Criminal Appeal No.173-DB of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: May 26, 2010 (i) Criminal Appeal No.173-DB of 2006 Hansa s/o Nathu ..... Appellant Versus State of Haryana .... Respondent Present: Ms. Anju Arora, Advocate, for the appellant. Shri S.S. Patter, Sr. DAG, Haryana, for the respondent. (ii) Criminal Appeal No.251-DB of 2006 Sanjay s/o Raghbir ..... Appellant Versus State of Haryana .... Respondent Present: Ms. Archana Sharma, Advocate, for the appellant. Shri S.S. Patter, Sr. DAG, Haryana, for the respondent. (iii) Criminal Appeal No.130-DB of 2007 Harjit @ Bittu s/o Partap Singh ..... Appellant Versus State of Haryana .... Respondent Present: Shri Baldev Singh, Senior Advocate, with Shri Sudhir Sharma, Advocate, for the appellant. Shri S.S. Patter, Sr. DAG, Haryana, for the respondent. Criminal Appeal No.173-DB of 2006 [2] CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JASWANT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. This order shall dispose of Criminal Appeal Nos. 173-DB of 2006 filed by Hansa son of Nathu; 251-DB of 2006 filed by Sanjay son of Raghbir, against the judgment and order dated 14/17.1.2006 and Criminal Appeal No. 130-DB of 2007 filed by Harjit @ Bittu son of Partap Singh against the judgment and order dated 8/9.12.2006, passed by the learned Additional Sessions Judge, Bhiwani, convicting the appellants for the offence under Section 302 read with Section 34 IPC for the causing death of Manphool Singh on 24.8.2001 at about 9.15 p.m, and sentencing them to undergo life imprisonment and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo RI for six months. All these appeals arise out of the same FIR No. 159 dated 24.8.2001 and, therefore, are being taken up for hearing together. The prosecution case was set in motion on the basis of the statement of Prem Kumar son of Manphool Singh aged 27/28 years. He stated that he runs a private school at village whereas his father was employed as a warden at District Jail, Bhiwani. Raj Kumar Gupta, was posted as Jail Superintendent at District Jail, Bhiwani and relations between his father and Raj Kumar Gupta, were not on good as Raj Kumar Gupta, used to prepare fabricated documents to release certain rascals and scoundrels from jail. Raj Kumar Gutpa got his father transferred from District Jail, Bhiwani to District Criminal Appeal No.173-DB of 2006 [3] Jail, Jind, so that his father might not disclose about his activities. On 23.8.2001, his father went to Bhiwani in connection with some personal work and came back to house at 6 p.m. He told him that Raj Kumar Gupta has surrendered himself in a deception case. At about 9.15 p.m., when his father was sleeping on a cot in the courtyard of their house and the light was on in the house and when he was watching T.V. inside the house, then an Indica car of golden colour stopped in front of their house out of which four young persons stepped out. All of them were wearing pants and bushirt, whereas one of them had shut the bushirt inside. One of them was having a fat body and the remaining were having normal body; height of 5’ 8” and age between 22 and 25 years. After reaching the house of the complainant, one of them knocked at the door. He opened the door. Two boys, out of whom, name of one was Gaurav son of Ramphal, whom he knew from earlier, asked him that they had to talk in respect of some essential work with his father. Both of them went inside near the cot of his father and two boys kept standing outside near the car. Gaurav awakened his father. When his father had just opened his eyes, Gaurav took out a pistol from the right pocket of the pant he was wearing and fired a shot close on his chest in the right side of his father, Manphool, who was lying on the cot. Just firing the shot, all the four persons sat in the Indica car and ran way from their house towards the bus stand. The occurrence is seen by Raj Kumar son of Kamla Ram and Tek Chand son of Bini Dutt. It is further stated that three of them can identify the accused on coming before them. He arranged a vehicle for bringing his father to Bhiwani Government Hospital for treatment, but his father breathed his last just before reaching the hospital and the Doctor declared him dead. He expressed his apprehension that Raj Kumar Gupta, Superintendent District Jail, Bhiwani had got murdered his father after conspiring with the above noted four rascals. Such statement was recorded by ASI Om Parkash of Police Station Tosham after a telephone message was received from the police post of Government Hospital, Bhiwani. It was at General Hospital, Bhiwani, the police party met Prem Criminal Appeal No.173-DB of 2006 [4] Kumar, where the statement was recorded at 3.30 a.m. on 24.8.2001. On the basis of the ruqa, FIR Exhibit PJ was lodged at about 4.30 a.m. Special report was delivered to the Illaqa Magistrate at 7.30 a.m. Firstly, we will discuss the evidence led in the criminal case leading to judgment and order dated 14/17.1.2006. PW1-Dr. M.K. Garg has sent ruqa Exhibit PA to the Incharge, Police Post, Government Hospital, Bhiwani, after the dead body of Manphool Singh was brought in the casualty department at 10.30 p.m. PW-4 Dr. Basant Lal has conducted the post mortem examination on the dead body of Manphool on 24.8.2001. In his opinion, the death was due to shock and haemorrhage as a result of “rifled fire-arm ammunition to the chest via injury Nos. 1 and 2”, which were ante-mortem and recent in duration. PW11-SI Om Parkash has prepared the inquest report Exhibit PF/3. It is he, who moved an application Exhibit PF/2 for conducting the post mortem examination on the dead body of Manphool Singh. He has taken into possession vide memo Exhibit PO amongst others one bullet empty .315 bore which was sealed and seal was handed over to PW19-Ram Kumar. Raj Kumar Gupta, as named in the FIR, was arrested by SI Om Parkash on 25.8.2001. It was on 7.10.2001, the said witness arrested accused Ajit Singh, accused Devi Lal on 10.10.2001 and accused Balraj on 11.10.2001. PW8-Sub Inspector Balwan Singh was handed over the investigation of the present case on 9.11.2001 and prepared report under Section 173 Cr.P.C. against the accused Ram Kumar, Ajit, Devi and Balraj. It was on 25.11.2001, PW12-Baljit Singh arrested accused Prem Singh from Hisar Chowk, where he made a disclosure statement Exhibit PS pointing out the place of occurrence. Later on, on 28.11.2001, Prem Singh, accused made another disclosure statement Exhibit PK. ASI Raj Singh (PW14) obtained the custody of Sanjay from District Jail, Sonepat on 3.1.2002 and produced the said accused before the Illaqa Magistrate, Bhiwani in a muffled face. He made an application for the Test Criminal Appeal No.173-DB of 2006 [5] Identification Parade. The application was allowed and Test Identification Parade was conducted on 1.2.2002 in District Jail, Bhiwani. On 11.2.2002, PW16-Mahender Singh, Assistant Sub Inspector was handed over the investigation of the case. Accused Sanjay was interrogated by him, where he suffered a disclosure statement Exhibit PD. He disclosed that the pistol which he had used in the crime has been recovered by the police of Police Station Baroda. He pointed out about the place of occurrence. Memo Exhibit PE was prepared in this respect. PW17 is Data Ram Tehsildar, who has conducted the Test Identification Parade on 1.2.2002 from amongst 11 under-trial prisoners of the same lineament of faces. PW 19 Ram Kumar, identified accused Sanjay. Such Test Identification Parade was conducted in the presence of PW 20 Shamsher Singh, Deputy Superintendent of Police, District Jail, Bhiwani. On such basis, the report of the Test Identification Parade Exhibit PT was proved on record. The prosecution also examined PW2-Prem Kumar son of Manphool Singh, author the FIR. He has, inter-alia, stated to the following effect:- “I told that Manphool is my father. Thereafter one boy out of the two taken out one pistol from his pocket and fired a shot on the chest of my father from close range. The witness pointed out toward Sanjay accused, present in the Court that he had fired upon his father. Witness pointed out towards Hansa accused now present in the Court that he is the same person at whose instance Sanjay fired upon my father. Third young boy namely Prem was amongst those young boys. Witness has correctly pointed out towards Prem accused now present in the Court. Fourth young boy is not present in the Court, but I can identify him.” In the cross-examination on behalf of Sanjay and Hansa, he denied the suggestion that Hansa and Sanjay were not present at the scene of occurrence or that they did not fire at his father or that he did not witness the Criminal Appeal No.173-DB of 2006 [6] occurrence. It is pertinent to mention here that the witness was not confronted with his statement Exhibit PJ on the basis of which the FIR was lodged. PW19-Ram Kumar has been examined as a witness from whom the accused have enquired about the house of deceased. He has stated that he left the spot after he called son of Manphool Singh. He has identified Sanjay and Hansa, the persons, who were in the car asking for the house of Manphool Singh. After some time he heard a noise of firing and then he saw that Manphool Singh had sustained bullet injury. The police reached there and shifted the blood stained earth next day in his presence and obtained signatures on the recovery memo Exhibit PO. He had also joined the Test Identification Parade conducted by the District Jail, Bhiwani and identified Sanjay. In the cross-examination, he admitted that the accused persons were not known to him earlier and that he reached the street when electricity was functional. PW3-Raghbir Singh is brother of Manphool Singh deceased. He has taken the deceased to hospital along with Prem Kumar, author of FIR. He is a witness to the statement Exhibit PC made by accused Prem Kumar and disclosure statement Exhibit PD made by Sanjay on 11.2.2002. In the statement Exhibit PD, Sanjay has stated that he along with Prem, Hansa and Bittu @ Harjit went to the deceased in Matiz car and committed murder of Manphool Singh. The prosecution has also led other evidence to complete the chain of circumstances on the basis of evidence led and after recording statements of the accused under Section 313 Cr.P.C. and giving them an opportunity of leading evidence. The learned trial Court found accused Sanjay and Hansa guilty for having committed the offence under Section 302 IPC while acquitting Raj Kumar Gupta, Devi Ram, Balraj and Ajit. The arguments in this case were heard in part on 16.3.2010, when it was pointed out that the statements under Section 313 Cr.P.C., of accused Hansa and Sanjay are materially discrepant. Finding that such statements are Criminal Appeal No.173-DB of 2006 [7] absolutely incorrect, with the consent of the parties, we directed recording of statements of accused under Section 313 Cr.P.C. again by the learned trial court. Such statements have been recorded and report sent to this Court. The entire incriminating circumstances have been put to the accused. The appellants have denied the incident but have not given any explanation. Learned counsel for the appellant- Sanjay has vehemently argued that the prosecution story is full of contradiction and is highly improbable. In the statement Exhibit PJ, on the basis of which FIR was recorded, the fire arm injury is sought to be fired by one Gaurav. However, Prem Kumar, while appearing as PW2 has attributed the fire arm injury to Sanjay. It is a complete change of the prosecution story which throws a serious doubt on the correctness thereof. The argument is attractive but suffers from a basic fallacy. PW2- Prem Kumar on oath in court has clearly and categorically attributed the firing of the shot to Sanjay, which proved fatal to the deceased. However, the witness was not confronted with his previous statement, the basis of the FIR. No opportunity was granted to the witness to explain the contradiction. Since on oath in Court, the witness has attributed fatal fire arm injury to Sanjay, the benefit of doubt cannot be claimed by the said accused on the basis of statement Exhibit PJ, which was not put to the witness. Learned counsel for the appellant-Sanjay further argued that the disclosure statement Exhibits PD is inadmissible in evidence as in pursuance of such disclosure statement, no new fact was discovered. Vide such disclosure statement, the place of occurrence is said to be disclosed, whereas the place of occurrence was known to the police much before the arrest of the appellant. Even the fact of recovery of .315 bore pistol cannot be said to be admissible in evidence as pistol was already in the police custody though in another case. Criminal Appeal No.173-DB of 2006 [8] In respect of disclosure statement Exhibit PD, regarding disclosure of the place of occurrence, we find the argument of the learned counsel for the appellant as meritorious. However, the disclosure statement in pursuance of which the weapon of offences being in custody of Sonepat Police came to the knowledge of investigation agency is information and a fact discovered to determine the manner of commission of crime in the present case. We have examined the question of conduct of the accused as relevant fact in a disclosure statement made to the police official during custody recently in Cr. Appeal No.405 DB of 2007 decided on May 5, 2010 Arvind @ Chuni Lal Vs. State of Haryana and held to the following effect: However, the statement that he called Manjeet from the house, made him sit on the scooter and took him depicts and relates to his conduct, which is a relevant circumstance under Section 8 of the Evidence Act. We find support for this conclusion by the authoritative judgment of the Hon’ble Supreme Court rendered in Himachal Pradesh Administration v. Om Prakash, AIR 1972 Supreme Court 975, wherein it was found that even if nothing is found or recovered from an accused as a consequence of the information furnished by him, still the evidence of the Investigating Officer and the Panches that the accused has taken them to a witness, as corroborated by the said witness, would be admissible under Section 8 of the Evidence Act, as conduct of the accused”. In the present case, the recovery of pistol by the Sonepat Police is new information received by the investigating agency during the course of investigations of the present case. Therefore such fact is relevant. Thus, we do not find any merit in the argument that the recovery of pistol from Sonepat police is not a new fact discovered in the present case and thus not admissible in evidence. Sanjay was identified by PW2 in the Test Identification Parade conducted in the presence of PW17-Data Ram. He has been identified by PW2- Prem Kumar from amongst 11 accused-prisoners. Sanjay has been identified Criminal Appeal No.173-DB of 2006 [9] by PW2-Prem Kumar as well as PW19-Ram Kumar. Therefore, identity of Sanjay as the person involved in the commission of crime cannot be doubted. Such is the finding recorded by the learned trial Court as well. PW 22 Om Parkash has stated that custody of accused Hansa was taken by deceased ASI Onkar Singh on 4.2.2002 from Dadri Courts. PW15 Inspector Dharampal, recorded disclosure statement of accused Hansa alias Hans Raj, Exhibit PT On 5.2.2002. It may be noticed here that the said accused refused to undergo the Test Identification Parade. The learned trial Court has drawn adverse inference on his refusal to undergo the Test Identification Parade. He has been identified by PW2-Prem Kumar and PW19- Ram Kumar, as the persons, who were present on the night of 23.8.2001. Sanjay accused made disclosure statement Exhibit PD and pointed out that he was accompanied by Hansa. Even Hansa has admitted in his statement Ex P-T, that he was with Sanjay on the night of 23.8.2001. Such parts of the statements are relevant under Section 8 of the Evidence Act as conduct of the person. In view thereof, the conviction of the appellant Hansa cannot be said to be unjustified. The prosecution has succeeded in proving the charges of commission of crime by Hansa. Such is the finding recorded by the trial Court as well. In view of the above, We do not find any merit in Criminal Appeal Nos.173-DB of 2006 and 251-DB of 2007. Therefore both appeals are dismissed. Criminal Appeal No.130-D of 2007 In the trial conducted against accused Harjit Singh, Dr. M.K. Garg has been re-examined as PW8 and Dr. Basant Lal, who has conducted the post mortem as PW13. Accused-Harjit Singh, moved an application Exhibit PY, for conducting the Test Identification Parade. The same was allowed by the learned trial Court vide order Exhibit DA/2 but before the test identification Criminal Appeal No.173-DB of 2006 [10] parade could be held, he made a statement Ex PD on 10.4.2006 that he was produced in the Bhiwani Court from Nahan Jail, Himachal Pradesh and before entering into the Court premises, he had seen the complainant and talked to him for five minutes. Therefore, he did not want to get the Test Identification Parade conducted. The accused made a disclosure statement Ex PE on 5.4.2006, wherein he has disclosed that he had a country made pistol and the same has been hidden behind his house and he can get the same recovered after demarcation. Prosecution relies upon another statement Exhibit PB made by the accused Harjit Singh, disclosing the place of occurrence on 11.4.2006. Another statement was made by accused Harjit Singh Ex PU on 12.4.2006 that his earlier disclosure statement is not correct as the pistol was given by him to Prem Singh after few days of the incident. The pistol is not proved to be recovered in pursuance of such disclosure statement. In addition to the said disclosure statement, the prosecution relies upon disclosure statement Exhibit PT made by Sanjay and Exhibit PV made by Hansa in respect of the role attributed to appellant-Harjit as well. Prem Kumar, author of the First Information Report, has been examined as PW1. As per his statement, he was not allowed to join the test identification parade. He identified the accused in the Court for the first time. The only evidence against the appellant is identification by PW1 Prem Kumar in Court and that of disclosure statement Exhibits PT and PV suffered by Sanjay and Hansa in the police custody. In the absence of any corroboration of participation of the appellant in the offence, mere identification of appellant by PW1 Prem Kumar in the Court is not sufficient to complete the chain of circumstances to hold the appellant guilty of commission of offence. Similarly, the disclosure statements Exhibits PT and PV cannot be read into evidence in respect of even conduct of the appellant as such statements of the co-accused are not admissible against the appellant. Similarly, the place of occurrence stated to be disclosed by the appellant was already known to the investigating agency since the date of occurrence. No fact has been discovered on the basis Criminal Appeal No.173-DB of 2006 [11] of disclosure statements Exhibits PE and PU which are thus inadmissible in evidence. Thus, the prosecution has failed to prove the commission of offence by the appellant beyond reasonable doubt. Consequently, the appellant is entitled to the benefit of doubt. In view of the said fact, present appeal is allowed. Judgment dated 8/9.12.2006 is set aside. The appellant is ordered to be set at liberty provided he is not wanted in any other case. ( HEMANT GUPTA ) JUDGE ( JASWANT SINGH ) JUDGE May 26, 2010 ds / ks