IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 699-DB of 2003 DATE OF DECISION : 18.01.2011 Sant Kumar and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Deepinder Singh, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. This appeal has been directed by accused Sant Kumar (hereinafter referred to as `A-1) and Dharampal (hereinafter referred to as `A-2') against the judgment and order dated 9.8.2003, passed by the court of Additional Sessions Judge, Rohtak. The trial court tried three accused, i.e. A-1, A-2 and Zile Singh (hereinafter referred to as `A-3') under Section 302 read with Section 34 IPC and Section 120-B IPC, for committing the murder of Mahinder. A-1 was also tried for the offence under Section 25 of the Arms Act for having found in possession of one 9 mm pistol without any license. Four more accused, namely Satbir, Rajesh, Ompal and Balkar, who during the investigation were found to be involved in the alleged crime, Crl. A. No. 699-DB of 2003 -2- were declared proclaimed offenders. However, the trial court, vide its judgment and order dated 9.8.2003, convicted A-1 and A-2 under Sections 302/148/149 IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of ` 10,000/- each, in default of payment of fine to undergo further rigorous imprisonment for a period of three years under Section 302 read with Section 149 IPC; and to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 2,000/- each, in default of payment of fine to undergo further rigorous imprisonment for a period of six months under Section 148 read with Section 149 IPC. Both the sentences have been ordered to run concurrently. It has also been ordered that in case of realization of the amount of fine, 90% thereof shall be given to Bala, wife of deceased Mahinder. However, while disbelieving the recovery of 9 mm pistol at the instance of A-1, he was acquitted of the charge under Section 25 of the Arms Act. A-3, who was not present at the time of the alleged occurrence, was acquitted of the charges by giving him the benefit of doubt. Prosecution version 2. As per the prosecution version, the alleged occurrence took place on 27.12.2002 at 11.00 AM in front of the house of deceased Mahinder in village Ismaila 11 Biswa. The occurrence was witnessed by Satbir Singh (PW.1) and Rajbala (PW.2), brother and wife, respectively, of deceased Mahinder. As per the statement (Ex.PA) of Satbir Singh (PW.1), which was recorded by Om Parkash, SI/SHO Police Station Sampla Crl. A. No. 699-DB of 2003 -3- (PW.12) on the day of occurrence itself i.e. on 27.12.2002 at 2.30 PM at PGIMS Rohtak (where the deceased was immediately taken after the occurrence and was declared brought dead), he was Sarpanch of village Ismaila 11 Biswa. They were four brothers. Mahinder was elder to him. They were residing separately. On the day of occurrence, at about 11.00 AM, he (complainant Satbir Singh) and his brother Mahinder were sitting on chair in front of the gate of their house. Rajbala (wife of the deceased) was also standing nearby them. They were talking about their family matters. Then suddenly, one white Esteem Maruti car came and stopped in front of their gate. A-1, A-2 and their co-accused Satbir came out of the car. They were armed with revolvers and pistols and they started indiscriminate firing, in order to kill him (complainant Satbir Singh) and his brother Mahinder (deceased). His brother Mahinder received some fire shots. By that time, two other persons, aged about 25-26 years, also alighted from the car and started firing with the fire arms, held by them. Immediately thereon, he (complainant) rushed inside the house to save himself and to bring his licensed double barrel gun. When he came out of the house after taking his gun, all the five accused, ran away in the same car. He stated that he could identify the other two persons, if they are brought before him. In the said statement (Ex.PA), it was also stated that 3-4 years back, one Kale son of Rameshwar resident of his village was killed by A-1, A-2 and one Ramesh, and his dead body was thrown in the canal. Those accused were in custody. His brother Mahinder was also in judicial lock up, where the aforesaid three Crl. A. No. 699-DB of 2003 -4- accused confessed before him that they have killed Kala Pandit. After release, his brother Mahinder (deceased) told him (complainant Satbir Singh) about the said confession and thereupon, he gave information to the police about the involvement of the aforesaid three accused and he was cited as a witness in that case by the police. Since his statement was not yet recorded in the court, therefore, all the accused threatened him and his brother Mahinder (deceased) that it would not be good for them to give evidence against them. It was stated by the complainant that because of this grudge, the accused have killed his brother Mahinder. 3. On the basis of the aforesaid statement, formal FIR (Ex.PH) was registered against the accused on the day of occurrence itself at 3.35 PM and the special report was sent, which was received by the Ilaqa Magistrate on the same day at 6.20 PM. Investigation 4. On 27.12.2002, after receiving a VT message (Ex.PO) in Police Station Sampla from Police Post, PGIMS, Rohtak, where a ruqa was received from the Doctor regarding bringing of a dead person in the Hospital, the police reached PGIMS Rohtak. After recording the statement (Ex.PA) of the complainant, inquest report (Ex.PM) was prepared and after sending the dead body for post mortem examination, the police party reached the place of occurrence, and prepared the rough site plan (Ex.PP). The blood stained earth, five bullets and 18 cases of spent cartridges, and four plastic chairs (Ex.P18 to Ex.P21), having marks of bullet holes, were Crl. A. No. 699-DB of 2003 -5- taken into possession vide recovery memos Ex.PQ, Ex.PR and Ex.PS, respectively, in the presence of Nakul and ASI Jai Kishan (PW.13). 5. On the next day, i.e. on 28.12.2002, Dr. Baljinder Singh (PW.11) conducted post mortem examination on the dead body of Mahinder. He found six entry wounds and five exit wounds on the body of the deceased. One bullet was taken out from injury No.3. He opined that the cause of death was due to shock and haemorrhage due to those injuries. Injury No.1 (an entry wound) alone was stated to be sufficient to cause death in the ordinary course of nature, being injury to the vital organ of body, namely right lung. All the injuries were found to be ante-mortem in nature. Probable time between injuries and death was instaneous and the time between death and post mortem was 36 hours. 6. On 16.1.2003, A-1 and A-2 were arrested by the police party, headed by SI Om Parkash (PW.12). On the next day, i.e. on 17.1.2003, their disclosure statements were recorded. Subsequently, on 18.1.2003 again, their subsequent statements were recorded. In pursuance of his disclosure statement (Ex.PB), on 18.1.2003 itself, in the presence of complainant Satbir Singh and Har Pal Singh HC, A-1 got recovered one pistol (Ex.P1) and one live cartridge, which after being wrapped in a polythene paper, were kept concealed by him under a diesel engine in Khokhra Wala field on his tubewell, which were taken into possession vide recovery memo Ex.PD, in the presence of the same witnesses. On 16.2.2003, A-3 was arrested. 7. After completion of investigation, the challan was filed and on Crl. A. No. 699-DB of 2003 -6- 19.5.2003, charges under Sections 302, 120-B read with Section 34 IPC were framed against A-1, A-2 and A-3. However, A-1 was also charged for the offence under Section 25 of the Arms Act, to which the accused did not plead guilty and claimed trial. Subsequently, on 17.7.2003, it was found that names of co-accused, who were proclaimed offenders, were not mentioned in the charge sheet and accordingly, amended charges were framed against all the three accused, to which they again did not plead guilty and claimed trial. Prosecution evidence 8. In support of its case, the prosecution examined thirteen witnesses. 9. PW.1 Satbir Singh (complainant) and PW.2 Bala, brother and wife, respectively, of deceased Mahinder, the eye witnesses in the case, , have reiterated the entire incident witnessed by them. 10. PW.3 Surinder, who is sister's son of deceased Mahinder, has stated that about 15-16 days prior to the murder of his maternal uncle Mahinder, in the night at about 8.30 PM, he saw A-1, A-2 and A-3 sitting in the house of A-3 and while standing near the window with grills, he over- heard them planning to commit murder of Mahinder. He further stated that on reaching the house of his maternal uncle, he appraised them about the conspiracy being hatched at the house of A-3. He further stated that his statement was recorded by the police on 25.1.2003, i.e. about one month after the occurrence. Crl. A. No. 699-DB of 2003 -7- 11. PW.4 Ramesh Chander, Patwari, PW.5 Constable Krishan Kumar and PW.6 HC Gulab Singh are the formal witnesses. 12. PW.7 Shri Niwas Gupta, Reader to District Magistrate, Rohtak, proved the sanction (Ex.PG) dated 10.4.2003, granted by the District Magistrate, Rohtak, to launch prosecution against A-1 for having in his possession 9 mm pistol. 13. PW.8 ASI Mahinder Singh, proved the formal FIR (Ex.PH), which was recorded by him on the basis of the statement (Ex.PA) of complainant Satbir Singh. 14. PW.9 Constable Joginder Singh and PW.10 HC Ram Bhagat are the formal witnesses. 15. PW.11 Dr. Baljinder Singh, who conducted post mortem examination over the dead body of deceased Mahinder, proved the Post Mortem Report (Ex.PM) and the X-ray films Ex.P5 to Ex.P17. 16. PW.12 SI Om Parkash, who conducted investigation in the case, proved the statement of complainant (Ex.PA) recorded by him, recovery of the blood stained earth, five bullets, 18 cases of spent cartridges, and four plastic chairs from the place of occurrence, arrest of the accused, their disclosure statements and the recovery of one pistol and live cartridge at the instance of A-1. 17. PW.13 ASI Jai Kishan is the witness to the recovery of blood stained earth, five bullets, 18 cases of spent cartridges, and four plastic chairs from the place of occurrence. Crl. A. No. 699-DB of 2003 -8- Defence of the accused 18. In their statements under Section 313 Cr.P.C., the accused denied all the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. A-1 and A-2 stated that deceased Mahinder used to deal in manufacturing and supplying illicit liquor. He was involved in various criminal cases and was having endless enemies. In the intervening night of 26/27.12.2002, some unknown persons had murdered him. A-1, A-2 and A-3 stated that they were not present at the time and place of occurrence, but have been falsely implicated, because of their previous enmity with the complainant party. A-1 also stated that nothing was recovered from him and the pistol (Ex.P1) has been planted upon him. This defence version was also put to PW.1 Satbir Singh and PW.2 Bala, the eye witnesses. Defence evidence 19. In their defence, the accused examined five witnesses. 20. DW.1 Baldev Raj, Ahlmad to CJM, Jhajjar, who brought the judicial file of the case arising out of FIR No. 395 dated 22.8.2002 under Section 25 of the Arms Act, Police Station Jhajjar, which was pending for trial, proved that accused Rajesh remained in custody in the said case from 23.8.2002 to 12.12.2002. 21. DW.2 Ravi Bhushan, Additional Ahlmad to Additional Sessions Judge, Jhajjar, who brought the judicial file of the case arising out of FIR No. 28 dated 25.1.1999 under Sections 302/34 IPC and 25 of the Crl. A. No. 699-DB of 2003 -9- Arms Act, Police Station Sadar Bahadurgarh, which was pending for trial, proved copy of report under Section 173 Cr.P.C. (Ex.DB), in the said case. 22. DW.3 Constable Vijay Parkash proved FIR No. 224 dated 15.8.1999 (Ex.DC) under Sections 307, 452, 364 IPC, registered on the basis of the statement of Mukhtiar Singh. 23. DW.4 Pardeep Kumar, Draftsman proved the scaled site plan (Ex.DD), prepared by him at the instance of Dharam Singh regarding the house of A-3. 24. DW.5 Sukhdev, Assistant Superintendent, District Jail, Rohtak, on the basis of the official record, stated that accused Rajesh remained in District Jail, Rohtak, during the period from 26.8.2000 to 12.12.2000. The findings of the trial court 25. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the statements of two eye witnesses, the medical evidence, the report of the Forensic Science Laboratory, and while disbelieving the defence version, the trial court convicted and sentenced the appellants, as mentioned in the first para of the judgment. However, while disbelieving the statement of PW.3 Surender regarding conspiracy being hatched in the house of A-3, acquitted A-3, who was not present at the time of the occurrence, by giving him the benefit of doubt. Submissions of learned counsel for the appellants 26. Learned counsel for the appellants argued that the instant case Crl. A. No. 699-DB of 2003 -10- is a case of blind murder. The occurrence had taken place during the previous night or in the early morning of 27.12.2002, which was not witnessed by the alleged two eye witnesses, namely PW.1 Satbir Singh and PW.2 Rajbala. According to the learned counsel, the occurrence had not taken place at 11 AM on 27.12.2002, at all, as stated by the complainant and other eye witness. In this regard, he referred to the statement of PW.6 HC Gulab Singh, wherein he stated that on 27.12.2002 at about 11.00/11.30 AM, the police party left the Police Station and reached the house of deceased Mahinder. He further stated that they lifted the dead body of Mahinder at 11.30 AM. According to the learned counsel, this part of the statement of PW.6 HC Gulab Singh further establishes the defence version that the occurrence had taken place in the previous night or early morning of 27.12.2002. Learned counsel has further referred to the medical evidence and reply given by PW.11 Dr. Baljinder Singh to a suggestion in the cross- examination, that the rigor mortis can stay beyond 24 hours, in winter days upto 48 hours, depending upon the weather conditions. He further stated that in this case, if we calculate 36 hours from the time of post mortem, time of death of deceased would be during the night of 26/27.12.2002. 27. Learned counsel further submits that none of the alleged eye witnesses was present at the time of the occurrence. In support of this submission, he referred to various facts and circumstances, which indicate that both the alleged eye witnesses were not present at the time of the occurrence. According to him, it is the case of the prosecution that when Crl. A. No. 699-DB of 2003 -11- PW.1 Satbir Singh (eye witness) and his brother Mahinder (deceased) were sitting on chairs in the courtyard in front of the gate of their house and PW.2 Rajbala (the second eye witness) was standing nearby them, five persons armed with revolvers and pistols, including A-1 and A-2, came in a white Esteem Maruti car and fired indiscriminately with their respective weapons, wherein Mahinder (deceased) received six bullet injuries, but none of the aforesaid two eye witnesses received any bullet injury. Learned counsel argued that this version of the prosecution is highly improbable and it indicates that both the alleged eye witnesses were not present at the time of the occurrence. He further argued that conduct of both the eye witnesses at the time of the alleged occurrence was most un-natural, as they did not take any step to save the deceased. Learned counsel further argued that according to both the alleged eye witnesses, Mahinder, in the injured condition, was put by them in the car and was taken to Hospital and during that process, their clothes got blood stains, but undisputedly, neither they handed over their blood stained clothes to the police nor the police took into possession their clothes. Thirdly, learned counsel argued that the car, in which Mahinder (deceased) was taken to the Hospital, was not taken into possession by the police. He further argued that in the Hospital record, name of none of the alleged eye witnesses was recorded as a person, who brought the deceased to the Hospital. Rather, as per the ruqa (Mark A), one Parvesh Kumar son of Satbir Singh brought the deceased to the Hospital. While further assailing the credibility and trust-worthiness of both the eye Crl. A. No. 699-DB of 2003 -12- witnesses, learned counsel argued that in the inquest proceedings, their statements were not recorded by the police. Even PW.12 SI Om Parkash, in his cross-examination, has admitted that he had not seen Rajbala, the eye witness, in the Hospital. According to the learned counsel, the trial court has not properly analysed the prosecution evidence, which suffers from many discrepancies, clearly indicating that both the alleged eye witnesses were not present at the time of the occurrence. Learned counsel contends that both the alleged eye witnesses are having criminal record and there was enmity between the complainant party and the accused party. In that situation, the trial court was duty bound to carefully scrutinize the testimonies of both these witnesses. 28. Learned counsel further argued that in the instant case, the prosecution has failed to explain the inordinate delay in lodging the FIR and further in sending the special report to the Ilaqa Magistrate. While taking the benefit of the said delay, the prosecution by due deliberations and consultation with the complainant party, who had deep rooted hostility with the appellants, had concocted the false version, involving the appellants in the blind murder case, by introducing two witnesses, who are closely related to the deceased. 29. Learned counsel for the appellants further argued that the prosecution has failed to prove the link evidence, which establish the involvement of the appellants in the alleged crime. In this regard, he referred to the report of Ballistic Expert, according to which the weapon Crl. A. No. 699-DB of 2003 -13- recovered from A-1 does not tally with the bullet allegedly recovered from the body of the deceased. He further argued that the contents of the reports of the Forensic Science Laboratory Haryana, Madhuban (Karnal) (Ex.PU and Ex.PV) were not put to the accused in their statements under Section 313 Cr.P.C., therefore, a serious prejudice has been caused to them and the trial has vitiated. He further argued that the alleged recovery of the pistol at the instance of A-1 was from an open place and it has not been proved by an independent witness. Even the learned trial court has disbelieved the recovery of pistol at the instance of A-1. All these facts establish that the prosecution has failed to prove the alleged recovery. Therefore, according to the learned counsel, link evidence in this case is missing. 30. In the last, learned counsel for the appellants has pointed out that both the appellants have been convicted under Sections 302/148/149 IPC, whereas no charge under Sections 148 and 149 IPC was framed against them, therefore, their conviction under Sections 148 and 149 IPC is not justified. Submissions of learned counsel for the respondent-State 31. On the other hand, learned counsel for the respondent-State, while supporting the impugned judgment and order, argued that from the evidence, available on record, it has been fully established that the occurrence in this case had taken place on 27.12.2002 at 11.30 AM, which was witnessed by PW.1 Satbir Singh and PW.2 Rajbala, who are the brother and wife, respectively, of deceased Mahinder. Learned counsel contends Crl. A. No. 699-DB of 2003 -14- that the statement of the complainant was recorded within three hours and about one hour thereafter, the FIR was recorded. Immediately thereafter, the special report was sent. Thus, there was no delay in lodging the FIR and sending the special report to the Ilaqa Magistrate. Learned counsel further argued that the link evidence in this case is also complete. Thus, the trial court has rightly convicted and sentenced the appellants. Discussion 32. It is undisputed position that Mahinder has died due to bullet injuries received by him. At the time of his post mortem examination, conducted by PW.11 Dr. Baljinder Singh, six entry wounds and five exit wounds were found on the body of the deceased. As per opinion of the doctor, one bullet was taken out of the body of the deceased from injury No.3. According to the doctor, the probable time between injuries and death was instaneous and between death and post mortem was within 36 hours. 33. Now, the question for consideration is as to who caused the bullet injuries to deceased Mahinder. According to the prosecution version, which is based upon the testimony of two eye witnesses, namely PW.1 Satbir Singh (complainant) and PW.2 Rajbala, on 27.12.2002 at about 11.00 AM, five persons, i.e. A-1, A-2, one Satbir and two other persons, came to the house of the complainant party on a white Esteem Maruti car and fired indiscriminately, upon which Mahinder (deceased) received bullet injuries. When complainant Satbir Singh, after rushing inside his house brought the gun to scare the assailants, they had already left the place of occurrence on Crl. A. No. 699-DB of 2003 -15- the same car. Immediately thereafter, Mahinder was taken to PGIMS, Rohtak, where he was declared dead. Both the eye witnesses have fully supported the prosecution version. They have also proved the motive for the commission of the alleged offence. The main contention and defence of learned counsel for the appellants is that it was a blind murder, which was committed during the previous night or in the early morning of 27.12.2002, by some unknown person, who was having enmity with the deceased. According to the appellants, both the eye witnesses were not present at the time of the alleged occurrence and they had not seen the occurrence at all. Their further case is that there is delay in lodging the FIR, which has been used by the prosecution to concoct the false version, and the real brother as well as wife of the deceased have been introduced as eye witnesses. 34. Now the following questions arise for consideration : (i) At what time, the occurrence has taken place? and (ii) Whether there is any delay in lodging the FIR? (iii) Whether both the eye witnesses were present at the time of the occurrence and had seen the appellants committing the murder of Mahinder? 35. As per the testimonies of both the eye witnesses, the occurrence had taken place on 27.12.2002 at 11.00 AM, when PW.1 Satbir Singh (eye witness) and his brother Mahinder (deceased) were sitting on chairs in the courtyard in front of the gate of their house, and PW.2 Rajbala (second eye witness) wife of deceased Mahinder was standing nearby them and they all Crl. A. No. 699-DB of 2003 -16- were discussing the family affairs. Immediately after the occurrence, when the assailants left the place of occurrence, Mahinder was taken to PGIMS, Rohtak, by the eye witnesses, in a car. According to the hospital record (medical ruqa Mark A and the Post Mortem Report Ex.PM), the deceased Mahinder was brought dead in PGIMS, Rohtak, on 27.12.2002 at 11.30 AM and the ruqa was sent by the hospital authorities to the Police at 11.45 AM. SI Om Parkash (PW.12) reached the Hospital, where he started recording the statement of complainant Satbir Singh (PW.1) at 12.45 PM and completed the