Criminal Appeal No.370-DBA of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. State of Haryana APPELLANT VERSUS Surender Singh RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE JUSTICE (MRS.) DAYA CHAUDHARY Present:- Shri Kulvir Narwal, Additional A.G. Haryana for the State. Shri Baldev Singh, Senior Advocate with Shri Arshvinder Singh, Advocate for the respondent. MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.370-DBA of 2001 and Criminal Appeal No.752-SB of 2000 by this common judgment, as they arise out of the same judgment/order dated 5.8.2000/8.8.2000 of the learned Additional Sessions Judge, Gurgaon, whereby he convicted respondent Surender Singh under Section 304 Part-I I.P.C. and sentenced him to undergo RI for 8 years and to pay a fine of Rs.30,000/-, or in default of payment of fine, to further undergo RI for one year. Criminal Appeal No.370-DBA of 2001 -2- The case of the prosecution is that on 26.9.1997 H.C. Surender Kumar No.500 (PW-9) was working as Moharrir Constable in Police Post Dundahera. Respondent/accused Constable Surender Singh No.907, deceased Constable Dharampal No.999, complainant Constable Ajit Singh No.968 (PW-4), Constable Ajit Singh No.5/771 and Constable Arvind Kumar were also posted in the same Police post. Complainant Constable Ajit Singh No.968 (PW-4) and respondent/accused Surender Singh No.907 were put on night patrol duty in Sector 21 and 22. Deceased Dharampal along with Constable Ajit Singh No.5/771 were put on duty in Phase 1,2,3 and 5 Udyog Vihar, Dundahera. Constable Arvind Kumar and Constable Jagdev were on night duty in Sarhaul. All of them had been supplied rifles of 303 bore along with 25 live cartridges each (except Constable Arvind Kumar and Constable Jai Dev). Complainant Constable Ajit Singh No.968 (PW-4) and Surender Singh respondent/accused started to go towards the place of duty. The scooter of Surender Kumar accused was parked nearby. Finding that the key was not with him, he thought that he had lost the key, but Dharampal deceased searched his pocket and found that the key was with him by mistake. He handed over the key to complainant Constable Ajit Singh No.968 (PW-4) who then handed it over to Surender Singh. On this Surender Singh accused started abusing Dharampal and hot words were exchanged. Accused Surender Singh challenged Dharampal to fire at him, but Dharampal deceased refused to do so. Surender Singh then fired his rifle at Dharampal which hit him on his chest. Complainant Constable Ajit Singh No.968 (PW-4) tried to stop them, but he was also threatened. ASI Balbir Singh PW-3 then came out and persuaded Dharampal to come inside the tent. Rifle Ex.P5 was seized from Surender Singh accused. F.I.R. Ex.PH/2 was registered on the statement Ex.PH of Constable Ajit Singh No.968 (PW-4). Empty Ex.P7 was taken into possession along with rifle Ex.P5. Criminal Appeal No.370-DBA of 2001 -3- The prosecution to prove its case, brought into the witness-box Dr.B.B.Aggarwal PW-1, Dr.S.K.Sharma PW-2, ASI Balbir Singh PW-3, Constable Ajit Singh PW-4, Mahender Singh PW-5, Bharat Singh PW-6, HC Partap Singh PW-7, Constable Om Parkash PW-8, Surender Singh PW-9, ASI Ram Singh PW-10, Dr.R.K.Sachdeva PW-11, Constable Manoj Kumar PW-12 and Inspector Satyawati PW-13. Constbale Bhoom Singh DW-1 was examined in defence. We have heard the learned counsel for the parties and perused the record with their assistance. Dr.S.K.Sharma PW-2 conducted the post-mortem on the person of the deceased on 27.9.1997 and found the following injuries on his person :- (1) Firearm entry wound on the lower middle front of the chest. It was oval measuring .2 cm x .4 cm in the middle line of the chest, 7 c.m. below the line joining the two nipples. There was circumferential abrasion which is dark as a result of drying. It was more on the right side of the wound and thin on the left side, indicating the victim was shot from left to right. (2) An irregular firearm exit wound on the outer surface of the right side of the chest. It was 10 cm x 8, cm 9 cm below the post. Axillary fold. Its upper margin is 12.5 cm outer to the right nipple. There is a hole of the dia 1.5 cm in the lower half of the wound. Visible chest muscles were torn and ragged in that area. (3) The lower inner portion of right arm over lying the injury No.2 when approximately by the side of the chest, showed grazed abrasion with echymosis of blood. On dissection it was found that the inner of the sternum underlying injury No.1 and the underlying intercostal space was blood filled. The 7th rib on the right side is transected into two portions in the mid axillary line. There is oval fractured area of the 7th rib underlying the injury No.2. Right side chest cavity contained about two litres of blood. There was evidence of blood in the air passages. Right lung was collapsed and shrunken towards hilar area. The lower lobe is totally ragged and torn. Criminal Appeal No.370-DBA of 2001 -4- Right half of the mediastinum lying over the right side of the heart is blood filled. There is extensive haemorrhage in that area. The diaphragm showed obliquely grazed wound in the continuity with the one on the upper surface of the right lobe of the liver. Abdominal cavity contained about 150 ml. of liquid blood. On the upper surface of the liver there is a slightly obliquely grazing bullet wound of 8 cm. x 1 cm x half cm. deep underlying the diaphragm. The cause of death was the penetration of the bullet into the lung. Complainant Constable Ajit Singh No.968 (PW-4) in his testimony before the Court has stated that a fight had ensued between both deceased Dharampal and respondent/accused Surender Singh on the question of keys of the scooter. Bharat Singh PW-6 has testified that there was quarrel of the children and ladies of both the deceased and the respondent but no report was lodged. In his statement under Section 313 Cr.P.C., respondent/accused Surender Singh has admitted the time, date and place of occurrence. He has further admitted that deceased was were posted in Police Post Danduhera. He further admitted that deceased received rifle shot injuries due to which he died. He has further stated that both deceased and the respondent/accused had liquor together. Thereafter they grappled with each other and accidentally the gun of one of them went off. The learned trial Court after taking into consideration the statement of complainant Constable Ajit Singh No.968 (PW-4) and the other eye-witnesses as well as the statement of the respondent/accused Surender Singh under Section 313 Cr.P.C., has rightly convicted the respondent/accused under Section 304 Part-I I.P.C. and rightly sentenced him to undergo RI for 8 years and to pay a fine of Rs.30,000/-, in default, to further undergo RI for one year. Criminal Appeal No.370-DBA of 2001 -5- We do not find any infirmity in the judgment of the learned trial Court. Criminal Appeal No.370-DBA of 2001 and Criminal Appeal No.752-SB of 2000 are dismissed. ( MEHTAB S.GILL ) JUDGE ( DAYA CHAUDHARY ) May 21, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO