Krishan @ Gatha vs State Of Haryana
2022 Latest Caselaw 12057 P&H

CRA-D-479-DB-2012 (O&M)                                                 -1-
CRA-D-50-DB-2016 (O&M)

       In the High Court of Punjab and Haryana at Chandigarh


1.                                        CRA-D-479-DB-2012 (O&M)
                                          Reserved on: 16.9.2022
                                          Date of Decision: 23.9.2022

Krishan @ Gatha                                                ......Appellant

                                        Versus

State of Haryana                                             ......Respondent

2.                                        CRA-D-50-DB-2016 (O&M)

Sanjeet @ Sanjay                                               ......Appellant

                                        Versus

State of Haryana                                             ......Respondent

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MR. JUSTICE N.S.SHEKHAWAT

Present:    Mr. Robin Hooda, Advocate
            for the appellant (in CRA-D-479-DB-2012).

            Mr. R.S.Mamli, Advocate
            for the appellant (in CRA-D-50-DB-2016).

            Mr. Pardeep Prakash Chahar, DAG, Haryana.

                       ****

SURESHWAR THAKUR, J.

1. Criminal Appeal bearing No. CRA-D-479-DB-2012 is directed,

by appellant Krishan alias Gatha, against the impugned verdict, as made on

31.3.2012, by the learned Additional Sessions Judge, Sonipat, upon

Sessions Case (RBT) No. 14 of 12.1.2012, wherethrough, in respect of

charges drawn for offences punishable under Sections 148, 302 read with

Section 149, and, under Section 120-B of the IPC, he proceeded to make a

verdict of acquittal qua accused Sunil alias Chun, Sunil alias Pehalwan,

Basant, Manoj, and, Ashok. However, through the above made verdict, he

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proceeded to record a finding of conviction qua accused Krishan alias

Gatha, in respect of offences punishable under Sections 148 and 302 of the

IPC. Moreover, vide a separate sentencing order, drawn on 3.4.2012, he

proceeded to impose, upon the convict (supra) the consequent therewith

sentence, as become extracted hereinafter.

          Name of Offence          Period          of Fine          Period of
          accused U/s              sentence (RI)      imposed       sentence in
                                                                    default of
                                                                    payment of fine
          Krishan     302 IPC      Life imprisonment Rs. 10,000/-   Six months
                      148 IPC      Two years         Rs. 2,000/-    Two months

2. Since the learned State counsel is unable to intimate this Court,

that the State has constituted an appeal, before this Court, against the verdict

of acquittal, as made by the learned trial Judge concerned, qua the acquitted

persons (supra). Thus, the verdict of acquittal, as made in respect of the

acquitted accused, does acquire a conclusive, and, binding effect.

3. However, co-accused Sanjeet @ Sanjay remained under

absconsion, and, obviously he did not face trial along with the appearing

accused (supra). However, after his surrendering before the learned trial

Judge concerned, the latter after meteing compliance with the provisions of

Section 299 of the Cr.P.C., proceeded to, on 4.8.2015 make a verdict of

conviction, upon Sessions Case No. 20 of 2012, qua accused Sanjeet @

Sanjay, in respect of charges, as drawn qua offences punishable under

Sections 148, 302 read with Section 149 and, under Section 120-B of the

IPC. Moreover, through a separate sentencing order, as drawn on 5.8.2015,

the learned trial Judge concerned, proceeded to impose, upon the convict

Sanjeet @ Sanjay, the sentence of rigorous imprisonment, extending upto a

period of three years for an offence punishable under Section 148 of the

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IPC, besides imposed, upon him a sentence of fine, as comprised in a sum of

Rs. 5,000/-. Moreover, the learned trial Judge concerned, also sentenced the

convict Sanjeet @ Sanjay to undergo life imprisonment qua an offence

punishable under Section 302 of the IPC, besides in respect thereof,

imposed a sentence of fine, as comprised in a sum of Rs. 10,000/-.

Moreover, he also sentenced the convict to undergo life imprisonment qua

an offence punishable under Section 120-B of the IPC, besides in respect

thereof, imposed a sentence of fine, as comprised in a sum of Rs. 5,000/-.

All the sentences were ordered to run concurrently, and, in default of

payment of fine amount, the convict became sentenced to undergo rigorous

imprisonment for a term extending upto a period of one month.

4. However, in Sessions Case No. 14 of 12.1.2012, a verdict

became recorded on 31.3.2012, but as above stated though Sanjeet @

Sanjay was also mentioned as an accused in the relevant FIR, but since he

remained under absconsion, thus on his surrendering before the learned trial

Judge concerned, the trial against him opened, and, after closure of

evidence, the learned Additional Sessions Judge, Sonipat, on 4.1.2015,

made a verdict of conviction (supra) against him.

5. Both the convicts, namely Krishan @ Gatha, and, Sanjeet @

Sanjay become aggrieved from the above recorded verdict(s) of conviction,

and, also, from the consequent therewith sentence(s) of imprisonment, and,

of fine as became imposed, upon them, and, hence become led to constitute

thereagainst the instant appeals before this Court.

6. Though, separate verdicts of conviction have been recorded qua

convict Krishan @ Gatha, and, qua convict Sanjeet @ Sanjay but since the

verdicts of conviction arise from a common FIR, registered against them,

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besides when the evidence against them, is also common, thus, Criminal

Appeal bearing No. CRA-D-479-DB-2012, as instituted before this Court at

the instance of convict Krishan @ Gatha, as also, Criminal Appeal bearing

No. CRA-D-50-DB-2016, as instituted before this Court at the instance of

convict Sanjeet @ Sanjay, are amenable for a common verdict becoming

recorded thereons.

Factual Background and Investigation proceedings

7. The genesis of the prosecution case becomes embodied in the

appeal FIR, to which Ex. P-16/A is assigned, whereins it is mentioned that

complainant Ramphal made a statement, that they are two brothers, his

younger brother is Om Parkash. That they have got 20/21 acres of land at

village Butana. That land of Rameshwar son of his uncle was purchased by

Jagbir son of Hukmi. The said purchase was objected by complainant, and

his brother, however, the panchayat got the said matter compromised. The

complainant, and, his brother were told to pay Rs. 60,000/- as price of said

land. However, the purchaser had not accepted the decision of panchayat,

and, demanded their money along with interest, and, on this account, they

started having grudge against them. It is further alleged, that Sanjay, Om

Parkash, and, Krishan sons of Hukmi had killed Azad son of Om Parkash in

the year 1995. On account of statement made by the complainant, and, his

brother, the said persons were convicted for life imprisonment. On

18.3.1996, Sanjay, and, Vijay had fired upon Phool Kanwar alias Banta,

however, he was escaped. It is further alleged that on 26 th of April, 1996,

Sanjay son of Hukmi, Vijaypal, and, one more person had fired upon

complainant. In the said case only Sanjay could be arrested, and, others

could not be arrested. Sanjay was convicted to undergo imprisonment for

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10 years. On 27.12.1997, his nephew Satyawan was killed in the fields of

village Butana by Sanjay and his brother Krishan along with one more

person. Only Sanjay was arrested, and, convicted in the year 2006. A

panchayat was held in the year 2006, and, in the said panchayat,

complainant, and, his brother had agreed not to keep any grudge. However,

the offer was not accepted by Sanjay as his appeal was pending in High

Court, and, he wanted statement in his favour. However, in view of fear of

Court, proposal of Sanjay was not accepted. It is further submitted that they

had left their village on 13.1.1998 on account of fear, and, had started living

at Kasandi, where they were provided police guard for their safety. On

account of fear, they were not cultivating the land at village Butana. He

further alleged that at about 5.45 A.M., his nephew Phoola son of Om

Parkash had gone for morning walk in the High School village Kasandi.

That after some time, he had heard gun shot noise. On hearing gun shot

keeping in view old enmity, he along with his brother Om Parkash ran

towards school and, found that Krishan son of Hukmi having pistol, Sunil

son of Ramphal having revolver, were firing upon his nephew Banta

blindly. They were accompanied by son of Krishan whose name is not

known and two young boys, who were not known to him. One of them was

wrapped in check bed sheet. Complainant stated that he can identify the

accused persons. Number of other persons had also gathered there. On

seeing them accused fled away along with their respective weapons by

threatening to kill. The boy who was wearing bed sheet could not take his

bed sheet as same got entangled in the barbed wire. Thereafter, he took his

nephew to Civil Hospital, Gohana where he was declared dead.

8. After registration of the FIR (supra), the investigating officer

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concerned, launched investigations into the appeal FIR, and after conclusion

of investigations thereinto, he proceeded to institute a report under Section

173 of the Cr.P.C., before the learned committal Court concerned.

Committal Proceedings

9. The learned committal Court concerned, through a committal

order made on 24.9.2009, qua convict Krishan @ Gatha, and, other accused,

proceeded to commit the case for trial to the Court of Session.

10. The learned committal Court concerned, also through a

committal order made on 26.7.2011, qua convict Sanjeet @ Sanjay,

proceeded to commit the case for trial to the Court of Session.

Trial Proceedings

11. Consequently, the learned Sessions Judge concerned,

proceeded to draw charges against the accused, for the offences punishable

under Sections 148, 302 read with Section 149 and under Section 120-B of

the IPC, and, also put the afore charge to the accused, to which they pleaded

not guilty, and, claimed trial.

12. In proof of its case, the prosecution examined several

witnesses, and, thereafter the learned Public Prosecutor concerned, closed

the prosecution evidence. Consequently, the learned trial Judge concerned,

proceeded to draw proceedings, under Section 313 of the Cr.P.C., but

thereins, the accused pleaded innocence, and, claimed false implication.

Though, the accused claimed the granting of leave to them, for leading

defence evidence, but the above granted leave never became availed by

them.

Submissions of the learned counsel for the appellants

13. The learned counsel for the aggrieved convicts-appellants

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herein, has vigorously argued before this Court, that the impugned verdicts

of conviction, and, consequent therewith sentence (supra), as imposed, upon

the convicts-appellants, both become ridden with a gross infirmity of gross

misappreciation, and, non-appreciation of the evidence, as exists on record.

Therefore, they have argued that both the appeals be accepted, and, the

verdicts, as challenged before this Court, be quashed and set aside.

Submissions of the learned State counsel

14. On the other hand, the learned State counsel has argued before

this Court, that the judgments, as challenged before this Court, are well

merited, and, do not warrant any interference.

Common eye witness account comprised in the testification of Ramphal who stepped into the witness box as PW-1, in both the cases.

15. PW-1 in his deposition, as comprised in his examination-in-

chief, has made an articulation, that at the crime site, he had witnessed

accused Sanjeet to be wielding a revolver in his hand, whereas, accused

Krishan was witnessed by him to wield a danda. He also identified both the

accused in Court. Though, in his examination-in-chief, he has not attributed

to the convicts, the imperative incriminatory role of theirs, through wielding

the above weapons of offence, inflicting wounds on the person of the

deceased. However, during the course of PW-1 being put to cross-

examination, though a suggestion was made to him, that he was not an eye

witness to the occurrence, but the above suggestion became denied by him.

Furthermore, though he had conceded in his cross-examination, that the

relevant occurrence happened inside the school premises, which is separated

by a wall with a height about 4-6 feet, besides he also conceded, that

nothing was visible from outside, about the happenings inside the school

premises, as located behind the boundary wall of the school. However, yet

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in his cross-examination, he had voluntarily stated that he had seen over the

wall, that all the accused were firing at the deceased. Therefore, it appears

that PW-1 had stated that somehow he scaled to the top of the wall to sight

therefrom the crime incident, which occurred inside the school premises,

which was separated by a boundary wall of about 4-6 feet. Despite PW-1

deposing, that he had yet through inching to the top of the wall, seen the

occurrence, which took place inside the school, but the defence has not been

able to thereafter repel the above fact through adducing evidence,

suggestive that the height of the wall separating the place where PW-1 was

standing, was more than 4-6 feet, nor also has been able to adduce any

evidence, that the said wall separating the place where PW-1 was standing

at the site of occurrence, was not amenable for being scaled upto the top, for

enabling PW-1 to then see, the crime occurrence taking place, at the crime

site. Thus, it has to be concluded that PW-1 may have scaled the wall with

a height of 4-6 feet, besides may have viewed the crime occurrence,

happening at the crime site. However, since in his cross-examination, he

could not, with specificity attribute to any of the accused, an incriminatory

role of theirs firing from the weapons of offence concerned, but has yet

voluntarily stated that he had seen all the accused firing at the deceased

from their respective weapons. Thus, the above lack of specificity qua the

relevant incriminatory roles to the accused, is but shaky, besides when in his

cross-examination, he does not, except co-convict Sanjeet, attribute to

others the incriminatory role of theirs also wielding fire-arms. Thus, the

above made attribution of guilt to the accused concerned, does contradict

the version, as spelt in his examination-in-chief.

16. Reiteratedly, it appears that in PW-1 attributing to both the

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convicts the incriminatory role of each wielding fire arms, wherethrough

each fired shots at the deceased, is but uncreditworthy. The reason being

that, in his examination-in-chief, PW-1 has attributed to accused Krishan

the incriminatory role of his wielding a danda. Resultantly, PW-1 could not

thereafter, in his cross-examination depose, that the convict Krishan was

wielding a fire arm, wherefrom he allegedly fired shots at the deceased.

Thus, his deposition, insofar as the incriminatory role, as becomes assigned

to Krishan is concerned, is not credible. However, the above conclusion is

subject to this Court hereafter drawing inferences from the signatured

disclosure statement, as made by convict Krishan, besides is subject to this

Court drawing an inference to consequent therewith recoveries, as became

effected at the instance of convict Krishan.

17. Though, in his examination-in-chief, PW-1 assigned to convict

Sanjeet, the incriminatory role of his wielding a revolver in his hand, but

rather the defence permitting him to, even in his cross-examination make

unrebutted echoings, that he had, after scaling to the top of the relevant

boundary wall, rather sighting the crime occurrence happening at the crime

site, besides it also permitting him to unrebuttedly depose that he had seen

all the accused to fire shots from their respectively wielded firearms.

Though, insofar as convict Krishan is concerned, the above deposition has

been concluded to be lacking in credence. Nonetheless, there appears to be

an intra se harmony intra se the examination-in-chief, and, cross-

examination of PW-1 qua his assigning an incriminatory role to co-convict

Sanjeet. The reason is but simple, that he has consistently deposed that the

convict concerned, through wielding a revolver taking to fire shots

therefrom, at the deceased one Phul Kanwar. Thus, it leads to a further

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inference, that the defence concedes the firing(s), at the deceased of

revolver shots, from the revolver, as became wielded by convict Sanjeet.

Conspicuously, when the factum of his wielding a revolver, as deposed by

PW-1 in his examination-in-chief, has not been adequately rebutted nor

repelled, thus prima facie it acquires evidentiary vigour.

Disclosure statement of accused Krishan

18. During the course of the custodial interrogation of convict

Krishan, the latter made a signatured disclosure statement, to which Ex. PT

is assigned, contents whereof are extracted hereinafter.

"In presence of witnesses accused Krishan @ Gathu s/o Ramphal, above in police custody without any fear, threat or greed according to his own will disclosed that the country made revolver 32 bore which was used by me at the time committing murder of Banta @ Phool Kumwar has been concealed by me inside the bed kept in the lobby of my residential house in Uttam Nagar, Gohana. I can get it recovered after demarcation and the yellow coloured car was left near Lakhan Majra and I can demarcate the place. At the time of committing murder of Banta @ Phhol Kunwar, Sunil Pahalwan was having 9 mm pistol. We both had fired shots and Sunil @ Chun and Basant were on vigilance. Sunil @ Chun was having 38 bore country made pistol. Basant was car driver. Manoj Butania had arranged our meeting with Sanjay Butania in Ambala jail and on the dates of hearing in Sonepat. After committing murder Manoj had arranged house of us in Jharoda and used to arrange money for our expenses time to time. 38 bore revolver of Sunil @ Chun, three live cartridges and two empty fired cases have been recovered from me in Sampla police station. Disclosure statement of the accused is reduced into writing separately and the same got signed by the accused as well as the witnesses."

19. A reading of the disclosure statement, as made by convict

Krishan to the police officer, inasmuch as to the Inspector/Incharge, SIT,

Gohana, reveals qua the declarant concerned, confessing his incriminatory

participation in the crime event, besides its perusal reveals qua his evincing

his readiness, and, willingness to cause to the investigating officer

concerned, the recovery of .32 bore revolver, which became used by him in 10 of 20

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the commission of the murder of Phul Kanwar @ Banta. In consequence

therewith, through a recovery memo, to which Ex. PT/1 is assigned, the

recovery of the above weapon of offence became effected. Prima facie, in

the absence of the convict not ably denying his signatures, as made in the

disclosure statement Ex. PT, nor his ably proving the denial, thus results in

an inference that all the recitals made thereins, rather become admitted by

him to be correct. Moreover, though prima facie, a valid incrimination can

be drawn on anvil of disclosure statement Ex. PT, besides on anvil of

recovery memo Ex. PT/1.

20. However, for the reasons to be assigned hereafter, yet no valid

inculpation can be drawn on the basis of the above memos, insofar as

convict Krishan is concerned. The prime reason is comprised in the factum,

that the above memos became drawn by Inspector/Incharge, SIT, Gohana.

Therefore, it became incumbent, upon the prosecution to, unless dead,

ensure the stepping into the witness box of the Inspector/Incharge, SIT,

Gohana, who had drawn both the above memos. However, PW-2, the SHO

of the Police Station concerned, deposed, that though both the above memos

became drawn by Babu Lal Inspector, who was posted as Incharge, SIT,

Gohana in the month of March 2009. However, a closest reading of his

deposition does not disclose that the drawer of the above memos, inasmuch

as Inspector Babu Lal, had expired, at the relevant stage, as such was

disabled to step into the witness box to prove the drawings of the above

memos, besides to make himself available for his becoming subjected to

cross-examination. Even if PW-20 has identified the handwriting(s) of

Inspector Babu Lal, and, has proven his signatures, as made on the above

memos. Nonetheless in the face of Inspector Babu Lal not stepping into the

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witness box to prove the memos, more especially for his being subjected to

cross-examination by the defence, especially when only on his cross-

examination, the defence could avail an opportunity to raise all possible

exculpatory pleas, that the drawings of memos (supra), was completely

invented or engineered stratagems deployed by the Investigating Officer

concerned, to falsely implicate the convict, or to then raise a further

exculpatory plea that the signatures, as made thereons by the convict, had

been procured under threat or coercion, becoming exercised by him, upon

the convict (supra). However, since Inspector Babu Lal did not step into the

witness box, thus the defence became completely precluded to raise the

exculpatory pleas (supra), rather to denude the evidentiary vigour of the

above memos. If so, a conclusion has to be formed, that irrespective of PW-

20 proving the signatures of Inspector Babu Lal, as occur on the memos, but

since the author thereof, yet did not step into the witness box to face cross-

examination to negate the above exculpatory pleas. Thus, proof, in respect

of the signatures of Inspector Babu Lal on Ex. PT, and, on Ex. PT/1, as

adduced by PW-20, does not yet to the hilt prove the charges, as drawn

against convict Krishan. The further reason for strengthening the above

inference is comprised in the factum that even PW-1, a purported ocular

witness to the occurrence, has in his examination-in-chief attributed to

convict Krishan the role of his wielding a danda, at the crime site.

Therefore, on above ground also, the recovery of a .32 bore revolver, at the

instance of convict Krishan, to the investigating officer concerned, becomes

completely falsified.

FSL Report

21. Through memo bearing No. 7245-DSP/G, 2121-DSP/G,

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2250/Gohana, respectively on 7.12.85, 30.3.09 and 02.04.09, sealed cloth

parcels became sent for their respective examination(s) to the FSL

Madhuban. A reading of the report of the FSL, to which Ex. PF is assigned,

as, appertains to the examination(s) being made on the fired cartridge cases,

as also appertains to the examination(s) being made on fired bullets, besides

also, upon the examination(s), as made on the relevant firearms, reveals that,

country made pistols W/1, and, W/2 were the weapons, wherefrom

bullets/cartridges became fired. Therefore, the report of the FSL is extracted

hereinafter.

               "      x      x      x     x      x
                                    Results

1. Countrymade pistols marked W/1 (Chambered for 7.65 mm cartridges) and W/2 (Chambered for 9 mm cartrides) are firearms as defined in Arms Act 54 of 1959. Their firing mechanism were found in working order.

2. 9 mm fired cartridge cases marked C/1 to C/3 and 9mm fired bullets marked BC/3 and BC/4 have been fired from countrymade pistol marked W/2 (Chambered for 9mm cartridges) and not from any other firearm even of the same make and bore/caliber, because every firearm has got its individual characteristic marks.

3. 7.65mm fired cartridge cases marked C/4 to C/8 have been fired from countryumade pistol marked W/1 (Chambered for 7.65 mm cartridges) and not from any other firearm even of same make and bore/caliber, because every firearm has got its individual characteristic marks.

4. 7.65mm fired bulled marked BC/8 and the pieces of jacket of 7.65mm fired bullets marked BC/1, BC/2, BC/6, BC/7, BC/9, BC/10 and pieces of bullet marked BC/12 have been fired from countrymade pistol marked W/1 and not from any other firearm even of same make and bore/caliber, because every firearm has got its individual characteristic marks.

5. No definite opinion could be formed regarding the linkage of pieces of 7.65 mm bullets marked BC/5 and BC/11 in respect of countrymade pistol W/1 (Chambered for 7.65 mm cartridges) due to lack of sufficient comparable individual characteristic marks.

6. Safety lever of pistol contained in parcel No. IV was found to be the safety lever of countrymade pistol 13 of 20

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marked W/1.

7. Extra magazine of pistol contained in parcel No. IX was found to be of countrymade pistol marked W/2 (Chambered for 9mm cartridges).

8. The report in original from Serology Division is enclosed herewith."

22. Though, from a reading of the report of the above extracted

report of the FSL, it is apparent that two pistols became sent for

examination to the ballistic expert concerned, besides fired bullet shots/

cartridges also became sent thereto, but yet since there is a reference of W/1,

and, W/2 being country made pistols, whereas, the recovery as revealed in

memos (supra), is of .32 bore pistol. Therefore, it was incumbent, upon the

investigating officer concerned, to send the above recovered revolver to the

FSL concerned. However, he has not done so, contrarily has sent pistols

W/1, and, W/2 to the FSL concerned. The effect of non-sending of the afore

weapon(s) of offence, as became recovered through memo Ex. PT/1, from

convict Krishan, is that, the above inference about falsity of drawings of

above memos rather becoming fully fortified.

23. An additional reason for giving the impetus to the above

inference becomes comprised in the factum, that the investigating officer

concerned, though did draw the sketch/khaka of the revolver. However, if

the above was drawn, but yet it was also required to be sent along with W/1,

and, W/2, to the forensic expert concerned, to enable the latter to therefrom

gauge the dimensions of .32 bore revolver, as became purportedly recovered

through recovery memo Ex. PT/1, at the instance of convict Krishan.

However, apparently sketch/khaka of the revolver was not sent to the FSL

concerned, along with W/1, and, W/2. Thus, a conclusion can be made that

the dimensions of the fire-arms, examined at the FSL concerned, became not

matched with the khaka/sketch, as became drawn in respect thereof, by the 14 of 20

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investigating officer concerned. Thus, the examination(s) of the relevant

revolver, whose recovery became effected purportedly at the instance of

convict Krishan, does not become connected with the above forensic

evidence. As but a natural corollary, the above omission also leads this

Court to draw a further inference, that the recovery of .32 bore revolver, at

the instance of convict Krishan, was a fake recovery, moreso when, even the

purported eye witness to the occurrence, has not, in his examination-in-

chief, spoken about the co-convict Krishan wielding the same at the relevant

time.

Post-mortem report

24. The post-mortem report, as drawn in respect of deceased Phool

Kumar @ Banta, is embodied in Ex. PC/1, which has been proven by PW-3.

The ante mortem injuries, as found to be existing on the body of deceased

Phool Kumar @ Banta, are extracted hereinafter.

1. Punctured lacerated wound of size 0.8 x 0.8 cm present in the upper part of sternum near sternal notch.

Margins were inverted and contusion collor was present.

2. Punctured lacerated wound of size 0.8 x 0.8 cms present in the upper part of sternum just near injury No. 1. Margins were inverted and contusion collor was present.

3. Punctured lacerated wound of size 0.8 x 0.8 cms present on the left size of chest just below left nipple. Margins were inverted and contusion collor was present.

4. Punctured lacerated wound of size 0.8 x 0.8 cms present on the left size of chest in the sixth left intercostals space at midclavicular line. Margins were inverted and contusion collor was present.

5. Punctured lacerated wound of size 0.8 x 0.8 cms present 15 of 20

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on the left size of chest in the eighth left intercostals space at axillary line. Margins were inverted and contusion collor was present.

6. Punctured lacerated wound of size 0.8 x 0.8 cms present on the left para umbilical area 3 cms away from mid line. Margins were inverted and contusion collor was present.

7. Punctured lacerated wound of size 0.8 x 0.8 cms present on the pubic area just at base of panis. Margins were inverted and contusion collor was present.

8. Punctured lacerated wound of size 0.8 x 0.8 cms present in the pubic area just 2 cms to the left of injury No. 7. Margins were inverted and contusion collor was present.

9. Punctured lacerated wound of size 1.2 x 1.2 cms present on the back in the left infrascapular area. Margins were everted and blood was coming out (exit wound).

10.Punctured lacerated wound of size 1 x 1 cm present on the back in the left infrascapular area near injury No. 9. Margins were everted (exit wound).

11.Punctured lacerated wound of size 0.8 x 0.8 cms present on the posterio medial side of left upper arm in the middle 1/3rd. Margins were inverted and contusion collor was present. The track was going backward through muscles of left upper arm upto an exit wound of size 1.5 x 1.5 cm on posterior side of left upper arm in the middle 1/3rd, after a distance of 2.5 cms. Margins were everted at this place.

12.Lacerated wound of size 2 x 2 cms on extensor side of left index finger at its distel 1/3rd part. Underlying muscles tendons were lacerated and bone exposed. Clotted blood was present.

25. The cause of demise of deceased Phool Kumar, has been

opined by PW-3 to ensue from shock, and, hemorrhage, as a a result of ante-

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mortem fire-arm injuries, as became narrated thereins. Though, the post

mortem report Ex. PC/1, proves the cause of demise of deceased, to arise

from the ante mortem fire-arm injuries, but yet for reasons (supra), the

above cause of demise of deceased cannot be attributed to convict Krishan

firing any bullets/cartridges from .32 bore revolver.

Disclosure statement of accused Sanjeet @ Sanjay

26. During the course of the custodial interrogation of convict

Sanjeet @ Sanjay, the latter made a signatured disclosure statement, to

which Ex. PW9/A is assigned, contents whereof are extracted hereinafter.

"In the presence of the following witnesses above accused Sanjeet in police custody without any fear, greed or inducement disclosed that we and Ramdhan S/o Tek Chand R/o Butana at present Kasandi are having grudge previously. On 26.10.08 on asking of Sanjay and Om Parkash Jat R/o Butana I along with Krishan @ Gatha S/o Ramphal Jat, R/o Ahulana, at present Uttam Nagar, Gohana, Sunil S/o Suresh Bairagi R/o Uttam Nagar, Gohana, Basant S/o Ved Parkash Jat, R/o Kasandi at present Uttam Nagar, Gohana and Sunil @ Pahalwan s/o Ramphal Khata R/o Kathura Uttam Nagar, Gohana had committed murder of Banta on 26.10.2008 at morning by causing fire arm injuries in the ground of school at village Kasandi. Arm was arranged by Manoj S/o Mahabeer Jat R/o Butana. Revolver was with me which I had kept concealed in a rented room at Jaipur. I can get demarcated the place. Krishan s/o Hukami Jat is also residing at Jaipur. I can get arrested him. Disclosure statements of accused has been reduced into writing and same has been got signed by the accused and witness respectively."

27. Though, a reading of the signatured disclosure statement, as

made before the police officer, by convict Sanjeet, does disclose, that he had

confessed his incriminatory participation in the relevant crime incident, and,

also had shown his willingness to cause recovery of the crime revolver, to

the investigating officer concerned, from the place of his hiding, and,

keeping it. However, the above confession of guilt, as made by the convict,

becomes a bald simpliciter confession, thus, is hit by Section 25 of the

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Indian Evidence Act. The reason for making the above inference become

comprised in the factum, that though he had revealed thereins his

willingness to cause effectuation of recovery of the crime revolver to the

investigating officer concerned, but yet the latter not making any recovery

of the crime revolver, at the instance of the convict. Consequently, when

the recovery of the crime revolver, did not become caused to the

investigating officer concerned, by the convict, whereas its recovery

through a validly drawn memo, besides its production in Court, was

extremely imperative for proving the charge to the hilt. Moreover, when

upon its recovery, and, production in Court, would have enabled this Court

to draw a firm conclusion, that the report of the FSL (as comprised in Ex.

PF in Sessions case No. 14 of 12.1.2012), relates to the relevant weapon of

offence.

28. It appears that the investigating officer concerned, despite

ensuring the recording of disclosure statement of convict Sanjeet, in the

presence of the Judicial Magistrate concerned, did not cause any recoveries,

at his instance, of the crime weapon, as on the subsequent date, in the

absence of the Judicial Magistrate concerned, he permitted the convict

Sanjeet to make a statement, that the earlier made signatured disclosure

statement by him, in the presence of the Judicial Magistrate concerned, was

made under a threat or coercion. The above subsequently made statement

by the convict concerned, and, as carried in Ex. PW-10/A, whereins he

resiled from his earlier made disclosure statement, may not have been made,

unless the learned Judicial Magistrate concerned, was also associated in the

relevant proceedings, rather for ensuring that whether the earlier made

signatured disclosure statement by the convict concerned, in his presence,

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and, to which Ex. PW-9/A is assigned, was really under some duress or

compulsion becoming exercised, upon him. However, since at the stage of

the recording of the subsequent disclosure statement, whereins the declarant

expressed that his earlier disclosure statement was made under some threat

or duress, purportedly exerted, upon him by the investigating officer

concerned, the latter did not associate the Magistrate concerned. Thus, it

appears that the investigating officer concerned, in tacit collusion with the

convict, permitting him to resile from his earlier made signatured disclosure

statement, which but obviously leads this Court to draw a verdict of

acquittal, even qua convict Sanjeet.

29. It appears that the investigating officer concerned, has

committed deep pervasive flaws in making fair, and, objective

investigations, into the crime event. Apart therefrom, despite the other

co-acquitted accused also causing recoveries of the crime weapons, to the

investigating officer concerned, yet a verdict of acquittal, being prima facie

untenably pronounced qua the co-acquitted accused concerned, but yet

thereafter the prosecution also yet omitting to challenge the verdict of

acquittal, as became pronounced, in respect of those acquitted accused,

rather at whose instance, certain material relevant recoveries, especially of

fire-arms, became caused to the investigating officer concerned. Only if a

challenge to the verdict of acquittal was made by the prosecution,

thereupon, this Court may have been able to ably connect the relevant

disclosure statements of the acquitted accused concerned, not only with the

consequent therewith recoveries, as made through the respectively drawn

recovery memos, but also may have been able to connect the said memos

with the report of the FSL concerned. It is only because no appeal became

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filed by the State, against the verdict of acquittal, as made qua the above

acquitted accused concerned, that this Court cannot reverse the verdict of

acquittal, which otherwise it may have done.

Final order

30. The result of the above discussion, is that, this Court finds

merit in both the appeals, and, is constrained to allow them. Consequently,

both the appeals are allowed. The impugned judgments convicting, and,

sentencing the appellants, and, as recorded by the learned trial Judge,

concerned, are quashed, and, set aside. Appellants Krishan @ Gatha, and,

appellant Sanjeet @ Sanjay are acquitted of the charges framed against

them. The fine amount, if any, deposited by them, be, in accordance with

law, refunded to them. The personal, and, surety bonds of the accused shall

stand forthwith cancelled, and, discharged. The case property be dealt with,

in accordance with law, but after the expiry of the period of limitation for

the filing of an appeal. The appellants, if in custody, and, if not required in

any other case, be forthwith set at liberty. Release warrants be prepared

accordingly.

31. Records be sent down forthwith.

32. The miscellaneous application(s), if any, is/are also disposed

of.

(SURESHWAR THAKUR) JUDGE

(N.S.SHEKHAWAT) JUDGE September 23, 2022 Gurpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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