashrath was also sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months under Section 25 Criminal Appeal No.1169-SB of 2009 2 of the Arms Act. Both the sentences awarded to Dashrath were ordered to run concurrently.
The appellant along with Dashrath, was nominated as accused in case FIR No.140 dated 23.06.2006 registered at Police Station Julana under Sections 307/34 IPC and section 25 of the Arms Act. Satvir Singh PW-9 made statement Ex.PE to Ram Avtar ASI PW-17 on 23rd June, 2006 at 12.30 a.m. Satvir Singh stated that he along with Suresh was employed as salesman at Sangwan petrol pump. At the petrol pump they were manning different machines for dispensing petrol and diesel. The complainant Satvir Singh was performing his duty at diesel pump, whereas Suresh was manning petrol dispenser. At about 9.00 p.m. two young persons riding on a motorcycle came there and stopped their motorcycle in front of petrol dispensing pump. On their asking Suresh had filled the motorcycle with petrol worth Rs.200/-. Thereafter, Suresh demanded Rs.200/- in lieu of the petrol filled in the motorcycle. The motorcycle riders stated as to who is he to demand money from them. They started the motorcycle. At that time Suresh caught hold of hands of the accused and stated that if they won't pay, he will be liable to pay the amount to the owner. The motorcycle riders replied that they are being insulted. At that time pillion rider of the motorcycle took out the pistol and fired a shot. The shot hit on the face of Suresh and the motorcycle riders decamped from the spot. Suresh fell on the petrol pump. The complainant had taken care of Suresh and found that he had become unconscious. The complainant could not see the registration number, brand and colour of the motorcycle. However, he described that the driver of the motorcycle was wearing a white shirt and the person on the rear seat was wearing a t-shirt of blue colour and both riders were young chaps. At that time Satyawan son of Jai Singh caste Criminal Appeal No.1169-SB of 2009 3 Jat also came at the petrol pump. At that time Wazir son of a neighbourer Dalip, was also attracted at the spot. The witnesses made arrangement for the vehicle and brought the injured Suresh to PGIMS, Rohtak in the ambulance. The occurrence had taken place as two unknown boys who were on a motorcycle without registration number had refused to pay the amount of the petrol to Suresh petrol pump attendant/salesman.
Sombir appellant and Dashrath were arrested on 20th December, 2006 in case FIR No.551 registered at Police Station Sadar Bhiwani. During the interrogation of that FIR, the appellant Sombir and Dashrath made disclosure statements Ex.PR and PS respectively. In his statement, Sombir stated that he can get the Hero Honda motorcycle recovered, which was allegedly used in the crime. Dashrath, in his disclosure statement, stated that the pistol which he had used six months before at Sangwan petrol pump, Julana whereby injuries were caused to Suresh, was bought by him along with another pistol for Rs.3000/- from Aligarh. It will be pertinent to mention here that a bullet was extracted from the neck of Suresh on 23rd June, 2006 by Dr.Ajay Verma PW-23. According to Assistant Director (Ballistics), Forensic Science Laboratory, Madhuban the bullet recovered from the neck of Suresh was fired from country made pistol recovered at the instance of Dashrath.
Injured and the two eye witnesses have not supported the prosecution regarding the identity of the accused. Having noticed these broad features, this Court will proceed to notice evidence of the witnesses.
Dr.Rakesh Kumar PW-15 had examined Suresh son of Ranbir on 22nd June, 2006. He found following three injuries on the person of Suresh:
Criminal Appeal No.1169-SB of 2009 4
1. Punctured wound at just above 1 cm left angle of mouth, bone deep 1 irregular margins, size was 3 x 1 cm with fresh bleeding present. No grazed colour abrasion. No blackening was present.
2. There was swelling over left cheek.
3. There was swelling with feeling of foreign body over left side of neck 1 cm away from midline. Nape of neck.
This witness further stated that on 24th June, 2006, he had sent information regarding recovery of bullet by Surgeon to the police post PGIMS, Rohtak. In cross examination, this witness stated that there was no blackening and singing of hair at the place of injury. There was no fracture of any kind.
Dr. Anil Kumar, Registrar PGIMS, Rohtak appeared as PW-21. He had radiologically examined Suresh on 22nd June, 2006. In the X-ray he found shadow of metallic density in the region of left nasopharynx and left posterior cervical region. As stated earlier, Dr.Ajay Verma PW-23, who was posted as lecturer in the department of old surgery, proved Ex.PU file of the patient in the hospital. A perusal of the file Ex.PU reveals that a note has been appended therein that Suresh came to the Department of Surgery on 23rd June, 2006. He had a gun- shot injury on the left side of face in the cheek area. Radiographs viewed had shown that bullet was lodged in post vertebral area of neck and same was removed on 23rd June, 2006. The patient was discharged on 4th July, 2006.
Criminal Appeal No.1169-SB of 2009 5
After having noticed the medical evidence, ocular version in the statement of eye witnesses can be noticed as under.
Suresh Chand injured appeared as PW-4. He stated that he was employed on Sangwan petrol pump, Julana. He had filled petrol worth Rs.200/- in a motorcycle. Two persons were riding the motorcycle. When he demanded money, then one of them fired shot which hit at his face. He received severe injuries and fell down. This witness in examination in chief, stated that he is not in a position to identify the accused persons, as they had tied handkerchief. Following line of evidence is material to be noticed:
"I cannot identify the accused persons as they had tied handkerchief on their faces and the light was not there."
Wazir Singh PW-5, who had arrived at the spot, stated that he had not seen the occurrence as he reached at the spot 15 minutes after the incident. Satvir author of the FIR appeared as PW-9. He specifically stated that accused present in Court were not the persons, who had caused injuries to Suresh. He further stated that he cannot identify the accused present in the Court. Material portion of his evidence reads as under:
"The accused now present in the Court were not the persons who had caused injuries to Suresh. Even I do not identify the accused now present in the Court."
Therefore, from the ocular version of three witnesses, no incriminating evidence is made out.
A perusal of statement recorded under Section 313 Cr.P.C. reveals that it was stated that one out of two young boys had fired the shot. The name of the accused was not mentioned in the question put to Criminal Appeal No.1169-SB of 2009 6 the accused in statement recorded under Section 313 Cr.P.C. Hon'ble Apex Court in 'Prem Singh v. State of (N.C.T.) Delhi' 2010(1) RCR (Criminal) 608 had recorded acquittal in a case where revolver and the recovered bullet tallied on the ground that injured eye witness had not identified the accused. In para 6 of the judgment, Justice Dr. Arijit Pasayat (as His Lordship then was), observed as under:
"6. We find that this is a case where even the injured did not identify the appellant to be the person who had fired the shot. Merely because he is the owner of the weapon that cannot be a ground to convict him in terms of Section 307 IPC. Further, no question was put to the appellant in his examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code') regarding his purported role. The judgment of the High Court is clearly unsustainable and is set aside. The appellant is acquitted of the charges."
However, still this Court will notice the evidence regarding recovery of pistol, matching of the bullet and examine whether such recovery is admissible and can be construed as incriminating circumstance against the accused.
EHC Chander Singh PW-1 tendered his affidavit Ex.PA. A perusal of Ex.PA shows that this witness had carried the bullet and got the same deposited in the laboratory on 21st July, 2006.
ASI Udham Singh PW-2 stated that on 24th June, 2006 ward servant came in the police post and handed over one sealed parcel containing pellets.
Sukhbir Singh PW-3 proved bed head ticket file of Suresh from PGIMS, Rohtak. ASI Hawa Singh PW-6 stated that on receipt of ruqa Ex.PE, formal FIR Ex.PE/1 was registered. Kuldeep Gupta, Criminal Appeal No.1169-SB of 2009 7 Draftsman PW-7 proved scaled site plan Ex.PF. HC Ravinder Kumar PW-8 tendered his affidavit Ex.PG. This witness stated that he was posted as MHC. On 9th February, 2007, ASI Ram Avtar deposited pistol with him and on 27th February, 2007 the pistol was sent to the Laboratory. Virender Singh SI PW-10 had prepared report under Section 173 Cr.P.C. HC Virender Singh PW-11 tendered his affidavit Ex.PH. This witness stated that in the month of June/July, 2006, he was posted as MHC. On 24th June, 2006 bullet was deposited and the same was sent to the Laboratory in the month of July, 2006.
Constable Vijender Singh PW-12 tendered his affidavit Ex.PJ. This witness on 27th February, 2007 had carried the pistol to the Forensic Science Laboratory. ASI Ranbir Singh PW-13 is witness to disclosure statement Ex.PK made by Sombir accused. He has also witnessed the disclosure statement Ex.PL made by Dashrath accused. KC Kailash Chander appeared as PW-14. On 20th December, 2006, ASI Ram Avtar had deposited the revolver along with one cartridge with this witness at Police Station Sadar Bhiwani. Roop Chand PW-16 proved sanction granted by District Magistrate, Jind to prove the offence under Arms Act.
ASI Ram Avtar PW-17 stated that he received information on 22nd June, 2006 that an incident had taken place at petrol pump and thereafter, he inspected the spot, lifted the blood stained earth and on receipt of message on 23rd December, 2006, went to Police Station Bhiwani and got production warrants from the Court of ACJM, Jind. This witness in cross examination, stated that he had not recovered pistol Ex.P1.
Sadhu Ram Inspector PW-18 stated that on 20th December, 2006 Sombir had suffered disclosure statement and accused Dashrath Criminal Appeal No.1169-SB of 2009 8 had also suffered disclosure statement. HC Om Narain PW-19 stated that on 2nd January, 2007 Sombir had suffered disclosure statement Ex.PT and Dashrath had suffered disclosure statement Ex.PX. Ram Parkash Assistant Ahlmad appeared as PW-20. He brought the original summoned file of FIR No.551 dated 20.12.2006. He was posted as Inspector, CIA Bhiwani. Sombir suffered disclosure statement Ex.PR and Dashrath suffered disclosure statement Ex.PS to get the motorcycle recovered. He also disclosed the place (Aligarh) from where he had purchased the pistol. These disclosure statements were made on 20th December, 2006. Vide Ex.PO on 20th December, 2006, on the personal search of accused Dashrath, pistol was recovered, whereas, Dashrath suffered another disclosure statement Ex.PL on 29th December, 2006 and stated that regarding the revolver (another) only Suresh can tell. Sombir made disclosure statement on 29th December, 2006 and stated that the pistol has been concealed behind the bushes. On 2nd January, 2007, Sombir got the motorcycle recovered vide recovery memo Ex.PU. On 9th February, 2007, pistol Ex.P1, cartridge P2 and tin box Ex.P3 were taken into possession vide recovery memo Ex.PL by ASI Rattan Singh of Police Station Julana from HC Kailash Chand of Police Station Bhiwani.
In the present case, identity of the accused is not established. Injured Suresh PW-4 specifically stated that he cannot identify the accused persons present in the Court. Satvir PW-9 complainant further specifically stated that accused present in the Court were not the persons who had caused injuries to Suresh. Wazir Singh PW-5 stated that he was attracted at the spot later and he had not witnessed the occurrence.
Thus, accused are entitled to acquittal in view of ratio of law laid in Prem Singh's case (supra).
Criminal Appeal No.1169-SB of 2009 9
So far the recovery of pistol is concerned, the same is also doubtful. When Dashrath was arrested he was carrying pistol in his hands and same was taken into possession vide recovery memo Ex.PO. Once the recovery was effected, the disclosure statement made to this effect later cannot be taken into consideration. Under Section 27 of the Indian Evidence Act, any recovery made in pursuance of the disclosure statement can be taken into consideration and not vice versa. Furthermore, ASI Ranbir Singh PW-13 specifically stated that no recovery was effected from the accused in pursuance of disclosure statement Ex.PK and PL. DSP Ram Avtar PW-22 stated that recovery of pistol was effected from an open place, which is assessable to all and sundry. If it is so, there was nothing which was in the specific knowledge of the accused, therefore, disclosure statement made to this effect will not be admissible. A perusal of the statement of the accused recorded under Section 313 Cr.P.C. will reveal that on 2nd January, 2007, Dashrath had made disclosure statement Ex.PS and Sombir suffered disclosure statement Ex.PD. In pursuance of disclosure statement EX.PD, motorcycle was recovered but no pistol was recovered in pursuance of disclosure statement Ex.PS, as Ex.PS only disclosed that two pistols were purchased from Aligarh for Rs.3000/-. A perusal of question No.4 in statement of the accused recorded under Section 313 Cr.P.C. reveal that pistol was taken into possession by ASI Ram Avtar vide recovery memo Ex.PV. Ex.PV relate to recovery memo Ex.PO, which was prepared at the time of arrest of Dashrath, when Bhiwani police from personal search of Dashrath had recovered pistol Ex.P1. As stated earlier, only that disclosure statement is admissible which lead to the recovery. If the recovery was effected at the time of arrest and disclosure statement was recorded subsequently, that disclosure statement cannot be considered. Criminal Appeal No.1169-SB of 2009 10 Furthermore, there are discrepancies in the statement of the witness regarding recovery. PW-22 Ram Avtar DSP stated that recovery was effected from the place which was open and assessable to all and sundry. It again makes the recovery doubtful. The trial Judge committed a grave error while putting the contents of disclosure statement in statement under Section 313 Cr.P.C. A disclosure statement which had led to no recovery cannot be read and is inadmissible.
Mr. Sunil Nehra, Sr. Deputy Advocate General, Haryana, at this stage, has submitted that on the disclosure made by Sombir, motorcycle was recovered. Counsel for the State, while reading the cross examination of ASI Ranbir Singh PW-13, has stated that Ex.PK and PL, disclosure statements were recorded at Julana Police Station, therefore, in pursuance thereto, no recovery was effected. However, counsel for the State has stated that recovery of motorcycle was effected from Sombir vide recovery memo Ex.PU.
Recovery memo Ex.PU was recorded on 2nd January, 2007. Mere recovery of motorcycle will not fasten the accused with alleged crime. In the present case, Investigating Agency had acted in a most lackluster manner. The important and vital pieces of evidence were not brought on the record. It is a mater of grave concern that even though the bullet has been recovered from the neck of the injured and same tallied with the pistol, the Court has to record acquittal, because Investigating Agency recorded disclosure statement after the recovery was effected. Furthermore, Ram Avtar DSP PW-22 stated that recovery was effected from an open and assessable place. In this case, injured and witnesses have also not supported the prosecution.
Dashrath has not filed any appeal. It was held in 'Bachan Singh and another v. State of Bihar' 2008 (4) RCR (Criminal) 343 that Criminal Appeal No.1169-SB of 2009 11 where prosecution story is held doubtful, the benefit must flow to the accused, who had not filed the appeal. In 'Pawan Kumar v. State of Haryana' 2003 (3) RCR (Criminal) 839, Hon'ble Apex Court again reiterated that non-appellant whose case is on the same footing is also entitled to acquittal. 'Gurcharan Kumar and another v. State of Rajasthan' 2003 (1) RCR (Criminal) 577; 'Suresh Chaudhary etc. v. State of Bihar' 2003 (2) RCR (Criminal) 125 and 'Raja Ram and another v. State of M.P.' (1994) 2 SCC 568 also lay the law to same effect.
As a result of the above discussion, prosecution having failed to prove the case against the appellant Sombir, present appeal is accepted and the appellant Sombir is acquitted of the charges. In view of the well settled legal proposition, in support of which, judgments have been mentioned above, Dashrath is also entitled to acquittal. Therefore, conviction and sentence awarded upon accused Sombir and Dashrath are set aside and they are acquitted of the charges.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 8, 2010 rps