IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 311-DB of 2008 DATE OF DECISION : 03.03.2009 Dr. Indra Dalal and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT Crl. A. No. 312-DB of 2008 DATE OF DECISION : 03.03.2009 Jaibir .... APPELLANT Versus State of Haryana ..... RESPONDENT Crl. A. No. 338-DB of 2008 DATE OF DECISION : 03.03.2009 Udeyveer alias Udey alias Sandeep .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Vinod Ghai, Advocate, for the appellants (in Crl. Appeals No. 311-DB and 312-DB of 2008). Mr. Jagjeet Beniwal, Advocate, for the appellant. (in Crl. A. No. 338-DB of 2008) Mr. Partap Singh, Senior DAG, Haryana, for the respondent-State. Mr. J.S. Bedi, Advocate, for the complainant. * * * Crl. A. No. 311-DB of 2008 -2- SATISH KUMAR MITTAL , J. This judgment shall dispose of three appeals bearing Criminal Appeal Nos. 311-DB, 312-DB and 338-DB of 2008. 2. Criminal Appeal No. 311-DB of 2008 has been filed by Dr. Indra Dalal and her brother Bijender alias Vijay and Criminal Appeal No. 312-DB of 2008 has been filed by Jaibir, against the judgment of their conviction dated 11.4.2008 and the order of sentence dated 12.4.2008, passed by Additional Sessions Judge-II, Bhiwani, in Sessions Case No. 82 of 2001/2005, arising from FIR No. 99 dated 24.5.2001, registered at Police Station City Dadri, whereby they have been convicted and sentenced for life imprisonment and to pay a fine of Rs. 10,000/- each, for the commission of offence punishable under Section 120B read with Section 302 IPC, in default of payment of fine, to undergo simple imprisonment for a period of one year each. The fourth accused, namely Ramesh, has been acquitted of the charge framed against him. 3. Criminal Appeal No. 338-DB of 2008 has been filed by Udeyveer alias Udey alias Sandeep against the separate judgment of his conviction dated 11.4.2008 and the order of sentence dated 12.4.2008, passed by Additional Sessions Judge-II, Bhiwani, in Sessions Case No. 83 of 2005, arising from the same FIR, whereby he has been convicted and sentenced for life imprisonment and to pay a fine of Rs. 10,000/-, for the commission of offence punishable under Section 302 IPC, in default of payment of fine, to undergo simple imprisonment for a period of one year. Crl. A. No. 311-DB of 2008 -3- 4. It is made clear that accused Udeyveer alias Udey alias Sandeep was tried separately, as earlier he could not be arrested and was declared proclaimed offender and after his arrest, supplementary challan was filed against him. Facts : 5. One Nand Karan (deceased), a retired Master, and his wife Suraj Kaur, were residing in the house known as `Lal Kothi' situated on the Loharu Road, Dadri. On 24.5.2001 at about 8.00 P.M., he (Nand Karan), his wife and his brother Harish Chander Godara were present in the house. When his wife Suraj Kaur was watering the plant in the lawn and he was inside the room and his brother was on the roof, one young boy, aged about 22/25 years, came on a scooter. He asked Smt. Suraj Kaur that he had come from Rohtak and wanted to meet Master Nand Karan. When she was talking with that boy, Nand Karan came out of the house on the gate. Then his wife told him that the boy had come to meet him. Soon thereafter, the boy took out a pistol from the pocket of his pant and fired at Nand Karan on his chest. He also fired another shot on the head of Nand Karan. Thereupon, Nand Karan fell down while crying. After hearing the sound of shots, Harish Chander Godara, brother of Nand Karan, immediately came down on the spot. The boy after throwing the pistol at the spot ran away on the scooter, on which he came to the house. After the occurrence, many persons, including Suresh Kumar son of Hoshiar Singh and Jaipal son of Kamal Singh reached at the spot. They after arranging the vehicle took Nand Karan Crl. A. No. 311-DB of 2008 -4- to the Hospital, where he was declared dead. Dr. H.L. Beniwal (PW.3), who attended Nand Karan in the Hospital, declared him dead and sent a ruqa Ex.PE to SHO Police Station City Dadri at 9.10 P.M., regarding the dead body being brought by Suresh Kumar and Jai Pal. 6. In the Hospital, statement of Smt. Suraj Kaur (Ex.PA) was recorded by SI Ram Chander (PW.17) on 24.5.2001 at 11.00 P.M. In her statement, she narrated the abovesaid occurrence and further stated that her husband Nand Karan was got murdered by Dr. Indra Dalal, her brother Bijender alias Vijay and Mahabir, through some unknown person, by hatching a conspiracy. The cause of grudge, as stated by her, was that an allegation of murder was levelled by them against her husband Nand Karan, son Ravinder Kumar and one Sandeep son of Mahabir Singh and in that regard, a criminal trial under Section 302 IPC was pending. Her son Ravinder Kumar and Sandeep are in jail in connection with the alleged murder. However, her husband Nand Karan was released on bail about three months back. Due to the said grudge, Indra Dalal, her brother Bijender alias Vijay and Mahabir got committed the murder of her husband Nand Karan by hiring contract killer in a conspiracy. On the basis of the said statement, FIR Ex.PA/1 was registered at Police Station Dadri on 24.5.2001 at 11.10 P.M. Special report of the said FIR was received by the Illaqa Magistrate at 12.30 A.M. on 25.5.2001. 7. On 25.5.2001, post mortem of deceased Nand Karan was conducted by Dr. Anil Chaudhary (PW.4), Dr. H.L. Beniwal and Dr. Giri Crl. A. No. 311-DB of 2008 -5- Raj. They found two gun shot injuries on the body of the deceased, one on the chest and the other on the brain. One pallet each was got removed from those injuries. In the Post Mortem Report (Ex.PF), the cause of death of the deceased was stated to be haemorrhage and shock due to gun shot injury on vital organs. Investigation : 8. During investigation, the police recorded statements of Suresh and Harish Chander Godara. In his statement, Harish Chander Godara gave the registration number of the scooter as HR-20G/1102. The police also took into possession clothes of the deceased Nand Karan, one fired bullet, one cartridge of fired bullet, stated to be taken out of the body of the deceased, one country made pistol, blood stained earth lifted from the place of occurrence and Hawai Chappals. On 31.5.2001, accused Bijender alias Vijay was arrested. He made a disclosure/confessional statement Ex.PH, in which he stated that he, his sister Indra Dalal and brother Mahabir hatched a conspiracy and killed Nand Karan after enticing a youth, because Nand Karan had murdered his nephew Dipender alias Banti. Thereafter, on 2.6.2001, Dr. Indra Dalal was arrested and she also made a disclosure/ confessional statement Ex.PT to the effect that she and her brother Bijender alias Vijay and Mahabir had hatched a conspiracy and got committed the murder of Nand Karan through a young man, because Nand Karan had committed the murder of her son Dipender alias Banti. On the same day, another disclosure/confessional statement (Ex.PK) of accused Bijender alias Crl. A. No. 311-DB of 2008 -6- Vijay was recorded, in which he stated that under the conspiracy hatched by him and his sister Indra Dalal, they got committed the murder of Master Nand Karan for Rs. 3 lacs, by engaging Udeyveer son of Rajbir, a resident of Sisai, District Hisar, who had executed the work and murdered Nand Karan. On 7.7.2001, during investigation, the police further recorded the statement (Ex.PK) of Pardeep Kumar son of Daya Nand, a resident of Charkhi Dadri, in which he stated that on 22.5.2001, he went to the clinic of Doctor Indra Dalal for medical check-up of his wife. At that time, Bijender (brother of Dr. Indra Dalal) came there and both of them went inside the room by saying that she will attend his wife after some time. When she did not come, he went to call her. There from the gate, which was slightly open, he heard their talks. Bijender was saying that he had engaged one Udeyveer for killing Master Nand Karan, therefore, she should not bother, as he will kill Master Nand Karan. She was only to arrange the money. Thereafter, during investigation, on 13.7.2001, a cream colour LML scooter bearing registration No. HR-20G/1102, which was used in the crime, was recovered from the old house of Dr. Indra Dalal vide recovery memo Ex.PD. After recovery of the said scooter, the police made an application Ex.PZ before the Registering Authority, Hisar, to know the name of the registered owner of the scooter. On that application, the Registering Authority, Hisar, vide noting Ex.PZ/1 informed that the registered owner of the scooter was accused Jaibir son of Kanshi Ram. Thereafter, accused Jaibir was arrested on 10.12.2001 and his disclosure/confessional statement (Ex.PL) was Crl. A. No. 311-DB of 2008 -7- recorded, in which he stated that he, Ramesh and Udeyveer prepared a plan to commit the murder of Master Nand Karan for a consideration of Rs. 3 lacs to be taken from Vijay Kumar, a contractor of Dadri. He further stated that he had given scooter No. HR-20G/1102 to Udeyveer and Ramesh for that purpose. Thereafter, accused Ramesh was also arrested and his disclosure/confessional statement Ex.PO was also recorded on 23.12.2001, in which he stated that he, Jaibir and Udeyveer had prepared a plan to commit the murder of Master Nand Karan of Dadri, by taking Rs. 3 lacs from Bijender, a contractor of Dadri. 9. Since accused Udeyveer could not be arrested, therefore, he was got declared a proclaimed offender and challan was filed against accused Indra Dalal, Bijender alias Vijay, Jaibir and Ramesh. During investigation, accused Mahabir was found innocent and he was not challaned. Charges under Sections 120-B and 302 IPC were framed against the aforesaid four accused, to which they pleaded not guilty and claimed trial. 10. Thereafter, during the pendency of the aforesaid trial against the accused, accused Udeyveer was arrested on 7.2.2005 and his disclosure/ confessional statement Ex.PN was recorded, in which he stated that he, Ramesh and Jaibir were engaged for Rs. 3 lacs, by Bijender alias Vijay, Mahabir Singh and Smt. Indra Dalal for committing the murder of Master Nand Karan, who had murdered the son of Dr. Indra Dalal. He further stated that he had taken the scooter of Jaibir to execute the said job. On the basis of Crl. A. No. 311-DB of 2008 -8- his disclosure statement, he got identified the place of occurrence vide memo of demarcation Ex.PE. During the investigation, the police also collected a disclosure/confessionial statement made by Jaibir on 30.11.2001 in another case bearing FIR No. 718 dated 30.11.2001 under Sections 420/407/463/ 471/120B IPC and Section 25/54/59 of the Arms Act, registered at Police Station Civil Lines, Hisar. Copy of the said statement has been placed on record as Mark A. In that statement, accused Jaibir had stated that he was given one LML Vespa scooter by one Vipin Kaushal and he in connivance with Udeyveer and Ramesh got the said scooter registered in his name on fake papers against registration No. HR-20G-1102 on 22.5.2001. He further stated that he, Udeyveer and Ramesh hatched a plan to kill a person at the instance of Vijay Thekedar resident of Dadri, after receiving Rs. 3 lakhs from him and for that, he had given his scooter No. HR-20G-1102 to Udeyveer and Udeyveer had executed the said plan and committed the murder in Dadri on 24.5.2001. This document Mark A has been proved by PW.15 Ram Avtar Inspector. 11. After completion of investigation, supplementary challan was filed against accused Udeyveer and charges under Sections 120-B and 302 IPC were framed against him, to which he did not plead guilty and claimed trial. (It is pertinent to mention here that in both the challans, separate trials were conducted). Prosecution Evidence : 12. In the challan/case, filed against accused Indra Dalal, Bijender, Crl. A. No. 311-DB of 2008 -9- Jaibir and Ramesh, the prosecution examined 18 witnesses, namely PW.1 Suraj Kaur (complainant), who fully supported the prosecution version, PW.2 Harish Chander (brother of the deceased), who also fully supported the prosecution version, PW.3 Dr. H.L. Beniwal, who sent ruqa Ex.PE to SHO, Police Station City Dadri, PW.4 Dr. Anil Chaudhary, who conducted the post mortem of the deceased, PW.5 Mohinder Singh HC, who proved disclosure/confessional statement Ex.PH made by accused Bijender, PW.6 Kanwar Pal Draftsman, a formal witness, who prepared the site plan Ex.PJ, PW.7 Pardeep, a witness of conspiracy, who did not support the prosecution version and was declared hostile, PW.8 Bansi Dhar HC, PW.9 EHC Prem Singh, PW.10 Rameshwar Dass, Sub Inspector, PW.11 HC Pawan Kumar, (all formal witnesses), PW.12 Inspector Ram Avtar, who arrested accused Jaibir in another case and recorded his disclosure/confessional statement Mark A in that case, PW.13 Partap Singh, Inspector, who recorded the disclosure/confessional statements of accused Jaibir and Ramesh, PW.14 Dalip Singh SI/SHO, PW.15 Mohinder and PW.16 Constable Vir Singh, formal witnesses, PW.17 Ram Chander, retired Sub Inspector, who is the Investigating Officer of the case and PW.18 Gulab Singh, Registration Clerk, who stated that as per the record, Jaibir son of Kanshi Ram was owner of scooter No. HR-20G/1102, and also proved the application Ex.PZ moved by the police before the Registration Authority and report Ex.PZ/1 made by Pawan Kumar, Clerk. 13. Statements of accused Indra Dalal, Bijender, Jaibir and Ramesh Crl. A. No. 311-DB of 2008 -10- were recorded under Section 313 Cr.P.C., wherein they denied the incriminating evidence appearing against them and pleaded their innocence. They took the plea that they have been falsely implicated by the police at the instance of Suraj Kaur and Harish Chander in order to put pressure upon them to compromise the matter of murder of son of Indra Dalal, which was pending against deceased Nand Karan, his son Ravinder Kumar and one Sandeep. However, they did not lead any evidence in their defence. 14. In the supplementary challan/case, filed against accused Udeyveer, the prosecution examined 17 witnesses, namely PW.1 Mohinder, a formal witness, PW.2 Partap Singh, Inspector, who recorded the disclosure/confessional statements of accused Jaibir and Ramesh, PW.3 Dalip Singh SI/SHO, PW.4 Rameshwar Dass, Sub Inspector, formal witnesses, PW.5 Dr. Anil Chaudhary, who conducted the post mortem of the deceased, PW.6 Constable Vir Singh, a witness to the disclosure statement Ex.PR made by accused Bijender alias Vijay, PW.7 Suraj Kaur (complainant) who fully supported the prosecution case, PW.8 Harish Chander (brother of the deceased), who also fully supported the prosecution version, PW.9 HC Pawan Kumar, PW.10 Prem Singh, formal witnesses. PW.11 Pardeep, a witness of conspiracy, who did not support the prosecution version and was declared hostile, PW.12 Kanwal Pal Draftsman, a formal witness, who prepared the site plan Ex.PJ, PW.13 Hawa Singh, SI, a formal witness, PW.14 Ram Chander, retired Sub Inspector, the Investigating Officer of the case, PW.15 Inspector Ram Avtar, who arrested Crl. A. No. 311-DB of 2008 -11- accused Jaibir in another case and recorded his disclosure/confessional statement Mark A in that case, PW.16 Gulab Singh, Registration Clerk, who stated that as per the record, Jaibir son of Kanshi Ram was owner of scooter No. HR-20G/1102, PW.17 S.I. Mahender Singh, who arrested accused Udeyveer and recorded his disclosure statements Ex.PN and Ex.PD and prepared memo of demarcation Ex.PE. 15. In his statement under Section 313 Cr.P.C., accused Udeyveer denied the incriminating evidence appearing against him and pleaded his innocence and false implication at the instance of Suraj Kaur and Harish Chander. He also did not lead any evidence in his defence. Decision of the Trial Court : 16. The trial court, while relying upon the testimonies of PWs Suraj Kaur and Harish Chander, who had identified accused Udeyveer in the Court and according to whom, he was the person, who on 24.5.2001 fired two shots upon Nand Karan from the pistol, convicted accused Udeyveer for committing the murder of deceased Nand Karan. It was held that the presence of these two witnesses at the time of the occurrence was natural and their testimonies in the Court are fully trust-worthy and reliable. The contention of learned counsel for appellant Udeyveer that no test identification parade was held was rejected, especially when PW Suraj Kaur, who had seen the accused at her house and had talked with him, had given vivid description and identification of accused Udeyveer in her initial statement recorded by the police within two hours of the incident. It was Crl. A. No. 311-DB of 2008 -12- held that identification of an accused by a witness in the court is a substantive evidence, whereas the evidence of identification in the test identification parade is though primary but not substantive one and the same can be used only to corroborate identification of the accused by a witness in the court. Therefore, the failure to hold test identification parade does not make the evidence of identification in court inadmissible. It was further held that statements of PWs Suraj Kaur and Harish Chander, eye witnesses, were further corroborated by the medical evidence on the file. Further, the trial court also convicted Dr. Indra Dalal, Bijender alias Vijay and Jaibir for hatching conspiracy of murder of Nand Karan, while coming to the conclusion that testimonies of PWs Suraj Kaur and Harish Chander are trust-worthy, reliable and believable, to prove the allegation of conspiracy by Dr. Indra Dalal, Bijender and Jaibir, as revealed from their disclosure statements, coupled with the recovery of scooter from the house of Indra Dalal, supported with the medical evidence available on the record, because the act conspired has been completed by Udeyveer on 24.5.2001 by murdering Nand Karan at his residence by firing gun shots upon him. Accused Ramesh was acquitted by the trial court by giving him benefit of doubt. In this regard, it was held that there is no substantive evidence against him in order to point the conspiracy, because his name does not figure in the disclosure/confessional statement of Dr. Indra Dalal and Bijender. They have only named accused Udeyveer. It was further held that the confessional statement of accused Jaibir before the police cannot be Crl. A. No. 311-DB of 2008 -13- treated as substantive evidence against Ramesh, since nothing was recovered from him. Hence, these appeals. Arguments : 17. Mr. Vinod Ghai, Advocate, appearing on behalf of appellants Indra Dalal, Bijender alias Vijay and Jaibir argued that in this case, the prosecution has miserably failed to prove the alleged conspiracy against the appellants. He submitted that there is no legal evidence on the file to establish agreement of accused Indra Dalal, Bijender and Jaibir with accused Udeyveer. In this regard, he submitted that PW.7 Pardeep, the only witness of conspiracy, examined by the prosecution, has not supported the prosecution version. Therefore, to prove the alleged conspiracy, there is no legal evidence on the record and mere suspicion cannot take the place of evidence. Learned counsel pointed out that merely on the basis of a motive, howsoever strong may be, a person cannot be convicted for the offence of conspiracy in a murder case. The motive merely creates a suspicion and the suspicion cannot take the place of proof of guilt. He submitted that the motive behind the crime is always a double edged weapon. It could be a ground for committing the crime, and at the same time, it be a ground for false implication. Learned counsel submitted that admittedly, there was a bitter enmity between family of the accused and the family of the complainant, therefore, it is natural that the complainant would falsely implicate the accused. Learned counsel submitted that for this reason, the testimonies of PWs Suraj Kaur and Harish Chander cannot be accepted as a Crl. A. No. 311-DB of 2008 -14- gospel truth, because they have reason to falsely implicate the appellants. Learned counsel further argued that the confessional statements of the appellants before the police, which have been relied upon by the learned trial court for convicting them for the offence of conspiracy for committing the murder of Nand Karan, are inadmissible in law and the same cannot be read into evidence. Therefore, conviction of the appellants on the basis of those confessional statements is not sustainable. Learned counsel further submitted that in this case, on the basis of the confessional statements of the appellants, no recovery was effected, therefore, the same are not covered by exception of Section 27 of the Indian Evidence Act and, thus, are not admissible in evidence. Learned counsel further argued that the recovery of scooter from the old house of accused Indra Dalal has also not been proved. He submitted that firstly, there is no evidence that the said scooter was used in the alleged crime by Udeyveer. Secondly, recovery of the scooter from the old house of Indra Dalal is also doubtful, because there are material contradictions in the statements of PWs Suraj Kaur and Harish Chander regarding the information of concealing of scooter in the old house of Indra Dalal, recovery of scooter and presence of other persons in the said house. Learned counsel submitted that the old lady, who was present at the time of the recovery of scooter in the old house of Indra Dalal, has not been examined by the prosecution and her non-examination shatters the prosecution version. Learned counsel further pointed out that the police has fabricated the statement of PW Harish Chander, which according to the Crl. A. No. 311-DB of 2008 -15- prosecution was recorded on 25.5.2001. In that statement, the said witness had disclosed the registration number of the scooter, alleged to be used by Udeyveer on the day of occurrence. But this fact does not find a mention in the FIR. If the said witness had noted down the number of the scooter, then it would have certainly come in the FIR, because he was very much present in the Hospital at the time of recording of statement of complainant Suraj Kaur. Learned counsel submitted that lateron, to implicate the appellants in the crime, the false recovery of scooter was planted vide recovery memo Ex.PD. Therefore, on the basis of the said recovery of scooter from the old house of Indra Dalal, the trial court has wrongly convicted the appellants for the offence of conspiracy for committing the murder of Nand Karan. 18. Shri Jagjeet Beniwal, Advocate, appearing on behalf of appellant Udeyveer, submitted that the appellant has been convicted on the basis of his identification by PWs Suraj Kaur and Harish Chander only in the court. He submitted that identification of the accused in the court has no value in the eyes of law. He further submitted that except the testimonies of these two witnesses, there is no evidence against the appellant to prove that he has committed the alleged offence. Learned counsel further referred to the statement of Smt. Suraj Kaur (PW.7), where she had stated that the boy took out a pistol from his pocket and in her presence, he shot a fire on her husband, which hit on his chest and thereafter, he took out the second pistol from the pocket and again fired at her husband, which hit on his head. Thereafter, he ran away from the place of occurrence, after throwing one Crl. A. No. 311-DB of 2008 -16- pistol at the place of occurrence. Learned counsel submitted that in her statement before the police, Smt. Suraj Kaur did not state about the second pistol used by the assailant. Therefore, this is a major contradiction in the statement of the prosecution witness, which creates a doubt about the participation of accused Udeyveer in the alleged crime. Learned