Full Judgment Text
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CASE NO.:
Appeal (crl.) 1295 of 2006
PETITIONER:
Suresh @ Hakla
RESPONDENT:
State of Haryana
DATE OF JUDGMENT: 07/04/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
REPORTABLE
CIRIMINAL APPEAL NO. 1295 OF 2006
With
CRIMINAL APPEAL NO. 1296 OF 2006
Dr. ARIJIT PASAYAT, J.
1. These Appeals have a common nexus and are disposed
of by a common judgment. Two appeals were filed before the
Punjab and Haryana High Court i.e. Criminal Appeal No. 118 -
DB of 2002 and Criminal Appeal No. 119 -DB of 2002. One
Appeal was filed by Suresh alias Hakla (appellant in Criminal
Appeal No. 1295 of 2006) and another appeal was filed by
Balwant and Ladh Ram (appellants in Criminal Appeal No.
1296 of 2006). The High Court dismissed the Criminal Appeal
No. 670- DB of 2001 filed by Balwant and Ladh Ram. The
High Court dealt with the factual and the legal position in
detail in Criminal Appeal No. 670-DB of 2001 and dismissed
the same. Another Criminal Appeal i.e. No. 560 DB of 2002
was filed by accused Shamsher Singh. In the connected two
appeals the decision was followed.
2. Background facts in a nutshell are as follows:
At about 9.30 A.M. on 15.7.1996 Ramesh (PW-14)
accompanied by Mahender Sarpanch (hereinafter referred to
as the ’deceased’), Duli Chand (PW-15), Dev Raj and Richh Pal
were going in a Gypsy being driven by the deceased. As they
had covered a distance of 2 = kms. and reached near the
Chitang canal situated in between villages Salemgarh and
Mingnikhera, a Maruti Car having No. DL-4C/8434 came from
the opposite direction. As the car stopped close to the jeep,
accused Shamsher Singh came out and fired a shot from a
country made pistol which hit the wind screen of the Gypsy,
due to which deceased Mahender lost control with the result
that the Gypsy skidded and stopped on the road side.
Thereupon, Shamsher Singh, Ladh Ram, Balwant, Pirthi Punic
and 3/4 other persons came out of the car and pulled
Mahender out from the Gypsy. Shamsher Singh fired another
shot hitting Mahender on the left side of the abdomen,
whereas Ladh Ram fired a shot from his gun hitting Mahender
below his armpit on the left side and Balwant fired a shot from
the country made pistol hitting Mahender on his right flank,
while Siri Chand fired a shot from his gun hitting him on his
anus. Siri Chand also shouted that Mahender should not be
spared because he had committed the murder of his son
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Bhoop Singh. Pirthi Punic kept standing close-by pointing his
gun at the witnesses and threatened that he would shoot them
if they intervened. The accused thereafter went through the
pockets of Mahender and took out the license for his revolver,
a driving license, an identity card and a cheque for
Rs.50,000/- and some cash and also picked up the licensed
gun of Ramesh, which was lying in the Gypsy, and then drove
away to village Kabrel. In the meantime, a Tata-407 truck
came from the side of village Kabrel in which Subhash son of
Tara Chand and Shishpal son of Dariya Singh were travelling
and Mahender was brought to the Civil Hospital, Hisar, where
he was declared dead. In the firing, Duli Chand, father of
Mahender (PW-15) also suffered pellet injuries on his face,
forehead and right arm. A wireless message was sent to the
police station, on which SI Dharam Chand (P-17) reached the
Civil Hospital and recorded the statement of Ramesh (PW-14)
at about 1.00 PM and on its basis a formal FIR Ex-FN was
registered at police station Sadar, Hisar at 1.40 PM, within the
special report being delivered to the Ilaqa Magistrate locally at
3.55 PM. The investigating Officer also took into possession
the medico legal report of Duli Chand and after the post-
mortem examination, some pellets recovered from the dead
body. Siri Chand, Prithvi and Shamsher Singh were arrested
on 29.07.1996 and on Shamsher’s interrogation, a.12 bore
pistol and five empty and two live cartridges were recovered.
Likewise, on the disclosure statement made by accused
Prithvi, a.16 bore licensed gun belonging to Siri Chand and
two empty and two live cartridges were recovered. Shamsher
Singh also made a disclosure statement and on its basis, a .12
bore pistol, which had allegedly been used in another murder
committed by him on the same day, was recovered. A case
under Section 25 of the Arms Act was registered against
accused Shamsher Singh as well. Accused- Makhan Singh
who though not named in the FIR but found to be involved in
the incident, was arrested on 7.4.1998. On the completion of
the investigation, the accused were charged for offences
punishable under Sections 148, 302 read with Sections 149,
307 read with Sections 149 and 395 of the Indian Penal Code,
1860 (in short ’IPC’) and as they pleaded not guilty, were
brought to trial.
The prosecution in support of its case placed reliance,
inter-alia on the evidence of Dr. Arun (PW-1) reported that
no fracture had been seen in the X-ray conducted by him,
Dr. B.L. Bagri (PW-2) of the General Hospital, Hisar, who
had examined Duli Chand at 12.25 PM on 15.7.1996 and
had found three injuries PW-3 Dr. J.S. Bhatia, the Senior
Medical Officer, Government Hospital, Hisar, who had
conducted the post-mortem examination and had found five
gun shot injuries on the dead body, the two eye witnesses
Ramesh (PW14) and Duli Chand (PW-15), the last namad
being injured, SI Dharam Chand (PW-17), the Investigating
Officer, and Inspector Avtar Singh (PW-21). The statements
of the accused were thereafter recorded under Section 313
Cr.P.C. and they denied the allegations leveled against them
and claimed to be innocent. They also produced two
witnesses in defence, Charanjit Singh DSP (DW-1), who
stated Balwant had not been present at the time of the
incident and the first named was entirely innocent, whereas
Balwant was a part of the conspiracy which had led to the
murder; and Sumer Singh (DW-2), who produced the
records to depose that Shamsher accused had been held
guilty vide judgment dated 9.4.2001 in another murder
committed on the same day.
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The trial Court held that on the facts as brought on the
record there was no delay in the lodging of the FIR; that there
was no need to subject the accused to an identification parade
as they had already been identified at the time of the
registration of the FIR; that the medical evidence supported
the ocular version; that the minor discrepancies in the
evidence of the, eye witnesses could be ignored and the
statements accepted as being tries and that the metallic
pieces, Exh.P14 and P15 recovered from, the dead body had
been matched with the weapon recovered from Shamsher
accused. The Court then went to the involvement of each of
the accused and opined that Balwant and Ladh Ram had
been named in the FIR, whereas Prithvi and Suresh though
not named therein had figured in the supplementary
statements of the witnesses and their involvement and also
clear from the statement of Duli Chand, the injured witness,
and that Suresh aforesaid was also the driver of the Maruti
Car in question. The Court also held that Shamsher Singh
was the main accused in the case. The Trial Court accordingly
convicted and sentenced the accused as under:
All the accused under Section
302 of the Indian Penal Code
To undergo rigorous
imprisonment for life and to
pay a fine of Rs,5,000/- and
in default of payment
thereof to further undergo
rigorous imprisonment
months.
All the accused under Section
307 read with Section 149 of
the Indian Penal Code
All the accused under Section
148 of the Indian Penal Code
to undergo rigorous
imprisonment for five years
and to pay a fine of
Rs.,1000/- and in default of i
payment thereof to further
undergo rigorous imprisonment
for one month.
To undergo rigorous
imprisonment for one year.
All the sentences were, however, ordered to run
concurrently.
All appeals were dismissed by the High Court.
3. It is to be noted that the trial court primarily relied on the
evidence of PWs. 14 & 15 i.e. Ramesh and Duli Chand. Duli
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Chand was the father of the deceased who also suffered
injuries on the face, forehead and right arm.
4. In support of the appeal, learned counsel for the
appellants submitted that the evidence of PWs. 14 & 15 does
not inspire confidence. The defence version that occurrence
had not taken place around 9.30 A.M. but at 6.30 A.M. prima
facie gets established because of the presence of partial
undigested food and faecal materials. The appellant Balwant
and Ladh Ram belong to different villages and could not have
been parties to the alleged animosity to have any motive. The
evidence of PW 15 should not have been relied upon as he
cannot see beyond ten feet. The evidence of Doctor \026 PW 2
established five injuries. There were five injuries noticed; none
of which has been specifically attributed to Balwant and Ladh
Ram.
5. In support of the appeal filed by accused Suresh it is
submitted that he was not named in the FIR and/or in the
original statement. Subsequently in the so called
supplementary statement, his name surfaced. The role
ascribed to him is differently described. The High Court
noticed that he was the driver of the car.
6. There is also major variance as to whether Suresh
participated in pulling out the deceased, while one witness
says he did and other says that he was driving car.
7. Learned counsel for the respondent-State on the other
hand supported the judgment and submitted that because of
concurrent findings recorded, there was no scope for
interference. So far as the appeal filed by Balwant Singh and
Ladh Ram is concerned they were named in the FIR, the role
played by each one of them has been clearly described by PWs.
14 & 15. Their presence at the spot cannot be doubted. PW
15 is an injured witness. As a matter of fact there has been
recovery of the pellet. The stand that the evidence of Doctor
(PW 2) shows fire arm injuries is not possible is also not
correct. He does not say so. On the contrary, he said that the
possibility of injuries by fire arm cannot be ruled out. In that
view of the matter, the appeal so far as Balwant Singh and
Ladh Ram is concerned is without merit, deserves dismissal.
Criminal Appeal No.1296 of 2006 is dismissed.
8. So far as the appeal filed by the accused Suresh is
concerned as noted above he was not named in the FIR and in
the original statement. His role in the incident has been
described in different manners by PWs 14 & 15. It is to be
noted that Suresh was not known to the witnesses. In fact it
has been categorically noted by the High Court that PW-15
has accepted that he did not know him earlier. There was no
Test Identification Parade.
9. The High Court has drawn an inference that because he
was a driver in pre-planned murder, the role of such driver is
crucial. Such an inferential conclusion is without any
evidence to show participation of accused Suresh. While PW
15 stated that Suresh was threatening the witnesses who were
present, PW 14 gave a different version. He did not speak a
word about the participation of accused Suresh. Looked at
from any angle the conviction of accused Suresh cannot be
maintained and deserves to be set aside.
10. The appeal bearing No. 1295 of 2006 is allowed. The
accused be set at liberty forthwith unless his custody is
required in any other case.
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