In the High Court of Punjab and Haryana at Chandigarh 1. Criminal Appeal No. 244-DB of 2005 Date of decision: 11.12.2008 Pawan Kumar ......Appellant Versus State of Haryana .......Respondent 2. Criminal Revision No.1259 of 2005 Dharampal ......Petitioner Versus Pawan Kumar and others .......Respondents CORAM: HON'BLE MR.JUSTICE S.S.SARON HON'BLE MRS. JUSTICE SABINA Present: Mr. Ramesh Sharma, Advocate, for the appellant. Mr. H.S. Sran, Addl.A.G.Haryana. Mr.Parveen Gupta, Advocate, for complainant-Revision petitioner. **** S.S.SARON, J. This order will dispose of Criminal Appeal No.244-DB of 2005 filed by Pawan Kumar son of Sukhbir and Criminal Revision No.1259 of 2005 filed by Dharampal son of Bhajan Lal. Appellant Pawan Kumar by way of Criminal Appeal assails the judgment and order dated 11.2.2005 passed by the learned Additional Sessions Judge (I), Faridabad, whereby he has been convicted for the offence under Section 302 of the Indian Penal Code Criminal Appeal No. 244-DB of 2005 & [2] Criminal Revision No.1259 of 2005 (“IPC” - for short). Besides, his gun (Ex.P-3) which was used in the occurrence was confiscated to the State. The licence (Ex.P-6) was also cancelled by a separate order of the same date. The appellant, Pawan Kumar, has been sentenced to undergo imprisonment for life and in view of the provisions of Section 357(3) of the Code of Criminal Procedure (“Cr.P.C. - for short), he has been held liable to pay compensation of an amount of Rs.1 lac to the widow of deceased Kiranpal. By way of the Criminal Revision Petition Dharampal (complainant) seeks enhancement of the sentence awarded to the appellant Pawan Kumar (respondent No.1 in the Criminal Revision petition) and also Rs. 8 lacs as compensation. Besides, he prays that the respondents No.2 to 4 in the Criminal Revision petition namely Rajpal son of Bhajan Lal, Sukhbir Singh son of Raj Pal and Shakuntla wife of Sukhbir be convicted and sentenced for the offences for which they have been charged. Dharampal-complainant (PW-1) made a statement (Ex.PA) before Dalip Singh SI/SHO, Police Station Chandhat (PW-8), which is to the effect that he is a resident of village Sihol, Police Station Chandhat, District Faridabad and an agriculturist by profession. They were four brothers. Eldest was Rajpal followed by Brijpal, then the complainant Dharampal and the youngest was Kiranpal (deceased). All the four brothers were married and resided separately. A dispute regarding the land of their uncle Rang Lal was pending in the Civil Court at Palwal with Rajpal. On the date of occurrence i.e. 7.10.2002 at about 10.00 a.m. Rajpal son of Bhajan Lal, Sukhbir son of Rajpal, Shakuntla wife of Sukhbir and Pawan Kumar (appellant) son of Criminal Appeal No. 244-DB of 2005 & [3] Criminal Revision No.1259 of 2005 Sukhbir had gone to the house of Kiranpal (deceased) son of Bhajan Lal and stated that they would kill him by 5.00 p.m. At that time Kiranpal (deceased) was at Palwal. When Kiranpal came to his house at about 2.00 p.m., his wife narrated the incident to him. Kiranpal (deceased) then left for the house of Sukhbir for lodging a protest. When he reached near the house of Mohar Singh son of Ram Phal in the street then Pawan Kumar (appellant) fired two shots with his licenced double barrel gun on Kiranpal (deceased). One shot hit Kiranpal (deceased) below his neck while the second hit him below his left shoulder. The complainant Dharampal (PW-1) and his nephew Manoj (PW-2) son of Kiranpal, Dayawati wife of Kiranpal and Saroj wife of Mahender had been following Kiranpal (deceased). They all witnessed the incident. Then several persons gathered there and Pawan Kumar (appellant) ran away from the spot with his licenced double barrel gun. Pawan Kumar (appellant) had murdered Kiranpal (deceased) by firing at him with his licenced double barrel gun with regard to the land dispute. The statement of Dharampal-complainant (PW-1) was recorded and it was accepted as correct. On the basis of the said statement, the police proceedings were recorded by Dalip Singh, SI/SHO (PW-8) Police Station, Chandhat, which is to the effect that he along with other police officials were on patrol duty in a government vehicle at village Sihol and information was received that a firing incident had occurred at village Sihol and Kiranpal had been killed. On this information Dalip Singh, SI/SHO (PW-8) along with other police officials reached at the spot in a Government vehicle where Dharampal-complainant (PW-1) met him and his statement (Ex.PA) was got recorded, which was read over to him word by word and he, Criminal Appeal No. 244-DB of 2005 & [4] Criminal Revision No.1259 of 2005 after admitting the same to be correct, had signed it in Hindi. The same was attested by Dalip Singh, SI/SHO (PW-8). On the basis of the said statement an offence under Section 302 IPC and Section 27 of the Arms Act, 1959 was found to be made out. The writing was endorsed (Ex PA/1) by Dalip Singh SI/SHO (PW8) and sent to the Police Station through Constable Lal Chand for registration of a case and its number was asked to be intimated. Besides, the special report was asked to be sent to the higher authorities. Dalip Singh, SI/SHO (PW-8) was busy at the spot in carrying out the investigations. The FIR (Ex.PJ) was registered between 4.15 p.m. and 4.40 p.m. with respect to the incident that had occurred at 2.00 p.m. The special report was received by the Illaqa Magistrate, Faridabad at 9.30 p.m. on 7.10.2002. Dalip Singh, SI/SHO (PW-8) carried out other investigations in the case at the spot. He inspected the dead body of Kiranpal (deceased) and also prepared a rough site plan (Ex.PL) depicting the place of incident. The dead body was got photographed. The Investigating Officer Dalip Singh, SI/SHO (PW-8) lifted the blood stained earth and spectacles of Kiranpal (deceased) vide memo Ex.PB in the presence of HC Rajender Singh (PW-10) and Manoj (PW-2) son of Kiranpal. The same were converted into parcels and sealed with the seal 'DS'. Then inquest proceedings (Ex.PM) were carried out and dead body was sent for postmortem examination through ASI Ram Kumar (PW-3) and EHC Khushi Ram. The statements of other witnesses namely Dharampal-complainant (PW-1), Rajender (PW-10), Manoj (PW-2), Mahender, Dayawati and Saroj under Section 161 Cr.P.C. were recorded. The offences under Sections 120-B, 452 and 506 IPC were also inserted in the case. On the following day i.e. Criminal Appeal No. 244-DB of 2005 & [5] Criminal Revision No.1259 of 2005 8.10.2002, after postmortem examination, ASI Ram Kumar (PW-3) produced before Dalip Singh, SI/SHO (PW-8) three packets containing the bullet (Ex.P-11) extracted from the body of Kiranpal (deceased), clothes, socks (Ex.P-9 and P-10) and shoes (Ex.P-7 and P-8) of the deceased, which were sealed with the seal 'SH' and these three packets were seized vide memo Ex.PD. The statements of the witnesses were recorded. On 9.10.2002, Pawan Kumar (appellant) and Rajpal (since acquitted) were arrested. On interrogation of Pawan Kumar (appellant) made a disclosure statement (Ex.PE) in pursuance of which the gun (Ex.P-3) that was used in the incident, its licence (Ex.P-6) and two empty cartridges (Ex.P-4 and P-5) were got recovered. These articles were seized vide memo Ex.PF and duly sealed with the seal 'DS'. The memo Ex.PF regarding recovery of the gun was attested by Vijay Pal (PW-4) and Mahender. Before taking the gun in possession, a rough sketch of the gun (Ex.PF/1) was also prepared. Besides, rough site plan (Ex.PF/2) depicting the place of the recovery was also prepared. Thereafter, Shakuntla and Sukhbir were arrested on 17.10.2002. After completion of the investigation, charge report (challan) under Section 173 Cr.P.C. was filed in the Court of the Illaqa Magistrate. The learned Judicial Magistrate Ist Class, Palwal, keeping in view the fact that the offence punishable under Section 302 IPC is exclusively triable by the Court of Session, vide order dated 11.2.2003 committed the case to the learned Sessions Judge, Faridabad for trial. Learned Additional Sessions Judge, Faridabad, to whom the case was assigned, charge-sheeted the accused vide order dated 25.4.2003 on the allegation that on the intervening night of 6/7.10.2002, accused Rajpal, Sukhbir and Shakuntla (since acquitted) Criminal Appeal No. 244-DB of 2005 & [6] Criminal Revision No.1259 of 2005 conspired with Pawan Kumar (appellant) to murder Kiranpal (deceased) and thus committed an offence punishable under Section 120-B IPC. Secondly, on 7.10.2002 at about 10.a.m. all the accused committed house trespass by entering into the house of the complainant for preparation to cause hurt to Kiranpal (deceased) and thereby committed an offence punishable under Section 452 IPC. Thirdly, on 7.10.2002 at about 2.00 p.m. in the area of village Sihol, Pawan Kumar (appellant) committed the murder of Kiranpal and thereby committed an offence punishable under Section 302 IPC. Fourthly, on the same date, time and place, all the accused committed the offence of criminal intimidation by threatening to kill Kiranpal (deceased) and thereby committed an offence punishable under Section 506 IPC. Lastly, on 9.10.2002 in the area of village Sihol Pawan Kumar (appellant), in pursuance of his disclosure statement, got recovered his licenced double barrel gun along with two empty cartridges and thereby committed an offence punishable under Section 27 of the Arms Act. The accused pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as 12 witnesses; besides, documents including the Forensic Science Laboratory reports Ex-PC, Ex-PC/1 and Ex- PC/2 were tendered in evidence. The statements of the accused including that of Pawan Kumar (appellant) in terms of Section 313 Cr.P.C. were recorded. Pawan Kumar (appellant) in his statement recorded under Section 313 Cr.P.C. stated that he was innocent and that it was a blind murder. He (appellant) was detained at the Police Station on 8.10.2002 and the Investigating Officer fired shots from his licenced Criminal Appeal No. 244-DB of 2005 & [7] Criminal Revision No.1259 of 2005 gun by purchasing cartridges from the market and then planted the recovery of empty cartridges upon him by coining a false disclosure statement. In defence Dr. L.A. Kumar (DW-1), Deputy Director, Forensic Science Laboratory, Madhuban was examined. Besides, certified copy of the order dated 7.2.2003 (Ex.DB) passed in civil suit No.334 of 1997 was tendered in evidence. The learned trial Court after considering the evidence and material on record, as already noticed, acquitted Rajpal son of Bhajan Lal, Sukhbir son of Raj Pal and Shakuntla wife of Sukhbir. The appellant Pawan Kumar was found guilty for the commission of offence under Section 302 IPC, which was held to be proved beyond shadow of reasonable doubt. Accordingly, he was convicted for the said offence. Besides, the gun (Ex.P-3) used in the commission of offence was confiscated to the State and his licence (Ex.P-6) issued by the District Magistrate, Faridabad was cancelled. The appellant Pawan Kumar has been sentenced to undergo imprisonment for life and to pay compensation of Rs.1 lac to the widow of Kiranpal (deceased). The said order of conviction and sentence, as already noticed, is assailed by the appellant Pawan Kumar in this appeal. Besides, Dharampal-complainant (PW-1) has prayed for enhancement of the sentence and also for awarding higher compensation of Rs. 8 lacs. Besides, convicting the respondent Nos. 2 to 4 in the Criminal Revision i.e.Rajpal son of Bhajan Lal, Sukhbir son of Raj Pal and Shakuntla wife of Sukhbir for the offences for which they have been charged. Mr. Ramesh Sharma, Advocate, learned counsel for the appellant - Pawan Kumar has contended that the prosecution has not been able to establish the guilt of the appellant beyond shadow of Criminal Appeal No. 244-DB of 2005 & [8] Criminal Revision No.1259 of 2005 reasonable doubt. It is submitted that the incident is stated to have occurred in the metalled street (pucca gali). Kiranpal (deceased) was 6 ft. tall and the root of the entry of the gun shot, as per the medical evidence of Dr. Sheela Bhagat (PW-9), would show that it is from a higher level to a lower level, which, it is submitted, is not possible. Therefore, according to the learned counsel the eye witness account stands belied from the medical evidence on record. It is also submitted that the gun shot was with the wad. However, no wad is shown to have been recovered. In fact, according to the learned counsel, the witnesses were inimical to the appellant in view of the large number of cases that were pending against each other. Therefore, he has been falsely implicated in this case. It is further submitted that there is considerable delay in sending the special report to the Illaqa Magistrate, which was received by him at 9.30 p.m. on 7.10.2002 after recording the FIR at 4.40 p.m. Therefore, it is submitted that the FIR was ante-timed and this time was used by the prosecution to carry out deliberations and consultations so as to falsely implicate the appellant. The appellant was arrested on 9.10.2002. However, the gun (Ex.P-3) that was recovered was forwarded to the Forensic Science Laboratory, Madhuban on 25.10.2002 which goes to show that the weapon was indeed fired by the police to implicate the appellant as is stated by the appellant in his statement under Section 313 Cr.P.C. It is also submitted that the story of the appellant Pawan Kumar of going to the house of the complainant and holding out threats is un-believable for the reason that the appellants had all along been following a legal course and had filed civil suits. It is submitted that not much reliance can be placed on the prosecution witnesses as they were closely Criminal Appeal No. 244-DB of 2005 & [9] Criminal Revision No.1259 of 2005 related and no independent witness was joined although 50-60 persons were admittedly present after the occurrence. Lastly in the alternative it is submitted that in any case Kiranpal (deceased) was coming towards the house of the appellant Pawan Kumar and it is in front of the house of Mohar Singh, which is near the house of Bhajan Lal, the grandfather of the appellant, where the occurrence took place. In fact, Kiranpal (deceased) had been abusing the appellant that his father is handicapped on account of which he lost his self-control and under grave and sudden provocation he fired at Kiranpal (deceased). In response Sh. H.S.Sran, Addl. A.G. Haryana, learned counsel appearing for the State and Mr. Parveen Gupta, Advocate, learned counsel appearing for the complainant have submitted that the prosecution has proved its case against the appellant beyond shadow of reasonable doubt and the learned trial Court having recorded a clear finding of conviction against the appellant would not warrant any interference by this Court. It is submitted that the contentions as raised by the learned counsel for the appellant are devoid of merit. The entry level of the gun shot from a higher to lower level is inconsequential; besides, the wads being not recovered is also of not much significance in view of the FSL report (Ex.PC), which has been reaffirmed by Dr. L.A. Kumar (DW-1), Deputy Director, FSL, Madhuban while appearing as a witness for the defence. The contention that the witnesses were inimical in view of the large number of cases, it is submitted is also inconsequential in view of the fact that the witnesses are natural and would be present at the time of occurrence. The delay that has been caused in sending the gun (Ex.P-3) to the FSL, Madhuban, it is submitted, has not resulted in any prejudice. The contention that legal Criminal Appeal No. 244-DB of 2005 & [10] Criminal Revision No.1259 of 2005 recourse was being followed by the appellant and, therefore, the story of his going in the morning and threatening to shoot Kiranpal being un- believable, is also devoid of merit as the same would operate both ways inasmuch as this in fact would be the reason for the appellant to hold out such a threat in view of the large number of cases. The fact that no independent witnesses were joined, it is submitted that independent witnesses in the village would be reluctant to become witness in such matters as it would incur enmity in the village in future. The alternative contention of grave and sudden provocation, it is submitted that the same is not borne out from any material on record. Mr. Parveen Gupta, learned counsel appearing for the complainant, has further submitted with respect to the Criminal Revision filed by him that the compensation awarded by the learned trial Court is inadequate and keeping in view the death of Kiranpal that has been caused, his widow is entitled to at least Rs.8 lacs as compensation. Besides, it is submitted that the sentence of Pawan Kumar (appellant) is liable to be enhanced to that maximum provided under the law and the acquittal of respondent Nos. 2 to 4 in the criminal revision petition is liable to be set aside and they are liable to be convicted. We have given our thoughtful considerations to the contentions of the learned counsel for the parties and with their assistance have gone through the record of the case. Dharampal- complainant (PW-1), while deposing in Court, has reiterated the version as given by him in his statement (Ex.PA) on the basis of which FIR (Ex.PJ) has been registered. The complainant side and the victims are closely related. A civil suit was pending at Palwal with regard to the Criminal Appeal No. 244-DB of 2005 & [11] Criminal Revision No.1259 of 2005 land of Rang Lal, an uncle of Dharampal-complainant (PW-1). On 7.10.2002 at about 10.00 a.m. the accused Rajpal, Sukhbir, and Shakuntla as also Pawan Kumar (appellant) went to the house of Kiranpal (deceased), the brother of Dharampal-complainant (PW-1). There they hurled abuses and held out a threat that they would kill Kiranpal (deceased) by 5.00 p.m. At that time Kiranpal (deceased) was at Palwal. When he (Kiranpal) returned at about 2.00 p.m., his wife narrated the incident to him. Kiranpal (deceased) then left for the house of Sukhbir for lodging protest. As soon as he reached near the house of Mohar Singh son of Ram Phal then Pawan Kumar (appellant) fired two shots with his licenced double barrel gun on Kiranpal (deceased). One shot hit Kiranpal (deceased) below his neck while the second hit him below the left shoulder. At that time, complainant Dharampal (PW-1), his nephew Manoj (PW-2) son of Kiranpal, Dayawati wife of Kiranpal and Saroj wife of Mahender were present and they saw the incident. The appellant Pawan Kumar then rushed towards the house on the northern side after firing the shot. The cause of the incident was the land dispute. Then several other persons arrived at the spot. The police recorded his statement (Ex.PA). The complainant Dharampal (PW-1) was cross-examined by the defence. It is accepted as correct that about 15-16 civil/criminal cases between them on the one side and the accused party on the other side were pending in different Courts. It is also stated that he was present at 10.00 a.m. on 7.10.2002 when the accused had abused and threatened Kiranpal after going to his house. His house is adjoining the house of Kiranpal (deceased). He had not stated in his statement (Ex.PA) that at the time of incident of 10.00 a.m. he was also present. Criminal Appeal No. 244-DB of 2005 & [12] Criminal Revision No.1259 of 2005 He voluntarily stated that he missed the said fact at that time. He stated in cross-examination that he did not narrate the incident to Sarpanch or the Police or intimation was sent to the deceased Kiranpal at Palwal. It is also stated that appellant Pawan Kumar fired shots from front side; besides, the street (Gali) where the incident occurred is a 'pucca' one. It is otherwise plain. Kiranpal (deceased), it is stated, was lifted by them after he fell down. He was bleeding profusely. He was rushed to the hospital in a tractor which belongs to them. He was taken to the hospital at Palwal where the doctors declared him dead. They had reached Palwal hospital at about 8.00 p.m. and they left the dead body of Kiranpal at the hospital. The doctors kept the dead body and sent them back. It is also stated that when the shots were fired, several villagers had come. He, however, did not re-collect the name of even one of them. He denied the suggestion that it was actually a blind murder and he had made a false statement with a view to implicate the accused persons because of enmity and suspicion. Manoj (PW-2) is the son of Kiranpal (deceased). He also supported the prosecution version. It is stated by him that on 7.10.2002 at 10.00 p.m. the accused Pawan Kumar (appellant), Shakuntla, Sukhbir and Raj Pal came to their house and hurled abuses. They stated that before 5.00 p.m. Kiranpal (deceased) and he (Manoj PW-2) would be killed. Then they left for their house. After some time he (Manoj PW-2) and Rajinder climbed on the roof of the house of Dharampal (PW-1). The roof of the house of Rajpal (since acquitted) adjoins the roof of Dharampal-complainant (PW-1). There was a 5 feet high boundary wall on the roof separating the two portions. He (Manoj PW-2) and Rajinder noticed that all the Criminal Appeal No. 244-DB of 2005 & [13] Criminal Revision No.1259 of 2005 four accused – Raj Pal, Sukhbir, Shakuntla and Pawan (appellant) were sitting on their roof. Raj Pal was saying that so long as Kiranpal (deceased) remained alive, he would not permit them to till their land. The accused other than Pawan Kumar assigned the task of killing Kiranpal to Pawan Kumar (appellant). At about 2.00 p.m. Kiranpal (deceased), father of Manoj (PW-2), came from Palwal and his mother narrated the incident of the accused coming to their house and holding out threats. Then Kiranpal (deceased) left for the house of the accused and his son Manoj (PW-2) followed him. Rajinder, his mother Dayawati and Saroj also followed him. When Kiranpal (deceased) reached near the house of Mohar Singh then appellant Pawan Kumar brought his DBBL gun from his house and fired one shot which hit below the neck of Kiranpal and then fired second shot which hit below the left shoulder. The remaining three accused i.e. Shakuntla, Rajpal and Sukhbir then came and gave fist blows and kicked his father Kiranpal (deceased), who had fallen down. Several persons from the village had come. The accused then rushed towards their house. The police then came in the village and recorded his (Manoj's) statement. The blood stained earth and spectacles were seized by the police vide memo Ex.PB, which bears the signatures of Manoj (PW-2). Manoj (PW-2) was cross-examined at length. However, nothing could be brought out to which may favour the accused in any manner. Dr. Sheela Bhagat (PW-9), MO ESI Hospital, NH-3, NIT Faridabad conducted the postmortem examination on the dead body of Kiranpal. The following injuries were noticed on the dead body of Kiranpal:- Criminal Appeal No. 244-DB of 2005 & [14] Criminal Revision No.1259 of 2005 1. “An inverted lacerated wound of entrance 2” x 1.75” on the supra-sternal notch with inverted margins circular in shape directed backward and downwards towards left side. On dissection of the wound, skin, muscles and blood vessels were found badly lacerated and smoked. 2. An inverted lacerated fire-arm wound of entry circular in shape with inverted margins on the supra- clavicular region above the medial 1/3rd of the left clavical with fracture of left clavical. The wound was directed downwards posteriorly backwards and its size was 1-1/2 inch x 1.75” with smoke margins. On dissection of the skin of the wound, the muscles and blood vessels, lungs, heart were badly found lacerated and smoked. The foreign particle i.e. bullet 5 cm x 2 cm x 2 cm was recovered which was posteriorly embeded in muscles about 10 inches from vertebral column below the left scapular prominence. There was no wound of exit. There was semi digested