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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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