-1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No. 150-DB of 2002 Date of decision:- 29.11.2010 Suraj Bhan son of Jugli Parshad, resident of H. No. 958, Sector 16, Faridabad. ......Appellant Vs The State of Haryana. ......Respondent CORAM:-HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. R.S. Rai, Senior Advocate, with Mr. Deepinder Brar, and Mr. Sushil Jain, Advocates, for the appellant. Mr. Ajay Gupta, Additional Advocate General, Haryana, for the respondent. * * * * RANJAN GOGOI, J. This appeal is directed against the judgement dated 04.02.2002 and order dated 05.02.2002 passed by the Learned Additional Sessions Judge, Faridabad in Sessions Case No. 145 of 2000. By the aforesaid judgement and order the learned trial Court has convicted the accused/appellant of the offence under Section 302 of the Indian Penal Code. He has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for one year more. -2- The short case of the prosecution is that on 21.08.2000 Ram Sarup, Assistant Sub Inspector of Police (PW17) alongwith a Police party was present in the Sector 17 market of Faridabad town. An information was received by the Police party about an incident of firing in House No. 435 of Sector 17, Faridabad. Accordingly, Assistant Sub Inspector Ram Sarup reached the place of occurrence where he was informed that one Tara Chand and one Ramesh Gupta have been injured in the incident of firing and that they have been taken to the Escorts Hospital at Faridabad. Assistant Sub Inspector Ram Sarup, therefore, came to the Escorts Hospital where he was informed by the doctor by a written memo (Ex.PR) that injured Tara Chand was brought dead to the hospital whereas the other injured i.e. Ramesh Gupta is unfit to make any statement. According to the prosecution, Assistant Sub Inspector Ram Sarup found a number of persons present in the hospital out of whom one Narender Kumar (PW8) made a statement (Ex. PJ) to the effect that he was working in the godown of Tara Chand for the last three years and that Tara Chand was engaged in construction of House No. 436, Sector 17, Faridabad. As per the said statement of PW8, Narender Kumar, at about 4.30 PM on the day of occurrence i.e. 21.08.2000 Tara Chand took him in the car to House No. 436. The car was driven by one Udham Singh (PW9). According to PW8, one Deepak (not examined) was doing fitting work in the house. At about 6.00 PM, five persons including the accused/appellant accompanied by O.P. Gulati, Rakesh Singla, Krishan Gori and Roop Chand Sharma came -3- in a Santro car bearing registration No. HR-51-E-7770 to the adjoining house i.e. House No. 435. At that time, according to PW8, Ramesh Gupta owner of House No. 435 alongwith his two sons Govind Gupta (PW4) and Hans Raj (PW5) were sitting in their lawn. According to Narender Kumar, there was exchange of hot words between the two parties with regard to some agreement for sale of the house. Thereafter, the accused/appellant Suraj Parkash went out of the kothi by himself saying that he would teach Ramesh Gupta a lesson. After sometime, the accused/appellant, it was stated, brought a double barrel gun from his house and fired the same on the chest of Tara Chand who was then standing near the gate of House No. 436. Tara Chand fell down. The other four persons accompanying the accused/appellant exhorted the accused/appellant to shoot down Ramesh Gupta and his sons whereupon the accused/appellant, it was stated, fired a second shot which hit the back of Ramesh Gupta. Thereafter, all the five persons left the place of occurrence. Furthermore, according to Narender Kumar (PW8) he alongwith Udham Singh (PW9), Deepak (not examined) and Hans Raj (PW5) lifted both the injured persons and brought them to the Escorts Hospital. On the basis of the aforesaid statement of PW8, Narender Kumar, an FIR against the accused persons was registered at about 9.20 PM. In the course of the investigation the accused/appellant alongwith O.P. Gulati, Rakesh Singla, Krishan Gori and Roop Chand Sharma were arrested. In the course of the investigation the -4- accused/appellant produced the license of the double barrel gun which was seized by Ex. PB. While the investigation of the case was going on Ramesh Gupta died on 23.08.2000. On completion of investigation challan was presented against all the five accused. In the trial Court charge was framed against the accused/appellant and the other four persons under Sections 148, 302 read with Section 149 and 506 of the Indian Penal Code. Separate charge against the accused/appellant was framed under Section 27 of the Arms Act. The accused/appellant pleaded not guilty to the charges framed and claimed to be tried. In the course of the trial 19 witnesses were examined by the prosecution and none by the defence. The accused/appellant was, however, examined under Section 313 of the Code of Criminal Procedure in the course of which he stated that he has been falsely implicated in the case at the instance of persons who had grievances against him over property deals. Thereafter, at the conclusion of the trial, the learned Additional Sessions Judge, Faridabad has convicted and sentenced the accused/appellant, as aforesaid, giving arise to the present appeal. It may be mentioned herein that the learned trial Court by the impugned judgement has held that the prosecution could not establish the charge brought against the accused/appellant under Section 27 of the Arms Act and further that no case, as alleged, against the other four accused have been made out. Accordingly, orders of acquittal were passed by the learned trial Court which, however, is not the subject matter of the present appeal wherein the Court would only be concerned with the -5- correctness of the conviction of the present accused/appellant, Suraj Parkash, under Section 302 of the Indian Penal Code. A brief look at the evidence and materials tendered by the prosecution will be appropriate at this stage. PW3 Dr. Ravinder Mathur had performed the post-mortem of the deceased Tara Chand. Deposing from the post-mortem report (Ex. PC) this witness had testified that in the course of the post- mortem the following injuries were found on the deceased Tara Chand:- “The alleged cause of death was death by fire-arm. It was 5'8” long, well built body, wearing nothing. Mouth was closed. There was: (i) Circumscribed wound 2.5 cm diameter present on the right lateral aspect of sternum. (ii) The corresponding lateral aspect of sternum, there was another circumscribed wound 2 cm in diameter. Just below the wound there was corresponding fracture. (iii) There was circumscribed wound 3 cm diameter present on the right lateral part of sternum, just above the wound No. 1. The margins of wound were everted and charring was present. (iv) Everted irregular lacerated wound of 3 cm diameter present on the mid line of the back at the level of 2nd vertebra. The vertebra and the ribs were fractured.” PW4 and PW5 are the sons of the deceased Ramesh Gupta who have been examined by the prosecution as eye-witnesses to the occurrence. Both these witnesses have deposed about an agreement -6- for sale of the house to one Aruna Mandhar (PW7) which was entered into through the accused/appellant and the acquitted accused Om Parkash Gulati. According to these witnesses, the accused/appellant and Om Parkash Gulati, as property dealers, were to receive 2% commission on the price of the house payable to the accused/appellant. Both the witnesses have testified that the agreement fell through and finally the advance amount (Rs. 1 lac) received by the deceased Ramesh Gupta was handed over to Aruna Mandhar (PW7). According to PW4 and PW5, on 21.08.2000 at about 6.00 PM while they alongwith their father i.e. the deceased Ramesh Gupta were sitting in their lawn in House No. 435, the accused/appellant alongwith the four acquitted accused came and demanded an explanation as to why the deceased had returned the advance amount to PW7. According to these witnesses the accused/appellant alongwith the others were demanding payment. Both the witnesses have deposed that their deceased father replied by saying that he had handed over the money to the right person. Thereafter, the accused/appellant and acquitted accused Om Parkash Gulati got enraged and started hurling abuses. After sometime in a fit of anger the accused/appellant went out and came back after four- five minutes armed with a double barrel gun. According to PW4 and PW5, the accused/appellant fired a shot towards Tara Chand (deceased) who was standing at the nearby plot No. 436. The said shot, according to the witnesses, hit Tara Chand on the chest and he -7- fell down. Next, according to the witnesses, the accused/appellant fired a second shot which hit the back of their father who had turned away to go inside the house. Thereafter, all the remaining accused exhorted the accused/appellant to kill the two witnesses i.e. PW4 and PW5. However, by that time, other persons had come. According to PW3 and PW4, Udham Singh (PW9), Narender Kumar (PW8) and Deepak (not examined) were present at the place and had seen the occurrence. According to these witnesses, they took both the injured in two private vehicles to the Escorts Hospital at Faridabad and by the time they had entered the hospital after parking their vehicles they were informed that Tara Chand had been declared dead and that Ramesh Gupta was taken to the emergency ward. Thereafter, according to the two witnesses, Police arrived and their statements were recorded whereafter they had accompanied the Police party to the place of occurrence from where the Police lifted blood stained earth and two empty cartridges. It may be noted at this stage that PW5 had specifically deposed that Narender Kumar (PW8), Udham Singh (PW9) and Deepak (not examined) had accompanied them to the Escorts Hospital. PW12 Dr. N.K. Sharma had deposed that on 23.08.2000 he alongwith one Dr. S.P. Jayant and Dr. Meenu Kapoor had conducted the post-mortem examination of the deceased Ramesh Gupta and found the following injuries:- “(i) There was a 1.5 cm long wound obliquely placed with one stitch present in the right hypochondrium in anterior axillary -8- line below the right coastal margin. There was a bluish black bruise in area of 15 cm X 12.5 cm below and posterior to the above described wound. (ii) A bluish bruise 7 cm x 4 cm present below the above described bruise on the right side. (iii) On dissection of subcutaneous tissue, effused blood clot was present. (iv) A 30 cm long mid line vertical wound stitched with metallic stappelled stitches present starting just below the Xiphisternum reaching 2 cm above the pubic symphisis. (v) A 5 cm long transversely placed stitched wound with silk stitched present at the back over lying the spine in the middle part of the wound is 12 cm above the natal cleft and there is blackening of skin around the wound. Subcutaneous tissues (SC) are effused with clotted blood. On further dissection 1,2,3,4 vertebra are fractured laterally and few bone pieces are lying separately in the clotted blood. Spinal cord underneath is also lacerated and clotted blood is present. (vi) A 1.5 cm horizontally placed stitched wound present in left lumber region anterior axillary line. (vii) Anterior and right inferior surfaces of right lobe of liver is lacerated at multiple places with clotted blood. It has been stitched at multiple places. There is collection of blood around the liver. (viii) Right lumber region is full of blood. Right kidney is absent. Raw area and clotted blood present in the bed (recent nephrectomy). Three wads could be removed from the right lumber region and sealed. (ix) Small gun anastomosed with large gut. Small gut bruised at multiple places mesentery of gut lacerated and stitched -9- over. (x) Clotted blood present at first and second part of duodenum. X-ray chest and abdomen (two-films) taken vide X-ray No. 5067 and 5068 and showed four metallic splinters in the left lumber area.” He has proved the post-mortem report of deceased Ramesh Gupta as Ex. PN. One Dr. Hi Lal Ahmad, Medical Officer of Escorts Hospital, who had examined deceased Ramesh Chand on his arrival at the hospital at about 18:44 hrs on 21.08.2000 was examined by the prosecution to prove the injuries first noticed on the person of the deceased at the time of his admission in the hospital. The MLR prepared by PW15 Dr. Hi Lal Ahmad was proved by the prosecution as Ex. PP and the treatment slip of deceased Tara Chand was proved by the prosecution as Ex. PQ. It may be specifically noticed, at this stage, that in both the aforesaid two documents proved by the prosecution it has been stated that the two patients (deceased) were brought to hospital by one Khurshid, Chowkidar and that the case history was narrated to the doctors by the aforesaid Khurshid. PW17 Assistant Sub Inspector Ram Sarup is the Investigating Officer of the case. According to this witness, on his arrival in the Escorts Hospital and after coming to know of the death of Tara Chand and injuries sustained by Ramesh Gupta he recorded the statements of Narender Kumar (PW8), Udham Singh (PW9), Deepak (not examined), Hans Raj (PW5) and Govind (PW4) in the hospital. He has also testified to the seizure of two empty cartridges -10- vide Ex. PG from the place of occurrence. PW17 has also deposed about the seizure of a gun license (Ex. P9) produced by the brother of the accused/appellant Suraj Parkash. It may also be noticed that the prosecution has also relied on the evidence tendered by PW19 Dr. L.A. Kumar Deputy Director, Forensic Science Laboratory, Haryana who had proved the report of the Forensic Science Laboratory in respect of a double barrel gun recovered at the instance of the accused/appellant (marked as W1) and the two empties (marked as Ex. C1 and Ex. C2). The double barrel gun was recovered vide Ex. PV on the basis of the disclosure statement of the accused/appellant (Ex. PU) which has been proved by PW18, the S.H.O of Central Faridabad Police Station at the relevant time. The report of the Forensic Science Laboratory which has been exhibited as PZ would go to show that double barrel gun (Ex. W1) was found to have a defective mechanism in the left barrel which was not found to be in working order. The said report further indicates that the empties (marked as Ex. C1 and Ex. C2) have not been fired from the double barrel gun (Ex. W1). On the basis of the aforesaid evidence brought by the prosecution, Mr. R.S. Rai, learned Senior Counsel appearing for the accused/appellant has vehemently contended that PW4 and PW5 ought not be believed by the Court as eye-witnesses to the occurrence. According to learned Counsel, PW15 Dr. Hi Lal Ahmad in his deposition had clearly stated, a fact also proved by the MLR and the treatment slip (Ex. PP and Ex. PQ) that the injured persons -11- had been brought to the hospital by one Khurshid, Chowkidar. It is argued that if PW4 and PW5 were present at the place of occurrence as claimed by them in their evidence it was but natural for two sons of the deceased Ramesh Gupta to come to the hospital alongwith their father and the other deceased Tara Chand. Learned Counsel for the accused/appellant has also referred to the evidence of PW4 and PW5 to point out that the explanation offered to explain the admission of the deceased in hospital by Khurshid, Chowkidar i.e. that PW4 and PW5 had got to park their vehicles is wholly unnatural. It is submitted that when their father had suffered gun shot injuries and was being taken to hospital it is wholly unacceptable that both the sons (PW4 and PW5) would go to park their vehicles instead of attending to their father. Coupled with the above, learned Counsel for the accused/appellant has pointed out that from the cross-examination of PW17 the Investigating Officer it is clear and apparent that till 9.00 PM the Investigating Officer did not have the details of the occurrence i.e. who had died and who was injured and who were responsible for the same. From the evidence of the Investigating Officer, according to learned Counsel for the accused/appellant, it is also evident that the statements of PW4 and PW5 were recorded at 10.40 PM in the hospital premises. Both the witnesses, if they had attended to the injured as they claimed to have, would have had blood stains on their clothes which has not been proved by the prosecution. Neither any blood stains in the car in which the two injured were allegedly carried to the hospital have -12- been proved by the prosecution. It is, therefore, argued that PW4 and PW5 have been introduced to the occurrence later which fact is fortified by the absence of the names of either of the two sons in the MLR and the treatment slip (Ex. PP and Ex. PQ). On the said basis, learned Counsel has contended that the recoveries of the two empties (C1 and C2) is highly doubtful. Learned Counsel has also submitted that the report of the Forensic Science Laboratory (Ex. PZ) belies the prosecution case which is to the specific effect that it is accused's double barrel gun (W1) with which the offence was committed. It is pointed out that at no point of time it has been the prosecution case that any other gun, apart from the one recovered from the accused/appellant, was used in the commission of the offence. Learned Counsel for the accused/appellant has also referred to the cross-examination of PW15 Dr. Hi Lal Ahmad to point out that the said doctor had clearly stated that three shots were fired at the deceased Tara Chand. Coupled with the shot fired at deceased Ramesh Gupta, according to learned Counsel, four shots in all had been fired which is contrary to the prosecution case which consistently has been to the effect that two shots, in all, one at either of the deceased had been fired by the accused/appellant. The arguments made by the learned Counsel for the accused/appellant have been sought to be controverted by Mr. Ajay Gupta, learned Additional Advocate General, Haryana who has stated that the evidence of PW4 and PW5 is consistent and, therefore, believable. Learned State Counsel has pointed out that the -13- version of the two witnesses with regard to the admission of the injured in the hospital by Khurshid, Chowkidar has been reasonably explained by both PW4 and PW5 who had stated that as they were driving the vehicles carrying the injured they had to first go and park their vehicles. There is nothing unnatural or unusual with the story unfolded by the aforesaid two witnesses according to the learned State Counsel. In so far as the Forensic Science Laboratory report (Ex.PZ) is concerned, according to the learned State Counsel, the recovery of the double barrel gun (W1) on the basis of the disclosure statement of the accused/appellant is an intentional act which in any case would not be very relevant so long as the evidence of the eye-witnesses is found to be acceptable. Learned State Counsel has also pointed out that the accused/appellant had a clear motive for commission of the crime in as much as the evidence on record discloses that as per the agreement, which did not materialize, the accused/appellant was entitled to 2% commission of the sale price. A consideration of the evidence and materials on record, details of which have been noticed above, and the arguments and counter-arguments advanced by the learned Counsels would go to show that the primary question that has to be decided in the appeal is whether the evidence of the eye-witnesses PW4 and PW5 is to be believed. In the event Court comes to the conclusion that the evidence of the said eye-witnesses do not furnish a safe and sound basis for adjudging the liability of the accused/appellant, there is -14- hardly any other acceptable evidence to establish the case of the prosecution beyond reasonable doubt. The Court, therefore, proceeds to analyze the evidence of PW4 and PW5 as recorded by the learned trial Court. A closed analysis of the evidence of PW4 and PW5, details of which have been noticed earlier, would indicate that both the witnesses were sitting in the front lawn of House No. 435 alongwith the deceased Ramesh Gupta. The time was 6.00 PM in the evening. After the firing incident that took place, as claimed by PW4 and PW5, they had taken the two injured to the hospital in two separate cars driven by the two witnesses. Alongwith PW4 and PW5, Narender Kumar (PW8), Udham Singh (PW9) and Deepak Kumar (not examined) had also gone to the hospital. The time of admission of the two victims in the hospital is 18:44 hrs as proved by the evidence of PW15 Dr. Hi Lal Ahmad and the MLR and the treatment slip (Ex. PP and Ex. PQ). The evidence of PW15 and the MLR and the treatment slip (Ex. PP and Ex.PQ) indicates that the injured were admitted to the hospital by Khurshid, Chowkidar who had also narrated the case history to PW15. The omission of the names of either PW4 or PW5 in the hospital records has been sought to be explained by PW4 and PW5 by stating that on reaching the hospital, while the injured were being taken inside, they had gone to park their respective cars. Though much argument has been advanced on the said aspect of the case as deposed to by PW4 and PW5 to contend that such conduct of the two sons of deceased Ramesh Gupta is -15- unnatural, even if the said fact is accepted in favour of the prosecution there are certain other glaring unexplained circumstances which would cast a serious doubt on the testimony of PW4 and PW5 including their presence at the time and place of occurrence. The medical records establish that the two injured were brought to the hospital at 18:44 hrs i.e. 6.44 PM. Even if some reasonable time is conceded to PW4 and PW5 to enable them to park their cars and then come inside the hospital, surely, PW4 and PW5 would have met PW15 who was treating their injured father. The evidence of PW15 has not disclosed any such fact. On the contrary, the evidence of the Investigating Officer (PW17) clearly proves that till 9.00 PM the Investigating Officer was unaware of the details of the incident and had not met any of the family members of either of the deceased. In fact, the evidence of PW17 would go to show that he had met PW4 and PW5 much later whereafter he had recorded their statements at about 10.40 PM. If this is the evidence of PW17 i.e. the Investigating Officer, it will be impossible on the part of the Court to accept the fact that PW4 and PW5 had taken the deceased to the hospital immediately after the incident and they had come inside the hospital after parking their cars. The inability of the Court to accept the said part of the evidence of PW4 and PW5, in turn, would cast a serious doubt on the entire testimony of the two witnesses commencing from their alleged presence in the lawn of House No. 435 alongwith the deceased and they being witnesses to the firing at the deceased by the accused/appellant. On the said facts the Court, therefore, is of the -16- view that the evidence of PW4 and PW5 carries a great degree of unacceptability for which reason it will not be safe to rely on the testimony of the said witnesses examined by the prosecution as eye- witnesses to the occurrence. If the evidence of PW4 and PW5 is to be