Crl.Appeal No.520-DB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.520-DB of 2004 Date of decision: 9.8.2011 Pehlad Singh ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE S.S.SARON. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.N.K.Malhotra, Advocate, for the appellant. Mr.H.S.Sran, Addl.AG, Haryana. ... JORA SINGH, J. Pehlad Singh son of Mahabir Singh, appellant, has filed this appeal against the judgment of conviction and order of sentence dated 15.5.2004 passed by the learned Sessions Judge (Adhoc), Jhajjar, in Sessions Case No. 68/23.10.2002/14.12.2002, arising out of FIR No.179 dated 12.5.2002 under Sections 302/216/404/34 IPC and Section 25 of the Arms Act, Police Station Sadar, Bahadurgarh. By the said judgment, the appellant was convicted for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life besides to pay a fine of Rs.3,000/- and in default of payment of fine, to further undergo RI for six months. Co-accused, namely, Manjit, Sushil and Subhash were acquitted Crl.Appeal No.520-DB of 2004 2 of the charges levelled against them. Against acquittal, no appeal has been filed by the State or the complainant. Case of the prosecution, in brief, is that Om Parkash son of Maha Singh, complainant, has two brothers, namely, Jagbir Singh (deceased) and Mahabir Singh. Earlier, they were residing at Village Chhudani and later on, in the year 1978, they started residing at Najafgarh. Complainant was residing separately, whereas Mahabir Singh and Jagbir Singh were residing together in their house. On 12.5.2002, Om Parkash and his younger brother Jagbir Singh were going on a scooter towards their Village Chhudani. Jagbir Singh was driving the scooter. At about 8.00 PM, they were near the bridge of Village Dulhera. Jagbir Singh was requested by the complainant to stop the scooter as he had to ease himself and after alighting from the scooter, he had gone towards the fields for that purpose. When he was easing himself, then he heard sound of gun shots and sighted three young boys, who had arrived on a motorcycle and fired at his brother Jagbir Singh. On receipt of firearm injuries, Jagbir Singh fell down. After firing, the motorcyclists had fled away towards the side of village Dulhera. One of the boys was Manoj son of Phool Kanwar, resident of Village Thana Kalan. He failed to identify the other boys, but could identify them if brought before him. After the occurrence, complainant had gone to Village Chhudani. Incident was brought to the notice of his uncle Chander Bhan. Then complainant along with Chander Bhan and some other persons had come to the spot. By leaving other persons to guard the dead body, Om Parkash, complainant, along with his uncle Chandger Bhan had gone to Crl.Appeal No.520-DB of 2004 3 Police Post, Dulhera, where statement (Ex.PA) of Om Parkash was recorded by ASI Chand Ram at 10.00 a.m. The statement was read over to Om Parkash, who signed the same in token of its correctness. Motive to murder Jagbir Singh was that Jagbir Singh and Mahabir Singh had some dispute with Krishna Devi, mother of Manoj. Krishna Devi had got registered a case in respect of offences punishable under Sections 354/452/323 IPC in PS Najafgarh against them and the case was pending. Earlier Manoj was residing at Najafgarh in his own house but after sale of his residential house, he had shifted to his parental Village Thana Kalan. He was threatening to eliminate Jagbir Singh. Due to this reason, Jagbir Singh was murdered. After making endorsement (Ex.PA/2), statement (Ex.PA) was sent to the police station, on the basis of which, formal FIR (Ex.PA/1) was recorded by SI Mam Chand. SI Chand Ram went to the spot where the dead body of Jagbir Singh was lying. Inquest report was prepared. The dead body was sent to the hospital for postmortem examination. Blood stained earth was lifted from the spot and the same was made into a sealed parcel. Sealed parcel was taken into police possession vide memo (Ex.PB). Two empty cartridges of .315 bore were lifted from the spot and the same were made into a sealed parcel. Sealed parcel was taken into police possession vide memo (Ex.PC). One parna was also lifted from the spot and the same was made into a sealed parcel. Sealed parcel was taken into police possession vide memo (Ex.PD). Scooter of the deceased from the spot was taken into police possession vide memo (Ex.PE). After postmortem examination, clothes worn by the deceased were made into a sealed parcel. Bullets recovered from the dead body were also made into a sealed parcel. Sealed parcels of Crl.Appeal No.520-DB of 2004 4 clothes and bullets were produced before the IO and the same were taken into police possession vide separate memos. On 24.5.2002, Subhash was arrested. On 20.6.2002 Pehlad was arrested. On 22.6.2002, Manjit was arrested and was interrogated. Manjit suffered a disclosure statement that he along with Pehlad and Sunil after murdering Jagbir Singh, has removed his wrist watch. He had concealed the same under the bushes on the bank of canal and he knew about the same and could get the same recovered. In pursuance of the said disclosure statement, he got recovered a wrist watch from the specified place, which was taken into police possession vide separate memo attested by the witnesses. On 23.6.2002, Pehlad was interrogated and he suffered a disclosure statement that he had concealed a pistol near the bank of canal in between Villages Noona Majra and Daboda. He knew about the same and could get the same recovered. In pursuance of his disclosure statement, he got recovered a pistol from the specified place. Rough sketch of the pistol was prepared and made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. On 9.7.2002, Sunil was arrested and was interrogated. He suffered a disclosure statement that he had concealed a motorcycle in his room situated in Vipin Garden, Delhi, which was on rent. He knew about the same and could get the same recovered. In pursuance of his disclosure statement, he got recovered a motorcycle from the specified place, which was taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in Court. Appellant and his co-accused were charged for commission of offences punishable under Sections 302/216/404/34 IPC and Section 25 of Crl.Appeal No.520-DB of 2004 5 the Arms Act, to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution examined number of witnesses. PW1 Jagbir Singh son of Bhane Ram stated that Jagbir Singh (deceased) was his brother-in-law. On 30.5.2002, his nephew Pehlad son of Mahabir Singh came to him and made an extra judicial confession that at the instance of ASI Raj Singh, he along with his brother-in-law Khel Singh and one more person has murdered Jagbir Singh. After making the extra judicial confession, Pehlad went away by saying that he would contact him again either personally or on telephone. PW2 Om Parkash, complainant, stated that on 12.5.2001, he along with his brother Jagbir Singh on a scooter were going towards Village Chhudani. When they were near the turning of Village Kharman, then he wanted to ease himself. Jagbir Singh, who was driving the scooter, was requested to stop the scooter. After alighting from the scooter, he had gone to the fields to ease himself. Jagbir Singh with the scooter remained on the road. Then Om Parkash (PW2) heard sound of gun shots and saw three young persons who were firing towards his brother Jagbir Singh. They had come on a Yahama Motorcycle. One of them was his nephew Pehlad son of Mahabir Singh. After firing, they had gone towards the side of Village Dulhera. Jagbir Singh had succumbed to his injuries on the spot. After the occurrence, he went to Village Chhudani and disclosed about the incident to Chander Bhan. After that, he along with Chander Bhan came at the spot. Chander Bhan was deputed to guard the dead body. He went to lodge a report. While reporting the matter to the police, he intentionally avoided to mention the name of Pehlad because he was his real nephew. Therefore, Crl.Appeal No.520-DB of 2004 6 Manoj was named to save Pehlad. His statement (Ex.PA) was recorded. Statement was read over to him and he signed the same in token of its correctness. IO had lifted blood stained earth from the spot which was made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Two empties and one parna were also lifted from the spot. Scooter of Jagbir Singh from the spot was taken into police possession. On 22.6.2002, Manjit suffered a disclosure statement and later on, in pursuance of his disclosure statement, he got recovered the wrist watch of the deceased from the specified place. PW3 Constable Rajesh stated that the dead body of Jagbir Singh was handed over to him for postmortem examination. After postmortem examination, doctor had handed over to him one sealed parcel of clothes of the deceased and second sealed parcel of the bullets recovered from the dead body of the deceased. Sealed parcels were produced before the IO and the same were taken into police possession vide separate memo attested by him. PW4 Raj Pal, Patwari, prepared the scaled site plan (Ex.PK) with its correct marginal notes. PW5 MHC Karan Singh stated that on 13.5.2002, ASI Chand Ram, IO, had deposited with him one sealed parcel of blood stained earth, one sealed parcel of parna, one sealed parcel of two empty cartridges, one sealed parcel of clothes of the deceased and one sealed parcel of bullets recovered from the dead body. On 23.6.2002, Inspector Bhim Singh, deposited one sealed parcel of pistol with him. Case property deposited with him on 13.5.2002 was handed over to Constable Roshan Lal for taking the same to Forensic Science Laboratory, Madhuban, on 28.5.2002. Crl.Appeal No.520-DB of 2004 7 Besides, the case property deposited with him on 23.6.2002 was handed over to Constable Hukam Chand for depositing it with the said laboratory on 27.6.2002. PW6 Constable Roshan Lal had collected sealed parcels of blood stained earth, parna, two empties and bullets on 28.5.2002. All the sealed parcels were deposited in the laboratory. PW7 Constable Hukam Chand on 27.6.2002 collected sealed parcel of pistol from MHC Karan Singh and on the same day had deposited it in the laboratory. PW8 Inspector Bhim Singh stated that on 20.6.2002, Pehlad was arrested and was interrogated. On interrogation, he stated that he along with Manjit and Sunil had committed the crime. On 22.6.2002, Manjit was arrested and he suffered a disclosure statement. In pursuance of the said disclosure statement, he got recovered a wrist watch from the specified place. On 23.6.2002, Pehlad suffered a disclosure statement and in pursuance thereof, got recovered a pistol from the specified place. Sketch of the pistol was prepared and the same was made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the police. On 9.7.2002, Sunil was arrested and he suffered a disclosure statement. In pursuance of his disclosure statement, he got recovered a motorcycle from the specified place. PW9 SI Mam Chand stated that on 12.5.2002 on receipt of ruqa, he recorded formal FIR (Ex.PA/1). PW10 Dr. N.K.Mundra stated that on 13.5.2002 at 10.30 a.m., he along with Dr. Anil Rath conducted the postmortem examination on the dead body of Jagbir Singh and found the following injuries on his person:- Crl.Appeal No.520-DB of 2004 8 “1. A lacerated wound of .5 cm x 6 cm on left temporal region of the scalp, 6 cm above external ear. Margins were blackened. 2. A lacerated wound 1 cm x 7 cm. A foreign body was found in the wound which was removed and sealed. Margins were blackened. 3. A lacerated wound of 1 cm x 1 cm on lateral aspect of upper part of right upper arm. Margins were inverted and blackened. A tattooing of surrounding skin in area of 6 cm x 5 cm were present. 4. A lacerated wound of .7 cm x .7 cm on lateral aspect of right axilla. Margins were inverted. 5. A lacerated wound of 1 cm x 1 cm on upper part of left side of back just lateral to mid line and margins were blackened.” Cause of death was due to shock and haemorrhage. Firearm injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. PW11 Satya Parkash Kaushik, Reader, proved the sanction order (Ex.PAA). PW12 Mahabir stated that his brother Jagbir Singh was murdered by his son of Pehlad. Pehlad was married in the year 1995 and in the year 1997, he was separated. On 21.6.2002, Pehlad was interrogated in his presence and he suffered a disclosure statement (Ex.DA) to the effect that he along with Manjit and Sunil had murdered Jagbir Singh and had kept concealed the pistol under a bridge at Shimla. He knew about the same and Crl.Appeal No.520-DB of 2004 9 could get the same recovered. The said disclosure statement was attested by him and Kartar Singh. On 23.6.2002, again Pehlad was interrogated and in his presence, Pehlad suffered a disclosure statement that he had kept concealed a pistol at a place in between Villages Noona Majra and Daboda and in pursuance of his disclosure statement, he got recovered a pistol from the specified place. Sketch of the pistol was prepared and was made into a sealed parcel. Sealed parcel was taken into police possession vide memo attested by him. On 11.7.2002, Sunil was interrogated in his presence and in pursuance of a disclosure suffered by him, he got recovered a motorcycle from the specified place. The motorcycle was taken into police possession vide memo attested by him. PW13 ASI Kartar Singh stated that in pursuance of the disclosure statement suffered by Pehlad on 23.6.2002, a pistol was got recovered. Sketch of the pistol was prepared and the same was made into a sealed parcel. On 11.7.2002, Sunil got recovered a motorcycle as per his disclosure statement. PW14 SI Chand Ram is the Investigating Officer. PW15 Rajbir son of Om Parkash stated that his uncle Jagbir Singh was murdered by Pehlad near the Bus Stand, Rohtak. He had seen Pehlad with Subhash, Khel Singh and ASI Raj Singh. After changing his clothes and wearing suit salwar, he had gone near them and he heard ASI Raj Singh saying that he would arrange for the bail of Pehlad and some of the expenses are to be incurred by them. In the meantime a bus came from Jhajjar side. All of them boarded the bus. He had also boarded the same bus and occupied the seat behind them. Mahabir Singh had also boarded Crl.Appeal No.520-DB of 2004 10 the same bus. They had alighted from the bus at Jhajjar. Then ASI Chand Ram was seen. He had pointed out Subhash and Subhash was arrested by the police. After close of the prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C. The substance of the evidence appearing against him was put to him. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was that he was falsely implicated in this case. Real culprit was Manoj, with whom the complainant party had effected a compromise. He was falsely implicated on account of enmity with Om Parkash and Mahabir Singh. His father Mahabir Singh was residing with Om Parkash and had agreed to transfer his property in the name of the sons of Om Parkash. Manoj was threatening Jagbir Singh to eliminate him because he (Jagbir Singh) had outraged the modesty of his mother. After hearing learned PP for the State, defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. We have heard learned counsel for the appellant, State counsel and have gone through the evidence on the file. Learned counsel for the appellant submitted that Jagbir Singh (deceased) was the real brother of Om Parkash, complainant, and Mahabir Singh. Appellant is the son of Mahabir Singh. Appellant was residing separately from his father Mahabir Singh. Mahabir Singh and Jagbir Singh were residing together. The appellant did not have cordial relations with his father Mahabir Singh and the deceased. Mahabir Singh and the deceased Crl.Appeal No.520-DB of 2004 11 were inimical towards Manoj because Mahabir Singh tried to outrage the modesty of his mother. A case for the commission of an offence under Section 354 IPC was registered against Mahabir Singh. Mahabir Singh also tried to outrage the modesty of Manisha wife of the appellant. The complainant party was inimical towards Manoj Kumar and the appellant. It is submitted that the incident had occurred on 12.5.2002 at 8.00 PM but presence of Om Parkash, complainant, at the time of occurrence is doubtful. As per the story, Jagbir Singh was murdered by the appellant. Except Om Parkash, no other person was present near the place of occurrence. Without deputing anybody to guard the dead body, Om Parkash came to his village. Om Parkash lodged the report at 10.00 p.m. It is submitted in the statement (Ex.PA) of Om Parkash that Manoj was named as one of the assailants. The appellant is the real nephew of Om Parkash. In case, the appellant had fired a shot hitting the deceased, then in Ex.PA, Om Parkash would have named him (appellant). There was no reason for Om Parkash to name Manoj. As per PW1 Jagbir Singh, appellant made an extra judicial confession before him on 30.5.2002 but statement of PW1 Jagbir Singh is also not helpful to the prosecution because if the appellant had made an extra judicial confession before him on 30.5.2002, then the appellant should have been produced before the police. There is no explanation as to why the appellant was allowed to leave the house after making his extra judicial confession. It is further submitted that the appellant was arrested on 20.6.2002 and on 21.6.2002, he suffered a disclosure statement (Ex.DA), but on the basis of Ex.DA, no effort was made to recover the weapon. Disclosure statement (Ex.DA) dated 21.6.2002 was in the presence of PW12 Mahabir Singh. Again on 23.6.2002, appellant suffered a disclosure statement (Ex.PN) and Crl.Appeal No.520-DB of 2004 12 then he got recovered a pistol. In case, the appellant had suffered a disclosure statement (Ex.DA) on 21.6.2002, then on the basis of Ex.DA, the pistol could easily be recovered. There was no need for the appellant to suffer another disclosure statement on 23.6.2002. Even otherwise though independent witnesses were available but no one was joined at the time of disclosure statements or recovery of the pistol. Mahabir Singh is the witness of recovery but he, it is submitted, was inimical towards the appellant. Therefore, the story regarding recovery of pistol as per disclosure statement is not correct. Three persons, including Manoj, were sighted by the complainant while firing and hitting the deceased. The other accused were acquitted and only the appellant, who was not named in the statement (Ex.PA) dated 12.5.2002, has been convicted. The appellant in fact was named as one of the assailants in pursuance of a supplementary statement but no supplementary statement has been proved on the file. In case, it is to be taken that supplementary statement of the complainant was recorded, even then the presence of the complainant at the time of occurrence is doubtful because in the site plan, the place from where the complainant witnessed the occurrence has not been shown. Mahabir Singh and Om Parkash have deposed because they were inimical towards the appellant. Learned State counsel has submitted that the incident had occurred at 8.00 p.m. on 12.5.2002. Om Parkash, complainant, is the real brother of the deceased. Earlier, they were residing in Village Chhudani. From 1978, they started residing in Najafgarh. On the day of occurrence, complainant and the deceased on a scooter were going towards Village Chhudani. So, presence of Om Parkash at the time of occurrence is natural. Fire arm injuries were noticed on the person of the deceased. Injuries were Crl.Appeal No.520-DB of 2004 13 ante mortem in nature. Om Parkash is the uncle, whereas Mahabir Singh is the father of the appellant. They were not expected to name the appellant by leaving out the real and actual culprit. PW1 Jagbir Singh is the maternal uncle of the appellant. Appellant had made an extra judicial confession before PW1 Jagbir Singh and there is no reason to ignore the statement of PW1 Jagbir Singh. Recovery of pistol was in the presence of Mahabir Singh. There was no serious litigation amongst the appellant and the complainant party. If the appellant was not having cordial relations with the complainant party, then on this short ground, statements of father, uncle and maternal uncle of the appellant are not to be ignored. In the statement (Ex.PA), Manoj was named to save the appellant but later on, when the conscience of the complainant started pricking him, then the appellant was named. It is submitted that due to the fault of the prosecution not to produce the supplementary statement on the file, the prosecution version is not liable to be ignored. According to the prosecution case, on 12.5.2002 at 8.00 p.m. in the presence of Om Parkash (complainant), the appellant had fired a shot hitting Jagbir Singh (deceased). The death was at the spot, whereas the defence version of the appellant is that Manoj was named in the statement (Ex.PA) and he was not challaned. It is due to enmity with the complainant party that the appellant was falsely implicated. The question which is now to be seen is whether the prosecution story inspires confidence or the defence version seems more probable. First submission of the learned counsel for the appellant is that presence of Om Parkash at the time of occurrence is doubtful. He has falsely deposed against the appellant being inimical towards him Crl.Appeal No.520-DB of 2004 14 (appellant). After going through the evidence on the file, we are of the opinion that the submission of the learned counsel for the appellant seems to be quite correct. Admittedly, Jagbir Singh (deceased) is the real brother of Om Parkash, complainant, and Mahabir Singh. The appellant is the son of Mahabir Singh. Earlier, all the brothers were residing in Village Chhudani. From 1978, they started residing in Najafgarh. On the day of the occurrence, Om Parkash and Jagbir Singh were going on a scooter towards Village Chhudani. On the way, Om Parkash requested Jagbir Singh to stop the scooter because he wanted to ease himself. After alighting from the scooter, Om Parkash had gone in the fields to ease himself. He was at a distance of 20/25 yards from Jagbir Singh. When he was easing himself, then he heard the sound of gun shots and had sighted three young boys, who came on a motorcycle and fired towards Jagbir Singh. One of them was Manoj. Statement of Om Parkash was recorded on 12.5.2002 at 10.00 p.m. at the Police Post, Dulhera, by ASI Chand Ram. Om Parkash appeared as PW2. In his examination-in-chief, he has supported the prosecution case. It is stated that he had lodged report with the police. His statement (Ex.PA) was recorded. He had signed the same in token of its correctness. In examination-in-chief or cross-examination, Om Parkash does not state a word that on the same day or on the next day, his supplementary statement was recorded. The Investigating Officer while appearing as PW14 has not stated that after the first statement (Ex.PA), supplementary statement of Om Parkash was recorded. Om Parkash does not state a word to the effect that his statement (Ex.PA) was not correctly recorded by the police. Till today, there is no