IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 80-DB of 2007 DATE OF DECISION : 20.04.2011 Suresh Chand .... APPELLANT Versus State of Haryana ..... RESPONDENT Crl. A. No. 698-DB of 2007 DATE OF DECISION : 20.04.2011 State of Haryana .... APPELLANT Versus Suresh Chand ..... RESPONDENT Crl. A. No. 1046-DB of 2007 DATE OF DECISION : 20.04.2011 State of Haryana .... APPELLANT Versus Sonu alias Viresh and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Baldev Singh, Senior Advocate, with Mr. A.D.S. Sukhija and Mr. Deepinder Singh, Advocates, for the appellant. (in Crl. A. No. 80-DB of 2007) and for the respondents (in Crl. Appeals No. 698-DB & 1046-DB of 2007) Mr. S.S. Randhawa, Addl. A.G., Haryana. Mr. Bijender Dhankar, Advocate, for the complainant. * * * Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -2- SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeal No. 80-DB of 2007, filed by accused Suresh Chand (hereinafter referred to as `A-1') against his conviction and sentence; Criminal Appeal No. 698-DB of 2007, filed by the State of Haryana for enhancement of sentence of A-1; and Criminal Appeal No. 1046-DB of 2007, filed by the Sate of Haryana against the acquittal of two accused, namely Sonu alias Viresh and Shiv Parkash alias Poli (hereinafter referred to as `A-2 and A-3'), who are son and employee of A-1. 2. In the present case, A-1 to A-3 were tried under Sections 302/34, 307, 307/34 IPC and Section 25 of the Arms Act, for committing the murder of three persons, namely Amit, Vikas and Rajesh, by firing pistol shots at them. Vide judgment dated 23.11.2006, passed by the court of Additional Sessions Judge, Chandigarh, A-1 has been convicted for the offences under Section 302 IPC for committing murder of three persons; and Section 25 of the Arms Act on two counts, firstly for having used a pistol .762 MM, being carried by him without any licence or permit and secondly for having been in conscious possession of a country made .315 bore pistol, whereas A-2 and A-3 have been acquitted of the charges, while giving them benefit of doubt. Vide order dated 29.11.2006, passed by the trial court, A-1 has been sentenced to undergo life imprisonment and to pay a fine of ` 3 lakhs or to undergo rigorous imprisonment for three years in default of payment of fine under Section 302 IPC; and to undergo rigorous Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -3- imprisonment for five years and to pay a fine of ` 5,000/- or to undergo rigorous imprisonment for a period of one year in default of payment of fine, each on both the aforesaid counts, under Section 25 of the Arms Act. Case of the prosecution 3. As per the prosecution version, which is based upon the statement (Ex.PB) of Ajit Singh (PW.15), who was serving as a Social Studies Teacher in Government Senior Middle Standard School, Barwali, on 31.8.2002 (a day before the occurrence), his nephew Varinder alias Monu (PW.13), when he was beaten by A-2, had gone to City Sonepat in connection with Janam Ashtami festival. He told him (complainant) and his brother about this incident in the morning of 1.9.2002. On the same day, at about 3.15 PM, to protest against the said incident, the complainant and his younger brother Kuldip (PW.16), who was serving as Head Constable in Delhi Police, along with his son Rajesh, nephew Vikas and Amit (friend of Vikas) went on two motor cycles, to the Pepsi Agency of A-1 (father of A- 2), which was situated in Aggarwal Enclave, Mirch Mandi, Sonipat, where A-1, A-2 and A-3 met them. When the complainant side protested against the incident of previous day, A-1 asked them as to how they have dared to visit his agency to make a complaint against his son (A-2). When they told him that they had come just to lodge a protest and he should not indulge in rowdism, A-1 got enraged. He exhorted A-2 and A-3 to bring out their weapons to kill them. On this, A-3 brought out a pistol from the agency and handed over the same to A-1. A-2 also brought out a country made pistol Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -4- from inside. Then A-1 with an intention to kill Amit, Vikas and Rajesh fired from his pistol towards them. The shots landed at the face and chest of Amit, at the head and back of Vikas and in the chest and head of Rajesh. A- 2 also fired a shot from his country made pistol towards the complainant with an intention to kill him, but the shot did not hit the complainant. Amit, Vikas and Rajesh fell down. The complainant and his brother Kuldip ran away from the spot to save themselves, while leaving their motor cycles at the place of occurrence. After some time, when they returned on the spot, they found Amit, Rajesh and Vikas were lying dead. The pistol, from which A-1 had fired shots, was lying near the feet of Amit and the country made pistol of A-2 was lying near the dead body of Vikas. According to the complainant, this incident had taken place at about 3.30/3.45 PM. After the incident, the complainant first went to his house to inform about the occurrence to his family members and from there, he went to Police Station City Sonipat for lodging the report. At the gate of the Police Station, Inspector Darshan Lal (PW.17) met him, who recorded the statement (Ex.PB) of complainant Ajit Singh at 5.00 PM, on the basis of which the formal FIR (Ex.PB/1) was registered against A-1 to A-3 at 5.10 PM, and the special report was sent to the Ilaqa Magistrate, which was received by him at 12.15 AM (mid-night). 4. After recording the statement of Ajit Singh and sending the ruqa for registration of case, Inspector Darshan Lal along with the police party went to the spot. From the spot, he picked up a pistol (Ex.PW8/D) Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -5- carrying a live cartridge of 7.62 MM, lying near the feet of the dead body of Amit; a country made pistol (Ex.PW8/F) carrying a live cartridge (Ex.PW8/H) of .315 bore, lying near the dead body of Vikas; eight empty cartridges of 7.62 MM (Ex.PW17/1 to Ex.PW17/8); two pieces of bullet (Ex.PW17/9 and Ex.PW17/10); a piece of jacket of bullet (Ex.PW17/11); a plastic crate of Pepsi (Ex.PW17/12), lying near the head of deceased Vikas, which was having mark of bullet landing upon it; broken pieces of glass lying near the dead body of Rajesh; three separate blood soaked earth from besides the dead body of Amit, near the dead body of Vikas and besides the dead body of Rakesh; and two motor cycles. All these articles were taken into possession vide recovery memo (Ex.PW8/B), which was attested by Sub Inspector Rajinder Singh (PW.14) and Sube Singh (PW.8). Thereafter, Inspector Darshan Lal prepared rough site plan (Ex.PW17/17) of the place of occurrence and the inquest reports (Ex.PW17/18 to Ex.PW17/20) qua dead bodies of Amit, Vikas and Rajesh, which were attested by Bhim Singh (PW.5) and Dharamvir Singh. The dead bodies were sent to Civil Hospital, Sonipat for post mortem examination. 5. On 2.9.2002 at 11.15 AM, Dr. S.S. Bhogal, Medical Officer, Civil Hospital, Sonipat (PW.3), being a member of the Board of Doctors constituted by the Medical Superintendent, Sonipat, conducted post mortem examination on the dead body of Amit, and found the following injuries on his person : 1. A lacerated punctured wound of a diameter of 1 cm having inverted Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -6- margins and in front of lobule of left ear with clotted blood. Blackening was present near the wound in an area of 2 cm diameter with multiple punctate pin head size blackish spots all around the wound in an area of 4 cm diameter. The wound was explore to find under-lying subcutaneous muscles were lacerated with lot of haemetoma formation. The track was going medially, downward and posteriorly towards the right side damaging the vessels and deeper part of tongue, oropharynx and vessels of the right side of neck. 2. A punctured lacerated wound of the size of 1.5 cm diameter with everted margins was found present on the right side of the neck just below the angle of mandible. Rigor mortis of the mandible was found fractured and right neck muscles and vessels were found lacerated. 3. A lacerated punctured wound of the size of 1 cm diameter with inverted margins with blackening around the wound was found present on the lateral aspect of the right arm 20 cm below the tip of the right shoulder. The wound was explored to find the track going medially with laceration in the subcutaneous tissue and muscle. Clotted blood was found present in the muscles. 4. A punctured lacerated wound of the size of 1 cm diameter was found present with everted margins on the medial aspect of the right arm 5 cm below the right axilla. Fat was coming out of the wound and clotted blood was present. 5. A punctured lacerated wound of the size of 1 cm diameter was found present on the right side of the chest and the level of the mid axillary lying 4 cm below the right axilla. On exploration the track was going medially posteriorly passing through the subcutaneous tissue muscles and entering the right pleural cavity injuring the right lung posteriorly. Right pleural cavity was full of blood and right lung lacerated. Left lung was also lacerated and 5th rib on the left side was found fractured besides the fracture of left scapula and the wound Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -7- track was coming out posteriorly on the left scapular area. 6. A punctured lacerated wound of the size of 1.25 cm diameter was found present with everted margins was noticed on the posterior lateral aspect of the upper part of the left side of the chest, 5 cm below the left axilla. Clotted blood was present at the site and all the internal visceral organs were found pale but healthy. 6. Injuries No.1, 3 and 5 were entry wounds, whereas injuries No. 2, 4 and 6 were exit wounds. As per the Post Mortem Report (Ex.PE) of deceased Amit, the cause of death was due to shock and haemorrhage as a result of injuries to vital organs of the body. All the injuries were found to be ante mortem in nature and sufficient to cause death in the normal course of life. The probable duration between injuries and the post mortem was between 6 to 36 hours, and death must have occurred within a few minutes from receiving the injuries. 7. On the same day at 12.15 PM, Dr. S.S. Bhogal, conducted post mortem examination on the dead body of Vikas, and found the following injuries on his person : 1. Multiple reddish brown contusions were present on the lateral aspect of the left leg, left wrist and right iliac-crest. 2. A circular lacerated wound of the size of 1 cm diameter with inverted margins and blackening all around the wound on the right temporal area of skull lying 5 cm above the right pinna was noticed. On exploration haemotema was noticed on the subcutaneous area and the under-lying wound was fractured. The skull was opened to find track of wound going towards the left side of the skull which was slightly downward and backward and had caused laceration of the brain Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -8- tissue. Cranial cavity was found full of blood and the track of wound was going posteriorly on the left side of the skull just on the left side of the occiput. The dimensions of the wounds were 4 x 2 cm with everted margins and clotted blood was present and occiput wound was fractured. 3. Wound of the size of 0.8 cm diameter with inverted margins was found on the left side of the chest lying 6 cm supro medial aspect of the left memory area with surrounding subcutaneous haemotema. The wound was explored to find underline 4th and 5th ribs fractured. Track of the wound was going through the left lung, auricle of the heart and then passing through the right lung and coming out of the back side of the right side of chest at right subscapular area of the chest where it joined the wound with dimensions of 1.25 cm x 1 cm with everted margins. All of the internal visceral organs were healthy but paled. Both of the lungs were found lacerated. 4. A circular lacerated wound of the size of 1.25 cm diameter was found in the supra clavicular area with inverted margins with clotted blood with blackening all around the wound. On exploration, the track of the wound was noticed going downward and backward and medially traversing through the left pleural cavity, right lung along with visceral of heart and the track ended at the wound with dimension of 1.25 cm diameter on the back with everted margins. 8. Injuries No.2, 3 and 4 were entry and exit wounds. As per the Post Mortem Report of deceased Vikas (Ex.PG), the cause of death was due to shock and haemorrhage as a result of injuries to brain, lungs and heart. All the injuries were found to be ante mortem in nature and sufficient to cause death in the normal course of life. The probable duration between between injuries and the post mortem was between 6 to 36 hours, and death Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -9- must have occurred within a few minutes from receiving the injuries. 9. On the same day, Dr. A.S. Ahlawat, Medical Officer (PW.4) being a member of the Board of Doctors constituted by the Medical Superintendent, Sonipat, conducted post mortem examination on the dead body of Rajesh, and found the following injuries on his person : 1. Wound of entry with inverted margins of the size of 1.5 cm x 1 cm on the left side of neck, 6 cm below the angle of left mandible was found. Abraded collar with blackening of the margins was also present. 2. A wound of exit was present on the left side of scalp in the left temporal occipital region measuring 3.5 cm x 1.5 cm with everted and lacerated margins. On dissection of the dead body of Rajesh, injury No.1 was found to have caused, inter alia, fracture of left temporal and occipital bone and subcutaneous tissue of the neck and ending at injury No.2 was found present. On removing the vault extradural haemotema was found on the temporal occipital region of left side. 3. Wound of entry of the size of 1 cm in diameter was found present on the upper part of right side of chest in the mid clavicular lying 5 cm below the clavicle margins. 4. The wound of exit was found present in the left lateral wall of the chest in the mid axillary line 3 cm below the apex of the axilla with lacerated and everted margins. 5. A wound of entry was noticed in the medial side of upper part of the left arm 7 cm below the apex of the left aximlla whose margins were inverted. On exploration of chest and left arm the track of the wound was found going towards the left and slightly downward and after entering into the wound of exit, above said, entered into injury in the medial size of the upper part of the left arm. A blood stained bullet was found lodged 2 cm below injury No.5 caused by wound of entry Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -10- in the medial side of the upper part of left arm. A blood stained bullet was found lodged 2 cm below the injury caused by wound of entry in the medial side of upper part of left arm which was removed, put in a sealed bottle and handed over to the police. This bullet had injured upper part of right lung and upper half of the left lung. 6. Two reddish brown abrasions on left side of fore-head each measuring 1.5 cm x 0.25 cm. 7. Three reddish brown line abrasions on chin. 10. Injuries No.1, 3 and 5 were entry wounds, whereas injuries No. 2 and 4 were exit wounds. As per the Post Mortem Report (Ex.PJ) of deceased Rajesh, the cause of death was due to shock and haemorrhage as a result of multiple fire arm injuries, which were ante mortem in nature and sufficient to cause death in the normal course of nature. The probable duration between injuries and the post mortem was between 12 to 36 hours, and death must have occurred within a few minutes from receiving the injuries. A bullet was removed from the body of the deceased and was handed over to the police. 11. On 2.9.2002, A-2 was arrested from a place near Octroi Post, Kalupur. A-3 surrendered before the learned Judicial Magistrate Ist Class, Sonipat and was formally arrested on 5.9.2002. A-1 was arrested on 5.9.2002 from Jaipur Golden Hospital, Rohini, New Delhi, and during interrogation, he suffered a disclosure statement (Ex.PW9/A) in the presence of ASI Ranjit Singh (PW.9) and Head Constable Rajbir Singh, in pursuance whereof he got recovered a country made pistol of .315 bore (Ex.PW9/1), kept concealed by him in the godown of his Pepsi Agency, Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -11- which was taken into possession by the police vide memo Ex.PW9/C in the presence of both the aforesaid witnesses. 12. All the arms and ammunition as well as the other articles, including the clothes of the deceased, recovered in this case, were sent to FSL, Haryana, Madhuban. As per the report (Ex.PC), the pistol of 7.62 MM (Ex.PW8/D) as well as two other country made pistols (Ex.PW8/F and Ex.PW9/1) were found in working order. It was further reported that out of eight empty cartridges of 7.62 MM, recovered from the spot, four cartridges were fired only and only from the pistol of 7.62 MM (Ex.PW8/D). Similarly, two pieces of bullets, recovered from the spot (Ex.PW17/9, Ex.PW17/10), and one bullet removed from the body of deceased Rajesh, were also fired only and only from the said pistol. It was found that out of eight empty cartridges of 7.62 MM, three cartridges were fired from one and the same regular fire-arm, but not from 7.62 MM pistol (Ex.PW8/D). Similarly, one piece of jacket (Ex.PW17/11) recovered from the spot was also reported to have been fired from a regular fire-arm, but not from the aforesaid 7.62 MM pistol. 13. After completion of investigation, the police filed challan against the accused and charges under Sections 302/34, 307/34 IPC and 25 of the Arms Act were framed against all the accused, to which they did not plead guilty and claimed trial. Prosecution evidence 14. In support of its case, the prosecution examined eighteen Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -12- witnesses. 15. PW.1 Constable Inderpal proved the scaled site plan (Ex.PA) of the spot, prepared by him on 19.9.2002. 16. PW.2 ASI Bhagwan Sarup proved the FIR (Ex.PB/1), recorded by him on 1.9.2002. 17. PW.3 Dr. S.S. Bhogal and PW.4 Dr. A.S. Ahlawat, who conducted autopsy on the bodies of deceased Amit, Vikas and Rajesh, proved their Post Mortem Reports Ex.PE, Ex.PG and Ex.PJ, respectively. 18. PW.5 Bhim Singh, who identified the dead bodies of all the three deceased persons, is witness to the inquest reports (Ex.PW17/18 to Ex.PW17/20). 19. PW.6 Constable Rajesh Kumar, who took photographs of the place of occurrence on 1.9.2002, proved the negatives (Ex.PW6/1 to Ex.PW6/23) and the photographs (Ex.PW6/24 to Ex.PW6/38). 20. PW.7 Constable Parveen Kumar is a formal witness, who delivered special reports to the office of DSP, Sonipat, SP, Sonipat and the Ilaqa Magistrate. 21. PW.8 Sube Singh and PW.14 SI Rajinder Singh are witnesses to the recovery at the spot on 1.9.2002. 22. PW.9 SI Ranjit Singh is witness to the disclosure statement of A-1 and recovery of the country made pistol at his instance. 23. PW.10 HC Jai Bhagwan and PW.11 ASI Randhir Singh are the formal witnesses. Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -13- 24. PW.12 Ram Parkash, Reader to the District Magistrate, Sonipat, proved sanction orders (Ex.PW12/C and Ex.PW12/D) accorded under Section 39 of the Arms Act to prosecute A-1 and A-2 under the Arms Act. 25. PW.13 Varinder alias Monu, nephew of complainant Ajit Singh, is the witness, who is alleged to have been given beatings by A-2 in Sonipat, one day prior to the occurrence in this case. He has stated that on 31.8.2002, A-2 gave fist blows and slaps to him and the people, who rescued him, asked A-2 as to why he had given beatings to him, then A-2 had stated that he gave beatings to this witness under the mistaken identity. This witness further stated that on that very day, he went to his house, and on the next day, he disclosed this incident to his elder brother Vikas Dahiya, who pacified him. 26. PW.15 Ajit Singh (complainant) and PW.16 Kuldip, the alleged eye witnesses, have supported the prosecution version, regarding the occurrence. 27. PW.17 Inspector Darshan Lal, the Investigating Officer, has proved the statement of the complainant (Ex.PB), recorded by him, recoveries from the spot, arrest of the accused and all the relevant documents, prepared by him, during the investigation. 28. PW.18 SI Ram Avtar is a formal witness. Statements of accused under Section 313 Cr.P.C. 29. In their statements under Section 313 Cr.P.C., all the three Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -14- accused denied the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. A-1 specifically stated that one day prior to the occurrence, no quarrel had taken place between Varinder alias Monu (PW.13) and A-2. He pleaded that his son A-2 was a student of Law from Rajiv Gandhi Law College, Bhopal and was not doing any work in the Pepsi Agency, where a large number of employees and labourers were employed by him. On the day of occurrence, he was present at his Pepsi Agency along with 15 other persons, but A-2 and A-3 were not present there. Five persons, namely Amit, Vikas, Rajesh, Mahesh and one more person came to his agency to pressurise him not to appear as a witness in a criminal case against Mahesh, Ashok and three others, to which he refused. Thereafter, he was fired at his left foot by one of those five persons and he was taken to Civil Hospital, Sonipat, by his brother Ramesh. A-1 further pleaded that those five persons were seen by him being checked by his workers and others. Subsequently, he came to know that three of the five assailants had died at the spot. He denied of having fired any shot on either of those deceased and further pleaded that he had no enmity with them, rather he was attacked by them having gone perturbed with his pursuing the aforesaid criminal case against Mahesh, Ashok and three others. He further stated that he was referred from Civil Hospital, Sonipat to PGI, Rohtak, but he was got admitted in Jaipur Golden Hospital, New Delhi, where the Sonipat police reached on 1.9.2002 and remained there throughout his stay in the hospital. A-1 further pleaded that even if some Crl. Appeals No. 80-DB, 698-DB & 1046-DB of 2007 -15- false cases were lodged against him, he has been acquitted in all those cases and was leading a peaceful life for several