CRIMINAL APPEAL NO. 373-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: December 17, 2009. Parties Name Shamsher Singh ..APPELLANT VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. Jitender Dhanda, Advocate, for the appellant Mr. P.S. Punia, Addl. A.G., Haryana, for the respondent. JASBIR SINGH, J. ORDER. Appellant Shamsher Singh has filed this appeal against judgment dated April 5, 2001, vide which he was convicted for commission of an offence punishable under Section 302 IPC. He has further laid challenge to the order dated April 9, 2001, awarding him sentence to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-. It was allegation against the appellant that he along with Bhola alias Makhan, Prithvi, Suresh and Siri Chand had committed murder of Ashok Kumar on July 15, 1996, at 10 AM in village Kabrel, Police Station Adampur, by causing fire-arm injury to him. Siri Chand died during trial CRIMINAL APPEAL NO. 373-DB OF 2001 -2- and vide the judgment, mentioned above, others were acquitted of the charges, framed against them. The process of Criminal Law justice system was initiated on a statement (Ex. PH), made by PW7 Jagdish Chander ( father of the deceased) at 3 PM on the date of occurrence. His statement was recorded by ASI Ram Kumar (P'W14), on the basis of which formal FIR No. 91 (Ex. PH/1) was registered against the appellant and other accused at 3.20 PM in Police Station Adampur. Special report reached the concerned Magistrate at Hisar at 6.50 PM. Brief facts of case of the prosecution, as noted by the trial Court in para No. 2 of the impugned judgment, read thus: “....as per statement Ex. PH made by Jagdish Chander, are that on 15.7.96 Jagdish Chander along with his son Ashok Kumar deceased and other son Raj Kumar was working on their tea shop. At about 10.00 a.m., a white maruti car bearing registration No. DL 4C/8434 stopped in front of his tea shop. Shamsher son of Siri Chand, his father Siri Chand, Pirthvi Punia and a boy having beard, who was driving the car, and two other persons having muffled faces ( who could not be identified) came down from the car. They were armed with pistols and guns. They fired in the air and gave a Lalkara that Jagdish and the members of his family be killed and none may be allowed to escape. On seeing them, Jagdish Chander complainant and his son Raj Kumar came in the shop and his son Ashok Kumar was sitting on the Gaddi. When Ashok Kumar tried to run away with intend to rescue himself, he was CRIMINAL APPEAL NO. 373-DB OF 2001 -3- apprehended by Siri Chand and Pirthvi, near the shop and Shamsher accused put the muzzle of the pistol held by him on the temple (Kanpati) of Ashok Kumar and fired at him. Ashok fell down on the ground. On seeing the shop-keepers and other passengers present at the Bus Stop, all the accused gave a Lalkara saying that they could kill one today, but in future they will kill all and they again left in the same car which went towards Kharia village.” It is further case of the prosecution that thereafter Jagdish Chander went to the spot to attend Ashok Kumar, who was found dead. It was alleged that motive to commit murder of Ashok Kumar was that his uncle Balwant Singh had killed Bhoop Singh son of Siri Chand (brother of the appellant). Jagdish Chander then went to his house, collected people of his fraternity and informed them regarding the criminal act, committed by the appellant and his co-accused. After leaving Pyare Lal, Chowkidar, near the deadbody, he along with others, left for the Police Station. However, at the Bus Stand Adampur, they met ASI Ram Kumar (PW14), who recorded statement of Jagdish Kumar, on the basis of which FIR was registered in Adampur Police Station. ASI Ram Kumar then went to the place of occurrence, conducted inquest proceedings on the dead body and sent it for post-mortem examination. He also recorded statements of the witnesses, prepared rough site plan of the place with correct marginal notes. Post- mortem examination on the dead body was conducted by Dr. J.S. Bhatia (PW1) on July 15, 1996, who found the following injuries to the deceased: “1. There was a penetrating wound in front of the left pinna of CRIMINAL APPEAL NO. 373-DB OF 2001 -4- the ear. On exploration there was subcutaneous haematoma. The size of the wound was 2 Cms. in diameter. The wound extended transversally through the brain towards the right side breaking the bone, dura and passing through the brain matter and extended towards the right side and reached 2 cm. beneath the right side of the skin. During dissection, one big wad, one small wad and one metallic piece was taken out. There was blackening around the wound on pinna and bleeding was present throughout the dissection of the wound.” It was opined that cause of death was haemorrhage and shock due to above said injury, which was ante mortem in nature and sufficient to cause death in ordinary course. The appellant and his co-accused were arrested in due course of time. On interrogation, they suffered disclosure statements, which led to the recovery of weapons of offence. On completion of prosecution evidence, final report was put in Court for trial. Appellant and his co-accused were charge-sheeted , to which they pleaded not guilty and claimed trial. Prosecution produced as many as 17 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the appellant and his co-accused was recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to them, which they denied , claimed innocence and false implication. Appellant Shamsher Singh further stated as under: “I am innocent. I and any of my co-accused did not commit the murder of Ashok Kumar. Jagdish and Raj Kumar did not see CRIMINAL APPEAL NO. 373-DB OF 2001 -5- this occurrence. Ashok had a quarrel with some unknown person, who shot him dead. When the identity of the killer could not be established, I and my co-accused were falsely implicated in this case at the instance of Balwant. The statement Ex. PH was anti-timed and recorded after due consultation and deliberation.” Appellant led no evidence in defence. On perusal of evidence, trial Court held the appellant – accused guilty. Accordingly he was convicted and sentenced, as found mentioned in earlier part of this order. However, his co-accused were acquitted of the charges framed against them. Hence this appeal. It is necessary to mention here that against the appellant Shamsher Singh and his co-accused in this case i.e. FIR No. 91 dated July 15, 1996, one another FIR bearing No. 358 was also registered on July 15, 1996, re: murder of one Mahender, Sarpanch of village Kabrel and causing injuries to Duni Chand, father of Mahender Singh. In that case, the trial Court vide judgment dated November 3, 2001, convicted all the accused named therein and vide order dated November 7, 2001, appropriate sentence was awarded to them. As per information supplied to this Court, four appeals -Cr.A. No. 670-DB of 2001 (Balwant Singh and another v. State of Haryana), Criminal Appeal No. 118-DB of 2002 (Pirthvi and another v. State of Haryana), Criminal Appeal No. 560-DB of 2002 (Shamsher Singh v. State of Haryana) and Criminal Appeal No. 119-DB of 2002 (Prithvi v. State of Haryana) were dismissed by this Court vide judgment dated October 5, 2004, and life sentence awarded to appellant Shamsher Singh CRIMINAL APPEAL NO. 373-DB OF 2001 -6- was upheld. It is also necessary to mention here that the weapon of offence etc., which was used by the appellant in this case, was believed to have been used by him in that case also. Shri Jitender Dhanda, Advocate, counsel for the appellant, has vehemently contended that there was delay in recording the FIR. Intervening period has been used by the prosecution to falsely implicate the appellant in this case. He further argued that there is no independent corroboration to the case of the prosecution as the alleged eye witnesses were related to the deceased, as such the trial Court was not justified in believing their statements. He further argued that the recovery of weapon of offence from the appellant – accused was not proved on record. He also contended that since only one shot was fired upon the deceased, the case would not fall under the provisions of Section 302 IPC. Rather it will fall under the provisions of Section 304 part 1 IPC. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant – accused be acquitted of the charge framed against him. Prayer made by the counsel for the appellant has vehemently been opposed by the State counsel, who, by making reference to the statements made by Jagdish (PW7) and Raj Kumar (PW9) argued that most of the witnesses are trust worthy and the trial Court has rightly believed their statements. Vivid eye -witness account has been given by them, which leaves no scope for interference by this Court in the impugned judgment and order. He further argued that under the circumstances, FIR was recorded in a very prompt manner. The Investigating Officer has given the mode and manner of investigation and recovery of weapon from the appellant. He further stated that on the date of occurrence, appellant and his co-accused CRIMINAL APPEAL NO. 373-DB OF 2001 -7- had also committed murder of Mahender, for which they were convicted and sentenced. Their appeal was also dismissed by this Court. He prayed that this appeal having no substance be dismissed. After hearing counsel for the parties, this Court is of the view that the impugned judgment and order, passed by the trial Court, are perfectly justified. Eye -witness account has been given by Jagdish (PW7), father of the deceased, who has stated that on July 15, 1996, at about 10 AM, he was present at his shop along with his sons Raj Kumar (PW9) and Ashok Kumar deceased. A white Maruti car bearing registration No. DL 4C 8434 came there. Appellant and his co-accused came out from that car. They fired shots in the air and also shouted that Jagdish and members of his family should be caught and done to death. He and his son Raj Kumar concealed their presence. Ashok Kumar deceased made an attempt to run away. However, he was caught by Siri Chand and Pirthi Singh and then appellant Shamsher shot Ashok on his left temporal region, which proved fatal. Many people gathered at the spot. The assailants went away from the spot along with their weapons. Version, given by him, has been supported by Raj Kumar (PW9). Lengthy cross-examination has failed to shatter their testimony. Except minor discrepancies here and there, both the witnesses stood rigor of the cross-examination. Contention of counsel for the appellant that there was delay in recording the FIR is not justified. In case of a murder, the family members are always under stress and strain. In such like situation, some delay is bound to occur. Mechanical precision of immediately running to the Police Station is not expected in a case of murder. In this case, occurrence had taken place at 10 AM. It might have lasted for some time. Time might have CRIMINAL APPEAL NO. 373-DB OF 2001 -8- been consumed in trying to know condition of Ashok Kumar deceased. Thereafter, as per case of the prosecution, Jagdish (PW7) went to his house, intimated other relations regarding the incident and then came back to the spot. Thereafter, leaving Chowkidar of the village near the dead body, he along with others proceeded to inform the police. ASI Ram Kumar (PW14) met him on the way and his statement was recorded at 3 PM on July 15, 1996. A little bit delay, this Court feels, is not fatal to the case of the prosecution. Further contention of the counsel for the appellant that there is no independent corroboration to the case of the prosecution, as such, it be disbelieved, is also liable to be rejected. Testimony of Relation witnesses, if trustworthy, cannot be ignored for want of independent corroboration. In this case, sequence of events, given by Jagdish (PW7) and Ram Kumar (PW9) is very clear and vivid, which indicates that both are truthful witnesses. Under these circumstances, even if no independent witness has been examined by the prosecution, benefit cannot be given to the appellant – accused. A shot was fired at Ashok Kumar deceased from point blank range. Statement made by Dr. J.S. Bhatia (PW1) indicates that extensive damage was caused to the brain of Ashok Kumar by a shot fired by the appellant – accused. Appellant came prepared to kill family member of Jagdish (PW7). As per admitted case, before committing murder of Ashok Kumar, appellant and his co-accused had also committed murder of one Mahender and caused injuries to one more person, for which FIR No. 358 was recorded on that very date, i.e., July 15, 1996, in which their conviction and sentence have been upheld by this Court in Criminal Appeal No. 670- CRIMINAL APPEAL NO. 373-DB OF 2001 -9- DB of 2001 on October 5, 2004. Weapon of offence used in this case was also used in the case, mentioned above. In view of facts, mentioned above, no case is made out for interference. Conviction and sentence awarded to the appellant are upheld. At this stage, counsel for the applicant made a request that life sentence awarded in this case be ordered to run concurrently with the sentence, awarded in connection with FIR No. 358 dated July 15, 1996. In view of facts of this case, it is not possible for us to pass any order. However, liberty is left with the appellant to move appropriate application in this appeal and the appeal, which was filed in connection with above said FIR, for requisite relief. Appeal dismissed as mentioned above. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE December 17, 2009. DKC