Criminal Appeal No.253-DB of 1998, 1 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.253-DB of 1998 Date of decision: January 25 , 2008 Navjeet Kumar alias Bobby son of Surinder Kumar, resident of Nakodar,District Jalandhar. .................appellant. State of Punjab .................respondent Present: Ms. Baljit Maan, Advocate, for the appellant. Shri S.S.Bhinder, Addl.Advocate General, Punjab for the respondent. Criminal Appeal No.263-DB of 1998 Date of decision: January , 2008 Rajinder Kumar alias Nikka son of Manohar Lal , resident of Nakodar,District Jalandhar. .................appellant. State of Punjab .................respondent Present: Ms. Bipin Ghai, Advocate, for the apellant. Shri S.S.Bhinder, Addl.Advocate General, Punjab for the respondent. Criminal Appeal No.349-DB of 1998 Date of decision: January , 2008 Parvej Kumar alias Pamma son of Sardari Lal , resident of Nakodar,District Jalandhar. .................appellant. Criminal Appeal No.253-DB of 1998, 2 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 State of Punjab .................respondent CORAM; HON'BLE MR. JUSTICE J.S. KHEHRAR HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R. S. Cheema, Senior Advocate with Mr. Rajiv Trikha, Advocate Shri S.S.Bhinder, Addl.Advocate General, Punjab for the respondent. Sham Sunder,J. This judgment shall dispose of the aforesaid three Criminal Appeals, bearing Nos. 253-DB of 1998 filed by Navjeet Kumar @ Bobby, appellant/accused, 263-DB of 1998 filed by Rajinder Kumar @ Nikka, appellant/accused, and 349-DB of 1998 filed Parvej Kumar @ Pamma,appellant/accused, arising out of the judgment of conviction dated 11.5.1998, and the order of sentence of the even date, rendered by the Court of Sessions Judge, Jalandhar, vide which Navjeet @ Bobby,appellant/accused was convicted for the offences punishable under Sections 302 and 324 of the Indian Penal Code, whereas, Rajinder Kumar @ Nikka and Parvej Kumar @ Pamma, appellants/accused were convicted for the offences, punishable under Sections 302 read with section 34 and 324 read with section 34 of the Indian Penal Code, whereas Navjeet Kumar @ Bobby, accused, was sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further R.I. for three months, for the offence punishable, under Section 302 of the Indian Penal Code, and also sentenced him to undergo R.I. for one year for the offence punishable under Criminal Appeal No.253-DB of 1998, 3 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 section 324 of the Indian Penal Code, and Rajinder Kumar @ Nikka and Parvej Kumar @ Pamma, apellants, were sentenced to undergo imprisonment for life each, and to pay a fine of Rs.2000/- each , in default of payment of fine, to further undergo R.I. for three months each for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, and also sentenced them to undergo RI for one year each, for the offence punishable under Section 324 read with section 34 of the Indian Penal code. All the substantive sentences were order to run concurrently. 2. The facts, in brief, are that Rakesh Kumar, prosecution witness,was running a cloth shop at Jalandhar. On 24.6.1995, at about 4 p.m., he left Jalandhar, for Nakodar, for the purpose of collecting cash ( Ugrahi), from various shops, to which he was supplying the cloth. After doing the needful, he was standing in the Bazar, at Nakodar ,for return journey, when Satish Kumar @ Bittu, with whom he had business dealings, met him, and asked him that both of them would go to Jalandhar together. Upon this, he accompanied Satish akumar @ Bittu, on his scooter, to the house of his brother, Gulshan from where, said Satish Kumar, took Maruti car bearing registration No.PB-33-0789, and both of them proceeded for Jalandhar, in the said Maruti car. When they had just crossed bye pass Nakodar, three scooter borne persons, in their twenties,who were clean shaven, and were wearing shirts/pants crossed the car, and made it to stop. Satish Kumar then asked them that he was in a hurry However, the person who was riding the scooter, asked him, to make him cross the picket(naka) and occupied the rear seat of the car. However, after covering some distance, the person, who occupied the rear seat, asked for stopping the car, telling that his Criminal Appeal No.253-DB of 1998, 4 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 companions, had remained behind. Satish Kumar, who was driving the car, stopped the same, while Rakesh Kumar was busy in operating the tape recorder. In the meantime, he heard shriek of said Satish Kumar, at the same time conveying that he had been hit by a knife. When Rakesh Kumar turned his face behind, he too received knife blow, near right jaw and ear. Thereafter, the person occupying the rear seat of the car, opened the back door of the same and ran away. 3. After the said occurrence, Satish Kumar, driver of the car started the same. The car started wobbling and struck against the right side of the truck, coming from the opposite direction, as a result of which, Rakesh Kumar fell down, on the ground from the front side door of the car. In the meantime, Bittu, Happy, and Pappy came from the Nakodar side and lifted them to Batra Hospital,Jalandhar. and thereafter, they were shifted to Tagore Hospital. Finally both of them were shifted to Civil Hospital,Jalandhar. . Rakesh Kumar was admitted in the Hospital, but Satish Kumar, succumbed to the injuries, received by him, at the hands of the occupant of the car, with knife. On receipt of information,Shangara Singh, ASI, ,Police Station Lambra, went to the Hospital and recorded the statement Ex.PH of Rakesh Kumar, injured-cum-complainant, on which endorsement Ex.PH/1, was appended, and it was sent to the Police Station, on the basis whereof, FIR Ex.PH/2 was registered. Thereafter, Shangara Singh,ASI, went to the mortuary and prepared inquest report Ex.PD, of the dead body of Satish Kumar,deceased. He also prepared the injury report Ex.PC. Request Ex.PB along with the dead body of Satish Kumar was handed over to Joginder Pal, Constable and Jagir Criminal Appeal No.253-DB of 1998, 5 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 Singh, PHG for the purpose of post mortem examination. Thereafter, Shangara Singh, ASI, went to the place of occurrence. The same was inspected in the presence of Manjinder Singh, Constable, and Pritam Singh, PW. He lifted frozen blood, from the seat of the car, bearing registration No.PB-33-0789, after scratching it, and converted the same into a parcel, which was duly sealed, with the seal, bearing impression 'SS'. Thereafter, the sealed parcel was taken into possession, vide memo Ex.PZ. Truck bearing registration No.PAT-6596, was also taken into possession, vide recovery memo Ex.PAA attested by the prosecution witnesses. Shangara Singh,ASI, also took into possession Maruti Car, bearing registration No.PB-33- 0789, vide recovery memo Ex.PBB, attested by the prosecution witnesses. The broken glass pieces of the car, were also taken into possession vide memo Ex.PCC,attested by the prosecution witnesses. After post mortem examination,Constable Joginder Pal produced clothes of the deceased before Shangara Singh, ASI,which were taken into possession, after converting the same, into a sealed parcel, bearing impression 'SS'. The sealed parcel was taken into possession vide recovery memo Ex.PDD. Rough site plan Ex.PEE, with correct marginal notes, was prepared. 4. On 28.6.1995, Sucha Singh, Sub Inspector, Police Station, Nakodar,took over the investigation of the case.On 30.6.1995, the accused were stated to have made extra judicial confession before Mr. K.K.Khattar, President, Bar Association, Nakodar as also Councillor Rajinder Kumar @ Nikka and Parvej Kumar @ Pamma, accused were apprehended by Sucha Singh,Sub Inspector on Nurmahal Road, when they were coming on a scooter from the side of Nurmahal towards Nakodar on 2.7.1995. At that Criminal Appeal No.253-DB of 1998, 6 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 time,ASI Sucha Singh and HC Mohan Lal were also with him. The Scooter was without any registraion number . The Scooter was taken into possession vide memo Ex.PM, attested by the prosecution witnesses. Personal search of the Rajinder Kumar,accused, was conducted and cash of Rs.20/- was recovered, which was taken into possession, vide memo Ex.PN, attested by the prosecution witnesses. Similarly, the personal search of Parvej Kumar was made and cash amount of Rs.25/- was recovered, which was taken into possession vide memo Ex.PQ. On that day, Sucha Singh, Sub Inspector also arrested Navjeet Kumar @ Bobby,accused. On return to the Police Station, all the accused were lodged in the lock up. The case property was deposited with the MHC. 5. On 3.7.1995, Sucha Singh, Sub Inspector moved an application before the Ilaqa Magistrate for holding identification parade of the accused,after they were produced before him, with faces muffled. The Ilaqa Magistrate recorded their statements, but they refused to take part, in the identification parade. 6. On 4.7.1995, Sucha Singh, Sub Inspector, interrogated Navjeet Kumar @ Bobby,accused, in the Police Station in the presence of ASI Sucha Singh and Head Constable Mohan Lal. On interrogation, he stated that he had concealed one dagger, by the side of a bush, underneath earth, on Nakodar-Jalandhar road, of which he only knew, and could get the same recovered, by pointing out. His statement Ex.PU was reduced into writing, which was signed by him, and attested by the prosecution witnsses. Thereafter, the accused, in pursuance of his disclosure statement, got recovered dagger Ex.P6, which was stained with blood. Rough sketch Ex.PU/1 of the dagger, was prepared, which was attested by the witnesses. Criminal Appeal No.253-DB of 1998, 7 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 The dagger was then converted into a sealed parcel, and taken into possession vide memo Ex.PU/2, attested by the prosecution witnesses. Rough site plan, Ex.PU/3, of the place of recovery, with correct marginal notes,was prepared. On return to the Police Station, the case property was deposited with the MHC. Thereafter, the investigation was handed over to the SHO, Police Station Lambra, under the orders of the Senior Superintendent of Police. The statements of the witnesses were recorded on different dates. After the completion of investigation, the challan was presented against the accused for the offences, punishable under Sections 302/324/323/392/ and 397 I.P.C. 7. On their appearance, in the Committing Court, the accused were supplied copies of all the documents, relied upon by the prosecution. 8. After the case was received by commitment, charge under Sections 302/324 and 323 of the Indian Penal Code was framed against Navjeet Kumar @ Bobby, accused, and under Sections 302 read with section 34, 324 read with section 34 and 323 read with section 34 of the Indian Penal Code, against Rajinder Kumar @ Nikka and Parvej Kumar @ Pamma, accused. It was read over and explained to the accused, to which they pleaded not guilty and claimed judicial trial. 9. The prosecution, in support of its case, examined, Dr. Ajay Sahni, Medical Officer, Civil Hospital,Jalandhar, PW1, who conducted the post mortem-examination, on the dead body of Satish Kumar, Sharanjit Singh, P.W.2, who brought Satish Kumar and Rakesh Kumar, injured, in their car, in the first instance to Batra Hospital and then to Tagore Hospital and finally to Civil Criminal Appeal No.253-DB of 1998, 8 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 Hospital,Jalandhar, Dalip Singh, Draftsman, New Courts, Jalandhar, PW3, Dr.S.K.Sharma,Medical Officer, at the relevant time, posted in Civil Hospital,Jalandhar who medicolegally examined, Rakesh Kumar,injured, Rakesh Kumar,injured-cum-complainant,PW5, Kamal Kishore, PW6, to whom Rakesh Kumar had gone for collecting cash (Ugrahi) at Nakodar, Rajesh Kumar,PW7, K.K.Khattar, PW8, before whom the accused allegedly made extra judicial confession, on 30.6.1995, Sub Inspector Sucha Singh,PW-9, at the relevant time SHO,Police Station Nakodar,who partly conducted the investigation of this case, Constable Nirpal Singh, PW10, and Sub Inspector Shangara Singh, Police Station Lambra, PW11, who also partly conducted the investigation of this case. The Public Prosecutor for the State, tendered into evidence, report of the Forensic Science Laboratory Ex.PGG, and closed the same. 10. The statements of the accused, under section 313 Cr.P.C., were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Navjeet Kumar, @ Bobby, accused, in his statement, under section 313 Cr.P.C., stated that K.K.Khattar, Advocate, was contacted by his parents, and they engaged him, as a counsel, settled Rs.5000/-, as fee, and paid Rs.1100/-, as first instalment of the fee, to him,but later on since his parents changed the said Counsel, he felt annoyed and offended and, thus, colluded with the Investigating Officer of the case, to falsely implicate him, in the present case. Rajinder Kumar @ Nikka and Parvej Kumar @ Pamma, accused in their statements under Section 313 Cr.P.C. also took up the same plea, as was taken up by Navjeet Kumar @ Bobby, accused, in his statement under Section Criminal Appeal No.253-DB of 1998, 9 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 313 Cr.P.C. The accused,however, did not lead any evidence, in their defence, and closed the same. 11. After hearing the Public Prosecutor for the State, Counsel for the accused, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated hereinbefore. 12. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial court, the instant appeals, were filed by the appellants/accused. 13. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 14. Learned counsel for Navjeet Kumar @ Bobby,appellant, contended that no evidence, worth the name, was produced, by the prosecution to prove the identity of the said appellant. She further submitted that since the identity of Navjeet Kumar @ Bobby,appellant, was not proved by the prosecution, as the alleged perpetrator of crime, he was not at all connected with the same, and,as such, the trial Court,erred in recording his conviction and awarding him sentence. The submission of the Counsel for Navjeet Kumar @ Bobby, appellant, does not appear to be correct. The FIR, in this case, was lodged on the basis of the statement of Rakesh Kumar, injured. Navjeet Kumar @ Bobby, accused,was not named by him, in his statement,on the basis whereof, the FIR was recorded. He could not possibly mention his name,in his said statement, as he did not know his name. In his statement,Ex,PH, on the basis whereof, the FIR was recorded, Rakesh Kumar, PW5, stated that three persons on a scooter of the age of 20/22 years, wearing pants and shirts,crossed their car, and made Satish Kumar, who was Criminal Appeal No.253-DB of 1998, 10 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 driving the same, to stop the same. He further stated therein,that one of those persons,who was riding the scooter, occupied the rear seat of their car. It was that person, who caused injuries, on the person of Satish Kumar, who later on succumbed to the same, and on his person. He further stated, in clear-cut terms, that after causing injuries, that person fled after opening the door of the rear window of the car. It was not that Rakesh Kumar, PW5, had only a glimpse of Navjeet Kumar @ Bobby,who caused injuries, on his person, and on the person of Satish Kumar ( now deceased). Navjeet Kumar @ Bobby sat on the rear seat of the car, for some time, and only thereafter he committed the crime. In these circumstances, Rakesh Kumar must have seen Navjeet Kumar @ Bobby, appellant, properly, for sufficient period. He sat on the rear seat of the car. Therefore, it was not impossible for him to identify Navjeet Kumar @ Bobby, the perpetrator of the crime. It was, under these circumstances, that when he appeared as, PW5,he identified Navjeet Kumar @ Bobby, as the person, who caused injuries, on his person, as also on the person of Satish Kumar, in the car. What ever description,he had, in his mind, of Navjeet Kumar @ Bobby,appellant,he mentioned the same, in his statement Ex.PH, which was recorded, first in point of time,on the basis whereof, the FIR was registered. It may also be stated here, that at the time he made statement Ex,.PH, Rakesh Kumar had sustained injuries on his person, at the hands of Navjeet Kumar @ Bobby only, a few hours ago, whereas, his companion Satish Kumar had succumbed to the injuries, sustained by him, in the same occurrence. Thus, he must be in physical pain, mental agony, and puzzled also, as to what had happened. In these circumstances, it could not be expected of Criminal Appeal No.253-DB of 1998, 11 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 him, to give the complete description of Navjeet Kumar @ Bobby, in his statement Ex.PH. Not only this, the Investigating Officer, during the course of investigation, moved an application Ex.PR, before the Ilaqa Magistrate, for holding identification parade,of accused Navjeet Kumar @ Bobby, Rajinder Kumar @ Nikka and Parvej Kumar alias Pamma,when they were produced in muffled faces,before him. The Judicial Magistrate, on duty, on 3.7.1995 recorded the statements of Navjeet Kumar @ Bobby, Parvej Kumar @ Pamma and Rajinder Kumar @ Nikka, as to whether, they wanted to participate in the identification parade or not. They made their statements, on that date, that they did not want to participate, in the identification parade, as Rakesh Kumar, identified them to some extent. In case, Navjeet Kumar @ Bobby, had not participated in the commission of crime, he could very well make a statement that he was ready to participate, in the identification parade. His statement to the effect that Rakesh Kumar identified him, to some extent and,therefore, he did not want to participate, in the identification parade, clearly established that he committed the crime. It was, on account of this reason, that he did not want to participate, in the identification parade , under the fear, that he will be identified, by Rakesh Kumar therein. Adverse inference,therefore, could be drawn, against Navjeet Kumar @ Bobby, accused, for his refusal to participate, in the identification parade. In these circumstances, the identification of Navjeet Kumar @ Bobby, in the Court by Rakesh Kumar, PW5, as the perpetrator of crime, could be said to be proper. The submission of the Counsel for Navjeet Kumar @ Bobby, appellant,in this regard, being without substance, stands rejected. 15. It was next contended by the counsel for Navjeet Kumar Criminal Appeal No.253-DB of 1998, 12 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 @ Bobby, appellant, that from the evidence of Kamal Kishore,PW6, it was made out that Rakesh Kumar knew Navjeet Kumar @ Bobby accused. She further submitted that, as such, had Navjeet Kumar @ Bobby, appellant, committed the crime, he would have certainly mentioned, in his statement, Ex.PH, on the basis whereof, the FIR was registered, yet though he did not know the name of that accused but he was working as an apprentice salesman, at the shop of Kamal Kishore, PW6, to whom he had gone to collect cash (Ugrahi). Kamal Kishore, PW6, no doubt, stated that he was running his cloth merchant shop, in Bazar Malri Gate, Nakodar.He further stated that Navjeet Kumar @ Bobby,accused, and Parvej Kumar @ Pamma accused, were working as apprentice Salesmen in his shop. He further stated that payments were used to be made to them. It was further stated by Kamal Kishore, PW6, that Rakesh Kumar,PW5, was known to him as he had business dealings with him. He further stated that he used to come to his shop on Saturday.On 24.6.1995, Rakesh Kumar, had come to his shop, at about 6 p.m., and he was paid Rs.3000/4000.He further stated that Parvej Kumar, appellant, was present, at the shop at that time. From the statement of Kamal Kishore,PW6, it could not be inferred that Navjeet Kumar @ Bobby, was known to Rakesh Kumar. Even if, it is taken that Rakesh Kumar, used to go to the shop of Kamal Kishore, PW6, on some Saturdays, for the purpose of collection of cash (Ugrani), his only business was to collect money, from said Kamal Kishore, and then come back. He had no connection, whatsoever, with Navjeet Kumar @ Bobby, appellant, who was working as an apprentice, in the shop of Kamal Kishore,PW6. It is also not established, from the statement of Kamal Kishore,PW6, as to since Criminal Appeal No.253-DB of 1998, 13 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 when Navjeet Kumar @ Bobby had been working, at his shop, as an apprentice. If it is taken that Rakesh Kumar had a glimpse of Navjeet Kumar @ Bobby, at times, when he went to the shop of Kamal Kishore, on some Saturdays, that did not mean that he knew him earlier or identified him earlier. There is also nothing, on the record, that Kamal Kishore told Ramesh Kumar that Navjeet Kumar @ Bobby, was appointed by him, as an apprentice. Even, on the date of occurrence, when Rakesh Kumar, went to the shop of Kamal Kishore to collect cash (Ugrahi), as per the statement of the latter, said Navjeet Kumar @ Bobby was not present, at the shop. In these circumstances, to say that Navjeet Kumar @ Bobby, was known to Rakesh Kumar, earlier or that he knew that he had been appointed as apprentice, by said Kamal Kishore, at his shop,was not correct. In these circumstances, he could not possibly mention this fact, in his statement, Ex.PH, that the person who caused injuries, on his person, and on the person of Satish Kumar,now deceased, was working as an apprentice, at the shop of Kamal Kishore.The statement of Rakesh Kumar, PW5, therefore, carries the ring of truth. His statement Ex.PH on the basis whereof,the FIR was recorded, therefore, could be said to be correct, as whatever, he knew by that time, about the identity of the accused, he disclosed the same.No help,therefore, can be drawn by the Counsel for Navjeet Kumar @ Bobby,appellant, from the statement of Kamal Kishore,PW6, that Navjeet Kumar @ Bobby was already known to Rakesh Kumar. The submission of Counsel for this appellant, being without any substance, stands rejected. 16. Since, the identity of Navjeet Kumar @ Bobby, was duly proved, from the statement of Rakesh Kumar, PW5,it is to be seen, Criminal Appeal No.253-DB of 1998, 14 Criminal Appeal No.263-DB of 1998 and Criminal Appeal No.349-DB of 1998 as to whether, he committed the crime. In this regard, Rakesh Kumar,PW5, in clear-cut terms, stated that Navjeet Kumar @ Bobby, gave a knife blow, on the person of Satish Kumar, and he came to know of the said blow, when he (Satish Kumar),driver of the car, cried that he had been given knife blow. At that time, Rakesh Kumar, PW5, was switching on the tape recorder of the car. When Rakesh Kumar saw behind, accused,Navjeet Kumar, gave knife blow to him hitting his right cheek, near the ear. Ramesh Kumar,himself, being injured, in the same occurrence, can be said to be the stamped witness. Dr. Ajay Sahni, PW1, conducted the post-mortem examination,on the dead body of Satish Kumar, and found the following injury: “1. Stab wound 2.5 cm x .5 cm over the left lateral and lower part of the neck. 11 cm medial and from the top of the left shoulder. On dissection of the stab wound, underlying muscles were cut and stab was going towards the medial side. Underlyhing vessles were also cut. Hear was empty and healthy.Stomach also empty and healthy.” In the opinion of the Doctor,the death in this case was due to shock and hemorrhage, on account of stab wound, in the neck, which was sufficient to cause death, in the ordinary course of nature. According to him, the injury was ante-mortem, in nature, and the probable time that lapsed between the injuries and death, was within few hours, and between death