Jitender And Ors vs State Of Haryana
2022 Latest Caselaw 12696 P&H

CRA-D-896-DB-2010 (O&M)                                                  -1-

       In the High Court of Punjab and Haryana at Chandigarh


                                                  CRA-D-896-DB-2010 (O&M)
                                                  Reserved on: 28.9.2022
                                                  Date of Decision: 30.9.2022

Jitender and others                                            ......Appellants

                                         Versus

The State of Haryana                                            ......Respondent

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

Present:    Mr. J.S.Dahiya, Advocate
            for the appellants No. 1 and 2.

            Mr. H.S.Jaiswal, Advocate
            for appellant No. 3.

            Mr. Anmol Malik, DAG, Haryana.
                     ****

SURESHWAR THAKUR, J.

1. The instant appeal is directed against the impugned verdict, as

made on 22.7.2010, upon Sessions Case No. 87 of 2008, wherethrough the

learned Additional Sessions Judge, Panipat, in respect of charges drawn qua

offences punishable under Sections 302/34 of the IPC, and, under Section

25, 54, 59 of the Arms Act, made a verdict of conviction against all the

accused. Moreover, through a separate sentencing order, drawn on

24.7.2010, the learned trial Judge concerned, sentenced the convicts to

undergo life imprisonment for an offence punishable under Section 302 read

with Section 34 of the IPC, and, also sentenced the convicts to pay a fine of

Rs. 10,000/- each. Moreover, in default of payment of fine, the learned trial

Judge concerned, sentenced the convicts to undergo rigorous imprisonment

for a period of one year each. In addition, convicts Vikas, and, Rikas were

also sentenced to undergo rigorous imprisonment for a period of two years

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each, for commission of an offence punishable under Section 25 of the

Arms Act, and, also became imposed, a sentence of fine of Rs. 2,000/- each.

In default of payment of fine amount, they were sentenced to undergo

rigorous imprisonment for a period of three months each.

2. The period spent in custody, during the investigations, and, trial

of the case, was, in terms of Section 428 of the Cr.P.C., rather ordered to be

set off against the sentence(s) of imprisonment (supra), as became imposed

upon the convicts. Moreover, the sentences of imprisonment were ordered

to run concurrently.

3. The convicts become aggrieved from the above drawn verdict

of conviction, besides also, become aggrieved from the consequent

therewith sentence(s) of imprisonment, and, of fine as became imposed,

upon them, by the learned convicting Court concerned, and, hence have

chosen to constitute thereagainst the instant criminal appeal, before this

Court.

Factual Background

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

appeal FIR, to which Ex. PB/2 is assigned, whereins it is narrated that on

14.7.2008, Inspector/SHO Om Parkash alongwith other police officials, was

on patrol duty in Desraj Colony, Panipat, where he received information that

a firing had taken place near Red Light Crossing, Panipat. He also came to

know that the injured had been taken to Civil Hospital, Panipat, where

complainant Surender met the police party and made his statement Ex.PB,

stating therein, that he was resident of village Babail and was a farmer. He

further stated that on that day, he alongwith his nephew Rocky son of Ram

Phal and Jagat Singh son of Ran Singh came to Panipat in bus bearing

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registration No. HR-45-5456. In the said bus. accused Jitender, and, Vikas

sons of Pawan Singh, resident of villae Nangla Paar alongwith Rikas son of

Jagdish Singh, resident of village Butana, had also come to Panipat. Rikas

had also come there to meet accused Jitender, and, Vikas in village Nangla

Paar. When the complainant and his nephew Rocky, and, Jagat Singh, were

going towards S.D. School, Panipat at about 7.30 A.M., and, reached near

Ludhiana Shawl Market near Red Light Chowk, Panipat to go towards S.D

School, then all of a sudden, accused Vikas, Jitender, and, Rikas came

running from back side near Gopi Agency, and, accused Jitender caught

hold of Rocky, and, he also instructed the other accused Rikas and Vikas to

teach a lesson for not handing over the passession of their land. On this,

accused Vikas, who was armed with a country made pistol, fired on Rocky,

which hit him in the back side of his head. Accused Rikas, who was also

armed with a country made pistol, fired at Rocky which hit in the left side of

his back. Accused Vikas again fired which hit on the face of accused

Jitender. However, deceased Rocky fell down on the ground, and, on seeing

him, all the three accused fled away from the spot alongwith their respective

weapons. He further stated, that he with the help of Jagat Singh and 2-3

more persons, took Rocky to Civil Hospital. Panipat. He further stated, that

all the three accused have committed murde of Rocky for not handing over

the possession of the land.

Investigation proceedings

5. On the basis of the statement Ex. PB made by the complainant,

a ruqa was sent to the police Station through constable Randhir Singh, on

the basis of which formal FIR Ex.PB/2 was registered. Investigations

commenced. The accused were arrested, and, the country made pistols were

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taken into possession. After conclusion of investigations, the investigating

officer concerned, proceeded to institute a report under Section 173 of the

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

Committal Proceedings

6. Since the offence under Section 302 IPC was exclusively

triable by the Court of Session, thus, the learned committal Court

concerned, through a committal order made on 7.10.2008, proceeded to

commit the case for trial to the Court of Session

Trial Proceedings

7. Subsequently, the learned Additional Sessions Judge, Panipat,

proceeded to draw charges against the accused, for offences punishable

under Sections 302 read with Section 34 of the IPC, and, for an offence

punishable under Section 25 of the Arms Act, 1959, and, did also put the

afore charge(s) to the accused, to which they pleaded not guilty, and,

claimed trial.

8. In proof of its case, the prosecution examined 13 witnesses,

and, thereafter the learned Public Prosecutor concerned, closed the

prosecution evidence. Subsequently, 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. In

defence, the accused examined one witness.

Submissions of the learned counsels for the appellants

9. The learned counsels for the aggrieved convicts-appellants

herein, have vigorously argued before this Court, that the impugned verdict

of conviction, and, consequent therewith sentences (supra), as imposed,

upon the convict-appellants, is legally infirm. The above submission is

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hinged, upon the factum, that there is a gross misappreciation of both oral,

and, documentary evidence, as became adduced before the learned trial

Judge concerned.

Submissions of the learned State counsel

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

this Court, that the judgment, as challenged before this Court, is well

merited, and, does not warrant any interference.

The evaluations of the testimonies of ocular witnesses to the occurrence, who respectively stepped into the witness box as PW-3, and, PW4.

11. PW-3 Surender is an ocular witness to the occurrence, and, in

his examination-in-chief, he has fully supported the prosecution case, as

becomes embodied in the appeal FIR, to which Ex. PB/2 is assigned. In his

examination-in-chief, he speaks about the convicts, after following him,

PW-4, and, the deceased, one amongst them, namely Jitender catching hold

of deceased Rocky, and, his then exhorting co-accused Vikas, and, Rikas to

teach him a lesson for not giving their land. He further speaks about

accused Vikas then wielding a country made pistol in his hand, and, his

therefrom firing a shot on the head of Rocky. He continues to speak

thereins, that the second fire-arm shot was fired at deceased Rocky, by co-

accused Rikas, which became followed by another fire-arm shot, being fired

at the deceased, by accused Vikas. In the above process, accused Jitender is

also stated by him, to sustain fire-arm injuries. In sequel to the three

successive fire-arm injuries, becoming fired at deceased Rocky, the latter, is

spoken by PW-3, to fall onto the ground, but thereafter the accused are

spoken, to flee from the site of occurrence along with their weapons' of

offence. Though, PW-3 along with PW-4 took Rocky to the hospital for

treatment, but he states that injured Rocky succumbed to the fire-arm

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injuries in the hospital. The motive, which he ascribes for the accused

committing the murder of Rocky, is stated to arise from there being a

dispute, for not transferring of certain tracts of land by the deceased, to the

accused.

12. The ocular witness (supra) to the crime event, became put to a

rigorous cross-examination by the learned defence counsel. However

thereins, no echoings occur to bely the trite factum qua PW-3, not being an

eye witness to the occurrence along with PW-4, nor any echoings are carried

thereins to also bely the assignings by him, in his examination-in-chief,

rather of incriminatory roles to the accused, inasmuch as, Jatinder catching

hold of deceased Rocky, and, thereafter co-accused Vikas, and, Rikas, with

the apposite incriminatory weapons' of offence, which each was wielding, at

the relevant time, hence theirs therefrom firing shots at the deceased. Thus,

when a wholesome reading of his testfication, is not ridden with any vice of

his making improvements or embellishments, upon his previously recorded

statement, in writing besides, when there is also no blatant blemish thereins,

inasmuch as, there occurring rife, and, blatant intra se contradictions intra

se his examination-in-chief, and, his cross-examination. Resultantly, this

Court is bound to assign the utmost evidentiary merit to the deposition of

PW-3.

13. The deposition of PW-3 has been fully supported by the

deposition of PW-4 Jagat, who is the other eye witness to the occurrence. A

complete reading of the deposition of PW-4 reveals, that he has also alike

PW-3, ascribed in the crime event the above incriminatory roles to the

accused. There is also no rife inter se contradictions inter se the

testifications of PW-3, and, PW-4. Thus, this Court assigns credence to the

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testification of PW-4. Resultantly, the effect thereof, is that, with both the

ocular witnesses, meting the completest inter se corroboration, to their

respectively made taint-free depositions. Therefore, through the above

creditworthy ocular account, rendered qua the genesis of the prosecution

case, this Court but concludes, that the prosecution has therethrough proven

the charges, as drawn against the accused.

Recovery memo relating to convict Vikas

14. Through recovery memo Ex. PN, contents whereof are

extracted hereinafter, the investigating officer concerned, after arresting

convict Vikas, at the police station concerned, did subsequent to his making

a personal search of convict Vikas, cause the effectings of recovery of a

country made pistol .315 bore, hence from the right side pocket of the pant

of convict Vikas.

"In the presence of the following witnesses Ct. Karambir 455 Panipat and Ct. Jasbir Singh No. 270 Panipat produced the aforesaid accused Vikas before me the Inspector, then search conducted of Vikas and recovered a country made pistol .315 bore from the right side wearing pant of Vikas. Pistol checked after open then found an empty cartridge from the chamber. After preparing a separate sketch of the pistol along with empty cartridge, converted into a parcel and sealed with the seal OP and one polythene contains 4 cartridges alive . 315 bore and one empty cartridge recovered from the pocket of pant of Vikas, which base is written 8M.M.K.F. On measuring of pistol total length is 11 inch 2 cm and butt 3 ½ " body 4" and barrel 6½". On the body of pistol, affixed 9 plate of pittal on which written 315.200060. Rod type teep is affixed on the barrel. Wooden is affixed with the help of screw on both side of butt. After converting the parcels of 4 alive cartridges .315 bore and empty cartridge .315 bore for checking. Sample sealed within the seal of OP and after use seal handed over to SI Ranjit Kumar. Parels taken in police possession through memo. Signatures of the witnesses obtained."

15. Recovery memo Ex. PN has been signed by the witnesses

thereto. Subsequent thereto, the investigating officer concerned, also

prepared a sketch of the above recovered .315 bore pistol, to which

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Ex. PN/1 is assigned. Though, the drawings of Ex. PN, was not preceded by

a signatured disclosure statement of accused Vikas, nor when thereins

occurs any confession of guilt of the accused, in respect of the crime event.

Nonetheless, the non-makings of a signatured disclosure statement by

co-accused Vikas, nor when in consequence thereof, the recovery of the

crime pistol was effected, yet would not make the recovery of the crime

pistol, in the mode as enclosed in Ex. PN, to be unworthy of evidentiary

vigour. The reason for making the above conclusion stems from the factum,

that when the ocular account, as rendered qua the crime event, rather for

reasons (supra), is a creditworthy account, in respect thereof. Resultantly,

when thereins the ocular witnesses to the crime event attribute to accused

Vikas, the incriminatory role of his wielding the crime pistol, at the crime

site, and, his firing shots therefrom at the deceased. Thus, obviously, the

above attribution of an incriminatory role to the accused, may not erode to

the least, the non-makings of a signatured disclosure statement by the

accused concerned, with revelations thereins, about his concealing the crime

pistol, at a place, known only to him, and, his also evincing thereins, his

willingness to ensure his causing the recoveries thereof, to the investigating

officer concerned. Tritely put, the necessity of making of a signatured

disclosure statement by co-acucsed Vikas, may not have arisen in the extant

situation, where after his arrest, the investigating officer concerned, in the

police station, did make his personal search, and, in consequence thereof, he

effected the recovery of the crime pistol, from the pocket of the trouser,

which he was wearing at the relevant time. The said personal search leading

to the recovery of the crime pistol, is also to be assigned creditworthiness,

as there is no evidence suggestive, that the recovery of the crime pistol, was

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planted onto accused Vikas, by the investigating officer concerned.

Significantly also when the witnesses to Ex. PN, has fully supported the

valid drawings of Ex. PN. Thus, the completest evidentiary

creditworthiness, is acquired by Ex. PN. Resultantly, the ocular account,

rendered qua the crime event, becomes corroborated by the validly drawn

recovery memo, to which Ex. PN is assigned.

Recovery memo relating to convict Rikas

16. Through recovery memo Ex. PP, contents whereof are extracted

hereinafter, the investigating officer concerned, after arresting convict

Rikas, at the police station concerned, did subsequent to his making a

personal search of convict Rikas, cause the effectings of recovery of a

country made pistol .315 bore, hence from the right side pocket of the pant

of convict Rikas.

"In the presence of the following witnesses aforesaid Rikas S/o Jagdeep produced Ct. Narender Singh 743 HNL and Ct. Naresh Kumar 835 PKL, which search got conducted and recovered a country made pistol .315 bore from the right side of wearing pant. On measuring which length found 9 inch 2 cm. Barral 4" 2 cm, body 4" 3cm but 2¾ ". After preparing separate sketch and converted into a parcel sealed with the seal of OP for keeping a sample sealed and was taken into police possession through memo. After use seal was handed over to SI Ranjit Kumar."

17. Recovery memo Ex. PP has been signed by the witnesses

thereto. Subsequent thereto, the investigating officer concerned, also

prepared a sketch of the above recovered .315 bore pistol, to which Ex. PQ

is assigned. Though, the drawings of Ex. PP, was not preceded by a

signatured disclosure statement of accused Rikas, nor when thereins occurs

any confession of guilt of the accused, in respect of the crime event.

Nonetheless, the non-makings of a signatured disclosure statement by

co-accused Rikas, nor when in consequence thereof, the recovery of the

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crime pistol was effected, yet would not make the recovery of the crime

pistol, in the mode as enclosed in Ex. PP, to be unworthy of evidentiary

vigour. The reason for making the above conclusion stems from the factum,

that when the ocular account, as rendered qua the crime event, rather for

reasons (supra), is a creditworthy account, in respect thereof. Resultantly,

when thereins the ocular witnesses to the crime event attribute to accused

Rikas, the incriminatory role of his wielding the crime pistol, at the crime

site, and, his firing shots therefrom at the deceased. Thus, obviously, the

above attribution of an incriminatory role to the accused, may not erode to

the least, the non-makings of a signatured disclosure statement by the

accused concerned, with revelations thereins, about his concealing the crime

pistol, at a place, known only to him, and, his also evincing thereins, his

willingness to ensure his causing the recoveries thereof, to the investigating

officer concerned. Tritely put, the necessity of making of a signatured

disclosure statement by co-acucsed Rikas, may not have arisen in the extant

situation, where after his arrest, the investigating officer concerned, in the

police station, did make his personal search, and, in consequence thereof, he

effected the recovery of the crime pistol, from the pocket of the trouser,

which he was wearing at the relevant time. The said personal search leading

to the recovery of the crime pistol, is also to be assigned creditworthiness,

as there is no evidence suggestive, that the recovery of the crime pistol, was

planted onto accused Rikas, by the investigating officer concerned.

Significantly also when the witnesses to Ex. PP, has fully supported the

valid drawings of Ex. PP. Thus, the completest evidentiary creditworthiness,

is acquired by Ex. PP. Resultantly, the ocular account, rendered qua the

crime event, becomes corroborated by the validly drawn recovery memo, to

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which Ex. PP is assigned.

Post Mortem report

18. The autopsy on the body of deceased Rocky was conducted by

PW-6 Dr. Vinod Kumar Kangra, has proven the post-mortem report, to

which Ex. PH, is assigned, through his stepping into the witness box, and, in

his examination-in-chief, his tendering his affidavit, to which Ex. PG is

assigned. A reading of Ex. PG discloses, that he had proven the trite factum

of his drawing the post-mortem, in respect of deceased Rocky. Ex. PG

echoes the noticeable ante mortem injuries, as were found to be then

occurring on the body of deceased, the same are extracted hereinafter.

"1. Entry wound of size 3.5 x 3 cm on the left side of scalp, irregular margins situated 10 cm to left pinna posteriorly, 8 cm lateral to midline blackening present around wound abresion call or present on dissection a hole found on the under lying skull bone of size .7 x .7 cm, shows punched in on skull bone. On further dissection a track was found in direction of backward to forward, left to right and downward to upward. A bullet was found lodged in the frontal bone on left side, skull bone shows prominence and fracture, but not penetrated bone and skin 2.5 cm lateral to midline and just below the hair line.

2. Entry wound: An entry wound found on the right side of the chest, posteirolateral size of wound 1.2 cm x 1 cm situated 18.5 cm from the right nipple. 17.5 cm from the midline wound having callor abrasion and blackening on dissection on dissection a tract was found in the direction of backward to forward, right to left, downward to upward. A bullet was found on the left margin of sternum, 8 cm inferomedial to left nipple, penetrate the all structure found between. Right plural and pericardial cavity found full of blood"

19. Moreover thereins, the doctor, who conducted an autopsy on

the body of the deceased, has opined that the cause of demise of deceased

Rocky ensued from ante mortem fire-arm injuries (supra), as become

detailed in the post-mortem report. Moreover, during the course of his

examination-in-chief, a cloth parcel, carrying threreins the untampered seals

of the FSL concerned, became produced in Court, and, therefrom two

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bullets, to which Ex. P-10, and, Ex. P-11 are respectively assigned, hence

became retrieved, and, were then shown to him, and, he then testified them

to be the very same bullets, which he had removed from the body of

deceased Rocky. Therefore, the above ante mortem firearm injuries, when

became testified by the examining doctor to result in the demise of deceased

Rocky, besides when the bullets as fired from the recovered fire arms, are

also testified by him, upon, the said bullets being shown to him in Court, to

be the very same bullets, which he removed from the body of the deceased.

Thus, stems an inference, that the ocular account rendered qua the crime

event, becomes fully supported by the above medical account/evidence.

Forensic evidence, as comprised in the report of the FSL, to which Ex.

PX is assigned.

20. Through memo No. 164-SPL, drawn on 28.7.2008, seven

sealed parcels, became dispatched, through R.C. No. 137 of 30.7.2008,

through Constable Kaptan Singh No. 985, to the FSL concerned. On the

relevant items, as became sent to the FSL concerned, the ballistic expert

concerned, did make examinations thereofs. The result of his examining the

relevant incriminatory items/incriminatory weapons of offence, is extracted

hereinafter.

" Result

1. The country made pistols marked W/1 and W/2 (each chambered for .315" cartridges) are firearms as defined in Arms Act 54 of 1959. Their firing mechanism were found in working order.

2. The country made fired cartridge case marked C/1 (for chambering .315" weapons) has been fired from country made pistol marked W/1 and not from any other fire arm even of same make and bore, because every fire arm has got its own individual characteristic marks.

3. The .303 fired cartridge case marked C/2 and .315" fired cartridge case marked C/3 have been fired from country pistol marked W/2 and not from any other fire

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arm even of same make and bore, because every fire arm has got its own individual characteristic marks.

4. No opinion on country made fired cartridge cases marked C/4 (for chambering .315" weapons) could be formed in respect of country made pistols, marked W/1 and W/2 (chambered for .303"/.315" cartridges) due to lack of sufficient comparable class as well as individual characteristic marks on C/4 as the percussion cap of the fired cartridge case marked C/4 was found missing.

5. The country made fired bullets marked BC/1 and BC/2 have been fired from country made pistol marked W/2 and not from any other fire arm even of same make and bore, because every fire arm has got its own individual characteristic marks.

6. The holes on the clothes contained in parcel No. VI have been caused by bullet projectiles.

7. Report in original from Serology division is enclosed herewith."

21. A perusal of the result of the examination, as made by the

ballistic expert concerned, upon the relevant incriminatory weapons' of

offence, and, upon the incriminatory items, makes forthright bespeakings

qua the relevant firearm shots, became fired from the examined weapons' of

offence. Moreover, the result of the relevant examination also makes clear

echoings, that the fired cartridge case, marked as C/1 became fired from the

country made pistol Mark W/1, besides also vividly speaks about the fired

cartridge cases, respectively marked as C/2, and, C/3 having been fired

from the country made pistol Mark W/2. Moreover, the relevant result also

clearly spells, that the country made fire bullets Mark BC/1, and, BC/2

becoming fired from country made pistol Mark W/2, and, not from any

other weapon. Therefore, it emerges from the above result of the relevant

examinations, that therethroughs, not only the truthful ocular account,

rendered qua the crime event, becomes corroborated, but also the contents

of recovery memos, as respectively carried in Ex. PN, and, Ex. PP, also

becoming proven to be both valid, and, truthful. In summa, this Court finds

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no gross perversity or absurdity in the appreciation of relevant evidence, as

made by the learned trial Judge concerned.

Final order

22. The result of the above discussion, is that, this Court does not

find any merit in the appeal, and, is constrained to dismiss it. Consequently,

the appeal is dismissed. The impugned verdict of conviction, and, the

consequent therewith sentence(s), as becomes imposed upon the convicts-

appellants, by the learned convicting Court, is maintained, and, affirmed. If

the convicts are on bail, thereupon, the sentence(s) as imposed upon the

convicts-appellants, be ensured to be forthwith executed by the learned trial

Judge concerned, through his drawing committal warrants. 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.

23. Records be sent down forthwith.

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

of.

(SURESHWAR THAKUR) JUDGE

(N.S.SHEKHAWAT) JUDGE September 30, 2022 Gurpreet

Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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