IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 175-DB of 2005 Date of decision: December 10, 2008 Jarnail Singh ….. Appellant Versus State of Haryana ….. Respondent CORAM: HON’BLE MR. JUSTICE S.S. SARON. HON’BLE MRS. JUSTICE SABINA. Present: Mr. K.G. Chaudhary, and Mr. Vikram Chaudhary, Advocates for the appellant. Mr. H.S. Sran, Addl. A.G., Haryana. *** S.S. SARON, J. The present appeal has been filed by Jarnail Singh (appellant) against the judgment and order dated 17/18.2.2005 whereby he has been convicted for the offence punishable under Section 302 Indian Penal Code (“IPC” – for short) and Section 27 of the Arms Act, 1959 (“Act” – for short) and sentenced to undergo imprisonment for life, besides to pay a fine of Rs.15,000/- and in default of payment of fine to undergo further rigorous imprisonment for three and a half years. As regards the offence under Section 27 of the Act, he has been sentenced to undergo rigorous imprisonment for a period of three years, besides pay a fine of Rs.5000/- and Crl. Appeal No. 175-DB of 2005 [2] in default of payment of fine, to undergo further rigorous imprisonment for one year. Both the sentences have been ordered to run concurrently. The complainant Brij Nath Shukla (PW-12) brother of the deceased Brij Mohan Shukla made a statement (Ex.PA) which is to the effect that for the last 9-10 years, he had been working for Sh. Ravinder Nath Gupta, IAS, Punjab and looking after him as his personal attendant. They were three brothers and three sisters. His younger brother Brij Mohan Shukla (deceased) used to work at the farm house of Sh. R.N. Gupta as a ‘Pujari’ (Priest) on private basis in the Mandir at his house. He (complaint) during night for the last 4-5 years performed the duties of a Chowkidar at the said house. Sh. R.N. Gupta had been provided with two Gunmen by the Government. One of them was Krishan Kumar and the other was Jarnail Singh (appellant). Krishan Kumar gunman had gone to Delhi with the mother of Sh. R.N. Gupta for the last about 8-10 days; while the other Gunman Jarnail Singh (appellant) had remained present for security of Sh. R.N. Gupta. Sh. R.N. Gupta had come from Chandigarh to the farm house for celebrating New Year on 31.12.2002 in the evening. On the day of occurrence i.e. 2.1.2003 at about 6/6.15 p.m., they all were at the farm house. The brother (deceased) of the complainant was getting ready to take a bath in his room for performing Puja. The bathroom was in the room itself. Gunman Jarnail Singh (appellant) was also present in the room in his uniform. He had his service Carbine. Jarnail Singh (appellant) used to sleep on another bed in the same room as the brother (deceased) of the complainant. Jarnail Singh (appellant) was a habitual drunkard. On this account, earlier also there had been a quarrel between the brother (deceased) of the complainant and Jarnail Singh (appellant). The complainant Brij Nath Shukla (PW-12) had tried to make his brother (deceased) understand on several occasions. On the day of the occurrence, Jarnail Singh (appellant) had as usual cut the salad for taking drinks and was ready for drinks. When his (compalinant’s- PW12) brother (deceased) stopped him, he started rebuking him. The complainant Crl. Appeal No. 175-DB of 2005 [3] (PW-12) was present outside the room. On hearing noise of the quarrel, he went inside the room where Jarnail Singh (appellant) within his sight fired at his brother with his service Carbine which hit on the left side of the chest of his brother. On sustaining a fire arm shot, the brother (deceased) of the complainant fell down and blood started oozing out from his mouth and chest. Jarnail Singh (appellant) had killed the brother of the complainant (PW-12). Thereafter, Jarnail Singh (appellant) fled away from there after throwing his carbine on the bed that was lying inside the room. On hearing the alarm of the complainant (PW-12), Sh. R.N. Gupta (PW-15) and other workers of the farm house reached at the spot and with their help, the brother of the complainant (PW-12) namely Brij Mohan Shukla (deceased) was taken in the personal Qualis vehicle of Sh. R.N. Gupta to the Government Hospital, Sector – 6, Panchkula, where the doctors declared him brought dead. The complainant (PW- 12), on seeing the death of his brother, had become unconscious. Thereafter, he was normal and he got his statement recorded. On the basis of the said statement, Varender Kumar SI/SHO Chandimandir (PW-17) recorded Police proceedings (Ex.PA/3). It is recorded that he along with Constable Shamsher Singh and Constable Girdhari Lal were patrolling in a Government Jeep No. HR 03D 7450 whose driver was Rajiv. Information through wireless was received that Brij Mohan Shukla (deceased) had been brought dead at the General Hospital, Sector -6, Panchkula after having received injuries. Varender Kumar SI/SHO (PW-17) along with Police officials reached General Hospital, Sector -6, Panchkula in the Government Jeep. After getting the ‘ruqa’ from the doctor he met the complainant Brij Nath Shukla (PW-12). He, however, was not in a position to make a statement. After waiting for three hours, Brij Nath Shukla-complainant (PW-12) got his statement (Ex.PA) recorded. On finding it correct it was signed by the complainant (PW-12) in English. After verifying the statement of Brij Nath Shukla complainant (PW-12), a case for the offence punishable under Section 302 IPC was found to be Crl. Appeal No. 175-DB of 2005 [4] made out. The complaint was sent through Constable Shamsher Singh to the Police Station for registration of a case (FIR) and after registration, the case number was asked to be intimated. Besides, special report was asked to be sent to the Senior officers. Balwant Singh ASI Police Station Chandimandir recorded DDR No.35 at 12.15 a.m. and thereafter, FIR (Ex.PA/1) was registered on the basis of the statement (Ex.PA). Varender Kumar SI/SHO Police Station Chandimandir (PW-17) carried out the investigation in the case. A photographer was called by him who took photographs of the dead body. Thereafter, inquest proceedings (Ex.PK/2) were carried out. The Investigating Officer then went to the spot where the incident had occurred. On the way they took a photographer from the police lines with the complainant. The spot was got photographed. A rough site plan (Ex.PL) was prepared with correct marginal notes. The carbine (Ex.P2) was taken in possession by the Police from the spot. Besides, a fired cartridge case (Ex.P24) and a fired bullet (Ex.P25), a steel lid (Ex.P16/1) were lifted from the spot. The blood from the floor of the room where the incident had occurred was also taken. The articles were taken in possession vide memo Ex.PM and were separately sealed. The statement of witnesses were recorded. The appellant was arrested on 5.1.2003. During interrogation on the basis of his disclosure statement, he led Police party to the place of occurrence and pointed out and disclosed the place of crime. In this regard, memo (Ex.PN) was recorded. The accused was thereafter produced before the Ilaqa Magistrate and his police remand was taken. On the basis of the disclosure statement of the appellant, his identity card was recovered from Kothi No.8, Sector 7, Chandigarh which was taken in possession vide memo Ex.PE. A rough site plan (Ex.PO) of the place of recovery of identity card was also prepared. A sketch (Ex.PQ) of the carbine which was recovered from the place of the incident was prepared. A scaled site plan was also got prepared. The case property was sent to the Crl. Appeal No. 175-DB of 2005 [5] Forensic Science Laboratory, Madhuban. The carbine was also got examined from the District Armoury before it was sent to the Forensic Science Laboratory. At the time of recovery from the spot, the magazine of the carbine (Ex.P15/1) and the live cartridges (Ex.P15/2 to P15/15) were also taken in possession vide memo Ex.PM. After completion of investigation, the charge report (challan) was filed in the Court of the Chief Judicial Magistrate, Panchkula who vide order dated 21.4.2003 in view of the offence under Section 302 IPC having been alleged, committed the case to the Court of learned Additional Sessions Judge (I), Panchkula for trial. The learned Additional Sessions Judge, Panchkula vide order dated 27.10.2003 charge-sheeted the appellant on the allegation that he on 2.1.2003 within the area of the farmhouse of Ravinder Nath Gupta, opposite Sector 25, Panchkula, Police Station Sector 5, Panchkula used his licensed carbine in contravention of Section 5 of the Arms Act and he thereby committed an offence punishable under Section 27 of the Arms Act. Besides, on the same day, the appellant was charge- sheeted on the allegation that on 2.1.2003 in the area of farmhouse of Ravinder Nath Gupta, opposite Sector 25, Panchkula, Police Station 5, Panchkula, he committed murder by intentionally causing the death of Brij Mohan Shukla and thereby committed an offence punishable under Section 302 IPC. The prosecution in order to prove its case examined as many as 17 witnesses, besides, tendered documents in evidence. The statement of the appellant in terms of Section 313 CrPC was recorded in which the substance of the material appearing against him was put to him. The appellant took the stand that it was a false case. The carbine was issued to the appellant for the security of Sh. Ravinder Nath Gupta, Financial Commissioner and Secretary to Govt. of Punjab. It is stated that on 2.1.2003, the appellant at about 6.00 p.m. along with other official members of the staff of Sh. R. N. Singh (sic. R.N. Gupta) were standing near his vehicle and were talking to each other. Surinder and Pardeep were also standing there. It is stated that he was not discharging his official Crl. Appeal No. 175-DB of 2005 [6] duty and therefore, he had kept his carbine in the room on a cot. They heard a noise of firing from the room. They all went inside the room and saw that Brij Mohan Shukla (deceased) was injured with the gun shot. They took him to the hospital in the vehicle of Sh. Robin Gupta. It is stated that Brij Mohan Shukla (deceased) was very anxious to inspect the carbine. As and when the carbine came in his contact, he used to mishandle the same and he wanted to learn about its working. The present incident had occurred due to mishandling of the carbine by him. He (the appellant) was involved falsely and his father made a representation to the DGP, Haryana who ordered for reinvestigation in the case and the matter was inquired into by higher Police officials and they had found him innocent. In defence, the appellant examined Surinder Singh (DW1) who was driver of Sh. Ravinder Nath Gupta. Desh Bandhu, DSP Headquarters, Panchkula was examined as DW2, who proved his inquiry reports (Ex.DB) and Ex. PX. Besides, Sham Singh retired Inspector who conducted the inquiry proceedings in the case was examined as DW3. His report (Ex.DA) was tendered in evidence. Thereafter, the defence evidence was closed. After considering the evidence and material on record, the learned Additional Sessions Judge, Panchkula vide order dated 17.2.2005 has convicted the appellant for the offence under Section 302 IPC and Section 27 of the Arms Act. Besides, he has been sentenced to undergo imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs.15,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three and a half years. For the offence under Section 27 of the Arms Act, the appellant has been ordered to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. Both the sentences have, however, been ordered to run concurrently. Besides, the under-trial period has been ordered to be set off against the sentence of rigorous imprisonment awarded to him. Crl. Appeal No. 175-DB of 2005 [7] Learned counsel for the appellant has contended that a false case has been foisted upon the appellant and it is a case where the deceased whenever he got a chance used to mishandle the carbine as he wanted to learn about its working. The present incident had occurred due to the mishandling of the carbine by the appellant, for which the appellant is in no manner liable or involved. It is submitted that the genesis of the occurrence has been withheld by the prosecution. In fact the complainant (PW-12) it is submitted has referred to heated arguments between his brother Brij Mohan Shukla (deceased) and Jarnail Singh (appellant) on earlier occasions also. The cause of quarrel, it is submitted, is that Jarnail Singh (appellant) was habitual in consuming liquor which was opposed by the brother (deceased) of the complainant. In this regard, the complainant had tried to make his brother understand. It is also submitted that Dr. Sandeep Singh Sahni (PW-14) who conducted the post mortem examination on the dead body along with Dr. M.P. Singh and had given the nature of injury suffered by the deceased. However, the learned trial Court, it is submitted, overlooked the fact that had the appellant been standing by holding a carbine and aiming it at the chest of the deceased, the exit wound of the bullet would not be on the right side of the shoulder of the deceased. It is submitted that the facts and circumstances of the case are such that the complainant (PW-12) in fact had not seen the occurrence and he was standing outside the room where the incident had occurred. Therefore, it is unsafe to record a finding of guilt and conviction of the appellant on the basis of sole testimony of the complainant (PW-12) who is none else than the brother of the deceased. It is submitted that the learned trial Court has gravely erred in appreciating the evidence and material on record. In any case, it is submitted that there was no motive for the appellant to commit the murder of Brij Mohan Shukla (deceased). The delay in lodging the FIR is also stated to be fatal inasmuch as the incident is said to have occurred at about 6.00-6.15 p.m. and the FIR was recorded at 12.15 am. This according to the learned counsel for the Crl. Appeal No. 175-DB of 2005 [8] appellant gave time to the prosecution to carry out deliberations and concoct the false story. It is submitted that the entire sequence of event in fact points to the fact that the deceased Brij Mohan Shukla died on account of mishandling of the carbine and due to a sheer accident. A reference has been made to the reinvestigation ordered by the Director General of Police, Haryana by higher police officials and they had come to the conclusion that the appellant was not responsible for the murder. A reference has also been made to the depositions of the defence witnesses DW2 Desh Bandhu DSP Headquarters, Panchkula and DW3 Sham Singh retired Inspector of Police. In response learned State counsel has submitted that the entire case against the appellant stands proved and established by cogent and convincing evidence that has been produced on record by the prosecution. It is submitted that the prosecution has proved its case in all respects and there is no infirmity in the evidence produced by the prosecution and of its appreciation by the learned trial Court. The contentions as raised by the learned counsel for the appellant, it is submitted, are devoid of merit and the present case cannot be termed as one of accident nor can it be said that the appellant was innocent in the inquires that were subsequently conducted. Therefore, it is submitted that the findings and conclusions reached at by the learned trial Court are correct and are liable to be upheld and affirmed. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records of the case. The complainant Brij Nath Shukla (PW-12) while appearing in the Court supported the prosecution case. It is stated by him that the appellant was a police personnel and was posted as gunman of Sh. R.N. Gupta, Financial Commissioner, Punjab. His brother Brij Mohan (deceased) was working as a ‘Pujari’ (Priest) in the Mandir at the farmhouse of Sh. R.N. Gupta in the area of village Moginund. On Crl. Appeal No. 175-DB of 2005 [9] 31.12.2002, the complainant (PW12) had accompanied Sh. R.N. Gupta to his farmhouse for celebrating new year. The accused (appellant) had also accompanied him. On 2.1.2003 i.e. the day of the occurrence, Sh. R.N. Gupta had told the complainant Brij Nath Shukla (PW12) to inform to Brij Mohan Shukla (deceased) who was ‘Pujari’ (Priest) to be ready for ‘puja’ in the Mandir. It was 6.30 – 6.45 p.m. when the complainant (PW-12) came out of the drawing room. He heard the voices of Jarnail Singh (appellant) and his brother who were talking in a loud voice. He rushed towards that room and as he opened the door of the room, he heard a loud sound of gun fire. The appellant Jarnail Singh was holding a carbine. The brother of the complainant fell down in his presence and the complainant raised a hue and cry. Jarnail Singh (appellant) dropped the carbine at the spot and ran away. It is stated that when the complainant entered the room, Jarnail Singh (appellant) was holding a carbine in his hand. He immediately attended to his brother. Blood was coming out from his mouth and eyes. He had been struck by a bullet. Thereafter, Michael, cook and Vikram another helper also arrived at the spot. They all lifted Brij Mohan Shukla (deceased) and put him in the ‘Qualis’ vehicle and brought him to General Hospital, Sector 6, Panchkula. The doctor at the hospital declared that the brother of the complainant had died. About half an hour, thereafter the Police had arrived. The police recorded his (complainant’s) statement (Ex.PA) which was signed by him. Brij Nath Shukla (PW-12) complainant was cross-examined at considerable length, however nothing could be brought out which would, in any manner, favour the appellant. The complainant stuck to his stand. Mr. R.N. Gupta (PW-15) Financial Commissioner, Punjab had also appeared in the witness-box. It is deposed by him that he has a farmhouse in village Moginand and there is also a temple dedicated to Mata Kali. On 2.1.2003, he was at his farmhouse. It was around 6.15 p.m. when he was in his bedroom on the first floor. At that time his cook Michael, a helper Vikram Singh, his official driver Crl. Appeal No. 175-DB of 2005 [10] Surinder Singh, Safai Karamchari Dalip Kumar, his security officer Jarnail Singh (appellant) and the Pujari Brij Mohan (deceased) and brother of the Pujari Brij Nath Shukla (PW12) were present at his farm house. Brij Mohan (deceased) was a Pandit and he used to perform ‘puja’ everyday in the Mandir. At about 6.15 p.m., he had as per his routine told Brij Nath (PW12) that he should inform the ‘pujari’ that he would be coming down to the Mandir for ‘Puja’ and he should make necessary arrangements. His personal secretary Chuni Lal was also present at that time in the farm house. At that time he heard a loud sound and he was informed that Brij Mohan, ‘Pujari’ had been injured and was bleeding. So he immediately told them that the injured should be taken to the hospital in his personal ‘Qualis’ vehicle. He (PW15) had severe arthritis and by the time, he got down the ‘Qualis’ had already left. The incident had shocked him and he did not recollect all the facts. The Police had arrived within about half an hour and he had seen the spot where the occurrence had taken place. The occurrence had taken place in the staff room which was attached to the farmhouse and was just appurtenant to the main building. He had seen the blood marks. He had also seen the marks of scuffle in the room. Everything was in disorder. He did not recollect as to who were the persons who had come to him and informed that Brij Mohan had been injured. An important aspect which requires to be noticed from the statement of Sh. R.N. Gupta, Financial Commissioner, Punjab (PW-15) is that he had seen marks of scuffle in the room and that everything was in disorder. Therefore, when this aspect is seen with the deposition of Brij Nath Shukla complainant (PW-12) who heard Jarnail Singh (appellant) and his brother (deceased) talking in a loud voice, he rushed towards that room and as he opened the door of the room, he heard a loud sound of gunfire and Jarnail Singh (appellant) was holding a carbine, while his brother fell in his presence. Therefore, when the gun shot was fired and brother of the complainant Brij Mohan (deceased) was injured, there had been scuffle in that Crl. Appeal No. 175-DB of 2005 [11] room. The said scuffle could only be between the appellant and the deceased Brij Mohan as they were the only two persons who were in the room when the incident had occurred, which was seen by the complainant (PW-12). The firing of the gun shot, therefore, is preceded by a scuffle, which was only between the appellant and Brij Mohan (deceased). Insofar as the defence witnesses namely Desh Bandhu DSP, Headquarters, Panchkula (DW2) is concerned, it may be noticed that he has submitted that he was posted as DSP at Headquarters, Panchkula and the Superintendent of Panchkula had marked an application to him for inquiry which he conducted and submitted his report. His inquiry report is Ex.DB which bears his signatures. Sham Singh retired Inspector (DW3) has also deposed in defence that an application for inquiry was entrusted to him by the Superintendent of Police, Panchkula on 13.10.2003. He conducted an inquiry and recorded the statements of the witnesses. He had visited the place of occurrence also. After completing the inquiry, he had submitted his report (Ex.DA) to the Superintendent of Police, Panchkula. A perusal of the report (Ex.DB) which was conducted by Desh Bandhu DSP Headquarters, Panchkula (DW-2) shows that the inquiry was conducted on the application of Ajit Singh village Tarsika, Police Station Matewal, Police District Majitha (Punjab) alleging that his son Jarnail Singh (appellant) was serving with the Punjab Police. On 2.1.2003 Jarnail Singh (appellant) was at the farm house with Sh. R.N. Gupta, IAS. At about 6.00 p.m. Jarnail Singh (appellant), official Sweeper Pardeep Kumar, Surinder Singh-driver, Brij Mohan Shukla (deceased), Brij Mohan’s brother (complainant) were standing outside the house near the car. It is alleged by the applicant-Ajit Singh father of Jarnail Singh (appellant) that in the meantime the telephone bell rang and Brij Nath Shukla (complainant) (PW12) had gone to hear the phone and Brij Mohan (deceased) had gone to the bathroom for taking bath. At that time, Jarnail Singh’s Government carbine was kept under the pillow on the bed in the Crl. Appeal No. 175-DB of 2005 [12] staff room. When the applicant’s son i.e. Jarnail Singh (appellant) and others were standing outside they heard a fire arm shot. They saw inside that Brij Mohan Shukla was lying on the floor and it seemed that Brij Mohan Shukla had tampered with the carbine and a shot fired on the chest of Shukla. Immediately Mr. Gupta was informed and Brij Mohan Shukla was taken to the Sector-6, Hospital. The applicant Ajit Singh’s son Jarnail Singh (appellant), Chunni Lal Typist, Pardeep Kumar, Vikram Singh and Brij Nath Shukla (complainant) were also with him and had taken the injured in Sh. R.N. Gupta’s car. Regarding the firing of shot it is alleged by Ajit Singh, father of the appellant that a false case was registered against his son