IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-D 125-DB of 2006 Date of decision: 08.11.2011 Parveen @ Billu …..Appellant Versus State of Haryana ……Respondent CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: Mr.Sanjeev Gupta, Advocate for the appellant Mr.Pardeep Singh Poonia, Addl.A.G. Haryana Jasbir Singh, J. Appellant Parveen @ Billu along with three others, namely, Vinod @ Makora, Virender @ Binder and Anil @ Master, was charge sheeted for commission of offences under Sections 302, 506/34 IPC and under Section 25 of the Indian Arms Act, 1956 (in short, the Act). After trial, other three were acquitted. One accused namely Suresh was declared proclaimed offender vide order dated 3.12.2004. As per information supplied, during the process, the appellant has undergone about six years of actual sentence. CRA-D 125-DB of 2006 By filing this appeal, the appellant has laid challenge to a judgment dated 10.1.2006, vide which, he was convicted for commission of an offence under Section 302 IPC and Section 25 of the Act and on 13.1.2006, following sentence was awarded to him:- “to undergo Rigorours imprisonment (RI) for life and to pay a fine of Rs.25000/- (twenty five thousands) for the offence punishable under Section 302 IPC in default of payment of fine, he shall further undergo R.I. for two years. He is also sentenced to undergo R.I. for a period of two years and to pay fine of Rs.1000/- for the offence punishable under section 25 of the Act. In default of payment of fine, he shall further undergo R.I. for six months. Both the sentences shall run concurrently.” It was allegation against the appellant that he along with his co- accused, named above, has committed murder of Jai Bhagwan, by causing him a fire arm injury on 28.8.2004 at 10.45 pm in the area of police station Sampla, district Rohtak. The process of law was set in motion on a statement made by Smt.Parkashi @ Pashi (PW1), wife of the deceased, who alleged to have seen the occurrence. Case of the prosecution, as noted by the trial Judge reads thus:- “Shorn of un-necessary details the facts of the case of prosecution within short compass are that on 28.8.2004 at about 10.45 p.m. Jai Bhagwan son of Jai Narain resident of Gian Nagar, Sonepat was taken to Civil Hospital, Sonepat in injured condition. Ruqua Ex.P36 was sent by the doctor to the police for information. On 29.8.2004 a telephone message was 2 CRA-D 125-DB of 2006 received from PS Kharkhoda to the effect that Jai Bhagwan son of Jai Narain, resident of Gian Nagar, Sonepat was shot dead by some unknown persons. His dead body was lying in Civil Hospital, Sonepat and some investigating officer be sent. On the basis of that information, Assistant Subordinate Inspector (ASI) Sri Kishan went to Civil Hospital, Sonepat along with other police officials. When ASI Sri Kishan reached Civil Hospital Sonepat, PW Parkashi alias Pashi wife of Jai Bhagwan deceased alongwith other relatives of Jai Bhagwan met him. Parkashi was under great shock and after some time when she was little bit out of shock, she made statement Ex.P1. It was stated by her that she was folk singer. She was having two daughters and two sons. On 28.8.2004 she had gone to Sultanpur Jheel (lake) District Gurgaon for competition in connection of construction of a temple. Her husband Jai Bhagwa and helpers Pawan Dahiya son of Sadhu Ram, Pawan son of Mahender Singh, Rohtas son of Ram Kishan, Suresh alias Lilu son of Balwan Singh and Randhir son of Balbir Singh were also with her. They went in a vehicle make Tata Specio bearing registration No.HR-31B-4101. After programme, they started back in that vehicle at about 07.30 p.m. At about 10.30 p.m. when they were in between village Hassan Garh and Rohna, just little bit ahead of village Badro, a white coloured Maruti Car over took them and immediately stopped in front of their (complainant’s) vehicle. Two young boys having pistols in their hands alighted from that car. One of the boy came towards left side window and 3 CRA-D 125-DB of 2006 other boy came on right side window. The boy who had come on left hand side fired a shot on the chest of her husband. The boy who had come on right hand side of Jeep stated that Jai Bhagwan should not escape and thereafter the boy on left hand side fired another shot which hit Jai Bhagwan on his shoulder. When they raised noise, those boys escaped in that very car. Due to darkness she could not see them. If those boys were produced before her, she could identify them. They brought the injured to civil hospital Sonepat, but was declared dead. Her husband also used to receive threats on telephone and she could tell about the same after confirmation.” ASI Sri Kishan (PW17) made his endorsement (Ex.P17) on the above statement and sent it to the police station which led to registration of an FIR No.207 dated 29.8.2004. Inquest report (Ex.P37) was prepared on dead body and it was sent for post-mortem examination, which was conducted by Dr.Rajiv Sethi (PW13) on 29.8.2004. This witness found the following injuries on the person of the deceased:- “1. There was a circularacertated wound 2x2 cm with blakand marines, inverted, present in front of upper part of left side of chest 8 cm above left nipple. Clotted blood was present. Underline ribs fractured and depressed. On exploration – underlying ribs fractured, the wound was going deep into the left pleural cavity injuring the pleura and left lung. Heart was lacerated on the posterior side along with major vessels. The wound was entering the right side of chest injurying the right lung near posterior surface causing fracture of the right 4 CRA-D 125-DB of 2006 lower ribs. At this place a bullet was found ledged in the soft tissue of posterior abdominal wall surrounded by heamatoma. A bullet was removed and handed over to police in a sealed bottle. 2. A lacerated wound 1.5 x 1.5 cm with colour of abrasion was present on the back of right shoulder. Clotted blood was present. On exploration the wound was going down wards medially and anterioraly injuring the upper ribs on the back of right side entering the side pleural cavity injurying the right lung then injurying the spleen upto left lateral abdominal wall, where a lacerated wound of size 4x4 cm was present with gut and ementum protruding outside.” Cause of death was above injuries to the vital organs leading to haemorrhage, shock and death. All the injuries were ante-mortem in nature and were sufficient to cause death in ordinary course. At the time of post- mortem examination, a bullet was removed from the dead body, which was handed over to the police in a sealed bottle. On 30.8.2004, investigation was handed over to SI Rajbir Singh (PW16). This witness recorded a supplementary statement (Ex.P2) of Smt.Parkashi (PW1). In that statement, she named all the four accused. It was also stated that relations between the deceased and the appellant were strained. Appellant had been exerting threats to the deceased and on the fateful day, it was the appellant, who had fired the fatal shot upon the deceased. It was also stated that the appellant had an evil eye upon her. Appellant-accused was arrested on 20.9.2004. During interrogation, he made a disclosure statement on 21.9.2004, which led to the 5 CRA-D 125-DB of 2006 recovery of .315 bore pistol (Ex.P13), allegedly used in the crime. When checked, one empty (Ex.P14) was recovered from the barrel of pistol. Live cartridges, empty case and pistol were taken in possession. It is necessary to mention here that the alleged recovery was made in the presence of Satbir Singh (PW7). In the meantime, the investigating officer removed blood stained earth etc. from the spot and also taken in possession cloths of the deceased soiled with blood. All the above articles were sent for examination to the forensic science laboratory. As per report (Ex.P28/A), one bullet was also recovered from the chassis of the car in which the deceased was traveling. As per FSL report (Ex.P28/A), so far as both the bullets are concerned, it was stated that after checking “opinion could not be formed regarding linkage of .315” fired bullets marked BC/1 and BC/2 in respect of Country made pistol W/1 due to lack of sufficient individual characteristic marks”. It is necessary to mention here that one of the bullets allegedly removed from the dead body was received in the laboratory in a broken glass vial. It is also necessary to mention here that the bullets were recovered immediately after the date of occurrence. Appellant-accused was arrested on 20.9.2004. The pistol and bullets were sent to the forensic science laboratory for examination on 13.10.2004. There is nothing on record to explain the above delay. On completion of investigation, final report was put in Court. The appellant and his co-accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution then led as many as 20 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the appellant- accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and 6 CRA-D 125-DB of 2006 false implication. It was specifically stated that nothing was recovered from him. Evidence was also led in defence. The trial Court on appraisal of evidence found the appellant- accused guilty of the offence with which he was charged, however, other three were found innocent and were accordingly acquitted. Counsel for the appellant has vehemently contended that the prosecution has miserably failed to explain delay in recording the FIR and further that disclosure statement made, which led to recovery of weapon of offence, has wrongly been relied upon by the Court below.. There is no independent corroboration to the case of the prosecution and further despite almost all the witnesses going hostile, conviction and sentence awarded to the appellant cannot be sustained. He prayed that appeal be allowed and impugned judgment and order under challenge be set aside. Prayer made has vehemently been opposed by the State counsel, who by making reference to the disclosure statement (Ex.P9) made by the appellant and also report made by the forensic science laboratory, argued that the conviction and sentence awarded is justified. He prayed that appeal having no substance be dismissed. As per case of the prosecution, occurrence had taken place on 28.10.2004 at 10.30 pm. Statement (Ex.P1) of Smt.Parkashi (PW1) was recorded at 8.15 am on 29.8.2004. FIR (Ex.P16) was recorded thereafter. In the above statement, none was named as an accused. It was stated that some unknown persons have committed the alleged crime. Presence of Pawan Dahiya (DW1) was admitted by this witness at the spot. In her supplementary statement (Ex.P2), which was recorded on 30.9.2004, PW1 gave altogether a different version stating strained relations of the deceased with the appellant-accused and also ascribed specific role to each of the 7 CRA-D 125-DB of 2006 assailants at the time of alleged occurrence. The appellant-accused was stated to have fired the vital shot upon the deceased. It is not in dispute, rather admitted that the appellant-accused and the others were known to the prosecution witnesses. If that is so, there is nothing on record to show and explain as to why the appellant-accused and the others were not named in the first statement (Ex.P1) recorded on 29.8.2004. Above fact casts doubt upon case of the prosecution, which was noted by the trial Judge and benefit of which was given to the other three accused, however, it was wrongly denied to the appellant. It is also an admitted fact that almost all the independent witnesses, including wife of the deceased Smt.Parkashi (PW1), father of the deceased (PW6) and brother of the deceased (PW11) were declared hostile. Mother of the deceased, Smt.Shanti PW12 has supported case of the prosecution to some extent regarding motive etc. but her statement do not inspire any confidence. The above witnesses have not supported case of the prosecution. Virtually, there is no independent corroboration on record against the appellant-accused regarding the alleged crime. As per case of the prosecution, immediately after occurrence on 28.8.2004 at 10.30 pm, the deceased was rushed to the hospital at Sonepat. He was declared dead. Police station was situated nearby despite that no intimation was given to the police. Statement of Smt.Parkashi (PW1) was recorded only on 29.8.2004 at 8.55 pm. Delay has gone unexplained. Explanation given that Smt.Parkashi was not in a fit state of mind to make the statement is not believable and supported by any evidence on record. Recovery of .315” pistol, empty case from the appellant- accused also do not inspire any confidence. Alleged recovery was effected on the basis of a disclosure statement (Ex.P9) made by the appellant- 8 CRA-D 125-DB of 2006 accused, from his house on 21.9.2004. It is very surprising as to why the investigating officer has not conducted search of the house of the accused despite his name being mentioned in the supplementary statement made by PW1 on 30.8.2004. The alleged recovery was stated to have been made in the presence of Satbir (PW7), who did not support case of the prosecution in Court and was declared hostile. No independent witness from the nearby was joined when alleged recovery was effected. The pistol along with empty case and the bullets recovered from the dead body was sent for examination to the forensic science laboratory. As per report (Ex.P28/A), no finding was given so far as bullets are concerned whether those were fired from the alleged weapon or not. No empty case was recovered from the spot. Despite recovery made on 21.9.2004, bullets, empty case and the pistol were sent for examination to the forensic science laboratory on 13.10.2004. It has also come on record that in the house from where recovery was effected, many other people were living. PW16 has stated that pistol was recovered from underneath the empty gunny bag, whereas PW17 has stated that the pistol was lying under the bed. In view of above, recovery of the pistol from the accused and also case of the prosecution that, fatal shot was fired from the alleged recovered weapon, is not believable. As per statement made by Smt.Parkashi (PW1) wife of the deceased, presence of Pawan Dahiya (DW1) is admitted when alleged incident has occurred. This witness has specifically stated that the accused, who were facing trial, were not the persons, who had caused the injuries. It was further stated that the vehicle, in which the deceased was traveling, was not purchased from the appellant-accused. The trial Court has wrongly believed a disclosure statement made by the appellant-accused and the 9 CRA-D 125-DB of 2006 recovery effected thereon against him, whereas under similar circumstances, disclosure statements made by the others and recovery effected thereon were discarded. The trial Judge has not appreciated a fact that if there is a doubt in the case of the prosecution, the benefit should go to an accused. For lack of evidence, the prosecution has failed to connect the appellant- accused with the alleged crime. In view of above, this appeal is allowed, impugned judgment and order are set aside and the appellant is acquitted of the charges framed against him. (Jasbir Singh) Judge 08.11.2011 (Sabina) gk Judge 10