Crl. Appeal No.269-DB of 2005 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.269-DB of 2005 Date of Decision: 29.02.2008 Ranbir ....Appellants. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. V.S Rana and Mr. S.S. Siat, Advocates for the appellant. Mr. J.S. Toor, A.G., Haryana for the respondent. ... J.S. Khehar, J. Through the instant order, we propose to dispose of Criminal Appeal No.269-DB of 2005, filed at the hands of the accused/appellant Ranbir, as also, Criminal Appeal No.298-DB of 2005 filed by the accused/appellants Sudhir @ Ponda, Pawan Kumar and Chetan, against the order passed by the Additional Sessions Judge, Bhiwani, in Sessions Case No.50 of 1999, decided on 25.2.2005. By the impugned judgement, all the accused/appellants were convicted under Section 396 read with Section 120-B of the Indian Penal Code. The accused/appellants have also impugned the order dated 26.2.2005 whereby the Additional Sessions Crl. Appeal No.269-DB of 2005 2 Judge, Bhiwani sentenced all the accused/appellants to undergo imprisonment for life and to pay a fine of Rs.2,000/- each. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for a period of six months. It would be pertinent to mention, that in the first instance, besides the appellants herein, namely, Ranbir, Sudhir @ Ponda, Pawan Kumar and Chetan, criminal proceedings were against Satish Kumar, Ishwar and Rishi as well. The Additional Sessions Judge, Bhiwani by his order dated 25.2.2005 acquitted the aforesaid Satish Kumar and Ishwar, whereas, Rishi was declared a proclaimed offender. The prosecution version of the incident is based on the complaint made by Jagdish PW1, to Inspector Jagdish Parshad PW24, on 10.6.1999. According to the complainant Jagdish PW1, he, as well as, his brother were employed by Hari Shanker of Haryana Oil Mill, Rohtak. His brother Dharambir was engaged as a driver on tanker bearing registration No.HR-19GA-0121. At 11.30 AM on 10.6.1999, he alongwith his brother, were directed by their employer to go from Rohtak to Charkhi Dadri for purchasing mustered oil for which their employer Hari Shanker handed over a sum of Rs.3,80,000/- to Dharambir. The complainant's brother Dharambir put the aforementioned money in a “khakhi” tarpaulin bag (which had turned black with oil), and put it on the seat in the aforesaid tanker. At the aforesaid juncture, the complainant Jagdish PW1 claims to have been sitting on the cleaner's seat. On the way to Charkhi Dadri when the tanker reached Sanjarwas, a white coloured maruti car bearing registration No.DBG 2097, wherein five young boys were sitting besides a fat dark wheatish complexioned driver, over took the tanker and forced it to stop, by bringing Crl. Appeal No.269-DB of 2005 3 the car in front of the tanker. Four of the boys sitting in the aforesaid maruti car, climbed onto the tanker. Three of the said boys who had guns in their hands, threatened to kill the complainant Jagdish PW1 and his brother Dharambir in case they raised an alarm. One of the boys, who had wheatish complexion and was slim and smart, aged about 33/34 years, pushed aside the complainant's brother Dharambir from the driver seat and started driving the tanker towards Ranila. They parked the tanker after taking it to a distance of about 1 km. on the “kacha” path, adjacent to the road and started making a demand from Jagdish and Dharambir for money. According to the complainant Jagdish PW1, he disclosed to the aforesaid boys that the money was lying in the bag. After taking the bag containing the money, they alighted from the tanker and while doing so, one of the boys with a dark complexion and talking with a U.P. accent, aged about 20/22 years, whom the other boys were addressing as Panda, shot Dharambir through his right eye. It is the contention of the complainant Jagdish PW1, that the incident took place at about 1.00 PM on 10.6.1999. Thereafter, all the four boys went away in their maruti car towards Ranila. One boy, who was speaking with a Rohtak accent, did not accompany them. The complainant Jagdish PW1 saw that his brother Dharambir had died on the spot. After the occurrence, he got down from the tanker and went to its owner Hari Shanker so as to inform him of the occurrence. Having taken Hari Shanker to the tanker, the complainant Jagdish PW1 left him at the place of the occurrence, alongwith the dead body, and proceeded to the police station so as to make a complaint. The complainant Jagdish PW1 asserted in his complaint that he could recognise all the five boys, who had participated in the occurrence. After recording the aforesaid statement, Inspector Jagdish Crl. Appeal No.269-DB of 2005 4 Parshad PW24 accompanied the complainant Jagdish PW1 to the place of occurrence where the tanker was parked. He prepared the inquest report in the presence of Hari Shanker PW11 and Chowkidar Ishwar Singh PW3, who were present at the spot. A photographer was summoned who took the photographs of the place of occurrence. Inspector Jagdish Parshad PW24 also prepared the inquest report of the dead body of Dharambir Ex.PM/3. He then recorded the statements of the complainant Jagdish PW1 and Hari Shanker PW11, under Section 161 of the Code of Criminal Procedure. A dog squad was also pressed into service. During the investigation of the case, Inspector Jagdish Parshad PW24 came across Abhitabh Singh, IPS, ASP, Police Station, Kalanaur PW15 and apprised him of the facts and circumstances of the case, in response to which, he was informed by the aforesaid Abhitabh Singh that four of the accused persons, namely, Chetan, Pawan, Sudhir and Ranbir had been arrested on the same day i.e. on 10.6.1999 alongwith four country made pistols, and a sum of Rs.3,80,000/- was recovered from them from a maruti car bearing registration No.DBG- 2097. After carrying out all the formalities connected with the investigation of the case, including having got conducted the postmortem examination of the dead body of Dharambir from the General Hospital, Bhiwani, Inspector Jagdish Parshad PW24 arrested the accused and produced them in the Court of the Ilaqa Magistrate, Dadri. When the accused/appellants Ranbir, Sudhir, Pawan Kumar and Chetan were detained and produced before the Ilaqa Magistrate for an identification parade on 6.9.1999, they refused to get themselves identified. Inspector Jagdish Parshad PW24 having prepared the report under Section 173 of the Code of Criminal Procedure, presented a challan before the Judicial Magistrate Ist Class, Charkhi Dadri, on 9.9.1999. Crl. Appeal No.269-DB of 2005 5 The Judicial Magistrate Ist Class, Charkhi Dadri by his order dated 1.10.1999 arrived at a prima-facie conclusion that the accused had committed offences punishable under Sections 395/296/397/120-B/109 of the Indian Penal Code, and under Section 25 of the Indian Arms Act, 1959. Since, however, the offences under Sections 395, 396 and 397 of the Indian Penal Code are exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, Charkhi Dadri by his order dated 1.10.1999 committed the case for trial to the Court of Session at Bhiwani. The Additional Sessions Judge, Bhiwani by his order dated 28.1.2000 charged the accused/appellants of having committed dacoity, and therefore, the offence punishable under Section 395 of the Indian Penal Code. Additionally on account of having committed the murder of Dharambir while committing dacoity, they were also charged of having committed the offence punishable under Section 396 of the Indian Penal Code. Since the accused had used a deadly weapon (pistol) while causing the death of Dharambir during the alleged dacoity, they were also charged of having committed the offence punishable under Section 397 of the Indian Penal Code. Since the aforesaid dacoity had been committed on the basis of a conspiracy which the accused hatched among themselves, they were also charged of having committed the offence punishable under Section 120-B of the Indian Penal Code. Since they had in possession one country made pistol of .315 bore without any permit or licence, they were also charged of having committed the offence punishable under Section 25 of the Indian Arms Act, 1959. Since they were found in possession of one country made pistol of .12 bore without any permit or licence, they were charged of having committed the offence punishable under Section 25 of Crl. Appeal No.269-DB of 2005 6 the Indian Arms Act, 1959. Additionally, since they were in possession of one country made pistol of .39 bore without any permit or licence, they were charged under Section 25 of the Indian Arms Act, 1959. For having in their possession one country made pistol of .315 bore without any permit or licence, they were charged of having committed the offence punishable under Section 25 of the Indian Arms Act, 1959. Lastly, the accused Satish and Ishwar having abetted the other accused in the commission of the offence of dacoity and murder, they were also charged for the offence punishable under Section 109 read with Sections 395, 396 and 397 of the Indian Penal Code. The accused were then confronted with the charges levelled against them. They pleaded not guilty and claimed trial. During the course of trial, the prosecution examined as many as 25 witnesses. A brief description of the statements of the witnesses produced by the prosecution, is being summarised hereunder. In the aforesaid context, reference must first of all, be made to the statement of the complainant Jagdish, who appeared before the trial Court as PW1. In his statement, the complainant Jagdish PW1 reiterated the factual position as was asserted by him when he had made his complaint to the police in connection with the occurrence on 10.6.1999. Besides the aforesaid, he identified all the accused, who were present in Court when his statement was recorded on 23.10.2001, besides one accused, who was not present in the Court on that date. The statement of Manohar Lal was recorded as PW2. He had visited the place of occurrence alongwith the accused/appellant Ranbir who got the place of occurrence demarcated vide memo Ex.PB. Thereafter, the accused/appellant Ishwar got recovered a Crl. Appeal No.269-DB of 2005 7 purse which contained one photograph of the complainant Jagdish PW1 and currency notes of Rs.150/-. The same were taken into police custody vide recovery memo Ex.PC. Manohar Lal PW2 witnessed the aforesaid memo. The statement of Ishwar Singh was recorded as PW3. He was a witness to the recovery of one watch Ex.P2, which was taken into police custody vide recovery memo Ex.PD, at the pointing out of the accused Pawan Kumar. The statement of Sikander was recorded as PW6. In his deposition, he asserted that he was working as a driver on a truck owned by Gori Shanker and Ravi Shanker, bearing registration No.HR-19GAO-121. He also stated that the accused/appellant Satish was working as a driver with him in the employment of the aforesaid Gori Shanker and Ravi Shanker. He further asserted that even the deceased Dharambir was working under the same employer. Sikander PW6 deposed that the accused/appellant Satish was short of funds. He demanded salary from his employer which was refused. The employees of Gori Shanker and Ravi Shanker, including Satish, knew that the tankers were being used to transport oil and that, currency notes worth Rs.2-3 lacs were being carried in the tanker for the purchase of the said oil. Sikander PW6 asserted that he was a witness to the recovery of one wrist watch at the instance of the accused/appellant Satish, which was taken into possession vide recovery memo Ex.PG. The statement of Dr. Anil Chaudhary was recorded as PW8. Dr. Anil Chaudhary PW8 had conducted the postmortem examination on the dead body of Dharambir on 11.6.1999. He found the following injuries on the person of Dharambir:- “1. Wound of entry:- 3.5 x 2.5 cm wound with inverted margins over the right eye with blackening and syngeing all around the Crl. Appeal No.269-DB of 2005 8 wound over the right upper eyebrow right side of nose, right upper cheek, tip of the nose, upper and lower lis. Wound was entering into the cranial cavity. Clotted blood was present in the right nostril. 2. Wound of exit:- 3.5 x 2.5 cm on wound present with everted irregular margins over right parietal region 1 cm lateral to mid line and 10 cm from right ear with multiple fractures of right parietal bone. Brain matter was coming out of the wound. On opening the cranial cavity one metallic pallet was embedded in the right side of the brain in posterior cranial fossa. Pallet was removed and sealed and handed over to police. During the course of his statement, Dr. Anil Chaudhary PW8 opined that the cause of death of Dharambir was haemorrhage due to shock because of the injuries suffered by him. He also confirmed that all the injuries were ante- mortem in nature, and were sufficient to cause death in the ordinary course of nature. The statement of Hari Shanker was recorded as PW11. He was the employer of the deceased Dharambir and had engaged Dharambir for taking the tanker bearing registration No.HR-19GA-0121 from Rohtak to Charkhi Dadri to bring edible oil, and that, he had given the deceased Dharambir a sum of Rs.3,80,000/- for the said purpose. He also asserted that he came to know about the occurrence at 4.30 PM through the complainant Jagdish PW1. On receiving the aforesaid information, he had accompanied the complainant Jagdish PW1 to the place of occurrence i.e. at Sanjarwas towards Ranila where the tanker was parked and the dead body of Dharambir was lying. He stated that he had remained at the spot, and he sent the complainant Jagdish PW1 to inform the police. It is, therefore, Crl. Appeal No.269-DB of 2005 9 apparent that Hari Shanker PW11 fully supported and corroborated the statement made by the complainant Jagdish PW1. Head Constable Satbir Singh was produced by the prosecution as PW13. As per his statement, he was posted as a Constable at Police Station, Kalanaur on 10.6.1999, i.e. when Abhitabh Singh Dhillon, IPS PW15 was posted as SHO at the said police station. During the course of checking of vehicles at 6.00 PM on 10.6.1999, one maruti car bearing registration No.DBG 2097 coming from the Kalanaur side and going towards Rohtak, was signalled to stop. The said car, however, did not stop. Whereupon, the said car was chased and stopped by the aforesaid Abhitabh Singh Dhillon, IPS after chasing the same in his own vehicle. One of the occupants of the car escaped, while the remaining three were arrested. From those arrested, one .12 bore and one . 39 bore revolver were recovered. Besides the aforesaid, a sum of Rs.3,80,000/- was also recovered from the car. It is, therefore, apparent that the accused/appellants were arrested co-incidentally just a few hours after the occurrence. ASI Laxman Singh appeared as PW14. He had taken into possession the maruti car bearing registration No.DBG 2097. Currency notes amounting to Rs.3,80,000/-, as also, the bag in which the same were found, the identity card of Hari Shanker and three pistols of .12 bore and .315 bore were also recovered. The pistols recovered were taken into possession vide memo Ex.P. The statement of Abhitabh Singh Dhillon, IPS was recorded as PW15. He reiterated the factual position narrated by Head Constable Satbir Singh while appearing as PW13. The statements of ASI Jai Krishan PW16, ASI Samunder Singh PW17 and Inspector Sher Singh PW18 are all to the same effect. The statement of Inspector Jagdish Parshad was recorded as PW24. He supported the prosecution case on all material Crl. Appeal No.269-DB of 2005 10 points. Thereafter, the prosecution evidence was closed by order. The statement of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure. All the accused denied the incriminating evidence appearing on the record of the case, when the same was put to them. They stated in unison that they were innocent, and that, they had been implicated in the case falsely. Some of the accused adopted the stance that they were already in police custody at Kalanaur, prior to their arrest in the present case. A few of them also stated that no recovery had been made from them. Despite the fact that while recording their statements under Section 313 of the Code of Criminal Procedure, the accused had expressed their desire to lead defence evidence. As a matter of fact, they subsequently recorded statements to the effect that they did no desire to lead any defence evidence. Accordingly, on their statement, defence evidence was closed by order. The Additional Sessions Judge, Bhiwani delivered the judgement in Sessions Case No.50 of 1999, on 25.2.2005. Two of the accused, namely, Satish Kumar and Ishwar were acquitted. Whereas, the remaining accused, namely, Ranbir, Sudhir, Pawan Kumar and Chetan were convicted on account of the fact that the prosecution was successful in establishing that the accused hatched a conspiracy and jointly committed dacoity, and thereafter, decamped with a sum of Rs.3,80,000/-, and also, in proving that they had committed the murder of Dharambir, and as such, all of them were convicted, for having committed the offence punishable under Section 396 read with Section 120-B of the Indian Penal Code. By a separate order passed on 26.2.2005, the Additional Sessions Judge, Bhiwani Crl. Appeal No.269-DB of 2005 11 after having heard the accused on the question of sentence, awarded them imprisonment for life, as also, imposed a fine of Rs.2,000/- on each of those convicted under Section 396 read with Section 120-B of the Indian Penal Code. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for six months. All the four accused held guilty by the Additional Sessions Judge, Bhiwani have preferred appeals in this Court. While Ranbir has preferred Criminal Appeal No.269-DB of 2005, the other convicted, namely, Sudhir, Pawan and Chetan have preferred Criminal Appeal No.298-DB of 2005. Both the aforesaid appeals have been heard together and are being disposed of by the instant order collectively. The trial Court relied on the ocular statement of the complainant Jagdish PW1, an eye witness to the occurrence. The statements of Satbir Singh PW14 , Abhitabh Singh Dhillon IPS PW15, ASI Jai Krishan PW16, SAI Samunder Singh PW17 and Inspector Sher Singh PW18 were relied upon for the recovery of a sum of Rs.3,80,000/- from the accused which they had taken from the deceased. The ocular statement of Hari Shanker PW11 was also taken into consideration which brought the entire prosecution story into the right perspective. The recovery of the gun and other items during the investigation of the case also constituted the conclusions drawn by the trial Court. The trial Court on the basis of the statement of Dr. Anil Chaudhary PW8, coupled with the report of the Forensic Science Laboratory, Madhuban, arrived at the conclusion that the shot fired at the deceased Dharambir was from the gun recovered from the accused. It is, inter-alia, on the basis of the aforesaid evidence that the trial Court held the accused/appellants guilty. Crl. Appeal No.269-DB of 2005 12 The first contention of the learned counsel for the accused/appellants is to the effect that the medical evidence produced by the prosecution does not substantiate that Dharambir died of a gun shot injury. It is the contention of the learned counsel for the accused/appellants, that Dharambir could have died on account of the thrust of a “sua”. It is, therefore, submitted that the prosecution version of the occurrence deserves to be rejected outright. Having considered the first contention of the learned counsel for the accused/appellants, we find no merit therein. We have extracted hereinabove from the statement of Dr. Anil Chaudhary PW8, the conclusion drawn in the postmortem report. A perusal of the aforesaid extract reveals a wound of entry, as well as, a wound of exit. In so far as the wound of exit is concerned, it revealed that one metallic pellet was recovered from the right side of the brain in the posterior cranial fossa. Once it emerges from the evidence of the prosecution that a pellet was actually recovered from the brain of the deceased Dharambir, we are surprised as to how the first contention could have been advanced by the learned counsel for the accused/appellants. The medical evidence placed on the record of the case through the statement of Dr. Anil Chaudhary PW8, as well as, the postmortem report Ex.PM, in our view, clearly establishes the receipt of a gun shot injury by the deceased Dharambir. In view of the above, we find no merit in the first contention of the learned counsel for the accused/appellants. The second contention of the learned counsel for the accused/appellants is that no identification parade of the accused/appellants was carried out, and in case, an identification parade had actually been Crl. Appeal No.269-DB of 2005 13 conducted, it would have emerged that the complainant Jagdish PW1 had actually never witnessed the occurrence as he would not have been in a position to identify the accused/appellants despite his having asserted at the time of making his complaint on 10.6.1999 that he could recognise all the five accused/appellants, if they were brought before him. The instant contention of the learned counsel for the accused/appellants also merits rejection. A perusal of the case file reveals that the accused Chetan was presented before the Sub Divisional Judicial Magistrate, Dadri on 20.6.1999. He was asked whether he would like to join the identification parade. He had made a statement before the Sub Divisional Judicial Magistrate, Dadri on 20.6.1999 stating that he did not want to join the identification parade. Similar offer was made to the accused Ranbir, Sudhir and Pawan. However, each one of them on 20.6.1999 opted not to join the identification parade. As such, we are of the view that it does not lie in the mouth of the accused/appellants to allege that they were not suitably identified so as to be connected to the crime under reference. Additionally, it would be pertinent to mention, that the sum of Rs.3,80,000/- snatched by the accused during the course of the occurrence, as well as, the tarpaulin bag in which the same was kept by the deceased Dharambir, was recovered from them within about just six hours of the crime, by Abhitabh Singh Dhillon, IPS, the then SHO, Police Station, Kalanaur, PW15, at 6.00 PM on 10.6.1999. Not only was the recovery of the said cash made from them, the recovery of the gun used in the commission of the crime was also made from them at Kalanaur. Besides the aforesaid, two other guns were also recovered from them. In so far as the particular gun from which the shot was fired at the deceased Dharambir is Crl. Appeal No.269-DB of 2005 14 concerned, the same is evident from the report dated 16.11.1999, received from the Forensic Science Laboratory, Haryana, Madhuban (Karnal) Ex.PKK. The result thereon and specially Sr. No.4 of the result, shows that the led slug recovered from the brain of the deceased Dharambir exactly matched the led slug fired from the country made pistol recovered from the accused at Kalanaur. In view of the above, we have no doubt, whatsoever, that the accused have been fully identified as the ones who had committed the dacoity and murder at the place of the occurrence on 10.6.1999 wherein Dharambir came to be murdered and a sum of Rs.3,80,000/- came to be taken away by the accused/appellants. The third contention of the learned counsel for the accused/appellants is that the entire foundation of the prosecution case is based on the statement of the complainant Jagdish PW1. It is the submission of the learned counsel for the accused/appellants, that as a matter of fact Jagdish PW1 had been introduced later on, so as to fill up the gaps in the prosecution story, and that he was actually not at the place of the occurrence, when the same took place on