IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Criminal Appeal No. 403-DB of 2000 Dated of Decision:- April 30, 2009 Shama and others ....APPELLANTS VERSUS State of Haryana ....RESPONDENT 2) Criminal Appeal No. 595-DB of 2000 Jai Singh ....APPELLANT VERSUS State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Sh. A.P.S.Deol, Senior Advocate with Sh. G.P.Singh, Advocate for the appellants. Sh. Kulvir Narwal, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.403-DB of 2000 and Criminal Appeal No.595-DB of 2000 by a common order, as they arise out 2 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 of the same order/judgment of the learned Addl. Sessions Judge, Hisar, whereby he convicted Shama son of Hari Singh, Jai Singh son of Mahabir and Sube Singh son of Hari Singh under Sections 302/34 IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.10,000/- each, in default to further undergo R.I. for two years. Jai Singh was also convicted under Section 25 of the Arms Act and sentenced to undergo R.I. for two years and to pay a fine of Rs.5,000/-, in default to further undergo R.I. for six months. Sentences were ordered to run concurrently. The case of the prosecution is unfolded by the statement Ex.PF of Naurang son of Ram Chand given to Inspector Mam Chand at General Hospital, Hansi on 9.10.1997 at 10.50 p.m. Naurang stated, that about 8-10 months back, he solemnized the marriage of his daughter Suman with Sube Singh son of Hari Singh. After some time, their relations became strained. On 9.10.1997 at 9.15 p.m., he was going to attend his duty at Hafed Spinning Mill, Hansi, when he reached near the nursery, from the opposite side, three persons came on a scooter. Sube Singh, his brother Shama and another fat person was accompanying them. A fat person made an enquiry about Naurang’s name. Naurang replied and told him about his name. Thereafter this fat person fired a pistol shot at him in his abdomen, which hit him on his navel (umbilicus). He was lifted by the passers by and removed to General Hopsital, Hansi. Naurang further stated, that all the three persons fired two bullet shots, with intent to murder him. Earlier also they had threatened him with dire consequences. The cycle on which Naurang was riding was left lying at the spot. 3 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 On the basis of this statement, FIR Ex.PF/2 was recorded on 9.10.1997 at 11.15 p.m. Naurang died on 19.10.1997 at 6.15 a.m. at PGI, Rohtak and after his death offence under Section 302 IPC was added. The special report reached the S.D.J.M., Hansi on 19.10.1997 at 10.10 a.m. The prosecution to prove its case brought into the witness box, Dr. S.K.Gupta PW1, Shiv Kumar Record Keeper PW2, Piare Lal PW3, Mohan Lal Draftsman PW4, Ram Singh HC PW5, Umed Singh Constable PW6, Piyara Singh Constable PW7, Ishwar Singh PW8, Dalbir Singh HC PW9, Siri Bhagwan ASI PW10, Mam Chand Inspector PW11, Dr. Ranvir Singh PW12, Rajinder Kumar SI PW13, Dr. Salil Malik PW14 and Dr. Ajay Kumar Goyal PW15. Suraj Bhan DW1, Norang Singh DW2 and Hari Singh DW3 were examined in defence. Learned counsel for the appellants has argued, that dying declaration Ex.PF/1 does not have the attestation of the doctor. It was not recorded by a Judicial Magistrate. If we go through the Treatment Chart Ex.DA made by Dr. S.K.Gupta PW1, Medical Officer, General Hospital, Hansi, it has been stated that Naurang was conscious, his pulse was very feeble and blood pressure was not recordable. There was bleeding from the abdomen wound. Injury on his person was caused by a fire-arm injury. After his condition being serious, he was referred to PGI, Rohtak, on the same day at 10.40 p.m. He had been admitted in General Hospital, Hansi on 9.10.1997 at 10.00 p.m. He stayed there for only 40 minutes. His condition was such, that he could not have made statement Ex.PF/1. Naurang died on 19.10.1997 at 6.15 a.m. at PGI, Rohtak. His second statement should have been recorded by a Judicial Magistrate to give 4 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 authenticity and to corroborate the statement Ex.PF/1, so that there could be no doubt that he had given statement Ex.PF/1 in a fit state of mind. A second statement was not recorded of Naurang for the reason that the Investigating Officer Mam Chand Inspector PW11 knew that Naurang was not in a position to give a statement. Piare Lal PW3, the only eye witness to the occurrence, is untruthful. His statement was recorded under Section 161 Cr.P.C. on 18.10.1997. In the dying declaration Ex.PF/1, nothing has been mentioned regarding he being present, when appellants allegedly attacked Naurang. Though Police Station Hansi was only 1½ K.Ms. away, but Piare Lal PW5 did not go to the police station to inform the police, nor did he accompany Naurang to the civil hospital at Hansi. He has been introduced at a later date, as he was close to the family of Naurang. He is a chance witness. His testimony should be sensitized with caution and care. Identity of Jai Singh has not been established. In dying declaration Ex.PF/1 all that is mentioned is that a fat man accompanied appellants Shama and Sube Singh and it is the fat man, who fired at Naurang. No identification parade was held. FIR Ex.PF/1 recorded on the basis of the statement of Naurang, though recorded approximately after 2½ hours, but strangely the special report reached the S.D.J.M., Hansi on the next day at 10.05 a.m. on 13.10.1997. There is a 13 hours delay in the special report reaching the S.D.J.M., Hansi. Place of occurrence, Police Station, Hansi and the S.D.J.M. are all situated in the town of Hansi. 5 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 Learned counsel for the State has argued, that FIR Ex.PF/1 is prompt. It is on the basis of the dying declaration Ex.PF/1, FIR was recorded. Naurang made a statement to Mam Chand Inspector, at 10.50 p.m. on 9.10.1997 at General Hospital, Hansi and thereafter FIR Ex.PF/1 came into existence at 11.15 p.m. Dr. S.K.Gupta PW1 has stated in his testimony, that Naurang was taken to the hospital on 9.10.1997 at 10.00 p.m. and as per his opinion Ex.PB/1, he declared Naurang fit to make a statement. It is thereafter that dying declaration Ex.PF of Naurang was recorded after taking the fitness certificate. Naurang stayed in the hospital for about 40 minutes and as his condition was serious, he was referred to PGI, Rohtak, where he was admitted. In his statement before the Court, Dr. S.K.Gupta PW1 has stated, that the blood pressure of Naurang was perfect, he was conscious and fit to make a statement. The cutting on the minutes of the timing recorded by the doctor do not have any relevance, as the question to be answered in this case is as to whether the dying declaration was recorded under a fit state of mind. The motive for the commission of the offence is strong. The daughter of deceased Naurang was married to appellant Sube Singh. Appellant Shama is the real brother of Sube Singh and appellant Jai Singh was the one, who fired pistol Ex.P4 at Naurang. If Jai Singh was not accompanying the other appellants, the complainants would not have falsely implicated him. In fact Naurang had been threatened by them earlier of dire consequences. Piare Lal PW3, who is an eye witness to the occurrence, 6 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 recognized all three of the appellants and named them in his statement under Section 161 Cr.P.C. No consultation and confabulation could have taken place in such a short time, as statement Ex.PF of Naurang came into existence within an hour of the occurrence. Naurang named Sube Singh, Shama and one fat person. Pistol Ex.P4 was recovered from Jai Singh, who had been identified by Piare Lal PW3. We have heard the learned counsel for the parties and perused the record with their assistance. The main thrust of the arguments of the learned counsel for appellants is regarding dying declaration Ex.PF. He has argued, that as per Treatment Chart Ex.DA, Naurang could not have made a statement in that condition. We have perused document Ex.DA and the statement of Dr. S.K.Gupta PW1 minutely. In Treatment Chart Ex.DA, it is mentioned that Naurang was admitted in the hospital on 9.10.1997 at 10.00 p.m. and was discharged at 10.45 p.m. by referring him to PGI, Rohtak. He stayed in General Hospital, Hansi for 40 minutes. Dr. Gupta has further opined in the treatment chart, that Naurang was conscious, his pulse was very feeble, blood pressure was not recordable. He was bleeding from the abdomen wound, which had suffered by a fire arm injury. Dr. S.K.Gupta PW1 in his testimony before the Court has stated, that he gave his opinion Ex.PB/1, that injured Naurang was fit to make a statement after the Investigating Officer moved application Ex.PB for recording his statement. Injury on his person was grievous in nature and he was in a critical condition. He was brought to the hospital by some 7 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 person, whose name and address he did not record. Naurang remained under his treatment in the casualty ward till he was referred to PGI, Rohtak. Dr. S.K.Gupta PW1 has categorically stated, that Naurang was conscious and fit to make a statement. It is thereafter that dying declaration Ex.PF was recorded by Mam Chand Inspector PW11. Dying declaration Ex.PF is not a lengthy document. It is a short statement. Appellants Shama and Sube Singh have been named in Ex.PF. The motive for the commission of the offence has also been spelt out and the person who fired the pistol has been given as a fat person. That fat person is appellant Jai Singh, who has been identified by Piare Lal PW3. Pistol Ex.P4 was recovered qua his disclosure statement, from appellant Jai Singh. This recovery of pistol Ex.P4 also goes a long way in showing that Jai Singh is a party to the commission of the offence. Dr. Salil Malik PW14 admitted Naurang in PGI, Rohtak on 10.10.1997 and prepared MLR Ex.PU. Naurang died on 19.10.1997 at 6.15 a.m. Before that he was operated upon by Dr. Ranvir Singh PW12 and the operation note being Ex.PN. As per the post mortem report as prepared by Dr. Ajay Kumar Goyal PW15, the following injuries were found on the person of the deceased: - “1. There was stitched wound of size 23 cm x 2 cm from hiphisterum towards the umbilicus and circular wound 3 cm x 2 cm from which pus and blood was coming out in middle 10 cm above umbilicus. On further dissection pancreatic jajunosteamy with a jajunosteamy which might have been done. Blood clothes of different sizes ranging from 3 cm x 3 cm to 5 x 5 cm were seen (ten in number) pancreas and spleen were torn. On opening of 8 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 stitches of laprotomy the walls of part of stomach and small intestine were congested and contained blood clots. 2. Lacerated wound 3 cm x 1¼ cm at the back on left side 8 cm away from midline and 15 cm above iliac crest. On further dissection left kidney was torn at many places. Blood clots were coming out. 3. Lacerated wound 1 x 1 cm. 21 cm below left nipple. 4. Lacerated wound 1 cm x 1 cm. 24 cm below right nipple. On further dissection no injury was seen to internal organs. 5. Lacerated wound 1½ cm x 1 cm. 20 cm. below right nipple. On further dissection no injury was seen to internal organs. Dr. Salil Malik PW14, who examined Naurang on 10.10.1997, when he was admitted in PGI, Rohtak, found the following injuries on his person: - “1. A lacerated wound of size 2 cm 1½ cm. on anterior aspect of abdomen. Four fingers above umbilicus and one finger to left of mid line with irregular margins, depth not probed. 2. A lacerated wound of size 1½ cm x 1 cm on left side back, three fingers from mid line and six fingers above highest point iliac crest. Depth not probed”. Dr. Salil Malik PW14 concluded that the injuries were caused by a firearm, as it had an entry as well as exit wound with inverted and everted margins; meaning thereby that injury No.1 was an entry wound and 9 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 injury No.2 was an exit wound. Thus proving that the injuries were firearm injuries. This injury was given by pistol Ex.P4. Piare Lal PW3 in his testimony before the Court has stated, that at 8.30 p.m. on 9.10.1997 he had gone to catch hold of his buffalo, which had gone stray. He has further stated, that his house and the house of Naurang are situated in Saini Mohalla. His house is about 3 acres away from that of Naurang. He saw appellants Shama, Sube Singh and Jai Singh stopping the cycle of Naurang, on which he was riding. Jai Singh opened fire with his pistol, which hit Naurang in his abdomen. He has further stated, that appellant Sube Singh is the son-in-law of Naurang and Naurang had strained relations with Sube Singh. Though he did not participate in the Panchayat, but the parties had agreed to dissolve the marriage of Sube Singh and Suman by a decree of divorce. He knows appellants Sube Singh and Shama, as he visited their house once or twice. He has further stated, that appellant Jai Singh is known to him for the last 4-5 years. The testimony of Piare Lal PW3 inspires confidence. He corroborates the dying declaration Ex.PF. Ishwar Singh PW8, the mediator in the marriage of appellant Sube Singh and Suman daughter of Naurang deceased, has stated in his testimony before the Court, that appellant Sube Singh was a vagabond. He started harassing Suman d/o Naurang. A panchayat was called and the panchayat came to the conclusion that the marriage be dissolved. Accordingly, the divorce was obtained. Learned counsel for the appellant has laid a lot of stress on the cuttings being made on the medical report prepared by Dr. S.K.Gupta PW1. 10 Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No. 595-DB of 2000 We have gone through the cuttings. The cuttings are not material for the decision of the case, as they do not materially affect the case. Whether it was recorded 10 minutes earlier or 10 minutes later would make no difference, but one thing is very clear that Naurang stayed in General Hospital, Hansi from 10 p.m. till 10.40 p.m., where his dying declaration Ex.PF/1 was recorded. We do not find any infirmity in the judgment of the learned trial Court. Both the appeals i.e. Criminal Appeal No. 403-DB of 2000 and Criminal Appeal No.595-DB of 2000 are dismissed. (MEHTAB S.GILL) JUDGE (DAYA CHAUDHARY) April 30, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO