Crl. Appeal No.538-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.538-DB of 1998 Date of Decision: 30.05.2008 Vikash @ Boby ....Appellants. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Jora Singh. Present: Mr. Kpail Aggarwal, Mr. Vinod Ghai and Mr. Gurnam Singh Advocates for the appellants. Mr. Ravi Dutt Sharma, D.A.G., Haryana for the respondent. ... J.S. Khehar, J. Through the instant order, we propose to dispose of Criminal Appeal No.538-DB of 1998 (filed by the accused/appellant Vikash @ Boby), Criminal Appeal No.1-DB of 1999 (filed by the accused/appellant Sanjiv Kumar @ Raju) and Criminal Appeal No.3-DB of 1999 (filed by the accused/appellant Amrik Singh). Through the aforesaid appeals, the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh have impugned the Crl. Appeal No.538-DB of 1998 2 judgement rendered by the Additional Sessions Judge, Ambala, in Sessions Case No.9 of 1997, on 5.11.1998, by which all the accused/appellants were held guilty for having intentionally committed the murder of Rajiv on 19.10.1996 in furtherance of their common intention, and have as such, been convicted, under Section 302 read with Section 34 of the Indian Penal Code. The accused/appellants have also impugned the order passed separately on 7.11.1998, by the Additional Sessions Judge, Ambala, whereby, all the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh have been sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, under Section 302 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, the defaulting convict(s) has/have been ordered to undergo further rigorous imprisonment for six months. The prosecution version of the incident emerges from the statement made by the complainant Sanjiv Kumar PW7 to Inspector Kiratpal Singh PW9, on the intervening night of 19/20.10.1996 at 1.00 AM. In his aforesaid statement, the complainant Sanjiv Kumar PW7 asserted that he was a resident of Sharda Nagar near Manav Chowk, Ambala City, and that, he was running a cassette shop at Manav Chowk on Rattangarh Road. He stated that he was being assisted by his brother Rajiv, aged about 22 years in his aforesaid shop. According to the statement of the complainant Sanjiv Kumar PW7, on 19.10.1996, after he, as well as, his brother Rajiv had taken dinner alongwith the son of his “chacha” (father's younger brother) Rakesh Kumar PW8, all the three had gone to watch “Ramlila”. Whilst his brother Rajiv was standing at about 5/7 paces ahead of them, he saw the accused/appellant Amrik Singh abusing his brother Crl. Appeal No.538-DB of 1998 3 Rajiv. Two other boys accompanying the accused/appellant Amrik Singh, namely, the accused/appellant Sanjiv Kumar @ Raju and the accused/appellant Vikash @ Boby, who were known to him, were also standing there. On seeing the altercation between his brother Rajiv on the one side with the accused/appellant Amrik Singh on the other, the complainant Sanjiv Kumar PW7 alongwith Rakesh Kumar PW8 went to the aid of his brother Rajiv. Consequent upon their intervention, the matter was hushed up. Before intervening between the quarreling parties, the complainant Sanjiv Kumar PW7 had heard the accused/appellant Amrik Singh stating that the complainant's (Sanjiv Kumar PW7) brother Rajiv had hurled abuses at him and had also given him a beating for which he would take revenge. According to the statement of the complainant Sanjiv Kumar PW7, he (Sanjiv Kumar PW7) and Rakesh Kumar PW8 brought Rajiv to the place where they were standing, and started watching “Ramlila” again. After about half an hour, the complainant's (Sanjiv Kumar PW7) brother Rajiv told the complainant that he was going for urination, and that , he would soon come back. Accordingly, the aforesaid Rajiv went towards the road of Sector-8 for urination. Since Rajiv did not return after urinating, the complainant Sanjiv Kumar PW7 got suspicious. Accordingly, the complainant Sanjiv Kumar PW7 and his cousin Rakesh Kumar PW8 went towards the road of Sector-8 to find Rajiv. At that juncture, the complainant Sanjiv Kumar PW7 saw that the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh had encircled his brother Rajiv and were hurling abuses at him. The complainant Sanjiv Kumar PW7 saw the accused/appellant Amrik Singh catching hold of his brother Rajiv from behind and the accused/appellant Vikash @ Boby giving slap and fist Crl. Appeal No.538-DB of 1998 4 blows to him. When the complainant Sanjiv Kumar PW7 and his cousin Rakesh Kumar PW8 reached near them, the accused/appellant Sanjiv Kumar @ Raju took out a knife from his pocket and inflicted a blow with the same on the left flank of Rajiv. On witnessing the aforesaid occurrence, the complainant Sanjiv Kumar PW7 and his cousin Rakesh Kumar PW8 raised a “raola, mardita-mardita” (hue and cry, killed-killed). Whereupon all the three accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh ran away towards Sector-8. The complainant Sanjiv Kumar PW7 and his cousin Rakesh Kumar PW8 took Rajiv in an injured condition on a scooter to the Civil Hospital, Ambala City. On the way to the hospital, Rajiv succumbed to his injuries. After leaving Rakesh Kumar PW8 near the dead body of Rajiv, the complainant Sanjiv Kumar PW7 went towards the police station to lodge a report. On his way, he met Inspector Kiratpal Singh PW9 and accordingly, got his statement recorded at his hands. It would be pertinent to mention, that the aforesaid occurrence had taken placed on 19.10.1996 at about 11.00 PM. The complainant Sanjiv Kumar PW7 recorded his complaint in connection therewith to Inspector Kiratpal Singh PW9 at 1.00 AM on the night intervening 19/20.10.1996. On the basis of the statement made by the complainant Sanjiv Kumar PW7 to Inspector Kiratpal Singh PW9, First Information Report bearing No.325 was registered at Police Station, Ambala City on 20.11.1996, at 1.15 AM. The special report in furtherance of the aforesaid First Information Report was signed by the Ilaqa Magistrate at 8.35 AM, on 20.11.1996. It would be pertinent to mention, that on the receipt of the dead Crl. Appeal No.538-DB of 1998 5 body of Rajiv at the Civil Hospital, Ambala City, a ruqa was sent by Dr. Dinesh Kumar Goyal PW2, to the police at 11.50 PM. On the basis of the aforesaid ruqa, Daily Diary Report in connection with the death of Rajiv was entered at 12.05 AM on the night intervening 19/20.10.1996. Inspector Kiratpal Singh PW9 received a message in respect of the ruqa received at the police station, from Police Post No.3. He thereafter, proceeded towards the Civil Hospital, Ambala City. At the gate of the Civil Hospital, Ambala City, Inspector Kiratpal Singh PW9 met the complainant Sanjiv Kumar PW7 and recorded his statement Ex.PG/1, which was sent by him to the Police Station, Ambala City, for registration of a formal case. He thereafter, made enquiries from those present alongside the dead body of Rajiv, and then deputed SI Babu Ram PW6 to get the postmortem examination on the dead body of Rajiv conducted. Having done so, Inspector Kiratpal Singh PW9 went to the place of occurrence. On account of darkness, Inspector Kiratpal Singh PW9 could not inspect the spot. He accordingly, directed Head Constable Jawahar Singh to guard the place of occurrence, whereas, he himself commenced to search for the accused. On the next day, i.e. on 20.10.1996, Inspector Kiratpal Singh PW9 again went to the place of occurrence and prepared the rough site plan Ex.PR. He lifted the blood stained earth from the place of occurrence and took the same into possession after putting the same in a sealed parcel, vide recovery memo Ex.PP. He then recorded the statement of those present at the place of occurrence under Section 161 of the Code of Criminal Procedure. SI Babu Ram PW6 handed over the postmortem report of Rajiv to Inspector Kiratpal Singh PW9 at about noon time alongwith the sealed parcel containing the clothes of Rajiv. Inspector Kiratpal Singh PW9 took the aforesaid case Crl. Appeal No.538-DB of 1998 6 property into possession vide recovery memo Ex.PJ. At about 3.30 PM, Inspector Kiratpal Singh PW9 found all the three accused near Jandli Bridge. They were apprehended and brought to the Police Station. On the following day i.e. on 21.10.1996, Inspector Kiratpal Singh PW9 produced all the three accused in the Court and obtained their police remand. On 22.10.1996, Inspector Kiratpal Singh PW9 interrogated the accused/appellant Sanjiv Kumar @ Raju, who made a disclosure statement Ex.PN, indicating the place where he had kept concealed the knife with which he had inflicted injuries on the person of Rajiv. The accused/appellant Sanjiv Kumar @ Raju then led the police party to his house and got recovered a knife Ex.P8, from the place revealed by him in his disclosure statement. The recovered knife was taken into possession vide recovery memo Ex.PO. The knife was put into a sealed parcel before it was taken into possession. After completion of the investigation of the case and other police formalities, a challan was presented in the Court of the Chief Judicial Magistrate, Ambala. The Chief Judicial Magistrate, Ambala, after examining the facts emerging out of the investigation carried out by the police, arrived at the prima-facie conclusion, that an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, was made out against the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh. Since, the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Chief Judicial Magistrate, Ambala, by his order dated 17.1.1997 committed the case for trial to the Court of Session. The Additional Sessions Judge, Ambala, by his order dated Crl. Appeal No.538-DB of 1998 7 5.2.1997, charged all the accused, namely, Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh, for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code for having intentionally committed the murder of Rajiv in furtherance of their common intention on 19.10.1996 in the area of Manav Chowk, Ambala City. The accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh were then confronted with the charges levelled against them. All the accused pleaded not guilty, and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarised hereunder. The prosecution first of all, examined Dr. G.P. Saluja, Senior Medical Officer, General Hospital, Ambala City, as PW1. Dr. G.P. Saluja PW1 asserted that he had conducted the postmortem examination on the dead body of Rajiv on 20.10.1996 at 12.00 Noon, and found the following injuries on his person:- “(1) There was an incised oval shape wound present on the left side of chest 8 cm below axilla and 7.5 cm outer to nipple. It was measuring 2 cm x 1 cm, Margins were clean cut. On exploration, there was infilteration of blood in the sub- cuttaneous tissue. It was situated in the 4th intercostal space. Further exploration revealed that pleura underneath was injured, lung tissue injured and wound was extended on to the pericardium and injury to the left venticle. Pericardiul and pleural cavities were full of blood. Both the chambers of heart were empty. There was corresponding tear in the shirt. Shirt and banyan were blood stained.” Crl. Appeal No.538-DB of 1998 8 According to the opinion of Dr. G.P. Saluja PW1, the cause of death of Rajiv was haemohrrage, shock and injuries to vital organs, namely, lungs and the heart of the deceased. According to Dr. G.P. Saluja PW1, the injuries suffered by the deceased Rajiv were sufficient to cause death in the ordinary course of nature. He also opined, that the injuries on the person of Rajiv were ante-mortem in nature. The trial Court then recorded the statement of Dr. Dinesh Kumar Goyal, Medical Officer, Civil Hospital, Ambala City, as PW2. Dr. Dinesh Kumar Goyal PW2 testified that the complainant Sanjiv Kumar PW7 had brought the dead body of Rajiv to the Civil Hospital, Ambala City on 19.10.1996. On the receipt of the dead body of Rajiv at the Civil Hospital, Ambala City, Dr. Dinesh Kumar Goyal PW2 informed Police Post No.3, Ambala City, about the receipt of the dead body, through ruqa Ex.PF. It was sought to be clarified, that the aforesaid ruqa was sent to the Police Post at 11.50 PM on 19.10.1996. The statement of Ram Singh was recorded as PW3. While appearing before the trial Court, he asserted that on completion of the investigation, he had prepared the report under Section 173 of the Code of Criminal Procedure. ASI Bishan Singh appeared before the trial Court as PW4. He stated that he had received the ruqa Ex.PG through the Constable Kushi Ram on 20.10.1996 on the basis whereof, he had recorded the formal First Information Report Ex.PG/1. He also deposed that he had deputed Constable Ramesh Kumar to put up the special report in respect of the aforesaid First Information Report before the senior officers. The statement of Ram Saran was recorded as PW5. While appearing before the trial Court, he had stated that he had gone to the place of occurrence and on the pointing out of the complainant Sanjiv Kumar PW7 and Rakesh Kumar PW8, he had prepared the scaled Crl. Appeal No.538-DB of 1998 9 site plan Ex.PH. The prosecution then produced SI Babu Ram to depose before the trial Court as PW6. SI Babu Ram PW6 asserted that he had been deputed by Inspector Kiratpal Singh PW9 with the dead body of Rajiv to the Civil Hospital, Ambala City, to have the postmortem examination conducted. He stated that after the postmortem examination had been completed, Dr. G.P. Saluja PW1 had handed over to him the postmortem report Ex.PB, the inquest report Ex.PC, as well as, the dead body of Rajiv. He further stated that he had handed over the papers, as well as, the parcels received by him from the doctor, to the investigating officer i.e. to Inspector Kiratpal Singh PW9, who had in turn, handed over the same to the Moharrir Head Constable for safe custody at the police station. The statement of the complainant Sanjiv Kumar was recorded as PW7. While appearing before the trial Court, the complainant Sanjiv Kumar PW7 reiterated the factual position as had been narrated by him when he had made his complaint to Inspector Kiratpal Singh PW9, on 19.10.1996. The statement of Rakesh Kumar was recorded as PW8. It would be pertinent to mention, that Rakesh Kumar PW8 was the cousin of the deceased Rajiv. He also recorded his statement as an eye witness to the occurrence. While appearing before the trial Court, Rakesh Kumar PW8 corroborated the testimony of the complainant Sanjiv Kumar PW7 on all material particulars. The statement of Inspector Kiratpal Singh was recorded as PW9. It would be pertinent to mention, that Inspector Kiratpal Singh PW9 was assigned the investigation of the case under reference. While appearing before the trial Court, he narrated the details of the investigation carried out by him, particulars whereof have already been narrated above. After recording the statement of Inspector Kiratpal Singh PW9, the prosecution evidence was Crl. Appeal No.538-DB of 1998 10 closed by order. The trial Court then recorded the statements of all the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh, under Section 313 of the Code of Criminal Procedure. In the first instance, the accused were confronted with the incriminating evidence appearing on the record of the case. All the accused denied the correctness of the incriminating evidence available on the record of the case. In his defence, the accused/appellant Amrik Singh, inter-alia stated as under:- “ I am innocent. I have been falsely involved in this case. I have no connection with co-accused. They are living in different places. I did not got to see the Ram Leela on the day of occurrence. I have been involved on the basis of suspicion.” Whereas, the accused/appellant Vikash @ Boby while concurring with the accused/appellant Amrik Singh, expressed his defence in the following manner:- “I am innocent. The case is false. The witnesses are deposing falsely. I did not go to watch the Ram Leela on the alleged day of occurrence. No recovery has been effected from me. I have been involved on the basis of suspicion only. I have no connection with the co-accused .” The accused/appellant Sanjiv Kumar @ Raju made the following observations in his defence:- “ I am innocent. A false case has been registered against me. I was falsely arrested. No recovery has been effected from me. I do not have any connection with the co-accused. I did not got to watch Ram Leela on the alleged day of occurrence. On the Crl. Appeal No.538-DB of 1998 11 basis of suspicion, I was involved falsely by the police.” The trial Court then afforded an opportunity to the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh to lead evidence in their defence. The accused/appellants produced only one witness in their defence, i.e., Head Constable Ishwar Singh, who appeared before the trial Court as DW1. While appearing before the trial Court, Head Constable Ishwar Singh DW1 brought the summoned Daily Diary Register from the Police Station, Ambala City. He placed on the record of the trial Court a translated copy of Report No.23 dated 20.10.1996 Ex.DB, as well as, the translated copy of the Daily Diary Report bearing No.28 dated 20.10.1996, Ex.DC. After recording the statement of Head Constable Ishwar Singh DW1, defence evidence was closed by order on the basis of the statements made by the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh. The Additional Sessions Judge, Ambala, delivered the judgement in Sessions Case No.9 of 1997, on 5.11.1998, by which all the accused/appellants, namely, Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh were held guilty for having intentionally committed the murder of Rajiv on 9.10.1996 in furtherance of their common intention. The accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh were, accordingly, convicted, under Section 302 read with Section 34 of the Indian Penal Code. In continuation of their conviction, the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh were afforded an opportunity of hearing on the question of sentence on 7.11.1998, whereupon the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh were sentenced to undergo imprisonment Crl. Appeal No.538-DB of 1998 12 for life and to pay a fine of Rs.1,000/- each, under Section 302 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, the defaulting convict(s) was/were ordered to undergo further rigorous imprisonment for six months. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Additional Sessions Judge, Ambala, reveal that while convicting the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh, reliance was placed on ocular, as well as, expert evidence, besides the disclosure statement made by the accused/appellant Sanjiv Kumar @ Raju. In so far as ocular evidence is concerned, reliance was placed on the statement of the complainant Sanjiv Kumar PW7. Sanjiv Kumar PW7 had tendered his evidence as an eye witness to the occurrence. Reliance was also placed on the statement of Rakesh Kumar PW8, another eye witness to the occurrence. In so far as expert evidence is concerned, reliance was placed on the statement of Dr. G.P. Saluja PW1, who had deposed that the injuries on the person of Rajiv could had been caused with a knife. Reliance was also placed on the disclosure statement of the accused/appellant Sanjiv Kumar @ Raju Ex.PN and the consequential recovery memo Ex.PO, whereby the knife used in the occurrence was recovered. According to the trial Court, the aforesaid evidence was sufficient to record the guilt of the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh. In order to assail the findings recorded by the trial Court and in order to establish that the evidence produced by the prosecution is not credit-worthy, learned counsel for the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh have raised a number of pleas. Crl. Appeal No.538-DB of 1998 13 Learned counsel for the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh has vehemently contended that there is no credible evidence on the record of the case to establish the guilt of the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh in respect of the charges levelled against them. Each of the pleas raised by the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh, is being dealt with in the succeeding paragraphs. The first contention advanced by the learned counsel for the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh was, that the presence of the brother of the deceased Rajiv i.e. the complainant Sanjiv Kumar PW7 and his cousin Rakesh Kumar PW8 at the place of occurrence is very doubtful. In this behalf it is the vehement contention of learned counsel for the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh that it should not be forgotten, that both the aforesaid eye witnesses are related to the deceased Rajiv, they are chance witnesses and on top of it, they are interested witnesses. In so far as the doubtful presence of the two witnesses, namely, the complainant Sanjiv Kumar PW7 and Rakesh Kumar PW8 is concerned, it is submitted that the same stands established from the fact that the special report was substantially delayed, inasmuch as, the same was signed by the Ilaqa Magistrate at 8.35 AM on 20.10.1996, whereas, admittedly, the occurrence had taken place on the preceding night i.e. at 11.00 PM on 19.10.1996. It is submitted that in the interregnum, there was sufficient time for the investigating agency to procure witnesses related to the deceased Rajiv so as to substantiate the charge against the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh. Crl. Appeal No.538-DB of 1998 14 Despite the fact that the aforesaid submission seems to be attractive on first blush, we are of the view that the same has been advanced without taking into consideration the facts emerging out of the evidence produced before the trial Court. It is not disputed at the hands of learned counsel for the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh that the occurrence took place at 11.00 PM on 19.10.1996. It is in the testimony of Dr. Dinesh Kumar Goyal PW2, that he sent a ruqa to the Police Post Ex.PF about the receipt of the dead body of Rajiv at the Civil Hospital, Ambala City, at 11.50 PM. The next in the order of sequence was the complaint made by Sanjiv Kumar PW7 to Inspector Kiratpal Singh PW9. The same is stated to have been recorded at 1.00 AM on 20.10.1996. On the basis of the aforesaid statement, Daily Diary Report No.23 (Ex.DB) was entered at Police Post No.3, depicting the receipt of the dead body of Rajiv, as also, the fact that he had been murdered due to the injuries inflicted with a knife. The affirmation of the aforesaid Daily Diary Report emerges from the statement of Head Constable Ishwar Singh DW1 (a witness produced by the learned counsel for the accused/appellants themselves). It is, therefore, not open to the accused/appellants Vikash @ Boby, Sanjiv Kumar @ Raju and Amrik Singh to dispute the correctness thereof. The next in the sequence of events, is the registration of the First Information Report bearing No.325 at Police Station, Ambala City, at 1.15 AM on 20.10.1996, and thereafter, immediately on day break, the submission of the special report in furtherance