Crl. Appeal No.69-DB of 1999 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.69-DB of 1999 Date of Decision: 30.05.2008 Dharma @ Dharam Singh and another. ....Appellants. Versus State of Haryana. ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Jora Singh. Present: Mr. R.S. Rai and Ms. Meenakshi Dogra, Advocates for the appellants. Mr. Ravi Dutt Sharm, D.A.G., Haryana for the respondent. ... J.S. Khehar, J. Through the instant appeal, the accused/appellants Dharma @ Dharam Singh and Parkash have impugned the judgement rendered by the Sessions Judge, Faridabad, in Sessions Case No.172 of 1992, on 23.10.1998, by which both the accused/appellants Dharma @ Dharam Singh and Parkash had been held guilty for having intentionally committed the murder of Sarabjeet Sarpanch, on 23.6.1992 in the area of village Mohna, under Police Station, Chhainsa in district Faridabad. They were, accordingly, convicted, under Section 302 read with Section 34 of the Crl. Appeal No.69-DB of 1999 2 Indian Penal Code. The accused/appellants Dharma @ Dharam Singh and Parkash have also impugned the order passed separately on 23.10.1998, by the Sessions Judge, Faridabad, whereby, both the accused/appellants Dharma @ Dharam Singh and Parkash have been sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, under Section 302 read with Section 34 of the Indian Penal Code. In case of default in payment of fine, they have been ordered to undergo further rigorous imprisonment for six months. The prosecution version of the incident is based on the statement made by the complainant Sukhi PW2 to ASI Ram Dutt PW11, on 24.6.1992. In his complaint, the complainant Sukhi PW2 stated that he was a resident of village Sunheri Ka Nangla, under Police Station, Chhainsa, and that, he (the complainant Sukhi PW2) alongwith Rattan Singh PW3 and Sarabjeet Sarpanch had gone to village Chhainsa, on 23.6.1992. On their return journey they travelled from village Chhainsa to Mohna, in the evening. From Mohna they started on foot towards their village Sunheri Ka Nangla. While they were on their way from Mohna to village Sunheri Ka Nangla, and had reached a little ahead of the tubewell of Birbal Khubor at about 8.30 PM, four persons wearing black clothes and having pistols in their hands, came out of the bushes. One of them asked Sarabjeet Sarpanch to stop. All the three i.e. the complainant Sukhi PW2, Rattan Singh PW3 including Sarabjeet Sarpanch stopped. The persons who had come out of the bushes then caught hold of Sarabjeet Sarpanch, abused him and dragged him on to the fields adjoining the road. One of them fired at Sarabjeet Sarpanch with his pistol. At that juncture, Sarabjeet Sarpanch asked them to leave him as he was at their disposal. The second shot was fired at Crl. Appeal No.69-DB of 1999 3 Sarabjeet Sarpanch by the accused/appellant Dharma @ Dharam Singh, who according to the complaint, had been recognised by the complainant Sukhi PW2 by his voice. The remaining assailants also fired shots at Sarabjeet Sarpanch. Whereupon, Sarabjeet Sarpanch fell down on the ground. After witnessing the occurrence, the complainant Sukhi PW2 and Rattan Singh PW3 ran towards the fields to save themselves. After the occurrence, the accused warned the complainant Sukhi PW2 and Rattan Singh PW3 not to say a word about the occurrence to any one, otherwise, they would not be spared. As per the statement of the complainant Sukhi PW2, he, as well as Rattan Singh PW3, continued to hide in the fields out of fear during the night. In the morning, they informed the villagers. The villagers came to the place of occurrence, and thereafter, leaving Moti and Puran to guard over the dead body of Sarabjeet Sarpanch, the complainant Sukhi PW2 went to the police station to register a complaint. ASI Ram Dutt PW11, after recording the statement of the complainant Sukhi PW2, recorded the First Information Report bearing No.129 at Police Station, Chhainsa on 24.6.1992 at 9.30 AM. The special report in connection with the aforesaid First Information Report was signed by the Ilaqa Magistrate at 2.30 PM on 24.6.1992. After recording the statement of the complainant Sukhi PW2, ASI Ram Dutt PW11, alongwith other police officials, went to the place of occurrence, and prepared the inquest report Ex.PC. He then sent the dead body of Sarabjeet Sarpanch for postmortem examination. He also prepared the rough site plan Ex.PDD. He then lifted the blood stained earth from the place of occurrence and put the same in a sealed parcel. The aforesaid parcel was taken into possession vide recovery memo Ex.PR. ASI Ram Crl. Appeal No.69-DB of 1999 4 Dutt PW11 also took into possession one empty cartridge, one bullet/pallet and some wads Ex.P12 and P13. All these articles were taken into possession vide recovery memo Ex.PS. ASI Ram Dutt PW11 then recorded the statements of the witnesses present at the place of occurrence, under Section 161 of the Code of Criminal Procedure. He deposited the case property with the Moharrir Head Constable at the Police Station, Chhainsa for safe custody. Thereafter, SI Niranjan Lal PW9 conducted the investigation of the case under reference. He arrested the accused/appellants Dharma @ Dharam Singh and Parkash alongwith one Kalia. At the time of his arrest, the accused/appellant Dharma @ Dharam Singh had in his possession one pistol Ex.P7 and 16 cartridges. The pistol and cartridges were taken into possession vide recovery memo Ex.PX. Likewise, one pistol and two cartridges were recovered from the accused/appellant Parkash. The aforesaid articles were taken into possession vide recovery memo Ex.PY. Thereafter, on 14.9.1992, the accused/appellant Dharma @ Dharam Singh was interrogated by SI Niranjan Lal PW9 in the presence of ASI Ram Dutt PW11, who made a disclosure statement to the effect that he had kept concealed one pistol in the “kothra” of his tubewell, and that, he could get the same recovered. The aforesaid disclosure statement was recorded as Ex.PT. Thereafter, the accused/appellant Dharma @ Dharam Singh led the police party to the disclosed place and got recovered a pistol. The aforesaid pistol was taken into possession vide recovery memo Ex.PT. Likewise, a disclosure statement was made by the accused/appellant Parkash, stating that he could get recovered a country made pistol hidden by him in the “koop” (heap of chaff) at his tubewell. The aforesaid disclosure statement was recorded as Ex.PU. On the basis thereof, the Crl. Appeal No.69-DB of 1999 5 accused/appellant Parkash led the police party to the disclosed location and got recovered a country made pistol. The aforesaid country made pistol was taken into possession vide recovery memo Ex.PW. As a consequence of recovery of the .12 bore pistol at the instance of the accused/appellant Dharma @ Dharam Singh, First Information Report bearing No.178 was registered at Police Station, Chhainsa. Likewise, as a consequence of recovery of a .12 bore pistol from the accused/appellant Parkash, First Information Report bearing No.179 was registered at the same Police Station. On the basis of recovery of a .32 bore pistol from the accused/appellant Dharma @ Dharam Singh, First Information Report bearing No.184 was registered at the same Police Station, Chhainsa, and finally, as a consequence of recovery of a .12 bore pistol from the accused/appellant Parkash, First Information Report bearing No.185 was registered at the same Police Station. After the completion of the investigation and other police formalities, a challan was presented in the Court of the Judicial Magistrate Ist Class, Faridabad, on 27.11.1992. The Judicial Magistrate Ist Class, Faridabad, on the basis of 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 Dharma @ Dharam Singh and Parkash. Since, the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, Faridabad, by his order dated 16.12.1992 committed the case for trial to the Court of Session. The Sessions Judge, Faridabad, by his order dated 9.11.1993 charged the accused/appellants Dharma @ Dharam Singh and Parkash for Crl. Appeal No.69-DB of 1999 6 the offence under Section 302 read with Section 34 of the Indian Penal Code, on account of having intentionally caused the death of Sarabjeet Sarpanch , on 23.6.1992 in the area of village Mohna. The accused/appellants Dharma @ Dharam Singh and Parkash were then confronted with the charge levelled against them. Both 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. Suresh Kumar Arora, Orthopaedic Surgeon, who was posted as Medical Officer, BK Hospital, Faridabad, at the time of occurrence as PW1. While testifying before the trial Court, Dr. Suresh Kumar Arora PW1 stated that he had conducted the postmortem examination on the dead body of Sarabjeet Sarpanch on 24.6.1992. During the course of his deposition, he asserted that he had found the following injuries on his person :- “1. Lacerated wound 2'' x 1.5 cm, 2' above her left ear. Blackish discoloration seen around the margins alongwith clotted blood. There was subcutaneous ecchymosis. There was a hole 1½ to 1½ cm with irregular margins in left temporal bone. Underlying brain tissue was found lacerated. There were pellets and bone pieces present inside the brain matter. Two round card board pieces also present. A few pellets alongwith card-board pieces collected and sealed in a vial. 2. Elliptical wound 1x1.5 cm in the anterior mid line discoloration of the edges. There was a bruise 3/4th cm broad Crl. Appeal No.69-DB of 1999 7 and 3 cm long present vertically in continuation with the elliptical wound extending upwards. On dissection ecchymosis was found under the bruise. On exploration of this wound a trac was found alongwith trachea, bronchus and right lung lower lobe. A bullet was found in he lower lobe of the right lung. It was sealed. The lung was lacerated and haemotoma was found in the lung tissue. 3. There were multiple circular wounds in the epigastrium rea in 4'' diameter. On exploration ecchymosis was present and pellets were found in sub-cutaneous tissues. Few Pellets collected and sealed. 4. There were multiple circular wounds in the right buttock 2'' from the mid line in the area of 1½ in diameter. Ecchymosis was present in sub-cutaneous tissues. Few Pellets collected and sealed.” In the opinion of Dr. Suresh Kumar Arora PW1, the death of Sarabjeet Sarpanch had been caused on account of the injuries on his vital organs, i.e. the brain and right lung, described as injury Nos.1 and 2. He also opined, that the injuries on the person of the deceased Sarabjeet Sarpanch were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. After conducting the postmortem examination on the dead body of Sarabjeet Sarpanch and preparing the postmortem report, Dr. Suresh Kumar Arora PW1, handed over four sealed vials containing pallets and wads taken out of the dead body of Sarabjeet Sarpanch to the police personnel accompanying the dead body of Sarabjeet Sarpanch. The clothes worn by the deceased Sarabjeet Sarpanch were also placed in a sealed parcel Crl. Appeal No.69-DB of 1999 8 and handed over to the police. The aforesaid clothes included a shirt, a banyan and a “dhoti”. The statement of Sukhi was recorded as PW2. While appearing before the trial Court, the complainant Sukhi PW2 reiterated the factual position as had been narrated by him when he had made the complaint to ASI Ram Dutt PW11 on 24.6.1992. It would be pertinent to mention, that at the time of occurrence, the complainant Sukhi PW2 was accompanying the deceased Sarabjeet Sarpanch, and as such, his testimony is in the nature of an eye witness. The statement of Rattan Singh was recorded as PW3. He was also accompanying the deceased Sarabjeet Sarpanch at the time of occurrence, and as such, his testimony is also in the nature of an eye witness. It would be pertinent to mention, that while deposing before the trial Court, Rattan Singh PW3 corroborated the testimony of the complainant Sukhi PW2 on all material particulars. The statement of Rohtash Kumar was recorded as PW4. Rohtash Kumar PW4 testified that he had prepared the scaled site plan of the place of occurrence on the pointing out by the complainant Sukhi PW2 and Rattan Singh PW3. The prosecution then produced Puran as PW5. It would be pertinent to mention, that Puran PW5 was the son of the deceased Sarabjeet Sarpanch. While appearing before the trial Court, Puran PW5 disclosed the motive for the occurrence. He asserted that the accused/appellants Dharma @ Dharam Singh and Parkash had teased the daughter of Ghurey, and on account of the fact that his father Sarabjeet was the Sarpanch of the village, he had sided with Ghurey. As a consequence whereof, the accused/appellants Dharma @ Dharam Singh and Parkash nursed a grudge against his father Sarabjeet Sarpanch. During the course of his cross-examination, he asserted that Ghurey had lodged a report about the quarrel which had taken place Crl. Appeal No.69-DB of 1999 9 between him on the one side and the accused/appellants Dharma @ Dharam Singh and Parkash on the other. He also stated that he did not know whether in his report, Ghurey had also alleged that the accused/appellants Dharma @ Dharam Singh and Parkash had outraged the modesty of his daughter. During his cross-examination, he also stated that a “bradari” panchayat had been convened when the accused/appellants Dharma @ Dharam Singh and Parkash had outraged the modesty of the daughter of Ghurey. While appearing before the trial Court, Puran PW5 also testified that the police on reaching the place of occurrence, had lifted the blood stained earth from the place of occurrence, which was placed in a sealed parcel. The aforesaid blood stained earth was taken into possession vide recovery memo Ex.PR, which he had attested. He also stated that one empty cartridge and pieces of “gatta” (cardboard) were also recovered from the place of occurrence, which were put into a sealed parcel and taken into possession vide recovery memo Ex.PS. He stated that he had also attested the aforesaid recovery memo. Additionally, he testified that he had identified the dead body of his father Sarabjeet Sarpanch at the time of the postmortem examination. The statement of Pitamber was recorded as PW6. It would be pertinent to mention, that consequent upon the interrogation of the accused/appellants Dharma @ Dharam Singh and Parkash, they made disclosure statements, depicting the concealment of the weapons used in the crime. The disclosure statement made by the accused/appellants Dharma @ Dharam Singh and Parkash, Ex.P7 and the consequential recovery memo Ex.PU based on the interrogation of the accused/appellant Parkash, had been attested by Pitamber PW6. The statement of Kishna was recorded as PW7. He asserted that he was joined with the investigation of the case by Crl. Appeal No.69-DB of 1999 10 the police, and that, he had attested the disclosure statement made by the accused/appellant Dharma @ Dharam Singh, as also, the recovery memo, drawn on the recovery made thereupon. The statement of Rajpal was recorded as PW8. It would be pertinent to mention, that Rajpal PW8 was the son of the deceased Sarabjeet Sarpanch. Rajpal PW8 asserted before the trial Court, that on 10.9.1992, three persons had been apprehended by the police from near village Munshi Ki Dhani i.e. the accused/appellants Dharma @ Dharam Singh and Parkash and their relative Kalia. He asserted that at the time of their arrest, one country made pistol and 15 cartridges were recovered from the accused/appellant Dharma @ Dharam Singh, and a loaded pistol with one cartridge was recovered from the accused/appellant Parkash. In addition to the aforesaid, one more country made pistol with two cartridges, were recovered from the accused/appellant Parkash. He also deposed that the pistols, as well as, the cartridges were placed in separate sealed parcels, which had been attested by him. SI Niranjan Lal PW9 had apprehended the accused/appellants Dharma @ Dharam Singh and Parkash and then formally arrested them. SI Niranjan Lal appeared before the trial Court as PW9. He also made recoveries of two more weapons on the basis of the interrogation of the accused/appellants Dharma @ Dharam Singh and Parkash, details whereof have already been narrated above. He had deposited the case property, which was placed in separate sealed parcels with the Moharrir Head Constable at the Police Station, Chhainsa, with a further direction to send the same to the Forensic Science Laboratory, Haryana, Madhuban. The statement of Moti was recorded as PW10. Moti PW10 asserted that he had gone to the place of occurrence after the murder of Sarabjeet Sarpanch. He witnessed the recovery of one empty cartridge, Crl. Appeal No.69-DB of 1999 11 one piece of brass, pieces of wads and blood stained earth etc., lifted from the place of occurrence. The aforesaid case property was put into separate sealed parcels and taken into possession vide recovery memo Ex.PS. The blood stained earth was taken into possession vide recovery Ex memo Ex.PR. The statement of ASI Ram Dutt was recorded as PW11. It would be pertinent to mention, that ASI Ram Dutt PW11 while appearing before the trial Court, narrated the details of the investigation carried out by him. Relevant particulars whereof have already been noticed above. Last of all, the prosecution examined Dr. L.A. Kumar, Deputy Director, Forensic Science Laboratory, Haryana, Madhuban as PW12. While appearing before the trial Court, Dr. L.A. Kumar PW12 asserted that he had examined the fire arms, cartridges, bullets and pallets etc. sent to the Forensic Science Laboratory, Haryana, Madhuban in case FIR No.129 dated 24.6.1992, registered at Police Station, Chhainsa. He also stated that the aforesaid case property had been delivered at the Forensic Science Laboratory, Haryana, Madhuban, by Constable Rajbir Singh and Constable Ravinder Singh. He confirmed that the parcels and the conditions of the seals, delivered at the Forensic Science Laboratory, Haryana, Madhuban, were intact and tallied with the specimen seals. According to the report submitted by Dr. L.A. Kumar PW12, bullets BC/1 and BC/2 had been fired from the pistol marked W/1. Out of the two bullets, the bullet marked BC/1 was confirmed as the bullet contained in parcel II, whereas the bullet marked BC/2 was confirmed as the bullet contained in parcel IV. As a matter of clarification of his report, he stated that the marking of the bullets recovered from parcel IV was inadvertently not recorded by him in his report Ex.PN. It is important to record here that the aforesaid testimony of Dr. L.A. Kumar PW12 was not Crl. Appeal No.69-DB of 1999 12 subjected to cross-examination at the hands of the accused/appellants Dharma @ Dharam Singh and Parkash. In his report Ex.PN, Dr. L.A. Kumar PW12 recorded the following conclusion:- “Laboratory Examination Products of combustion of smokeless powder were detected from barrels of countrymade weapons marked W/1 to W/5. Test firings were done in the laboratory from countrymade weapons marked W/1 to W/5. Their firing mechanism were found in working order. The class as well as individual characteristic marks present on cartridge C/1 and bullet marked BC/1 and BC/2 and those on test cartridge cases fired from weapons W/2, W/3, W/5 and bullet fired from weapon W/1 were examined and compared under sterec and comparison microscope. Pellets/Wads contained in parcel No.II and IV were examined fro their shape, size and dimension. Pellets were also examined under stereo microscope. Based on the examination carried out in the laboratory, the result of analysis is as under:- Result: 1. The countrymade weapons marked W/1 to W/5 are firearms as defined in Arms Act 54 of 1959 and were found in working order. 2. The countrymade weapons marked W/1 to W/5 have been used in firing. However, the time of their last firing could not be given. Crl. Appeal No.69-DB of 1999 13 3. The 12 bore fired cartridge case marked C/1 has been fired from countrymade pistol W/2 (chambered for 12 bore cartridges) and not from any other firearm even of same make and bore because every firearm has its own individual characteristic marks. 4. The .314” fired bullet marked BC/1 and BC/2 have been fired from countrymade pistol W/1 (chambered for .315” cartridges) and not from any other firearm even of same make and caliber, because every firearm has its own individual characteristic marks. 5. Pellets contained in parcel No.IV in glass vial No.1, 3, 4 were found to be of size I and usually loaded in 12 bore cartridges. 6. Wads contained in parcel No.II and in glass vial No.2 of parcel No.IV were found to be of 12 bore size. 7. Report in original from seriously division is enclosed herewith. Note: 1. Exhibits examined in Ballistics Division have been resealed alongwith their original wrappers with the seal of DD (BALL) FSL(H). 2. Out of sixteen live cartridges contained in parcel No.VI two, .315” live cartridge have been used in test firing, one home made cartridge retained in the laboratory and thirteen . 303” live cartridges returned in original herewith. 3. Four 12 bore cartridge contained in parcel No.VIII and Crl. Appeal No.69-DB of 1999 14 parcel No.X have been used in test firing. In another report Ex.PN/1, it was concluded as under:- “Laboratory Examinations: Laboratory examinations were carried out to detect the presence of blood on the exhibits. Blood thus detected was subjected to serological tests to determine its species of origin. Based upon these examinations the results obtained have been analyzed as give below. 1. Blood was detected on exhibit –I (Blood stained earth). 2. Exhibit 3a(shirt), Exhibit-3b (Banian) & Exhibit-3c (Dhoti) were stained with blood stains. Note: i) Results of serological analysis of blood are attached herewith. ii) After the examinations the exhibits alongwith their original wrappers have been sealed with the seal of AD serology FSLH.” In yet another report of the Forensic Science Laboratory, Haryana, Madhuban, Ex.PN/2, the blood stained earth, the shirt, the banyan and the “dhoti” taken from Sarabjeet Sarpanch were found to be stained with human blood. After recording the statement of Dr. L.A. Kumar PW12, the prosecution evidence was closed by order. The statements of the accused/appellants Dharma @ Dharam Singh and Parkash were then recorded under Section 313 of the Code of Criminal Procedure. In the first instance, the accused/appellants Dharma @ Dharam Singh and Parkash were confronted with the incriminating evidence appearing on the record of the case. The accused/appellants Dharma @ Dharam Singh and Parkash denied the correctness of the Crl. Appeal No.69-DB of 1999 15 incriminating evidence appearing on the record of the case. In his defence, the accused/appellant Dharma @ Dharam Singh inter-alia stated as under:- “We are innocent. We have been falsely implicated in various cases due to party-faction in the village. We are arrested on 23.8.92 from Ghori Chant road in the presence of Madan Sarpanch of village Thanthari and one Lambardar of village Ghori. Nothing was recovered from us.” Even the accused/appellant Parkash recorded his defence in the same terms by stating as under:- “We are innocent. We have been falsely implicated in various cases due to party-faction in the village. We were arrested on 23.8.92 from Ghori-Chand road in the presence of Madan Sarpanch of village Thanthari and one Nambardar of village Ghori. Nothing was recovered from us.” The trial Court then afforded an opportunity to the accused/appellants Dharma @ Dharam Singh and Parkash to lead evidence in their defence. The accused/appellants Dharma @ Dharam Singh and Parkash, while availing of the aforesaid opportunity, produced only one witness, namely, Munshi as DW1. During the course of his testimony, Munshi DW1 asserted that at about 8.30 PM, he alongwith 4/5 persons, was enjoying “hukka” at their “naura” (house). His brother Rajinder returned after answering