Crl.A. No.86-DB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.86-DB of 2002 DATE OF DECISION: August 25, 2010 SUCHA RAM ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE NAWAB SINGH. PRESENT: MS.DEIPA SINGH, AMICUS CURAIE, FOR THE APPELLANT. MR. A.S. GREWAL, ADDL.A.G., PUNJAB. ASHUTOSH MOHUNTA, J. Appellant Sucha Ram has filed this appeal impugning the judgement of conviction and order of sentence dated 3.8.2001, passed by the Addl.Sessions Judge, Ludhiana whereby he was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.5000/- under Section 302 IPC and in default of payment, to further undergo R.I. for one year. He was further convicted and sentenced to undergo R.I. for 7 years and to pay a fine of Rs.3000/- under Section 392 IPC and in default of payment of fine, to further undergo R.I. for one year. The accused-appellant was also ordered to undergo R.I. for 3 years under Section 506 IPC. All the substantive sentences were ordered to run concurrently. The FIR in the present has been registered on the basis of statement made by PW Pyare Lal to the effect that he was engaged in hosiery work. His brother Khushal Chand who was living in his neighbour was also doing the work of hosiery. On every Friday, Khushal Chand used Crl.A. No.86-DB of 2002 -2- to collect money from his dealers and also used to keep his papers pertaining to his firm Adarsh Hosiery in his brief case. After making collection, he used to come back on the same day. On 22.3.1996, Khushal Chand went to Jalandhar at about 10.00 a.m. for making collections. At about 7.00 p.m., he (Pyare Lal, complainant) went to see Khushal Chand at his house and started waiting for him while sitting in the verandah in front of the gate of his house. Khushal Chand came in front of the house in a rickshaw and after receiving the payment, the rikhsaw puller went away. In the meantime, suddenly, two young men, aged about 25-26 years, came on a scooter from the side of the Ritambara School. The young man who was driving the scooter was of medium size and was a Sardar and the young man sitting on the pillion had tied yellow Patka and was wearing full sleeved T.Shirt. They stopped the scooter close to Khushal Chand in front of the gate. The pillion rider alighted from the scooter and took out a pistol from his Dub and asked Khushal Chand to hand over the brief case to him or otherwise, he would fire a shot. But Khushal Chand refused to do so and a quarrel ensued. Upon this, on seeing the complainant, the young man fired a shot with his pistol which hit Khushal Chand on the left side of his chest. The complainant came out running and raised a alarm. The accused also hurled threats of killing him. Thereafter, the accused picked up the brief case and fled away on the scooter alongwith the pistol. The complainant picked up his brother Khushal Chand and took him inside, where Khushal Chand breathed his last. On raising an alarm many people came there. The complainant further stated that his brother Khushal Chand had a sticker of his name 'K.C.' and his photograph on the brief case. SI Prem Singh, who alongwith other police officials was Crl.A. No.86-DB of 2002 -3- present at Chowk Jodhewal, Ludhiana in connection with patrolling and checking and on receipt of information through a wireless questy that two unidentified Sikh young men had fired shots upon Khushal Chand in front of his house in the area of Sunder Nagar, Ludhiana they reached at the place of occurrence. He recorded the statement of Pyare Lal, complainant Thereafter statement was sent to Police Station for registration of a case and FIR No.84 dated 22.3.1996, under Section 392/302/506/34 IPC and Section 25/54/59 of Arms Act was registered. Inquest Report (Ex.PC) with regard to the dead body of Khushal Chand was prepared by S.I. Prem Singh. The dead body of Khushal Chand was sent for post mortem examination to Civil Hospital Ludhiana. The place of occurrence was inspected and an empty of .12 bore was taken into possession after sealing the same into parcel. One scooter bearing registration No.PJK-7549 was also taken into possession. Rough site plan of the place of occurrence was prepared. On the same day, i.e. on 22.3.1996, statements of Surinder Kumar @ Babbu and Adesh Kumar under Section 161 Cr.P.C. were also recorded by S.I. Prem Singh, Surinder Kumar stated that he was a milk vendor. On 22.3.1996, he had come to the house of Khushal Chand to take money on account of purchase of milk. On coming to his house, he came to know that Khushal Chand was not at home and had gone outside for some work. He further stated that he started waiting for Khushal Chand in the park of Ritambara school where Adesh Kumar was also sitting. There while waiting for Khushal Chand, they started talking to each other. At about 7.00 p.m. Khushal Chand came on a rickshaw and got stopped the rickshaw in front of his house and paid fare to rickshaw puller. In the meantime, two Crl.A. No.86-DB of 2002 -4- Sikh youngmen came on a scooter bearing No.PJK-7549 make Bajaj and stopped it by the side of Khushal Chand. Thereafter the Sikh young man riding pillion on the scooter tried to snatch the brief case from Khushal Chand, but Khushal Chand retaliated and both of them grappled with each other. That young man fired a shot with his pistol which hit Khushal Chand on the left side of his chest and Khushal Chand fell down on the ground. Both Sikh youngmen fled away with the brief case of Khushal Chand on their scooter towards 70 ft. wide road. He further stated that he and Adesh witnessed the entire occurrence. They rushed towards the spot. Pyare Lal, brother of Khushal Chand also came out of the house. They lifted Khushal Chand and took him inside the house where Khushal Chand breathed his last. To the same effect is the statement of Adesh Kumar. The identity of the accused was disclosed by one Balkar Singh S/o Makhan Singh resident of Fatehgarh, who stated that the accused had committed the crime in the present case. On the basis of the aforementioned statement of Balkar Singh dated 27.3.1996, S.I. Balbir Singh, PW12 arrested both accused Sucha Ram and Bimal Kumar on 8.5.1996. They were sent to judicial lock-up for identification and in the jail their identification parade was got conducted. In pursuance to the disclosure statement (Ex.PW8/A) the brief case (Ex.P1) was recovered and the same was taken into possession vide recovery memo Ex.PW8/B. After completion of necessary investigation, both the accused were challaned. Both the accused were charged under Section 302, 392 and 306 IPC to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 13 witness. Crl.A. No.86-DB of 2002 -5- PW1 Dr.Ashok Raswant, Medical Officer, Civil Hospital, Ludhiana, who conducted the post mortem examination on the dead body of Khushal Chand deposed that on exploration of chest underneath left sixth and seventh ribs were found fractured. Left lung, left plurea, liver, stomach were ruptured. Thoraric and abdominal cavity was full of blood, cardboard and pellets were present. Seven mettalic pellets were taken out and sealed in a wire alongwith cardboard. The Doctor opined the cause of death due to haemorrhage and shock, as a result of fire arm injury to the vital organs which was sufficient to cause death in the ordinary course of nature. The clothes of the deceased, seven mettalic pieces and cardboard sealed in bottled were also handed over the police after post mortem examination. PW2 Pyare Lal, brother of the deceased, deposed the same facts as stated in his statement recorded by the Police. PW3 Adesh Kumar deposed that on 22.3.1996, he had gone to the house of deceased Khushal Chand at about 7/7.15 p.m., as he had business dealings with him. Khushal Chand's wife told him that he was not at home. Thereupon, he started waiting for Khushal Chand by standing in Ritambara Park. In the meantime, Surinder Kumar also came there. He had also come to visit the house of Khushal Chand. Thereafter he and Surinder Kumar started talking to each other in the park. After about 5-7 minutes, Khushal Chand came in a rickshaw in front of his house and after receiving the payment, the rickshaw puller went away. Thereupon, two persons came on a scooter and the persons riding pillion alighted from the scooter and tried to snatch the bag from Khushal Chand, but Khushal Chand retaliated. On this the young man took out a pistol from his dub and fired shot on the left side of the chest of Khushal Chand and took his brief case and went Crl.A. No.86-DB of 2002 -6- away on the scooter bearing registration No.PJK-7549. Thereupon, PW2 Pyare Lal, brother of Khushal Chand came out of the house and they brought Khushal Chand inside the house where Khushal Chand died. PW6 Rajiv Prasher, Joint State Transport Commissioner, Punjab State Chandigarh deposed that on 18.5.1996, he was posted as Executive Magistrate, Ludhiana-cum-District Officer for removal of grievances at Ludhiana. He was deputed by the District Magistrate Ludhiana for test identification parade to be conducted in Central Jail Ludhiana. On 18.5.1996, he went to the jail where test identification parade of accused Sucha Ram and Bimal Kumar was arranged. During that parade, PW2 Pyare Lal could not identify accused Sucha Singh, but identified Bimal Kumar. Thereafter PW3 Adesh Kumar was summoned who identified Bimal Kumar and Sucha Ram, accused. PW8 ASI Jagdish Singh deposed that on 22.5.1996, he was posted at P.S. Sadar Ludhiana. Bimal Kumar was interrogated in his presence. On interrogation, he suffered a disclosure statement (Ex.PW8/A) that he had placed one attache on the roof of house after emptying the same and could discover the same. Pursuant to his disclosure statement, he got recovered the attachee from his house which was taken into possession vide recovery memo (Ex.PW8/B). PW10 Constable Surinder Singh deposed that he had delivered the speical report in this case to the Ilaqa Magistrate at 10.0 p.m. on 22.3.1996, itslef at his residence. PW12 SI Balbir Singh deposed that on 8.5.1996, he arrested accused Sucha Ram and Bimal Kumar and they were sent to Judicial lock- up for identification parade. He further deposed that in pursuance to Crl.A. No.86-DB of 2002 -7- disclosure statement made by Bimal Kumar, a brief case was got recovered by him on 22.5.1996. PW13 Inspector Prem Singh deposed that on 22.3.1996, he was posted as SHO P.S. Jodhewal Basti. On that day, he alongwith other police officials were present at the Chowk Jodhewal in connection with patrol duty, where he received a wireless message that two unidentified Sikh persons had fired a shot at Khushal Chand in front of his house. Thereafter he, alongwith other police officials reached the spot where PW2 Pyare Lal got recorded his statement (Ex.PD). Inquest Report (Ex.PC) with regard to the dead body of Khushal Chand was prepared. The dead body of Khushal Chand was sent for post mortem examination to Civil Hospital Ludhiana. The place of occurrence was inspected and an empty of .12 bore was taken into possession after sealing the same into parcel. One scooter bearing registration No.PJK-7549 was also taken into possession. Rough site plan of the place of occurrence was prepared. Apart from the depositions of other formal witnesses, report of Chemical Examiner (Ex.PZ) was also tendered into evidence according to which blood was found on the the clothes of the deceased. Thereafter, the prosecution closed its evidence. After closure of the prosecution evidence, statements of accused Sucha Ram and Bimal Kumar were recorded under Section 313 Cr.P.C. They both denied the allegations. Accused Sucha Singh stated that he had been taken in police custody from his village on the intervening night of 5/6.5.1996. He further stated that he was falsely implicated in a fake police encounter for which a false FIR was recorded in P.S. Sadar Ludhiana, in which he was acquitted. Bimal Kumar stated that he was taken into custody from his Crl.A. No.86-DB of 2002 -8- village on 6.5.1996. He further stated that he was falsely implicated in a fake police encounter for which an FIR was recorded in P.S. Sadar Ludhiana, in which he was acquitted. He further stated that he did not make any disclosure statement nor he had got recovered any empty attache. After taking into consideration the depositions of the prosecution witnesses, medical evidence and the circumstantial evidence, the trial Court convicted Sucha Singh under Section 302,392 and 506 IPC, whereas Bimal Kumar was convicted and sentenced under Section 392 IPC and sentenced Sucha Singh as narrated in the opening paragraph. It is this judgement of conviction and order of sentence which has been impugned by accused-appellant Sucha Ram. Counsel for the appellant has argued that the presence of Pyare Lal PW2 and Adesh Kumar (PW3) at the time and place of occurrence was highly unnatural and doubtful. It has been argued that both the aforementioned persons were interested witnesses and their testimonies should not be relied upon. It has further been argued that the Test Identification Parade of the accused Sucha Ram and Bimal Kumar was faulty and was not conducted as per the procedure. It was further argued that there was a delay in sending the special report to the Illaqa Magistrate. On the other hand, counsel for the State has argued that the testimonies of Pyare Lal (PW2) and Adesh Kumar (PW3) with regard to the manner in which the occurrence took place is quite consistent and credible. Both these witnesses have identified the accused that it was the accused Sucha Ram who had fired a shot at deceased Khushal Chand on his chest from a close range. It has further been argued that the testimony of Pyare Lal, PW2 and Adesh Kumar, PW3 cannot be discarded merely because they Crl.A. No.86-DB of 2002 -9- were real brother and a friend of the deceased, respectively. Learned counsel submits that the presence of these witnesses at the place of occurrence was quite natural and probable as they often had been visiting the house of the deceased. Learned counsel further submits that the ocular version given by Pyare Lal, PW2 and Adesh Kumar, PW3 is fully supported by the medical evidence. As per the testimony of PW1 Dr.Ashok Raswant, who conducted the post mortem examination on the dead body of Khushal Chand, the deceased had suffered a fire arm injury in the chest. It has lastly been argued that even if there is a delay in sending the special report to the Illaqa Magistrate, the same would be of no material consequence, because of the ocular evidence given by the prosecution witnesses. The occurrence in the present case was witnessed by Pyare Lal PW2 and Adesh Kumar PW3. Pyare Lal, PW2 in his statement has stated that deceased Khusual Chand was his younger brother and was doing hosiery business. On 22.3.1996, at about 7.00 p.m. he had gone to see his brother Khushal Chand, however, as his brother had not returned from Jalandhar, therefore, he waited in the verandah of the house. After some time Khushal Chand came on a rickshaw and in the meantime, two persons came on a scooter from the side of Ritambhara school. They stopped the scooter near Khushal Chand and the person who was the pillion rider alighted from the scooter and took out a pistol and ordered Khushal Chand to hand over the brief case to him, failing which he would shoot him. When Khushal Chand refused to hand over the brief case, a slight scuffle ensued and the person who was sitting on the pillion fired a shot from close range which hit on the left side of the chest of Khushal Chand. The person who had fired the shot picked up the brief case and sped away with the other Crl.A. No.86-DB of 2002 -10- accused on the scooter towards the 70 feet wide road. The aforementioned occurrence was also witnessed by PW3 Adesh Kumar, who stated that on 22.3.1996, at about 7/7.15 p.m., he had gone to the house of Khushal Chand as he has business dealings with him. This witness has also described the entire incident in the same manner as described by PW2 Pyare Lal. The defence has not been able to shake the testimonies of both these witnesses which are consistent with each other. Pyare Lal PW2 had reported the matter to the Police immediately, on the basis of which, formal FIR was recorded. The aforementioned ocular testimony also finds corroboration from the medical evidence. On conducting post mortem on the dead body of Khushal Chand, Dr. Ashok Raswant, Medical Officer, Civil Hospital, Ludhiana found the following injuries:- “1. Lacerated wound 1” in diameter with inverted margin in the front of left side of chest 3” below and 2 and a half Inches medial to left nipple. Blackening present around the wound. 2. Abrasions one and a half inches 1 x 3” on the lateral aspect of left side of neck.” Injury No.1 clearly coincides with the deposition made by Pyare Lal, PW2 and Adesh Kumar PW3. A lacerated wound with inverted margins was found on the front left side of the chest of the deceased. Apart from the above, Dr.Ashok Raswant, PW1 found corresponding holes present on the shirt, banyan and sweater, which also clearly shows that the deceased was shot on the left side of the chest. Pyare Lal, PW2 has admitted that the assailants had not been Crl.A. No.86-DB of 2002 -11- seen by him in the street earlier, nor he knew them. In order to establish the identify of the accused, an Identification parade was held on 18.5.1996, in the presence of PW6 Sudhir Parashar, Executive Magistrate. Although PW2 Pyare Lal could identify only accused Bimal Kumar, but not the appellant Sucha Ram, but he had given a vivid description of the identity of the assailant. He had stated that a turbaned sardar of middle height, aged 25/26 years was pillion rider on the scooter and was wearing a Yellow turban with a Green shirt. He stated that the person who was the pillion rider had fired at the deceased Khushal Chand. This witness, however, identified the appellant in Court. However, in the identification parade both accused Sucha Ram and Bimal Kumar were identified by PW3 Adesh Kumar. Adesh Kumar, PW3 categorically stated that it was the appellant who had fired the fatal shot from a close range on the left side of the chest of the deceased. He did not know the accused earlier. He had no enmity with the appellant and had no axe to grind. He is an independent witness and his evidence deserves full credence. Apart from the above, the evidence of PW13 Inspector Prem Singh clearly proves the recovery of empty cartridges of .12 bore pistol from the place of occurrence. Inspector Prem Singh had also effected recovery of scooter No.PJK-7549 vide recovery memo Ex.PW13/B. Accused Bimal Kumar suffered a disclosure statement before PW8 ASI Jagdish Singh and got recovered one empty brief case from the roof of his house. Thus, even the recoveries in the present case fully corroborates the ocular version given by PW2 Pyare lal and PW3 Adesh Kumar to the effect that it was the appellant who had fired from his pistol at deceased Khushal Chand. Crl.A. No.86-DB of 2002 -12- As a sequel to the aforementioned discussion, it clearly transpires that it was accused Sucha Ram who had fired from a close range at deceased Khushal Chand. The entire occurrence was witnessed by PW2 Pyare Lal and PW3 Adesh Kumar and their testimonies are trustworthy. In the identification parade held, the accused was identified by PW3 Adesh Kumar and according to him, it was the appellant who had fired at the deceased. The ocular version as given by PW2 Pyare Lal and PW3 Adesh Kumar is also corroborated by the medical evidence, according to which a lacerated wound with inverted margins was found on the front left side of the chest of the deceased. Moreover, corresponding holes were present on the shirt, banyan and sweater of the deceased. PW13 Prem Singh has proved the recovery of empty cartridges of .12 bore pistol from the place of occurrence and PW12 Inspector Prem Singh had got effected the recovery of incriminating articles, i.e. the brief case of the deceased, as also the scooter used in the commission of crime, through the disclosure statements of the accused. As a result of the aforementioned discussion, we are of the considered view that the prosecution has been able to prove the guilt of the accused to the hilt beyond reasonable doubt. Therefore, we find no merit in this appeal and the same is dismissed. The office shall complete all the codal formalities forthwith. (ASHUTOSH MOHUNTA) JUDGE August 25, 2010 (NAWAB SINGH) Gulati JUDGE