Anoop @ Kirori vs State Of Haryana
2022 Latest Caselaw 12633 P&H

CRA-D-562-DB-2010 (O&M)                                                 -1-



             IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH

                                                 CRA-D-562-DB-2010 (O&M)
                                                 Reserved on: 27.09.2022
                                                 Date of decision: 30.09.2022

ANOOP ALIAS KIRORI                                                ...Appellant

                                        Versus

STATE OF HARYANA                                                  ...Respondent

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

Present:     Mr. Sanjeev Kumar Sharma, Advocate (Legal Aid Counsel)
             for the appellant.

             Mr. Anmol Malik, DAG, Haryana.

                   ****

SURESHWAR THAKUR, J.

1. The relevant Sessions Case No.6 of 2009, whereons, the impugned

verdict of conviction became drawn on 29.01.2010 by the learned Additional

Sessions Judge (I), Bhiwani, arose from FIR No.174 of 03.12.2003.

2. In the above FIR one Vinod, one Manoj, one Ravi Kumar, one

Rajesh, one Gulshan, and, one Anoop alias Kirori (who is the convict-appellant

in the instant appeal) were arrayed as accused. The offences embodied in the

above FIR were constituted under Sections 332/353/302/307/392/397, read with

Section 34 of IPC, and, under Sections 25/27/57/59 of Arms Act. The FIR

(supra), became registered with Police Station Siwani.

3. After conclusion of the trial in respect of the above accused, except

the present appellant, the learned convicting Court through a judgment made, on

16.04.2007, proceeded to record a finding of conviction on various counts

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against accused Vinod and also co-accused Manoj, but made a verdict of

acquittal against co-accused Ravi Kumar, Rajesh, and, Gulshan, but only in

respect of charges drawn against them under Section 216-A of IPC.

4. Moreover, through a sentencing order drawn on 16.04.2007, by the

learned Additional Sessions Judge (I), Bhiwani, the convicts Vinod, and, Manoj

became entailed with capital punishment qua a charge for an offence punishable

under Section 302 of IPC. Moreover, in respect of other charges drawn against

the above convicts also consequent therewith sentence(s) became imposed upon

the above convicts. However, co-convicts Vinod, and, Manoj preferred Criminal

Appeal No.CRA-D-524-DB-2007, titled 'Vinod Vs. State of Haryana' before

this Court, and thereons vide judgment recorded on 05.03.2008, this Court

though affirmed the verdict of conviction, as became recorded against them, but

commuted the sentence of capital punishment to a sentence of life

imprisonment, qua an offence punishable under Section 302 of IPC, besides

imposed a fine of Rs.10,000/- on each of them, and, in default thereof, sentenced

the co-convicts to undergo rigorous imprisonment for a term extending upto two

years. Nonetheless the verdict of conviction and consequent therewith

sentence(s) (supra), as became recorded against the convict (supra), in respect of

charges other than the one drawn under Section 302 of the IPC was not

disturbed by this Court.

5. When the instant appeal became listed on 27.09.2022, this Court

had made the hereinafter extracted order.

"1. Learned counsel appearing for the State of Haryana submits that the verdict pronounced with respect to the co-convicts by the learned trial Judge concerned on 29.01.2010, upon, Sessions Case No.6 of 2009 though did result in an appeal being made there-

against, before this Court, however both counsel submit that the relevant appeal has been dismissed. Moreover, they further submit

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that there has been no challenge to the verdict of dismissal as made upon appeal No.524, as such, the decision made by this Court on appeal (supra) acquires finality."

THE ACCUSED WAS A PROCLAIMED OFFENDER

6. But obviously the order (supra) does make the verdict as made, by

this Court on 05.03.2008, upon Criminal Appeal bearing No.CRA-D-524-DB-

2007 titled 'Vinod Vs. State of Haryana', to be holding the apposite conclusive,

and, binding effect. Resultantly, though the above conclusive and binding

verdict, as made in respect of above appeal of co-convicts (supra), would have a

telling bearing upon the fate of the instant appeal also. The reason becomes

comprised in the factum, that the present convict-appellant, through an order

drawn on 10.03.2005, hence was declared proclaimed offender by the learned

Judicial Magistrate Ist Class, Siwani,. Therefore, he did not appear before the

learned trial Judge concerned, along with the appearing accused, for his being

tried alongwith the appearing accused. However, after his becoming arrested on

08.12.2008, but only after compliance being meted to the mandate carried in

Section 299 of Cr.P.C., that the trial against him became entered into, which

ultimately resulted in the present appellant, being convicted for offence(s)

punishable under Sections 332, 353, 302, 307, 397 of IPC. Moreover, he also

became convicted for an offence punishable under Section 25 of the Arms Act.

Through a separate sentencing order drawn on 02.02.2010, the learned

convicting Court sentenced the convict (i) to undergo imprisonment for life and

to pay a fine of Rs.10,000/- for an offence punishable under Section 302 of IPC,

and, in default thereof, the convict was sentenced to undergo rigorous

imprisonment for a further period extending upto two years; (ii) to undergo

rigorous imprisonment for a period of seven years and to pay a fine of

Rs.5,000/- for an offence punishable under Section 397 of IPC, and, in default

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thereof, the convict was sentenced to undergo rigorous imprisonment for a

further period extending upto one and a half year; (iii) to undergo rigorous

imprisonment for a period of ten years and to pay a fine of Rs.5,000/- for an

offence punishable under Section 307 of IPC, and, in default thereof, the convict

was sentenced to undergo rigorous imprisonment for a further period extending

upto one year and six months (iv) to undergo rigorous imprisonment for a period

of two years and to pay a fine of Rs.2,000/- for an offence punishable under

Section 353 of IPC, and, in default thereof, the convict was sentenced to

undergo rigorous imprisonment for a further period extending upto six months

(v) to undergo rigorous imprisonment for a period of three years and to pay a

fine of Rs.3,000/- for an offence punishable under Section 332 of IPC, and, in

default thereof, the convict was sentenced to undergo rigorous imprisonment for

a further period extending upto six months (vi) to undergo rigorous

imprisonment for a period of three years and to pay a fine of Rs.3,000/- for an

offence punishable under Section 25 of Arms Act, and, in default thereof, the

convict was sentenced to undergo rigorous imprisonment for a further period

extending upto nine months.

7. All the sentence(s) were ordered to run concurrently. Moreover the

period spent in custody during investigation, and, trial of the case was in terms

of Section 428 of Cr.P.C., ordered to be set off from the above imposed

sentence(s) upon convict Anoop alias Kirori.

8. Be that as it may, yet despite the present convict being subsequently

tried in respect of the extant FIR, which is common also to the one in respect

whereof trial became earlier entered into by the learned trial Judge concerned,

against the appearing accused, and, which ultimately resulted in a binding, and,

conclusive verdict of conviction being recorded against the appearing accused

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by the learned convicting Court concerned. Moreover, though obviously the

above binding, and, conclusive verdict of conviction as recorded against the

convicts, by the learned convicting Court, does have a telling effect upon the

fate of the instant appeal. The reason being that after surrender of the present

convict before the learned trial Judge concerned, but obviously after re-course to

the mandate of Section 299 of Cr.P.C., rather being made. Thus, necessarily, then

the very same witnesses as earlier stepped into the witness box when trial

against the appearing accused opened earlier, did also then re-step into the

witness box. Resultantly, with common evidence emerging from a FIR common

to both the earlier Sessions Case, and, to the instant Sessions Case No.6 of 2009,

rather does necessarily require a similar appreciation being done thereons.

Moreover, though a similar verdict as passed earlier in respect of appearing

accused is also required to be passed qua the present convict.

9. Be that as it may, in the larger interest of justice it is deemed fit to

appraise the evidence adduced by the prosecution against the present convict-

appellant. In that regard it is necessary to cull out the facts relevant for a

decision of the instant appeal.

FACTUAL BACKGROUND

10. The genesis of the prosecution case is embodied in the FIR to which

Ex.PA is assigned, thereins, it is narrated that on 03.12.2003, a V.T. Message

was received by MHC, P.S. Siwani from Hisar that three youths had snatched a

motorcycle from Hrita Bridge and run away towards Sharva Miran. Pursuant

thereto, author of the FIR, SI/SHO Bhagwan Dass, PS Siwani, set out with HC

Dhruv No.887 and HC Kailash Chand No.452, in a Government Jeep No.HR16-

0935, driven by Constable Subhash No.407, to Dhoolkot Chowk, Rupana, for

nakabandi (laying blockade). The nakabandi started at about 5:30 p.m. At that

time, Constable Sushil Kumar (No.977), who was posted as Naib Court, JMIC

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Siwani, met the SHO. While the SHO was talking to him, a motorcycle of black

colour was noticed coming from Siwani side with three youths riding it. Having

seen the police party, they turned back the motorcycle and fled away. The SHO

with other police officials and Constable Sushil Kumar, followed them in the

Government Jeep. However, the motorcyclists turned the vehicle towards the

middle street of Rupana but the vehicle was caught into mud in the street.

Hence, they abandoned the motorcycle there and fled away. Seeing that, the

SI/SHO along with HC Dhruv, HC Kailash and Constable Sushil Kumar also left

the jeep and ran behind them to apprehend. The miscreants crossed the village

and entered into a field. The SHO surrounded the field from Dhoolkot side along

with other police personnel, therefore, the miscreants turned towards the

Talwandi road. In the meantime Driver of the Government vehicle, Constable

Subhash, brought the jeep from Dhoolkot Road to Talwandi Road and

surrounded the miscreants. He caught hold of one of them. In the meantime,

other two accused fired 2 to 3 rounds at Constable Subhash. The accused who

was caught hold of by Constable Subhash, also fired from his pistol not at

Subhash but at Constable Sushil, which, however, did not hit him. The SHO also

fired two rounds from his service pistol, and then he along with other police

officials managed to apprehend the accused, who had been caught by Subhash

and who had fired at Constable Sushil Kumar. Having received bullet injuries,

the driver of the Jeep, Constable Subhash, became unconscious and collapsed on

the ground. The other two accused managed to flee away, in the Government

Jeep, along with a police SLR and a magazine of 15 rounds lying therein,

towards village Talwandi while indulging in firing. The accused, who was

apprehended on the spot, also tried to free himself. During the course of

occurrence, the accused and Constable Sushil, received injuries. On enquiry, the

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accused revealed his name as Manoj son of Narender and the names of his two

associates as Vinod son of Lachhi and Anoop son of Rattan Singh. From the

search of accused Manoj, a country made pistol along-with magazine of 4 live

cartridges of 9 mm were recovered. The SHO flashed the message throughout

the district informing the police to hold nakabandi. ASI Madan Lal reached the

spot on his motorcycle on receiving the message and accused Manoj alongwith

his country made pistol was handed over to him. The SHO arranged a private

jeep and carried Constable Subhash to Hissar for treatment. By the time he could

reach the CMC, Hisar, Constable Subhash succumbed to the fire arm injuries.

On the basis of aforesaid information, a case/FIR under sections 332, 353, 302,

307, 392 and 397 read with Section 34 IPC and Sections 25/27/54 of the Arms

Act was registered.

INVESTIGATION

11. During the course of investigation, the inquest of dead body of the

deceased was conducted by SHO Bhagwan Dass on 3.12.2003. During

inspection of dead body, he noticed a bullet mark on the left cheek and another

bullet injury on the right side limbs. The dead body was bleeding from the nose.

The special report under section 157 Cr.P.C., was sent to learned Illaqa

Magistrate on 4.12.2003 at 2:45 a.m. During the course of further investigation,

Bhagwan Dass, SI/SHO, seized one country made pistol of 9 mm size along-

with 4 live cartridges from accused Manoj and also his own service pistol of 9

mm size along-with magazine. From his service pistol of 9mm with

No.15174717, he had fired two rounds of cartridges. The Government Jeep

No.HR-16A/0935 of blue colour, was taken into possession from the spot, near

village Lalhana, on approach road to Hetampura. The Jeep belonged to PS

Siwani. One Yammaha motorcycle with No.HR35/3713 was recovered in front

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of the house of one Rajbir son of Maru Ram, which had been abandoned there,

by the accused. SLR 762 with magazine and cartridges, was recovered after the

disclosure statement of accused Vinod, given in police custody on 13.8.2005. It

was recovered from a locked room, where the SLR with magazine and 15

cartridges, was lying on a cot. On pointing out by accused Vinod, an

identification memo in respect of the scene of occurrence was prepared on

15.08.2005.

COMMITTAL PROCEEDINGS

12. Since the afore offences were exclusively triable by the Court of

Session, thus vide committal order dated 16.03.2009, the learned Judicial

Magistrate Ist Class, Siwani, committed the accused to face trial before the

Court of Session.

TRIAL PROCEEDINGS

13. The prosecution examined as many as 17 witnesses and,

subsequently, the public prosecutor closed prosecution evidence. After the

closure of the prosecution case, the learned trial Judge drew proceedings under

Section 313 Cr.P.C., whereins, the accused pleaded innocence, and, claimed

false implication. However, the learned defence counsel did not lead any

defence witness.

SUBMISSIONS OF LEARNED COUNSEL FOR APPELLANT

14. The learned counsel appearing for the convict-appellant, has made a

vigorous submission before this Court, that no reliance can be placed upon the

signatured disclosure statement, as made by victim Anoop alias Kirori.

Moreover, he also submits that the consequent therewith recoveries, are also

false, resultantly no reliance can also be placed upon the recovery(ies) of

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incriminatory items, as became made purportedly at the instance of the present

convict-appellant.

15. Contrarily, the learned State counsel has argued that, the verdict

challenged before this Court is well merited, and, does not warrant its becoming

interfered with, by this Court.

MEDICAL EVIDENCE (POST MORTEM REPORT)

16. The post mortem upon the body of deceased Subhash, was

conducted on 04.12.2003 by PW-13 and Dr. KD Sharma. PW-13 has proven qua

his, authoring Ex.PR/1, as relates to the autopsy as made upon the body of

deceased Subhash. Moreover, he has proven that the cause of death of deceased

Subhash was owing to haemorrhage and shock as a result of bullet injuries as

became described thereins. The said ante-mortem bullet injuries are extracted

hereinafter.

"1. A contusion 4 x .5 inch pinkish discoloration was present on the scalp in the middle. On opening clotted blood was present in the sub cutaneous tissues was present. The injury was ante mortem in nature.

2. Lacerated wound .5 x .5 cm on the left side of the face which was skin deep.

3. Lacerated wound with inverted margins on the right side chest 6cm below the nipple tearing chest muscles then going deep in omentum injuring right side pleura and lungs injuring them and going deep and entering into vertibra on exploration a metallic part of the bullet was found, which was sealed in glass vial bearing one seal. The vertibra was badly crushed and whole abdomen was full of blood. This injury was ante mortem in nature."

DISCLOSURE           STATEMENT           AND     CONSEQUENT         THEREWITH
RECOVERIES

17. During the course of custodial interrogation of the present appellant

Anoop alias Kirori, he made a signatured disclosure statement to which Ex.PG is

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assigned, which becomes extracted hereinafter, whereins he after confessing his

guilt, revealed his willingness to ensure the recovery of SLR gun, to the

investigating officer concerned, from the place of its hiding, and, keeping by

him, given the relevant place being known only to him. In consequence thereto

he caused recovery of SLR gun, hence through a recovery memo to which

Ex.PG/4 is assigned. The above made signatured disclosure statement by the

convict-appellant, causes an inference that it acquires evidentiary vigor, as

thereons his admitted signatures occur, and, which he did not ably deny nor

proved the denial. Moreover, since also the consequent therewith recoveries,

were made through recovery memo to which Ex.PG/4 is assigned. Therefore,

when he has not been able to ably prove that the recovery of SLR gun, was

fictitious or a sheer invention, through a stratagem employed by the

investigating officer concerned. Thus, the above proven memos spark an

inference that the relevant charge drawn against the convict-appellant become

cogently proven.

"xxx Disclosure Statement of accused Anoop alias Kirori In the presence of witnesses accused Anoop @ Kirori s/o Rattan Singh Jat r/o Baliyali under police custody voluntarily without any pressure disclosed during investigation that, "Five years ago from today I, Vinod s/o Lachhi Ram Brahman r/o Mithathal and Manoj s/o Narender Brahman r/o Bamla all the three are going on a yamaha motor cycle from Siwani to Bhiwani Rupana road. When we reached near village Rupana and saw that there was Naka hold by police. To saw the police we have turned up our motorcycle back and police pursue us then we entered in the village without motorcycle. There was mud in the street. When the motorcycle was slip we left it and run towards the fields. The police pursue us.

Manoj run away in other side. I and Vinod came out from the fields and came on Talwandi road. Then a constable try to apprehend us and Vinod taken into grip the constable and my revolver which

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was snatched by me from Lila Ram ASI at Bhiwani and shot fire to the constable and the jeep which was standing near by I and Vinod sit in that Jeep in which SLR gun was also placed run away toward Lalhana. We parked the jee near Lalhana and took the SLR Gun I and Vinod snatched a motorcycle and fled away. That the snatched motor cycle was placed near the pond of village Jharvai and started to go on foot. I and Vinod concealed the SLR gun in the heap of mauza fodder near Galkatt village. The place where the constable was shot fired and motorcycle was snatched and left and the SLR was concealed in the mauza Fodder heap. I can identify all the places. Disclosure statement was recorded. The accused and witnesses signed on the disclosure statement. Anoop Singh Accused Sd/- Anoop (Hindi)

1. ASI Madan Lal P.S. Siwani sd/- Madan Lal ASI (English)

2. EHC Jagbir Singh 963 P.S. Siwani sd/- Jagsir Singh 963 (English) Sd/- 8.12.08 SHO, P.S. Siwani"

FSL REPORT

18. Through memo No.149-DSP(s) drawn on 10.02.2009 certain

incriminatory items/weapons of offence became sent vide RC No.49 of

17.02.2009, through Sajjan Kumar No.447 to the FSL concerned, for

examinations thereof being made by the Expert concerned. The result of the

examination as made by the FSL, on the .38 self loading revolver, makes it

forthrightly clear, that the firing mechanism thereof was found to be in order, but

the ballistic expert has refrained from making any firm opinion, about the timing

of bullets/pellets being fired therefrom. The report of the Ballistic Expert is

carried in Ex.PQ. The relevant result is extracted hereinafter.

"RESULT

1. The .38" revolver marked W/1 is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working order.

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2. The .38" revolver marked W/1 had been fired through. However, scientifically, the time of its last firing can not be given."

However, since in the opening of the Ex.PQ the ballistic expert has

pronounced that smokeless powder was detected from the barrel of .38

revolver, resultantly when a bullet did become fired therefrom. Thus, even

if the ballistic expert, has refrained from giving a firm opinion about the

timing when the relevant firearm was used, so as to relate it to the time of

occurrence of the crime event. Nonetheless, since as above stated the

present convict remained under absconsion from 10.03.2005 to

08.12.2008. Therefore, it appears that evidence with respect to the time or

age of the user of the firearm by the present convict, so as to relate it to

the time of the happening of the crime event, but may have disappeared or

the relevant evidence may have deteriorated, but obviously with the above

prolonged elapse of time, since its user, and, its recovery being made.

Conspicuously also when the signatured disclosure statement made by the

convict has been for reasons (supra), concluded to be completely valid

besides when the same also holds the requisite evidentiary worth, thus,

when also the effectuation of the relevant recovery was but a sequel

thereof. Resultantly, when the relevant recoveries are also valid, and but,

do embody the best incriminatory evidence especially when they are

proven to be neither concocted nor tainted. Therefore, irrespective of the

ballistic expert not making any vivid echoing in Ex.PQ, with respect to

the time of user of the crime weapon by the convict, yet the factum of its

user at the relevant time by the convict becomes fully established.

SUMMARIZATION OF PRINCIPLES

I. If a signatrured disclosure statement leads to the relevant

recovery(ies) of weapon(s) of offence, being made at the

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accuseds' instance, then evidentiary worth is to be assigned

thereto(s).

II.The assigning of evidentiary worth to a signatured disclosure

statement made by the accused, hence leading to the makings of

the relevant recovery(ies) at the accuseds' instance ensues from

the trite principle, that the confession of guilt carried in a proven

disclosure statement as made by the convict would not become a

bald or simpliciter confession nor also would be hit by Section 25

of the Indian Evidence Act, but only if it leads to the relevant

recovery(ies) being caused at the instance of the accused.

III.The signatured disclosure statement of the convict, leading to the

making of the relevant recovery(ies), enjoys immense evidentiary

credit, but only if the accused is not able to either ably deny nor

is able to prove the relevant denial. If the accused ably denies his

signatures carried on the relevant memos, besides also ably

proves the relevant denial. Thus, the relevant drawn memo

besides the recovery(ies) as made in pursuance thereof, do

become tainted with a blemish of such recovery(ies), being

engineered or manufactured by the investigating officer

concerned.

FINAL ORDER

19. In consequence, the impugned verdict of conviction, and, also the

consequent therewith order of sentence, as becomes respectively recorded, and,

imposed, upon the convict by the learned trial Judge concerned, does not suffer

from any gross perversity, or absurdity of gross mis-appreciation, and, non-

appreciation of the evidence on record. In consequence, there is no merit in the

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appeal, and, the same is dismissed. If the accused is on bail, thereupon the

sentence, as imposed upon him be ensured to be executed by the learned trial

Judge concerned, through his forthwith drawing committal warrants qua him.

Case property, if any, be dealt with in accordance with law, but only after expiry

of the period of limitation for the filing of an appeal.

20. Records be sent down forthwith.

                                              (SURESHWAR THAKUR)
                                                    JUDGE



30.09.2022                                            (N.S. SHEKHAWAT)
Ithlesh                                                      JUDGE
          Whether speaking/reasoned:-   Yes/No
          Whether reportable:           Yes/No




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