Punjab-Haryana High Court
Sahab Ram Son Of Ramdayal vs Sate Of Haryana on 4 October, 2013
Author: S.S.Saron
Bench: S.S.Saron
Mamta
CRA NO.D-389-DB OF 2008 1 2013.11.08 13:45
I attest to the accuracy and
integrity of this document
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA NO.D-389-DB OF 2008
Decided on : 04.10.2013
Sahab Ram son of Ramdayal, resident of village Makhu
Sarani, District Sirsa.
.............Appellant
versus
Sate of Haryana ....................Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present:Mr.P.K.Ganga, Advocate for the appellant.
Mr. H.S.Sran, Addl. A. G. Haryana for the respondent.
S.P.BANGARH,J Case of the prosecution is that on 20.09.2002, a wireless message (Ex.P29) was received in Police Station Nathusari Chopta from Civil Hospital, Sirsa through Police Station City, Sirsa to the effect that Partap Kumar and Vikram have been admitted in hospital with fire arm injuries, while Vinod Kumar has been brought dead in the Civil Hospital, Sirsa. Thereupon, ASI Balbir Singh alongwith other police officials went to Police Station City, Sirsa and collected ruqa (Ex.P24) from there. Then, he visited General Hospital, Sirsa, where he moved an application (Ex.P25) before the Mamta CRA NO.D-389-DB OF 2008 2 2013.11.08 13:45 I attest to the accuracy and integrity of this document Medical Officer, General Hospital, Sirsa seeking his opinion regarding fitness of injured Partap Kumar and Vikram to make statements. Doctor vide his opinion (Ex.P26), declared Partap Kumar - injured unfit to make statement at 01:00 a.m on 21.09.2002. On the same day, at 07:30 a.m, ASI Balbir Singh moved the same application before the doctor and the latter declared Partap Kumar - injured fit to make statement vide his opinion (Ex.P27).
Thereafter, ASI Balbir Singh recorded the statement of Partap Kumar injured (Ex.P13), wherein, he stated that he is an agriculturist and resident of village Makhu Sarani, District Sirsa. On 20.09.2002, at about 09:00 p.m, he alongwith Vinod Kumar (since deceased) and Vikram son of Hardutt, residents of village Makhu Sarani, were sitting on a metalled road near flour mill (Atta Chakki in local parlance) of Har Lal son of Kishna Ram in the area of Makhu Sarani, where Sahab Ram (appellant, herein), Rohtash, Prahlad and Vinod Kumar sons of Sahab Ram, residents of village Makhu Sarani and Krishan Kumar son of Bhura Ram, resident of village Darba Kalan came there. Sahab Ram (appellant) and his sons Prahlad and Vinod Kumar were armed with .12 bore guns each. Sahab Ram (appellant) fired a shot with his gun at Vinod Kumar (since deceased) that hit in his chest on right side and right arm. Vinod Kumar fired a shot with his gun at Mamta CRA NO.D-389-DB OF 2008 3 2013.11.08 13:45 I attest to the accuracy and integrity of this document him (complainant - Partap Kumar) and the pellets hit in his abdomen. Meanwhile, Prahlad fired shot with his gun and the pellets hit in the chest on left side of Vikram. Vinod Kumar (since deceased) fell down on the ground. Both the complainant- Partap Kumar and injured Vikram started running and then the appellant and his accomplices raised a 'lalkara' and chased them. There was an electric bulb on the Atta Chakki and they saw the appellant and his accomplices in the electric light. Both saved themselves by running from the spot and intimated family members of Vinod Kumar (since deceased) about the occurrence at their house. The appellant and his accomplices ran away with their respective weapons. The injured were shifted to Civil Hospital, Sirsa. Vinod Kumar succumbed to his injuries on the way to the hospital. Appellant and his accomplices had a grudge against them that they all the three were helping Ami Chand (Ex- Sarpanch) in a dispute of plot with Sahab Ram (appellant).
The aforementioned statement (Ex.P13) was read over and explained to the complainant, who thumb marked the same in token of its correctness. Thereon, ASI Balbir Singh made his endorsement (Ex.PW13/A) and sent the same to Police Station Nathusari Chopta, where, on the basis of this statement, formal FIR (Ex.P14) was recorded by MHC Kapoor Singh and the latter also made his endorsement Mamta CRA NO.D-389-DB OF 2008 4 2013.11.08 13:45 I attest to the accuracy and integrity of this document (Ex.P15) on the statement and sent the same back to ASI Balbir Singh through the same Constable at the spot.
Later, ASI Balbir Singh prepared inquest report (Ex.P4) on the corpse of Vinod Kumar and sent the same to the mortuary for autopsy alongwith application (Ex.P1). After the autopsy, corpse of Vinod Kumar was handed over to his relatives for cremation. The doctor who conducted autopsy on the corpse of Vinod Kumar handed over one parcel containing clothes of deceased, second parcel containing clothes of Vikram, third parcel containing clothes of Partap Kumar and one vial duly sealed containing pellets, and those were seized vide memo (Ex.P30).
On the same day, ASI Balbir Singh visited the place of incident, inspected the same and lifted two empty cartridges (Ex.P32 and Ex.P33) and pellets (Ex.P34) from the spot, those were converted into parcels, that were sealed with his seal bearing impression 'BSS' and seized vide recovery memo (Ex.P31). ASI Balbir Singh also prepared rough site plan (Ex.P35) of the place of occurrence with correct marginal notes. He also recorded the statements of Ami Chand, (Ex-Sarpanch), Sanjay, brother of deceased, Vinod Kumar and the police officials, who were accompanying him. On return to Police Station, he handed over the case property to the MHC with seals intact. Mamta CRA NO.D-389-DB OF 2008 5 2013.11.08 13:45 I attest to the accuracy and integrity of this document On 28.09.2006, Ishwar Singh, SI, who was posted as SI/SHO of Police Station Nathusari Chopta alongwih other police officials arrested the appellant, who was declared proclaimed offender and after his declaration as proclaimed offender, the police report in terms of Section 173 of the Code of Criminal Procedure ('Cr.P.C' - for short) was submitted before the learned Illaqa Magistrate against him, as also, against his accomplices Rohtash and Prahlad to the effect that they have committed offences punishable under Sections 302/307/148/149 IPC and Sections 27/25 of the Arms Act. While, their accomplices Vinod Kumar and Krishan Kumar were kept in column no.2 of the police report. They were also summoned to face trial by the learned trial Court alongwith Rohtash and Prahlad. The trial against these persons was concluded vide judgment dated 02.05.2005 and the order of sentence dated 05.05.2005, passed by the then learned Additional Sessions Judge, Sirsa.
After the arrest of the appellant Sahab Ram on 28.09.2006, his licenced, double barrel gun alongwith three live cartridges and licence were recovered from him and these were made into parcels that were seized vide recovery memo.
After the completion of investigation, a supplementary challan against Sahab Ram (appellant) was Mamta CRA NO.D-389-DB OF 2008 6 2013.11.08 13:45 I attest to the accuracy and integrity of this document presented and copies of documents, as required under Section 207 Cr.P.C were furnished to him and the case was committed to the Court of Session against him by the then Additional Chief Judicial Magistrate, Sirsa vide order dated 15.11.2006 and the case was assigned to the Additional Sessions Judge, Sirsa. Charge under Sections 148, 302 read with Section 149, 307 read with Section 149 of the Indian Penal Code ('IPC' for short) and 27 of the Arms Act was framed against the appellant vide order dated 12.01.2007 by the then Additional Sessions Judge, Sirsa, whereto, he pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined, as many as, sixteen witnesses, who deposed as under:-
PW1 Dr.Gobind Gupta, SMO, CHC, Baragudha deposed that he alongwih Dr.Ashok Gupta conducted
autopsy on the corpse of Vinod Kumar (since deceased) son of Sh.Rewta Ram, aged about 30/32 years, resident of Makhu Sarani, Police Station Nathusari Chopta, who was identified by Ram Kumar son of Shri Shiv Dayal and Kalu Ram son of Sh.Kishna Ram, both residents of village Makhu Sarani. He deposed that the corpse was brought by HC Roshan Lal and Constable Hari Singh. The length of the body was 5'8". No ligature mark was present on the body. It was a Mamta CRA NO.D-389-DB OF 2008 7 2013.11.08 13:45 I attest to the accuracy and integrity of this document dead body of moderately built, moderately nourished, young male wearing white chakdar shirt, grey pants, printed pink underwear/kacha. There were simple puncture marks on the right side of the shirt including the right sleeve. The shirt was blood stained. A few puncture marks were also present on the right side of the pants. Rigor mortis was present all over the body. Post mortem staining was present on the back. Eyes and mouth were semi open. PW1 found the following injuries:-
Injury no.1 There were multiple oval lacerated wounds in the area of 24" x 13" on the right side of chest and abdomen on its anterior and lateral aspect and upper part of right thigh. The wounds were about 60 in numbers. The size of wound varying from 0.2 cm x 0.2 cm to 0.7 cm x 0.3 cm. Margins of all the wounds were inverted and collar of abrasion was present on all the wounds. On dissection, there was subcutaneous infiltration of blood in all the injuries. On further dissection, there were multiple punctured wound in the right pleura, in the right lung, right lobe of the liver on the lateral surface right atrium of the heart and mesentery of stomach and small intestine. Right pleura cavity was full of blood. Pericardial cavity was full of blood and liquid blood was present in peritoneal cavity. Local haematoma was present at the local site of mesentery puncture. Multiple metallic foreign bodies were extracted from lungs, liver and mesentery Mamta CRA NO.D-389-DB OF 2008 8 2013.11.08 13:45 I attest to the accuracy and integrity of this document which were sealed in glass vial and handed over to the police;
Injury No.2 There were multiple oval lacerated wound in the area of 12-1/2 x 3 on the right arm and fore arm on its lateral and anterior surface. The size of the wound varying from .25 cm x .2 cm to .4 x 2 cms. Margins of all the wounds were inverted. Collar of abrasion was present on all the injuries. On dissection, subcutaneous infiltration of blood was present in all the injuries. Few metallic foreign bodies were recovered from he muscle of right arm and fore arm."
PW1 Dr. Gobind Gupta further deposed that the cause of death in this case, in their opinion, was shock and haemorrhage due to injuries (supra), which were ante mortem in nature and sufficient to cause death in ordinary course of nature and these injuries were caused with fire arm. The probable time that elapsed between the injuries and death was variable and between death and autopsy was within 12 to 24 hours. PW1 further deposed that after conducting autopsy, they handed over a small stitched corpse, a copy of PMR No. GG/AG/SPL/05/02 dated 21.09.2002, police papers numbering 1 to 28 duly signed by them, a sealed parcel bearing four seals containing clothes of the deceased and a sealed vial bearing one seal and attested sample seal containing metallic foreign body extracted from the body.
PW1 further proved the carbon copy of the autopsy Mamta CRA NO.D-389-DB OF 2008 9 2013.11.08 13:45 I attest to the accuracy and integrity of this document report (Ex.P2), which was in his hand and signed by him, as also, by Dr.Ashok Gupta, the diagram showing the seat of injuries (Ex.P3), the inquest report (Ex.P4), which was signed by him, as also, by Dr.Ashok Gupta. Shirt (Ex.P5), pants (Ex.P6), kacha / underwear (Ex.P7) and vial (Ex.P8) containing pellets recovered from the corpse.
Dr.Ashok Gupta (PW2) Medical Officer, General Hospital, Sirsa deposed that on 21.09.2002, he radiologically examined Partap Kumar Kumar son of Moji Ram, resident of Nathusari Chopta and found a radio opaque shadow of metallic density rounded in shape in the para spinal region just above the left transverse process of L4. No underlying fracture was seen. PW2 proved the copy of x-ray report (Ex.P9) and x-ray film (Ex.P10) of Partap Kumar.
PW2 further deposed that on the same day, he radiologically examined Vikram son of Hardutt, Block Nathusari Chopta and found a rounded radio opaque shadow of metallic density in the region of dorsal spine between D7 and D8 more on the left side. No underlying fracture was seen. He also proved the x-ray report (Ex.P11) and x-ray film (Ex.P12) of Vikram.
He further deposed that on the same day, he also was a member of Board and conducted post mortem examination on the corpse of Vinod Kumar (since deceased) Mamta CRA NO.D-389-DB OF 2008 10 2013.11.08 13:45 I attest to the accuracy and integrity of this document and signed the autopsy report (Ex.P2) and the diagram showing the seat of injuries (Ex.P3). He also initialled the inquest report (Ex.P4).
PW3 Kapoor Singh, HC deposed that on 21.09.2002, he was posted as MHC of Police Station Nathusari Chopta and on that day, he received statement of complainant (Ex.P13) and on the basis, thereof, he recorded formal FIR (Ex.P14) that is in his hand and bears his signature. He made endorsement (Ex.P15), thereon, and sent the same back to the Investigating Officer through the same Constable. He further deposed that on the same day, ASI Balbir Singh deposited the parcels of the case property etc. with him in the malkhana of Police Station and he also tendered in evidence affidavit (Ex.P16) to the following effect:-
"1. That I solemnly affirm and declare that on 21.09.2002, I was posted as MHC of Police Station Nathusari Chopta and the key of malkhana remained under my custody;
2. That on 21.09.2002 Sh. Balbir Singh ASI/SHO Police Station Nathusari Chopta was one parcel containing blood stained clothes of deceased Vinod Kumar sealed with the seal of mortuary bearing four seals;
3. One parcel containing dibbi containing pellets of 12 bore sealed with one seal;
4. One parcel containing shirt of injured Partap Kumar sealed with the seal of mortuary bearing four Mamta CRA NO.D-389-DB OF 2008 11 2013.11.08 13:45 I attest to the accuracy and integrity of this document seals;
5. One parcel containing shirt of injured Vikram Singh sealed with the seal of mortuary bearing four seals;
6. One parcel containing a couple of empty cartridges of 12 bore which is written on KF special of red colour sealed with the seal bearing impression BSS bearing three seals alongwith sample seal and one parcel containing plastic dibbi containing pellets of 12 bore sealed with seal bearing impression 'BSS' being total three seals;
7. That I took out all the aforesaid parcels from the malkhana of the Police Station for depositing the same with Director Forensic Science Laboratory, Madhuban vide RC no.187 on dated 30.09.2002 handed over to Constable Sunder Singh No. 446. On the next day dated 01.10.2002 he reached at DFSL Madhuban and deposited the same with intact condition and obtained a receipt and after return handed over to him, which is available in the record of the Police Station and
8. That, so long as, the aforesaid parcels remained under my custody, I did not tamper with the same and nor allowed anybody to do so."
PW4 Sunder Singh, EHC tendered his affidavit (Ex.P17) in evidence to the following effect:-
"1. That I solemnly affirm and declare that on Mamta CRA NO.D-389-DB OF 2008 12 2013.11.08 13:45 I attest to the accuracy and integrity of this document 30.09.2002 MHC Kapoor Singh, Police Station Nathusari Chopta handed over to me one parcel containing blood stained clothes of deceased Vinod Kumar sealed with the seal of mortuary bearing four seals, one parcel containing a vial containing pellets sealed with the seal of mortuary, one parcel containing shirt of injured Partap Kumar Kumar sealed with the seal of mortuary bearing four seals, one parcel containing shirt of injured Vikram sealed with the seal of mortuary, one parcel containing a couple of empty cartridges of 12 bore which was written on KF special of red colour sealed with the seal bearing impression 'BSS' bearing three seals alongwith sample seal;
2. One parcel containing plastic dibbi containing pellets of 12 bore sealed with seal bearing impression 'BSS' bearing total three seals;
3. That MHC of Police Station handed over to him docket of the aforesaid case, after removing the aforesaid parcels from the malkhana of the Police Station with intact condition, for depositing the same with Director Forensic Science Laboratory, Madhuban vide RC no. 187 dated 30.09.2002. That on 01.10.2002, on reaching at Director Forensic Science Laboratory, Madhuban, he deposited the aforesaid parcels with seals intact there and obtained a receipt which he delivered to the MHC on his return to Police Station;
4. That, so long as, the aforesaid parcels remained under my custody, I did not tamper with the same nor allowed anybody to do so.Mamta
CRA NO.D-389-DB OF 2008 13 2013.11.08 13:45 I attest to the accuracy and integrity of this document PW5 Rai Sahab, MHC brought the FIR register from 20.08.2002 to 21.01.2003. He proved the photocopy (Ex.P18) of FIR No. 98 dated 20.08.2002 under Sections 323, 452 and 506 IPC of Police Station Nathusari Chopta, that was registered on the statement of Kalu Ram son of Sh.Jagmal, resident of Makhu Sarani against accused Satbir son of Sh. Ami Chand, resident of village Makhu Sarani. PW5 produced the correct photo copy of FIR (Ex.P18) during his deposition.
PW6 Mohan Lal, Draftsman, DPO, Sirsa prepared site plan (Ex.P19) on 17.12.2002 after visiting the place of occurrence in village Makhu Sarani on the pointing out of Partap Kumar son of Sh.Mauji Ram with correct marginal notes. He also deposed that his statement under Section 161 Cr.P.C was recorded by the Investigating Officer.
PW7 Dr.Viresh Bhushan, Medical Officer, General Hospital, Sirsa deposed that on 20.09.2002 at 10:15 p.m, he medico-legally examined Partap Kumar Kumar son of Sh.Mauji Ram, 38 years old, resident of village Nathusari Chopta, Police Station Nathusari Chopta and found the following injuries:-
1. Oval lacerated wound measuring 0.3 cm x 0.2 cm on left side of abdominal wall, 5 cms lateral and 2 cms above umbilicus. Collar of abrasion was present, margins were inverted, probing / exploration was not done. dried blood was present over the injury. X-ray Mamta CRA NO.D-389-DB OF 2008 14 2013.11.08 13:45 I attest to the accuracy and integrity of this document and surgical opinion was asked for.
PW7 Dr. Viresh Bhushan further deposed that the injury was caused by fire arm and was kept under observation. The probable duration of injury was within six hours. There was a corresponding hole present in the shirt which was marked and sealed. The patient was brought by Ami Chand son of Sh.Kesu Ram, resident of Makhu Sarani. PW7 Dr. Viresh Bhushan proved the copy of MLR (Ex.P20) and the pictorial diagram showing the seat of injuries (Ex.P21).
PW7 Dr. Viresh Bhushan further deposed that on the same day at 10:30 p.m, he medicolegally examined Vikram son of Hardutt, 17 years old, resident of Makhu Sarani, Police Station Nathusari Chopta and found the following injury on his person:-
1. An oval lacerated wound measuring 0.4 cm x 0.3 cm on the left side of chest, mammary region 7 cms medial and 3 cms above the left nipple. Collar of abrasion was present. Margins were inverted, dried blood was present over the injury. X-ray was advised.
He further deposed that the injury was caused by fire arm and was kept under observation. Probable duration of injury was within six hours. There was a corresponding hole in the shirt which was marked and sealed. This patient was also brought by Ami Chand, resident of village Makhu Sarani. PW7 Dr. Viresh Bhushan proved the copy of MLR (Ex.P22) and pictorial diagram showing the seat of injuries (Ex.P23). PW7 Dr. Viresh Bhushan further deposed that on 20.09.2002 at 10:15 p.m, he sent ruqa Mamta CRA NO.D-389-DB OF 2008 15 2013.11.08 13:45 I attest to the accuracy and integrity of this document (Ex.P24) to the Station House Officer, Police Station City, Sirsa regarding admission of injured Partap Kumar and Vikram and regarding death of Vinod Kumar son of Sh.Rewta Ram. On police application (Ex.P25), on 21.09.2002 at 01:00 a.m, he gave his opinion (Ex.P26) regarding unfitness of patient Partap Kumar Kumar to make statement and Vikram not being admitted, but treated in OPD. He further deposed that on the same application vide opinion (Ex.P26), he declared Partap Kumar fit to make statement at 07:30 a.m on 21.09.2002.
PW8 HC Rajinder Singh deposed that on 04.02.2003, he carried the parcels of the case property of this case to Director, Forensic Science Laboratory, Madhuban with seals intact. He tendered in evidence his affidavit (Ex.P28) to the following effect:-
" 1.That on 04.02.2003, I was posted on general duty at Police Station Nathusari Chopta;
2. That on 04.02.2003 MHC Kapoor Singh of Police Station handed over to me parcel of aforesaid case with sample seal, one parcel containing a gun DBBL and three cartridges of 12 bore sealed with seal bearing impression 'HS' alongwith sample seal was removed from the malkhana of the Police Station in intact condition for depositing the same with Forensic Science Laboratory, Madhuban;
3. That I deposited this parcel containing gun and the cartridges with seals in intact condition on 05.02.2003 and delivered the receipt to the Mamta CRA NO.D-389-DB OF 2008 16 2013.11.08 13:45 I attest to the accuracy and integrity of this document MHC on return;
4. That, so long as, the aforesaid parcel remained with him, neither he nor anybody else was allowed to tamper with the same.
PW9 Satyawan, Constable deposed that on 21.09.2002, he was posted in Police Station Nathusari Chopta and on that day, Kapoor Singh, MHC of Police Station handed over to him the special report of this case for delivering the same to the Illaqa Magistrate and higher police authorities and he delivered the same to the Illaqa Magistrate, as also, to Superintendent of Police and Deputy Superintendent of Police, Ellenabad on the same day.
PW10 Partap Kumar Kumar deposed that about five years ago at about 09:00 p.m, he alongwith Vikram son of Hardutt and Vinod Kumar (since deceased) son of Rewta, resident of Makhu Sarani was present on the road leading to village Bhattu from Makhu Sarani, where Sahab Ram (appellant) armed with a gun, Prahlad and Vinod Kumar also armed with guns, Krishan and Rohtash empty handed, came there. He further deposed that only Sahab Ram Mamta CRA NO.D-389-DB OF 2008 17 2013.11.08 13:45 I attest to the accuracy and integrity of this document (appellant) is present in the Court and the remaining accused are not present in Court today. He further deposed that Sahab Ram (appellant) fired a shot from his gun, that hit Vinod Kumar (since deceased) son of Rewta and Vinod Kumar son of Sahab Ram fired a shot, that hit him on his stomach and then accused - Prahlad fired a shot, that hit on the chest of Vikram. He and Vikram ran away, whereas Vinod Kumar (since deceased) fell down on the ground on receiving the fire arm injuries. Then, they started running from the spot and when they were running, Sahab Ram (appellant) asked his accomplices that they both are helping Ami Chand and they be caught and taught a lesson and, then, they went to the house of Vinod Kumar (since deceased) son of Rewta.
PW10 Partap Kumar further deposed that he identified the accused in the light of an electric bulb, that was blowing on the roof of the Atta Chakki and then they went to the house of Vinod Kumar (since deceased), where Sanjay, his brother, and his mother were present and they narrated the incident to them and said that Vinod Kumar (since deceased) had received fire arm injury and he was lying on the spot. Thereafter, they came to the place of occurrence. Accused persons had already left the spot with their respective weapons.
PW10 further deposed that they called Ami Chand Mamta CRA NO.D-389-DB OF 2008 18 2013.11.08 13:45 I attest to the accuracy and integrity of this document (Ex-Sarpanch) to the place of occurrence and all the three injured were shifted to General Hospital, Sirsa in a Canter arranged by Ami Chand. Vinod Kumar succumbed to the injuries on his way to hospital and he and Vikram were provided treatment in General Hospital, Sirsa. He further deposed that there was a dispute between Ami Chand and Sahab Ram (appellant) in respect of a plot. They were on visiting terms with Ami Chand and the appellant and his accomplices had a suspicion that they have been helping Ami Chand and, therefore, they had attacked them with fire arms and caused injuries to them. On the next morning, police came to the hospital and recorded his statement (Ex.P13), that was read over and explained to him and he signed the same in token of its correctness.
PW11 Vikram also happened to be present at the time of occurrence and he corroborated the version that has been narrated in the deposition of PW10.
PW12 ASI Balbir Singh conducted investigation of this case that has been reproduced in the earlier part of this judgment and, therefore, need not be reiterated.
PW13 SI Ishwar Singh deposed that on 28.09.2006, he arrested the appellant in this case and produced him in the Court on the next day and after completion of investigation of this case, he challaned the appellant and Mamta CRA NO.D-389-DB OF 2008 19 2013.11.08 13:45 I attest to the accuracy and integrity of this document prepared supplementary challan on 29.10.2006.
PW14 Inspector Panjab Singh deposed that on 05.10.2002, he was posted as SI/SHO in Police Station Nathusari Chopta and on that day, he went to village Makhu Sarani for investigation of this case, where he arrested accused Rohtash and Prahlad in this case. He recorded the statements of the witnesses and got issued warrant of arrest of Sahab Ram (appellant) and got issued proclamation under Section 82/83 Cr.P.C against him and after issuing proclamation against him, he was declared proclaimed offender by the Court and he prepared report under Section 173 Cr.P.C against all the accused and Sahab Ram (appellant, herein), was shown as proclaimed offender in the report on 19.12.2002.
PW15 HC Roshan Lal deposed that on 03.02.2003, he was posted as Head constable in Police Station Nathusari Chopta. On that day, he joined the investigation of this case with SI/SHO Hawa Singh of Police Station Nathusari Chopta and in his presence Sahab Ram (appellant) had produced a licensed double barrel gun .12 bore alongwith three cartridges of the same bore, as also, the licence of the gun before SI/SHO Hawa Singh, the then Station House Officer. The gun and the cartridges were put in a parcel that was sealed with seal of SI/SHO Hawa Singh bearing impression Mamta CRA NO.D-389-DB OF 2008 20 2013.11.08 13:45 I attest to the accuracy and integrity of this document 'HS' and that parcel was seized vide memo (Ex.P36), which was attested by him and Ram Chander, Constable. This parcel bearing the seal of Forensic Science Laboratory, Madhuban was unsealed during the deposition of this witness. Gun (Ex.P37) and licence (Ex.P38) were shown to this witness during his deposition, who further deposed that his statement under Section 161 Cr.P.C was recorded.
PW16 SI Hawa Singh also deposed that on 03.02.2003, he was posted as Station House Officer in Police Station Nathusari Chopta and on that day, Risal Singh, (Ex- Sarpanch) of village Anandgarh produced before him Sahab Ram (appellant), present in the Court, in the Police Station. He joined him in the investigation of this case. Sahab Ram (appellant) had produced his licensed double barrel gun of .12 bore alongwith three cartridges of the same bore and the licence of the gun (Ex.P38) before him. He further deposed that the gun (Ex.P37) and the cartridges were put in a parcel, sealed with the seal bearing impression 'HS' and were taken into police possession vide recovery memo (Ex.P36), that was attested by HC Roshan Lal and Constable Ram Chander. Gun (Ex.P37) and gun licence (Ex.P38) were produced during the deposition of this witness, who further deposed that he recorded the statements of Hc Roshan Lal and Constable Ram Chander under Section 161 Cr.P.C on Mamta CRA NO.D-389-DB OF 2008 21 2013.11.08 13:45 I attest to the accuracy and integrity of this document 06.03.2003 and of Kapoor Singh, MHC and Rajinder Singh, Constable. He also deposed that after completion of investigation of this case, he prepared police report in terms of Section 173(8) Cr.P.C.
After tendering the report of the Forensic Science Laboratory, Madhuban (Ex.P39) and the report of the Ballistic Expert (Ex.P40), the prosecution evidence was closed.
After the closure of prosecution evidence, the appellant was examined in terms of Section 313 Cr.P.C, wherein, he denied the allegations of prosecution, pleaded innocence and false implication in the case.
Appellant gave his own version that he was booked in this case at the instance of Ami Chand, who had strained relations with him. He further stated that on the night of the occurrence, he was not present in his village and was present at village Anandgarh on the night intervening 20/21.09.2002 and returned to the village in the evening of 21.09.2002. On 20.09.2002, he was attending the tour programme of Sh.Abhey Singh, who was visiting different villages and stayed at the night at village Anandgarh in his relation. He further deposed that he was wrongly challaned by Panjab Singh SI/SHO at the instance of the complainant party and lateron, he was found innocent by the Deputy Superintendent of Police during investigation and even, Mamta CRA NO.D-389-DB OF 2008 22 2013.11.08 13:45 I attest to the accuracy and integrity of this document report to this effect was also submitted in the Court. He was wrongly arrested in this case and the case is totally illegal.
Appellant was called upon to enter in defence and he examined Daulat Ram as DW1, who deposed that he is resident of village Makhu Sarani and he knows the appellant, who belongs to his village. On 20.09.2002, he alongwith Sahab Ram (appellant), Vinod Kumar and other persons of his village had accompanied Sh.Abhey Singh Chautala on his tour to different villages i.e Kagdana, Chaharwala, Nathusari, Nehrana etc. and after the tour was over at village Nehrana on that day in the evening at about 07:00 p.m, Sahab Ram (appellant) and his son Vinod Kumar told that they were going to village Anandgarh and would stay there during that night. He further deposed that they returned from village Anandgarh to village Makhu Sarani on the next day at 11:00 or 12:00 (noon) on the next day i.e on 21.09.2002. He came to know on the third day that Sahab Ram (appellant) and his sons have been implicated in a false case of murder of a young boy whose name he does not remember. Affidavit (Ex.D1) was filed by him before the Deputy Superintendent of Police Sh.Chander Singh on 29.01.2003, in this regard.
DW2 Risal Singh also deposed that the appellant is his relative. He is father-in-law of the daughter of his sister. On 20.09.2002, Sahab Ram (appellant) and his son Vinod Mamta CRA NO.D-389-DB OF 2008 23 2013.11.08 13:45 I attest to the accuracy and integrity of this document came to his house in village Anandgarh at about 07:30 p.m. They stayed with him during that night and left village Anandgarh for their village on the next day at 08:30 a.m. He came to know after 4/5 days that Sahab Ram and his son have been implicated in a false case of murder of Vinod Kumar. He further deposed that he had sworn in an affidavit (Ex.D2) before Sh.Chander Singh, Deputy Superintendent of Police, on 30.01.2003 regarding the false involvement of Sahab Ram (appellant) and his son Vinod Kumar.
DW3 Chander Singh, Deputy Superintendent of Police, Tohana, District Fatehabad deposed that on 27.12.2002, he was posted as Deputy Superintendent of Police, Dabwali and on that day application (Ex.D3) of Sahab Ram (appellant) moved before the Superintendent of Police, Sirsa, was marked to him for verification and report and he made enquiries on that application on 28.01.2003 and 30.01.2003. DW3 further deposed that during the course of enquiry affidavits (Ex.D1 and Ex.D2) sworn by Daulat Ram and Risal Singh, respectively, alongwith affidavits mark D1 of Kanshi Ram, mark D2 of Shankar Lal, mark D3 of Hans Raj, mark D4 of Vijay Singh, mark D5 of Sat Pal, Radha Kishan, Daya Ram, Subhash and Sant Lal, mark D6 of Ladhu Ram etc., mark D7 of Hari Singh were filed before him. He further deposed that he made enquiries from these persons, as also, Mamta CRA NO.D-389-DB OF 2008 24 2013.11.08 13:45 I attest to the accuracy and integrity of this document made enquiries openly and secretly and found Sahab Ram (appellant) and Vinod Kumar to be innocent in this case and he made entry in the case diaries. He submitted his enquiry report to the Superintendent of Police, Sirsa and on the basis of his enquiry report, the Station House Officer of Police Station Nathusari Chopta filed supplementary challan in this case, as required under Section 173(8) Cr.P.C and this supplementary challan was forwarded to him.
DW4 Subhash also deposed that on 20.09.2002, he and Sat Pal were working as labourers in the house of Risal Singh at village Anandgarh and on that day at about 07:30 p.m, Sahab Ram (appellant) present in the Court and his son Vinod had come to that house. They both had stayed at the house of Risal Singh during that night and left village Anandgarh at about 08:30 a.m, on the next day. DW4 Subhash further deposed that he had sworn affidavit (Ex.D4) before the Deputy Superintendent of Police, Dabwali to this effect.
Thereafter, the defence evidence was closed. After hearing both sides, as also, after perusal of the evidence and material on the record, learned trial Court vide impugned judgment of conviction dated 12.05.2008 found the appellant guilty for commission of offences punishable under Sections 302 and 307 read with Section 34 IPC and Mamta CRA NO.D-389-DB OF 2008 25 2013.11.08 13:45 I attest to the accuracy and integrity of this document Section 27 of the Arms Act and vide impugned order of sentence dated 15.05.2008, sentenced him to undergo rigorous imprisonment for life and to pay fine of `10,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year for the commission of offence punishable under Section 302 read with Section 34 IPC, to undergo rigorous imprisonment for a period of seven years and to pay fine of `10,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year for commission of offence punishable under Section 307 IPC read with Section 34 IPC and also sentenced him to undergo rigorous imprisonment for three years and to pay fine of `5,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months for commission of offence punishable under Section 27 of the Arms Act. All the sentences were ordered to run concurrently.
Aggrieved against the judgment of conviction and order of sentence (supra), the appellant, who was accused before the learned trial Court, has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of offences, wherefor, he was convicted and sentenced by the learned trial Court.
Learned counsel for the appellant contended that the learned trial Court failed to appreciate that the appellant Mamta CRA NO.D-389-DB OF 2008 26 2013.11.08 13:45 I attest to the accuracy and integrity of this document was booked in this case at the instance of Ami Chand, who had strained relations with him and that on the night of occurrence, he was not in his village; rather, on the contrary, he was present at village Anandgarh and he returned to his village in the evening on 21.09.2002, as on 20.09.2002, he was attending the tour programme of Sh.Abhey Singh, who was visiting different villages.
Learned counsel for the appellant also contended that the latter was wrongly challaned by Panjab Singh, SI, at the instance of the complainant party, who lateron, was found innocent by the Deputy Superintendent of Police during investigation. A report under Section 173(8) Cr.P.C was submitted in the Court showing him to be innocent.
Learned counsel for the appellant also contended that Daulat Ram, who appeared as DW1, candidly deposed that on 20.09.2002, Sahab Ram (appellant) was with him for tour of different villages with Sh.Abhey Singh Chautala and after the tour was over at village Nehrana, Sahab Ram (appellant) and Vinod stated that they were going to village Anandgarh and would stay there and they returned from village Anandgarh to Makhu Sarani on the next day i.e on 21.09.2002 at 11/12 noon.
Leaned counsel for the appellant also contended that Risal Singh, who appeared as DW1, also deposed that Mamta CRA NO.D-389-DB OF 2008 27 2013.11.08 13:45 I attest to the accuracy and integrity of this document Sahab Ram (appellant) and his son Vinod stayed at his house on the night of 20.09.2002 and he also contended that DW3 Chander Bhan, DSP also deposed that he found Sahab Ram (appellant) and Vinod Kumar innocent during investigation.
Learned counsel for the appellant also contended that DW4 deposed that he used to work in the house of Risal Singh in village Anandgarh, where Sahab Ram (appellant) and his son Vinod Kumar had come on that day at 07:30 p.m. Both stayed at the house of Risal Singh during night and left village Anandgarh at about 08:30 a.m, on the next day. So, the learned counsel for the appellant contended that although respondent miserably failed to connect the appellant with the commission of crime, yet vide impugned judgment and order of sentence, he was wrongly convicted and sentenced. So, the learned counsel for the appellant contended that since the case of the prosecution suffers from serious infirmities and illegalities, the conviction and sentence of the latter is un-sustainable both in law and facts and he (appellant) may be accorded benefit of doubt and acquitted of the charges, wherefor, he was convicted and sentenced by the learned trial Court.
On the other hand, learned State counsel contended that there is no infirmity or illegality in the impugned judgment of conviction and order of sentence passed by the learned trial Court, who rightly relied upon the ocular Mamta CRA NO.D-389-DB OF 2008 28 2013.11.08 13:45 I attest to the accuracy and integrity of this document evidence, that was corroborated by the medical evidence and rightly repelled the testimonies of the defence witnesses examined by the appellant.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties, as also, we have perused the evidence, documents and material on the record of the learned trial Court with their assistance.
It may be mentioned here that though Sahab Ram (appellant) was named as accused in the FIR, yet, he was at one stage declared innocent in this case and later, he was declared proclaimed offender and after his arrest on 28.09.2006, he got recovered his licensed double barrel gun .12 bore alongwith three live cartridges and licence of the gun. Supplementary challan was presented against him and he was tried alone and was convicted and sentenced vide impugned judgment of conviction and order of sentence for the offences mentioned, therein.
So far as his other accomplices are concerned, it may be mentioned here that the appellant was declared proclaimed offender, his accomplices namely Vinod Kumar and Krishan were declared innocent during investigation. Only Prahlad and Rohtash were tried separately and police report in terms of Section 173 Cr.P.C was submitted against Mamta CRA NO.D-389-DB OF 2008 29 2013.11.08 13:45 I attest to the accuracy and integrity of this document them before the learned Illaqa Magistrate, who later committed the case to the Court of Session, that was assigned to the then Additional Sessions Judge, Sirsa, who during trial, summoned Vinod Kumar and Krishan, on the basis of application under Section 319 Cr.P.C. That case was numbered as Sessions Case No.142 of 2003 and in that Sessions case, Rohtash and Krishan Kumar were acquitted vide judgment dated 02.05.2005, while Prahlad and Vinod Kumar were convicted for commission of offence punishable under Section 302 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for life each and to pay fine of `10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year each, to further undergo rigorous imprisonment for a period of seven years each and to pay fine of `10,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year each for the commission of offence punishable under Section 307 read with Section 34 IPC.
Both accused Prahlad and Vinod filed CRA No. D- 506-DB of 2005 in this Court. Partap Kumar - complainant has also filed CRR No. 227 of 2007 against the acquittal of Rohtash and Krishan Kumar, as also, for enhancing the fine imposed upon Prahlad and Vinod Kumar and for grant of adequate compensation.Mamta
CRA NO.D-389-DB OF 2008 30 2013.11.08 13:45 I attest to the accuracy and integrity of this document For the reasons recorded separately in the judgment of the even date, Criminal Appeal No. D-506-DB of 2005 of Prahlad and Vinod (appellants, therein) has been allowed and they have been acquitted of offences punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. Criminal revision No. 227 of 2007 filed by complainant - Partap Kumar has also been dismissed. So, reasons of acquittal of Parhald and Vinod Kumar, as also, the reasons for dismissal of the revision of complainant Partap Kumar need not be discussed in this case.
Now, the question which emerges for consideration is as to whether the appellant Sahab Ram is guilty of commission of murder of Vinod Kumar, as also, of attempting to murder Partap Kumar Kumar and Vikram by the use of his .12 bore DBBL gun. For adjudication of this point, we will have to go through the ocular evidence that has been provided by the respondent through the examination of PW10 Partap Kumar and PW11 Vikram.
Evidence of both these witnesses has been reproduced in the earlier part of this judgment. They candidly deposed that Sahab Ram (appellant) was armed with a gun. He alongwith his alleged accomplices, who have been acquitted, came to the place of occurrence and Sahab Mamta CRA NO.D-389-DB OF 2008 31 2013.11.08 13:45 I attest to the accuracy and integrity of this document Ram (appellant) fired a shot from his gun that hit Vinod son of Rewta Ram. It is no doubt true, that Vinod son of Sahab Ram was also alleged to have been armed with a gun and a fire arm shot has been attributed to him which hit the stomach of PW10 Partap Kumar. Prahlad was also alleged to have been armed with a gun and has also been attributed a fire arm shot which hit PW11 Vikram, but no such fire arms were recovered from these persons by the police during investigation. Even, it has not been proved on the record that these persons were having licensed fire arms in their names. No record from the office of the District Magistrate was collected by the respondent to prove before the learned trial Court that indeed these persons were having licensed weapons with them. It is not proved on the record of the case against Prahlad and Vinod, that they were having licensed weapons with them. They also could not be held to be possessor of un-licensed weapon, as no such illicit fire arms were recovered from them during investigation.
The principle of 'Falsus in uno, falsus in omnibus' as held by the Hon'ble Supreme Court in Bhur Singh and another v. State of Punjab 2008(4) RCR (Crl.) 834 does not apply in India. The entire evidence of PW10 Partap Kumar and PW11 Vikram cannot be rejected on the ground that their evidence has been disbelieved regarding participation Mamta CRA NO.D-389-DB OF 2008 32 2013.11.08 13:45 I attest to the accuracy and integrity of this document of Vinod, Krishan, Rohtash and Parhlad.
There is normal tendency to inflate the version and sometime entire family members are roped in although, the crime is committed by one person.
PW10 Partap Kumar and PW11 Vikram, thus, candidly deposed that the appellant, herein, committed the murder of Vinod Kumar son of Rewta Ram. Since the other accomplices have been acquitted and they were not carrying any weapon, possibility cannot be ruled out that the stray pellets hit the injured PW10 Partap Kumar and PW11 Vikram. They were subjected to searching cross examination by the learned counsel for the appellant before the learned trial Court, but the lengthy cross examination failed to elicit anything worth the name which could possibly cause any dent in their testimonies. No motive can be ascribed to these witnesses to depose falsely in this case. It is no doubt true that the appellant has taken a plea of alibi that he stayed in village Anandgarh on the night of incident, yet that evidence cannot be relied upon, as that evidence is only oral and not documentary in nature. The defence witnesses DW1 Daulat Ram and DW2 Risal Singh are related to the appellant while DW4 Subhash is a domestic help of DW2 Risal Singh. He being under the influence of his employer, had every opportunity to depose as per his directions in the Court. Mamta CRA NO.D-389-DB OF 2008 33 2013.11.08 13:45 I attest to the accuracy and integrity of this document Chander Singh, DSP (DW3) also cannot be believed when he deposed that he found Sahab Ram (appellant, herein) innocent, as he did not happen to be present at the spot at the time of incident. It seems that he relied upon the deposition of the relatives of the appellant who were not present on the night of incident at the place where it happened. So, the evidence of DW3 Chander Singh, DSP is inconsequential to the appellant.
PW10 Partap Kumar during cross examination was put a question and he deposed that Sahab Ram had fired only one shot which hit Vinod Kumar. He further deposed that Vinod Kumar, on receiving this injury, fell down on the ground. He further deposed that the shot was fired upon him from a distance of 15 paces and he only suffered one pellet injury. This statement made by PW10 Partap Kumar during cross examination must bind the appellant and it must follow from the reply given by this witness that it was Sahab Ram who had fired a shot on Vinod Kumar. Appellant, thus, could not wriggle out of the consequences of this answer given by PW10 Partap Kumar to his question. The fact remains that the appellant by putting such question to PW10 Partap Kumar confessed that he had fired one shot on Vinod Kumar and PW10 Partap Kumar suffered one pellet injury.Mamta
CRA NO.D-389-DB OF 2008 34 2013.11.08 13:45 I attest to the accuracy and integrity of this document PW11 Vikram denied the suggestion during cross examination about the presence of the appellant in the village on the night of the incident. During cross examination, PW11 Vikram deposed that the accused persons came to the spot just after 5/10 minutes of their reaching there. He further deposed that he and Partap Kumar (PW10) had sustained only one pellet injury each.
Testimony of PW7 Dr.Viresh Bhushan would also reveal that there was only one injury each on the person of Partap Kumar (PW10) and Vikram (PW11). The ocular evidence of PW10 Partap Kumar and PW11 Vikram, thus, stands corroborated by the medical evidence of PW7 Dr. Viresh Bhushan, who further deposed during cross examination that possibility of injuries on Partap Kumar and Vikram by stray bullet cannot be ruled out. He also deposed that after seeing the x-ray report, he can say that both Partap Kumar (PW10) and Vikram (PW11) each received a single pellet injury. From this medical evidence, it emerges that one injury each, that was suffered by PW10 Partap Kumar and PW11 Vikram was caused by the appellant and not by any other person.
From the evidence of PW1 Dr. Gobind Gupta, it stands established that the injuries, whereto, Vinod Kumar (deceased) succumbed were fire arm injuries and these were Mamta CRA NO.D-389-DB OF 2008 35 2013.11.08 13:45 I attest to the accuracy and integrity of this document caused by the appellant, as can be seen from the testimonies of PW10 Partap Kumar and PW11 Vikram with his DBBL gun (Ex. P37), that was lateron recovered by police during investigation. His licence (Ex.P38) was also recovered. PW1 Dr. Gobind Gupta also deposed that the injuries caused to the deceased could be by one shot and according to the testimony of PW7 Dr. Viresh Bhushan, the stray pellets of this one shot could cause one injury each to Vikram (PW11) and Partap Kumar (PW10). So, it was the appellant alone who is the author of this incident and he was wrongly declared innocent by the police during investigation by ignoring the ocular version given by PW10 Partap Kumar and PW11 Vikram during investigation and the police themselves realized the mistake and they after declaring even the appellant innocent, involved him in the investigation of this case and got him declared proclaimed offender and arrested him lateron and put him on arraignment.
Learned trial Court, thus, rightly concluded that it was the appellant, who fired a shot on Vinod Kumar from his double barrel gun and the deceased succumbed, thereto, but the learned trial Court wrongly concluded that other accused Prahlad fired a shot on Vikram and Vinod Kumar fired a shot from his gun on Partap Kumar - complainant, with intention Mamta CRA NO.D-389-DB OF 2008 36 2013.11.08 13:45 I attest to the accuracy and integrity of this document to cause their death and vide separate judgment of even date passed by this Court in CRA-D-506-DB of 2005, they have been acquitted by holding that no recovery of fire arms was made from them, as also, it has been held (supra) that the licensed gun was used by the appellant and, therewith, he gave a shot on the deceased and stray pellets hit PW10 Partap Kumar and PW11 Vikram. In this manner, the appellant alone committed offence punishable under Section 302 IPC for commission of murder of Vinod Kumar son of Rewta Ram and offence punishable under Section 307 IPC for attempting to murder Vikram and Partap Kumar. In commission of this crime, he used his double barrel gun (Ex.P37). He himself lateron got the gun and licence recovered, that were seized vide memo (Ex.P36), as can be seen from the evidence of PW16 SI Hawa Singh.
The appellant, therefore, alone is guilty of commission of offences punishable under Sections 302/307 IPC and 27 of the Arms Act and he was rightly convicted for commission of these offences. It must be held that with the acquittal of the accomplices of the appellant vide separate judgment of even date in their separate appeal CRA-D-506- DB of 2005, the conviction of the appellant for commission of offences punishable under Sections 302 and 307 IPC with the aid of Section 34 IPC cannot sustain, as he himself is the Mamta CRA NO.D-389-DB OF 2008 37 2013.11.08 13:45 I attest to the accuracy and integrity of this document author of this incident and, therefore, his conviction for offences punishable under Sections 302, 307 IPC and Section 27 of the Arms Act is, hereby, upheld and affirmed. His sentence of imprisonment and fine, as has been mentioned in the impugned order of sentence, shall be read without the aid of Section 34 IPC. So, the order of sentence is also upheld and affirmed.
Resultantly, the appeal fails and is, hereby, dismissed.
Now adverting to the point of compensation. The deceased at the time of his death in this incident was 30/32 years of age. He was not trained in any profession as no diploma or degree of training of the deceased in any vocation has been placed on record. So, Vinod Kumar (deceased) can only be categorized as manual workman at the time of his death. In the year 2002, he was only capable of earning ` 2,400/2500 per month by doing manual work. Out of this monthly income, he would have kept 1/3rd for his personal expenses and contributed his remaining monthly income to his legal representatives / dependants.
So, due to the death of Vinod Kumar deceased in this incident, his legal representatives suffered a monthly loss of dependency to the tune of `15,000/- and annually to the tune of `18,000/-. Keeping in view the age of the deceased Mamta CRA NO.D-389-DB OF 2008 38 2013.11.08 13:45 I attest to the accuracy and integrity of this document as 30/32 years at the time of incident, appropriate multiplier shall be of 14. By applying the multiplier of 14, compensation payable to the legal representatives of deceased Vinod Kumar son of Rewta Ram, resident of Makhu Sarani, Nathusari Chopta shall come to 18000 x 14 = `2,52,000/-. The appellant shall deposit this amount of compensation in the Court of learned Chief Judicial Magistrate, Sirsa within a period of six months and the latter shall distribute the same to the legal representatives of the deceased Vinod Kumar in equal shares.
The learned Chief Judicial Magistrate, Sirsa shall take necessary steps for realization of the abovesaid amount from the appellant, as arrears of land revenue from his person, as well as moveable or immovable property and for this purpose for realization of amount of compensation, he can take necessary assistance from the Collector of the District.
(S.S.SARON) (S.P.BANGARH)
JUDGE JUDGE
04.10.2013
mamta
1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or? Yes
3. Whether the judgment should be reported in the digest? Yes