Crl.A. No.740-DB of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Crl.A. No.740-DB of 2008 DATE OF DECISION: May 13, 2011 SHARWAN ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT 2. Crl.A. No.739-DB of 2008 KAMAL SINGH ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT 3. Crl.A. No.742-DB of 2008 SHER SINGH ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT 4. Crl.A. No.754-DB of 2008 RAM KISHAN ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT 5. Crl.A. No.730-DB of 2008 INDER SINGH ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT 6. Crl.A. No.737-DB of 2008 SANJAY ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT Crl.A. No.740-DB of 2008 -2- 7. Crl.A. No.817-DB of 2008 BANSI LAL ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. RAM NIWAS KUSH, ADVOCATE FOR THE APPELLANT in CRL.A. NO.740-DB OF 2008, CRL.A. NO.742-DB OF 2008, CRL.A. NO.754-DB OF 2008, CRL.A. NO.817-DB OF 2008, CRL.A. NO.737-DB OF 2008 AND CRL.A. NO.739-DB OF 2008. MR. ATUL LAKHANPAL, SR.ADVOCATE WITH MR. R.S. CHAHAL, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.730-DB OF 2008 MR. S.S. RANDHAWA, ADDL.A.G., HARYANA. M. JEYAPAUL, J. 1. There were thirteen accused who were called upon to face the trial. Accused Manoj was declared as Proclaimed Offender during the course of trial. Accused Sanjay S/o Jagdish, Ashok, Bhagat Singh, Anup Singh and Jagdish were acquitted of all the charges framed against them. Accused Inder Singh, Bansi Lal, Sharwan, Ram Kishan, Kamal Singh, Sher Singh and Sanjay S/o Om Parkash were all convicted for offence under Section 148 and were sentenced to undergo 1 year R.I. and to pay a fine of `1000/-, each and in default to undergo further period of 1 month R.I. They were also convicted for the offence under Section 302 read with Section 149 IPC and were sentenced to undergo life imprisonment and to pay a fine of `10,000/- each and in default of payment of fine to further undergo a period of 9 months rigorous imprisonment. Accused Ram Kishan and Sanjay S/o Crl.A. No.740-DB of 2008 -3- Om Parkash were also convicted for the offence under Section 25 of the Arms Act and were sentenced to undergo 2 years R.I. and to pay a fine of `2000/- each, and in default of payment of fine, to further undergo 2 months R.I. The aforesaid 7 accused have preferred these 7 appeals against the very same judgement passed by the trial Court. 2. The case of the prosecution could be very well understood from the First Information Report lodged by PW9 Amar Singh, father of deceased Narender. The sum and substance of the FIR reads as follows:- Amar Singh was the resident of Sarangpur. He was running grocery shop in his village. About 15 days prior to the occurrence, accused Manoj hailing from the very same village came to his grocery shop for purchasing tea and sugar on credit basis. PW9 Amar Singh refused to sell the articles on credit basis as demanded by accused Manoj. Having threatened PW9, accused Manoj went away. On 17.10.2001, at about 7.15 p.m., PW9 Amar Singh alongwith his sons PW10 Surender and deceased Narender was present in his house. A white Marshal jeep came and stopped in front of his house. Accused Manoj, Sanjay s/o Jagdish, Anup, Bhagat Singh, Ashok, Jagdish, Sanjay S/o Om Parkash, Bhalu Ram, Bansi Lal, Pawan Kumar, Sher Singh and Inder Pal alighted from the jeep and took PW9 Amar Singh forcibly into the jeep. He raised alarm whereupon his elder son PW10 Surender and his younger son deceased Narender came running for his rescue. Accused Manoj pushed down deceased Narender on the ground. When deceased Narender was lying on the ground, accused Manoj fired a shot from his pistol which hit on the back of the left shoulder of deceased Narender. Manoj fired 1 or 2 shots from his pistol. Several villagers gathered over there on hearing the noise. Having been gripped Crl.A. No.740-DB of 2008 -4- with fear, accused sped away from the place of occurrence. PW9 and PW10 took the injured to the Government Hospital, Hisar, but Narender died on the way due to fire shot. The dead body was taken to the mortuary of the Government Hospital, Hisar. PW9 proceeded to his village to bring his family members on account of fear which gripped him. 3. The aforesaid first information report recorded by PW12 SI Umed Singh was registered formally. PW12 prepared the inquest report Ex.PB. 4. Post mortem examination was conducted by PW1 Dr.Suresh Kumar on 18.1.2001 at about 12.30 p.m. He found the following injury on the dead body of Narender:- “1. One lacerated wound on the left scapular region 16 cm. lateral from the midline and 14 cm. Below the supra scapular border. Size was 3.5 cm x 2.5 cm. Tatooing was present. Margins were inverted. On the dissection the sixth and the seventh rhyms were fractured on the left side. Medial border of the scapula on the left side was fractured. The left lung was lacerated and had two holes. Right lung was also lacerated and had two holes. Whole thoracic cavity was full of blood. Peritoneal cavity contain blood. One bullet was recovered from the abdominal cavity below the liver.” He opined in his post mortem report that Narender died due to shock and haemorrhage on account of the fire arm injury to his vital organs. The injury was found to be ante mortem in nature and was sufficient to cause death in the ordinary course. 5. PW12 Umed Singh recovered empty cartridges and blood Crl.A. No.740-DB of 2008 -5- stained earth from the scene of occurrence under recovery memo Ex.PN. The site plan Ex.PS also was prepared. On 23.10.2001, he arrested accused Manoj. He recovered one pistol .315 inches and a live cartridge. On 24.10.2001, he arrested accused Ram Kishan and Inder Singh in village Sadalpur. Based on the disclosure statement given by the accused Ram Kishan, the pistol was recovered from his possession. On 28.10.2001, he arrested accused Kamal and Sher Singh. He recovered a Marshal jeep from their possession. On 2.11.2001, he produced one Inder Pal before the Judicial Magistrate, Hisar for recording his statement under Section 164 Cr.P.C. The certified copy of the said statement was marked as Ex.PU. 6. PW8 SI Prahlad Singh took up the matter for further investigation on 25.12.2001. He arrested Sharwan on 25.12.2001. He also arrested accused Sanjay on 29.12.2001, in the presence of PW3 HC Krishan Kumar and recovered one pistol of .12 bore country made with one live cartridge alongwith licence. The expert from the FSL analyzed the pistols W/1, W/2 and W/3 recovered from accused Manoj, Ram Kishan and Sanjay, respectively and find that they were in working order. He also opined that bullet Mark BC/1 of .315 inches and fired cartridges Ex.C/1 and C/2 of .315 inches did match with country made pistol W/1. The country made pistols W/2 and W/3 were fired, but the time of their last firing could not be ascertained. After examining all the witnesses in this case, the Investigating Officer filed challan against the accused. 7. The accused who faced trial have come out with a total denial of the incriminating circumstances spoken to by the witnesses when they were confronted with the same under Section 313 Cr.P.C. 8. The trial Court having relied upon the evidence of PW9 and Crl.A. No.740-DB of 2008 -6- PW10, the ocular witnesses in this case, in the background of the medical evidence, report from the FSL and the recovery of pistols effected in this case, retuned a verdict of conviction against the appellants as stated supra. 9. Learned counsel appearing for the appellants would vehemently submit that neither the FIR nor the deposition of PW9 and PW10, the star witness in this case, did refer to the role of accused Sharwan. But, the name of accused Sharwan figures only in the statement made under Section 164 Cr.P.C. recorded from a witness by name Inder Pal. Inasmuch as, the said Inder Pal was not examined, the statement recorded under Section 164 Cr.P.C. (Ex.PU) looses its evidentiary value. Therefore, it is submitted that accused Sharwan against whom no evidence is available on record is entitled to acquittal. It is further submitted that no motive was established against the appellants. Further even as per the case of the prosecution, the common object was only to abduct PW9 Amar Singh. For the murder of Narender, it was Manoj, who allegedly fired at him, was responsible for the crime he committed. Therefore, it is submitted by the learned counsel appearing for the appellants that the appellants are entitled to acquittal. 10. Per contra, learned Addl.A.G., Haryana appearing for the State would submit that the accused-appellants who were members of the unlawful assembly are vicariously liable on the principle of constructive criminality for the murder committed by accused Manoj in prosecution of the common object. The ocular evidence of PW9 and PW10 would go to establish the presence of appellants at the scene of occurrence when a shot was fired at Narender by accused Manoj and therefore, the appellants are also liable to be punished under Section 302 read with Section 149 IPC. The medical evidence, expert's opinion and the recovery of the pistols go to Crl.A. No.740-DB of 2008 -7- lend corroboration to the case of the prosecution. It is submitted that the trial Court has rightly convicted the appellants. 11. Deceased Narender and PW10 Surender are the sons of PW9 Amar Singh. The occurrence had taken place at about 7.15 p.m. on 17.10.2001, just in front of their house. It is quite natural for all the family members to be present during night hours. Further of PW13 Dr.Gopal Bhardwaj has deposed before the trial Court that on 17.10.2001, the dead body of Narender was brought by PW9 Amar Singh and PW10 Surender at about 8.55 P.M. He, in fact, sent ruqqa (Ex.PH) to the police post attached to General Hospital, Hisar. Therefore, we do not entertain any doubt as regards the presence of PW9 Amar Singh and PW10 Surender at the time when Narender was shot dead in the occurrence which unfolded at about 7.15 p.m. on 17.10.2001. 12. On a perusal of testimony of PW9 and PW10, we find that both of them have cogently spoken to the fact that the appellants herein, except accused-appellant Sharwan, were present at the scene of occurrence having coming out in a Marshal jeep. They have categorically deposed before the trial Court that a fire was shot at Narender by the absconding accused Manoj, when the accused-appellants, except accused-appellant Sharwan, made an attempt to abduct PW9 Amar Singh and deceased Narender and PW10 Surender embarked upon the process of retrieving PW9 from the abductors. We do not find any reason to discard the ocular testimony of PW9 and PW10. Their evidence inspires confidence as they have come out with a natural version. There is also no material contradiction or inconsistency in the evidence of PW9 and PW10. Therefore, we come to a conclusion that accused-appellant Sharwan did not participate in the Crl.A. No.740-DB of 2008 -8- unlawful assembly. 13. Learned Addl.A.G., Haryana appearing for the State would bring to the notice of this Court that the name of accused-appellant Sharwan figures in the statement recorded from the witness Inder Pal by the Judicial Magistrate, Hisar under Section 164 Cr.P.C. 14. The statement recorded under Section 164 Cr.P.C. can never be used as a substantive evidence. It is a well laid down principle of law that it could be used either for contradiction or for corroboration of the witness who made it. The reason being that accused have hardly any occasion to cross examine such a witness during the course of the statement made by him under Section 164 Cr.P.C. If such a statement is to be treated as evidence, the witness who gave statement under Section 164 Cr.P.C. should be produced by the prosecution for his cross-examination. But unfortunately, the author of the said statement under Section 164 Cr.P.C., namely, Inder Pal was not examined by the investigating agency for reasons best known to them. In view of the legal position, the statement under Section 164 Cr.P.C. recorded from the witness Inder Pal and marked as Ex.PU through the Investigating Officer is fit to be discarded. The fact remains that name of accused-appellant Sharwan did not figure in the FIR lodged by PW9 Amar Singh, nor was his name referred to in the evidence of PW9 and PW10 who were examined as ocular witnesses in this case. The statement of Inder Pal recorded under Section 164 Cr.P.C. also stood discarded as Inder Pal was not brought to the witness box to subject him to cross-examination by the accused. There was no recovery made from accused Sharwan. There is virtually no material or evidence adduced on the side of the prosecution to clamp accused Sharwan with the charges framed Crl.A. No.740-DB of 2008 -9- as against him. Therefore, we have no hesitation to come to a conclusion that the prosecution has miserably failed to establish the charges as against Sharwan and therefore, in our considered view accused Sharwan is entitled to acquittal. 15. We have already concluded based on the unimpeachable evidence on record that the appellants herein except accused-appellant Sharwan had formed an unlawful assembly. PW12 SI Umed Singh has recovered country made pistol alongwith a live cartridge on a personal search of accused Manoj immediately on his arrest on 23.10.2001. He has also arrested accused Ram Kishan on 24.10.2001 and on the basis of the disclosure statement (Ex.PR) suffered by accused Ram Kishan, a pistol was recovered from his possession in the presence of Om Parkash. PW8 SI Parhlad Singh has arrested accused Sanjay S/o Om Parkash on 29.12.2001 and recovered a pistol with a live cartridge alongwith licence under the recovery memo Ex.PG in the presence of PW3 Head Constable Krishan Kumar. The FSL report would disclose that pistols W/1, W/2 and W/3 recovered from accused Manoj, Ram Kishan, Sanjay, respectively were found in working order. Bullet mark BC/1, cartridge Ex.C/1 and C/2 were also fired from country made pistol W/1. It was also opined by the expert that country made pistols W/2 and W/3 were also fired. The unlawful assembly formed by the appellants herein alongwith accused Manoj had been armed with lethal weapons, namely, pistols. Therefore, the trial Court has rightly come to a conclusion that the accused-appellants, except accused-appellant Sharwan, were guilty of the offence under Section 148 IPC and the accused appellant Ram Kishan @ Bhalu and Sanjay S/o Om Parkash were guilty of an offence under Section 25 of the Arms Act. Crl.A. No.740-DB of 2008 -10- 16. Now let us take up for determination the charge under Section 302 read with Section 149 IPC. PW9 and PW10 have attributed motive only as against accused Manoj. It is their version that accused Manoj went away wielding a threat to PW9 as he did not oblige his request for selling tea and sugar on credit basis. It was he who harboured a motive. As per the evidence of PW9 and PW10, the members of unlawful assembly led by accused Manoj made an attempt to abduct PW9, but strangely there was an intervention from the side of the deceased Narender to retrieve his father who was the object of abduction by the accused. It is relevant at this stage to refer to the site plan prepared by the investigating officer in this case. The site plan would disclose that after PW9 was put into Marshal jeep forcibly by the accused, it was only accused Manoj who encountered deceased Narender who was in the process of retrieving his father PW9 Amar Singh, when the other accused had already boarded the Marshal jeep. The entire evidence on record would indicate unerringly that the members of the unlawful assembly had been motivated by a common object of abducting PW9. Quite probably they might have also chalked out a plan to eliminate PW9 on abduction. Unfortunately, deceased Narender had intervened by chance and received a bullet injury at the hands of Manoj as per the case of the prosecution. In our considered view, the members of unlawful assembly had no common object either to abduct PW9 or deceased Narender, or to kill Narender during the course of accomplishment of their common object. From the evidence on record, it is found that Manoj who had already alighted from the Marshal jeep had all alone encountered Narender and shot him dead. In other words, as rightly pointed out by the learned counsel appearing for the appellants, Manoj had exceeded the Crl.A. No.740-DB of 2008 -11- common object of the unlawful assembly. For such an act of the member, the other members would not be held responsible. 17. To attract the penal provision of Section 149 IPC, there should have been a commission of offence by any member of unlawful assembly. Such offence must have been committed in prosecution of the common object of the unlawful assembly. The unlawful assembly should be in the know of things that such offence was likely to be committed. If these three elements are satisfied, the conviction under Section 149 IPC could be substantiated. 18. Of course Section 149 IPC makes every member of an unlawful assembly, at the time of committing of the offence, guilty of the offence. This Section provides for constructive or vicarious liability of the members of the unlawful assembly in the unlawful acts committed pursuant to the common object by any other member of the assembly. However, the vicarious liability of the members of the unlawful assembly extend only to the acts done in pursuance to the common object of the unlawful assembly or to such offence as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. In the instant case, the prosecution has led in evidence to establish that there was a common object only for abduction of PW9 and to deal with him. No material is available to show that the common object of the unlawful assembly had any nexus with incidental killing of Narender. Further the prosecution evidence would indicate that it was only Manoj who individually fired a shot at Narender and caused his death. Therefore, in our view the appellants had no common object, nor had they shared such a common object with accused Manoj who caused death of Narender. Therefore, the appellants are not liable to be Crl.A. No.740-DB of 2008 -12- convicted for the offence under Section 302 read with Section 149 IPC. 19. In view of the above facts and circumstances, accused Sharwan is acquitted of the charge under Sections 148 and 302 read with Section 149 IPC and consequently, the judgement of conviction and sentence recorded by the trial Court qua accused Sharwan is set aside and Crl.A. No.740-DB of 2008, preferred by accused Sharwan is allowed. He is directed to be set at liberty if his custody is not required in connection with any other case. We also set aside the conviction and sentence recorded by the trial Court as against Inder Singh, Bansi Lal, Ram Kishan, Kamal Singh, Sher Singh and Sanjay S/o Om Parkash for the offence under Section 302 read with Section 149 IPC, but the judgement of conviction recorded by the trial Court as against them for offence under Section 148 IPC is confirmed. We also confirm the judgement of conviction and order of sentence recorded by the trial Court as against accused Ram Kishan @ Bhalu and Sanjay S/o Om Parkash under Section 25 of the Arms Act. The sentence awarded to both these appellants shall run concurrently. Accordingly, Crl.A. No.742-DB of 2008, Crl.A. No.754-DB of 2008, Crl.A. No.817-DB of 2008, Crl.A. No.730-DB of 2008, Crl.A. No.737-DB of 2008 and Crl.A. No.739-DB of 2008 are partly allowed. (M.JEYAPAUL) JUDGE May 13, 2011 (SATISH KUMAR MITTAL) Gulati JUDGE