IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 203-DB of 2006 DATE OF DECISION : 26.04.2011 Pardeep and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Vikram Punia, Advocate, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. On 30.12.2004 at about 4.45 PM, an encounter had taken place between the Delhi Police and Surinder alias Sunder along with his two associates, namely Pardeep and Ranbir Singh (appellants herein), in front of the Sugar Mills Colony, Panipat, in which Surinder alias Sunder, who was wanted in two criminal cases, and Sub Inspector Mehtab Singh of the Special Cell of Delhi Police, had died due to bullet injuries. On the basis of the statement (Ex.PL) of Sub Inspector Dharmender Kumar (PW.10), who was a member of the police party, which came to Panipat in order to apprehend Surinder alias Sunder, the formal FIR (Ex.PL/2) under Sections 302/307/353/186/34 IPC and Sections 25/27-54-59 of the Arms Act was Crl. A. No. 203-DB of 2006 -2- registered against the appellants on the same day at 7.30 PM at Police Station Model Town, Panipat. According to Sub Inspector Dharmender Kumar-complainant, Surinder alias Sunder, a resident of village Tittoli, Police Station Sadar, Rohtak, was a notorious criminal. He was belonging to the gang of hardcore criminal, namely Krishan Pehalwan, and was wanted in FIR No. 154 of 2004 (Ex.PB) under Sections 385/386/120-B/34 IPC, Police Station Nangloi, Delhi and FIR No. 147 of 2004 (Ex.PA) under Sections 186/353/307/34, 120-B IPC, Sections 25/27-54-59 of the Arms Act, Sections 4/5 of the Explosive Substances Act, Police Station Special Cell, Delhi. In his search, Delhi Police was raiding in Haryana and Delhi. On 30.12.2004 at about 10 AM, a secret information was received by the Special Cell of Delhi Police that at about 4.30 PM, Surinder alias Sunder along with his companions will visit Sugar Mills Colony, Panipat, in order to meet some one. After getting the said information, he along with SI Rahul (PW.12), SI Mehtab Singh (deceased), SI Vinay Tyagi (PW.11), SI Rajpal Dabas, ASI Bhoop Singh, ASI Vikram, HC Ajit, HC Rajinder, HC Satinder, HC Mahavir, Constable Attar Singh, and Constable Satinder, came to Panipat, with the prior permission of the senior officers, in a private car and two two-wheelers. The police party reached Panipat at about 2.00 PM. The secret informer met them at Panipat at about 2.30 PM. He confirmed the information already given to the police. The police party informed the local police at Police Station Model Town Panipat. Thereafter, they reached the Sugar Mills Colony and took position according to their plan. At about 4.45 Crl. A. No. 203-DB of 2006 -3- PM, on a motor cycle three persons came from the side of the colony towards its gate, where barricades were placed. The secret informer told the police party that one of the person, sitting on the back seat of the motor cycle, was Surinder alias Sunder. Upon this, the complainant and SI Mehtab Singh asked them in a loud voice to stop. All the three persons, finding themselves encircled by the police, opened fire upon the police party. They were again warned by the complainant and SI Mehtab Singh to surrender, but they kept on firing continuously. Thereupon, to apprehend the assailants and in their self defence, SI Mehtab Singh, SI Rahul, HC Rajinder and HC Amit also started returned firing from their service revolvers. SI Mehtab Singh received fire-arm injuries and fell down. Surinder alias Sunder also fell down due to the fire-arm injuries, received by him. The remaining two assailants, namely Pardeep and Ranbir Singh (appellants), surrendered before the police party along with their weapons. Injured SI Mehtab Singh and Surinder alias Sunder were taken to Hospital for treatment, where they were declared brought dead. 2. On information, the local police came on the spot, where the appellants, who did not receive any injury in the occurrence and had surrendered before the police, were handed over to the local police with ammunition carried by them. The aforesaid statement (Ex.PL) of SI Dharmender Kumar was recorded by SI/SHO Rajesh Kumar (PW.14) on 30.12.2004 at 7.00 PM and the special report was delivered to the Ilaqa Magistrate on the same day at 9.50 PM. Crl. A. No. 203-DB of 2006 -4- Investigation and recovery at the spot 3. After registration of the FIR, on the same day, i.e. on 30.12.2004, a photographer was called at the spot, who took the photographs (Ex.P5 to Ex.P8) of the blood lying on the road at the place of occurrence. SI Rajesh Kumar, the Investigating Officer, prepared the rough site plan (Ex.PAA) of the place of occurrence. One .450 bore pistol (Ex.P52) was lifted from the spot, where deceased Surinder alias Sunder had allegedly fallen after the incident, and it was taken into possession vide recovery memo Ex.PK/1. eight empty cartridges of 9 MM and four cartridges of .450 bore (Ex.P55 to Ex.P66), blood stained earth as well as one sports shoes (Ex.P67) of deceased SI Mehtab Singh, lifted from the spot, were taken into possession vide separate memo Ex.PK/7. A country made pistol of .315 bore (Ex.P53), allegedly belonging to appellant Ranbir Singh, along with empty cartridge (Ex.P53/1) found in the chamber of the pistol, and two live cartridges, were handed over by complainant SI Dharminder Singh to SI Rajesh Kumar, and the same were taken into possession vide recovery memo Ex.PK/3. Similarly, one 9 MM pistol (Ex.P54), allegedly belonging to appellant Pardeep, along with three live cartridges found in the chamber of the said pistol, were also handed over by complainant SI Dharminder Singh to SI Rajesh Kumar, which were taken into possession vide recovery memo Ex.PK/5. One Hero Honda motor cycle, bearing registration No. HR-06H-2580, lying at the spot, was taken into possession vide separate memo Ex.PK/6. Both the appellants were Crl. A. No. 203-DB of 2006 -5- arrested at the spot. On the same day, inquest reports (Ex.PE and Ex.PF/1) of deceased Surinder alias Sunder and SI Mehtab Singh were prepared in Civil Hospital, Panipat. Post mortem examination 4. On 31.12.2004 at 10.30 AM, Dr. S.K. Gupta (PW.7) along with Dr. Jai Parkash Sanduja and Dr. Ved Parkash conducted the post mortem examination on the dead body of SI Mehtab Singh, and the following injuries were found on his body : 1. A lacerated wound on left side of chin, just lateral to mid line, with abraded margins with blackening. The margins were inverted, size was 1.2 x .8 cm, bone deep. On further dissection, there was fracture of mandible, red clotted blood was present. 2. A lacerated wound on deltoid region, lower part left upper arm on lateral aspect with abraded and inverted margins with blackening, size 1.5 x 1.0 cm muscle deep, red clotted blood was present. On further dissection, the wound was extending medially through axilla and going upto back of scapula which was fractured. There was a brown colour metallic object embedied in the muscle mark of scapula region which was removed. 3. A lacerated wound on fronto medial aspect of left thigh middle 1/3rd region with inverted and abraded margins, blackening and size 1 x .8 cm muscle deep with red clotted blood. On further dissection the wound was extending backward to muscle mass going upto the back of left thigh, large vessels of left thigh injured. There was a large haemotomma all around. 4. A lacerated wound on posterio medial aspect of left thigh middle 1/3rd region with everted margins, clotted blood and size 1.2 x 1 cm. The organs and other tissues which were not injured as described under injuries were healthy. Crl. A. No. 203-DB of 2006 -6- 5. As per the Post Mortem Report (Ex.PG), injuries No.1, 2 and 3 were entry wounds and injury No.4 was exit wound. Two .450 bore fired bullets were removed from the body of deceased Sub Inspector Mehtab Singh. The cause of death was stated to be haemorrhage and shock due to multiple injuries, which were ante mortem in nature and were sufficient to cause death in the ordinary course of life. Probable duration between injuries and death was variable and the time between death and post mortem examination was stated to be between 12 to 36 hours. 6. On the same day at 1.00 PM, the aforesaid doctors conducted the post mortem examination on the dead body of Surinder alias Sunder, and the following injuries were found on his body : 1. A lacerated wound on antero lateral aspect of left upper arm, upper half region with abraded margins, blackening, the margins were inverted, red clotted blood was present, size 1.5 x 1.3 cm muscle deep. On further dissection, wound was going backward, humorous bone was fractured with multiple commuted fractures. A rilver coloured metallic piece was recovered from the muscle marks. 2. A lacerated wound on postero lateral aspect of left upper arm region with everted margins, red clotted blood and size 1.7 x 1.5 cm. 3. A lacerated wound on left side of forehead upper part, just lateral to mid line, size 3 x 1 cm bone deep with red clotted blood. 4. A lacerated wound on front medial aspect of right elbow with inverted and abraded margins, red clotted blood with size 1 x .8 cm muscle deep. On further dissection, the wound was extending downwards muscle mass/Obliquely. 5. A lacerated wound on front lateral aspect of right forearm lower part with everted margins red clotted blood and size 1.2 x 1 cm muscle Crl. A. No. 203-DB of 2006 -7- deep. 6. A lacerated wound on antero lateral aspect of left thigh, middle one/third region with everted and abraded margins size 1.2 x 1 cm, muscle deep. On further dissection the wound was extending medially muscle mass upto medial aspect. 7. A lacerated wound on anterio medial aspect of left thigh, middle 1/3rd region with everted margins, red clotted blood and size 1.4 x .9 cm muscle deep. 8. A lacerated wound on anterio lateral aspect of left thigh, lower 1/3 region with inverted and abraded margins, red clotted blood size 1 x . 9 cm muscle deep. On further dissection the wound was extending medially in the muscle mass upto medial aspect. 9. A lacerated wound on anterio medial aspect on left thigh lower 1/3rd region with everted margins, red clotted blood, size 1.2 x 1 cm muscle deep. 10. A lacerated wound on tragus of left pinna with irregular margins, red clotted blood and size 1 x .5 x .5 cm. 11. A lacerated wound on lateral aspect of abdomen right side upper part with abraded and inverted margins. Red clotted blood and size 1.2 x 1.0 cm muscle deep. On further dissection, the wound was going downwards and medially towards left side. Injury mesentric vessels pertitorium, small intestines were coming out and rupturing the spleen, abdominal cavity was full of dark red blood. 12. A lacerated wound on lateral aspect of abdomen left side lower part with everted margins size 1.4 x 1.2 cm muscle deep with red clotted blood. 7. As per the Post Mortem Report (Ex.PD), injuries No.1, 4, 6, 8 and 11 were entry wounds and injuries No.2, 5, 7, 9 and 12 were exit wounds. The cause of death was stated to be haemorrhage and shock due to Crl. A. No. 203-DB of 2006 -8- injuries to abdominal organs, which were ante mortem in nature and were sufficient to cause death in the ordinary course of life. Probable duration between injuries and death was variable and the time between death and post mortem examination was stated to be between 12 to 36 hours. FSL Report 8. All the arms and ammunition as well as the other articles, including the clothes of the deceased, one shoe, recovered in this case, two .450 bore fired bullets, removed from the body of deceased SI Mehtab Singh and one metallic piece, recovered from the body of deceased Surinder alias Sunder, were sent to FSL, Haryana, Madhuban. As per the FSL reports (Ex.PX, Ex.PX/1 and Ex.PX/2), .450 bore pistol (Ex.P52), the country made .315 bore pistol (Ex.P53) and 9 MM pistol (Ex.P54), allegedly belonging to deceased Surinder alias Sunder, appellants Ranbir Singh and Pardeep, respectively, were found in working order. The holes on the clothes of both the deceased persons were caused by bullet projectiles. It was further found that the fired cartridge (Ex.P53/1) was fired only from the country made . 315 bore pistol (Ex.P53), allegedly belonging to appellant Ranbir Singh, and not from any other fire arm, even of same make and bore. Out of 8 empty cartridges of 9 MM, recovered from the spot, five cartridges were found to have been fired from one and the same fire-arm, but not from 9 MM pistol (Ex.P54), allegedly belonging to appellant Pardeep, whereas the remaining three cartridges were found to be fired only from the said pistol (Ex.P54), and not from any other fire arm. Similarly, four empty cartridges Crl. A. No. 203-DB of 2006 -9- of .450 bore, recovered from the spot, were also found to have been fired only from the .450 bore pistol (Ex.P52), allegedly belonging to deceased Surinder alias Sunder, and not from any other fire arm. Two .450 bore fired bullets, removed from the body of deceased SI Mehtab Singh, were found to have been fired from the .450 bore pistol (Ex.P52), allegedly belonging to deceased Surinder alias Sunder, and not from any other fire-arm. Regarding one metallic piece, recovered from injury No.1 on the body of deceased Surinder alias Sunder, it has been reported that it could form part of bullet projectile. 9. After completion of investigation, the police filed challan against the appellants and charges under Sections 302/34, 307/34, 353/34, 186/34 IPC and Sections 27 and 25 of the Arms Act were framed against both the appellants, to which they did not plead guilty and claimed trial. Prosecution evidence 10. In support of its case, the prosecution examined fourteen witnesses. 11. PW.1 Head Constable Ranbir Singh is a formal witness, who handed over the special report to the Ilaqa Magistrate and the higher police officers. 12. PW.2 Constable Jagbir Singh, who was posted as Draftsman in S.P. Office, Panipat, proved the scaled site plan (Ex.PA) of the place of occurrence, prepared by him on 18.1.2005. 13. PW.3 Rajinder, a photographer, who took photographs of Crl. A. No. 203-DB of 2006 -10- blood lying on the road at the place of occurrence, proved the negatives (Ex.P1 to Ex.P4) and their positives (Ex.P5 to Ex.P8). 14. PW.4 ASI Dhanpat, Special Branch, Delhi Police, proved the photo copy of FIR No. 147 of 8.11.2004 (Ex.PA) registered at Police Station Special Cell, Delhi, against Surinder alias Sunder. 15. PW.5 HC Jagmer Singh, Police Station Nangloi, Delhi, proved the photo copy of FIR No. 154 of 2004 (Ex.PB) registered at Police Station Nangloi, Delhi West, against Surinder alias Sunder. 16. PW.6 Dalbir Singh, a photographer, proved the Video film (Ex.P51), prepared by him on 31.12.2004 in Civil Hospital, Panipat, at the time of post mortem examination of deceased SI Mehtab Singh and Surinder alias Sunder. 17. PW.7 Dr. S.K. Gupta, who along with other doctors, conducted autopsy on the bodies of deceased Surinder alias Sunder and SI Mehtab Singh, proved their Post Mortem Reports (Ex.PD and Ex.PG, respectively). 18. PW.8 HC Sat Narain is a formal witness, who proved his affidavit Ex.PI. 19. PW.9 HC Mange Ram, the then MHC, Police Station Lodhi Colony, Delhi, proved that on 30.12.2004, arms and ammunition were issued to HC Rajinder, Ajit Singh, SI Rahul Kumar, SI Mehtab Singh and Dharminder SI, which were deposited by them in the Police Station on the same day. 20. PW.10 SI Dharmender Kumar, the complainant, has reiterated Crl. A. No. 203-DB of 2006 -11- the entire version, as stated by him in his statement (Ex.PL), and fully supported the case of the prosecution. 21. PW.11 SI Vinay Tyagi and PW.12 SI Rahul Kumar, the eye witnesses of the occurrence, who were members of the police party, with which encounter had taken place, have supported the entire prosecution case regarding the occurrence. 22. PW.13 ASI Jai Bhagwan is a formal witness, who proved his affidavit Ex.PW.13/A. 23. PW.14 SI Rajesh Kumar, the then SI/SHO, Police Station Model Town Panipat, the Investigating Officer, proved all the documents, prepared by him, during the investigation of the case. Statements of the appellants under Section 313 Cr.P.C. 24. In their statements under Section 313 Cr.P.C., both the appellants denied the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. According to them, they were not apprehended at the spot and were neither present at the scene of occurrence nor participated in the occurrence in any manner. No fire-arm was recovered from them. As a matter of fact, they were apprehended from village Nangal Kheri in the evening on 30.12.2004. They had no connection whatsoever with deceased Surinder alias Sunder. Defence evidence 25. In support of their plea, the appellants examined three witnesses. Crl. A. No. 203-DB of 2006 -12- 26. DW.1 Ashwani Saroha stated that on 30.12.2004 at about 4.00 PM, while he was standing on the outside gate of his house, situated in the Sat Kartar Colony, Panipat, Surinder alias Sunder and SI Mehtab Singh (both deceased), while riding on their motor cycles, were firing with pistols on each other. He specifically stated that the appellants were not companions of deceased Surinder alias Sunder. 27. DW.2 Surjit Singh Kharab, a press reporter, stated that on 30.12.2004, he had visited Civil Hospital Panipat and he proved the Hindi news paper `Punjab Kesari' dated 31.12.2004 (Ex.DX), wherein news item Mark A was published, on the basis of information sent by him to the Head Office of the News Paper. 28. DW.3 Sada Ram, a co-villager of the appellants, stated that on 30.12.2004 at about 6 PM, some police officials of Panipat as well as of Delhi had come to their village in a jeep and they took away both the appellants from the village in his presence. The findings of the trial court 29. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the testimonies of the complainant (PW.10 SI Dharminder Singh) and two other eye witnesses, namely PW.11 SI Vinay Tyagi and PW.12 SI Rahul Kumar; recovery, the medical evidence; as well as the reports (Ex.PX, Ex.PX/1 and Ex.PX/2) of the FSL, Haryana, Madhuban; and disbelieving the defence version of the appellants, the court of Additional Sessions Judge, Panipat, vide judgment Crl. A. No. 203-DB of 2006 -13- dated 9.2.2006 convicted and sentenced the appellants under Sections 302, 307, 353/186 read with Section 34 IPC and also under Sections 25 and 27 of the Arms Act. Vide order dated 11.2.2006, passed by the trial court, both the appellants were sentenced to undergo imprisonment for life and to pay a fine of ` 10,000/- each under Section 302 read with Section 34 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months; to undergo imprisonment for a period of ten years and to pay a fine of ` 5,000/- each under Section 307 read with Section 34 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of one and half months; to undergo imprisonment for a period of two years and to pay a fine of ` 3,000/- each under Section 353/186 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month; to undergo imprisonment for a period of two years and to pay a fine of ` 1,000/- each under Section 25 of the Arms Act and in default of payment of fine, to further undergo rigorous imprisonment for a period of fifteen days; and to undergo imprisonment for a period of three years and to pay a fine of ` 1,000/- each under Section 27 of the Arms Act and in default of payment of fine, to further undergo rigorous imprisonment for a period of fifteen days. All the substantive sentences were ordered to run concurrently. 30. Against their aforesaid conviction and sentence, the appellants have filed the instant appeal. Crl. A. No. 203-DB of 2006 -14- Arguments of learned counsel for the appellant 31. Learned counsel for the appellants, while placing reliance upon the defence taken by the appellants as well as the evidence led by them, and while referring to the statements of the prosecution witnesses, the site plan prepared at the spot, the recovery effected at the spot and the fact that both the appellants did not receive any injury in the alleged occurrence, in spite of the alleged cross-firing between them and the police, argued that both the appellants were not present at the time of the occurrence and they have been falsely implicated in this case, after arresting them from their village. According to the learned counsel, a careful perusal of the evidence of the prosecution itself reveals that the appellants did not participate in the occurrence and they have been falsely implicated. Learned counsel further argued that the pistols, alleged to have been recovered, were planted on the appellants. No cartridge was recovered from the spot. Learned counsel further argued that the photographs taken at the spot do not show that any empty cartridge was lying on the spot. At the time of the alleged recovery of fire-arm weapons from the appellants, when they allegedly were produced by the Delhi Police before the local police, no independent witness was associated. According to the learned counsel, the FSL reports (Ex.PX, Ex.PX/1 and Ex.PX/2) are not reliable, because the arms and ammunition along with other articles were sent to the FSL after a delay of more than 17 days. In view of this fact, learned counsel contends that the trial court has committed grave illegality, while relying upon the said FSL reports. In the Crl. A. No. 203-DB of 2006 -15- last, learned counsel submits that even if it is taken that both the appellants were present at the time of the occurrence and they along with Surinder alias Sunder (deceased) came on a motor cycle, they are not liable to be convicted for the murder of SI Mehtab Singh, with the aid of Section 34 IPC, because it was a sudden occurrence and both of them were not having any common intention to cause his death. Learned counsel argued that even as per the case of the prosecution, both the appellants neither gave any fire- arm injury to deceased SI Mehtab Singh nor they fired towards him. Even none of the eye witnesses, who are the police officials, has stated that the appellants had fired targeting any one of them. Therefore, according to the learned counsel, the appellants were not having intention to cause death of any police official, including SI Mehtab Singh. Thus, the trial court has erred in law, while convicting and sentencing the appellants for the murder of SI Mehtab Singh and attempt to murder other police officials, with the aid of Section 34 IPC. Arguments of learned State counsel 32. While refuting the aforesaid arguments, raised by learned counsel for the appellants, learned Additional Advocate General, Haryana, argued that in the instant case, the prosecution by leading sufficient, cogent and convincing evidence has proved its case against the appellants beyond shadow of reasonable doubt. The plea taken by the appellants that they were not present at the spot is false. They were apprehended at the spot with the arms and ammunition. Their names were clearly mentioned in the initial Crl. A. No. 203-DB of 2006 -16- statement (Ex.PL) made by complainant SI Dharmender Singh on 30.12.2004 at 7.00 PM, on