Punjab-Haryana High Court
Kuldeep And Anr vs State Of Haryana on 24 April, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:055739-DB
CRA-D-300-DB-2014
-1- 2024:PHHC:055739-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Decided on:- 24.4.2024
CRA-D-300-DB-2014
Kuldeep and Anr ....Appellants
Versus
State of Haryana ...Respondent
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE AMARJOT BHATTI
Present:- Mr. S.S. Mor, Advocate
for the appellants.
Mr. Anshuman Dalal, Advocate
for the complainant.
Mr. Sukhdeep Parmar, Senior DAG, Haryana.
*****
AMARJOT BHATTI, J.
1. Appellants/convicts Kuldeep and Sandeep have filed present
appeal against judgment of conviction dated 03.01.2014 and order of
sentence dated 08.01.2014 passed by learned Additional Sessions Judge,
Rohtak in Sessions Case bearing No. 13 of 24.12.2010, titled as "State Vs.
Kuldeep and others" vide which appellants/convicts were sentenced as
under:-
Name of Offence Sentence of Imprisonment
appellant/convict
Under Section 302 To undergo Rigorous Imprisonment for
Kuldeep read with Section 34 life each and to pay fine of ₹10,000/-
& of IPC each and in default of payment of fine,
Sandeep they shall further undergo
imprisonment for four months each.
Under Section 307 To undergo Rigorous Imprisonment for
read with Section 34 10 years each and to pay fine of
of IPC ₹5,000/- each and in default of
payment of fine, they shall further
undergo rigorous imprisonment for a
period of two months each.
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Kuldeep Under Section 25 of To undergo Rigorous Imprisonment for
the Arms Act a period of three years and to pay fine
of ₹2,000/- and in default of payment
of fine, he shall further undergo
rigorous imprisonment for a period of
one month.
2. Brief facts as per prosecution case are that in the intervening
night of 09.08.2010/10.08.2010, SI/SHO Rajbir Singh along with other
police officials was on patrol duty. During patrolling, when they reached
near Village Kharawar, SI/SHO Rajbir Singh received a telephonic message
regarding firearm injuries to Ramesh son of Tek Chand. On this information,
SI/SHO Rajbir Singh along with other police officials reached Village
Ismaila 9B and found that Ramesh son of Tek Chand, Rinku and Rakesh
alias Kala sons of Ramesh had received firearm injuries and they were
shifted to PGIMS, Rohtak for medical treatment. Thereafter, SI/SHO
accompanied with other police officials when reached at the gate of
Emergency of PGIMS, Rohtak, Bijay Singh son of Tek Chand met him and
got recorded his statement to police. In his statement, he stated that he is an
agriculturist. In the evening of 09.08.2010, he along with his younger brother
was enjoying hubble-bubble in front of the house of Ram Chander,
Numberdar. At about 09:30 pm, Rinku son of Ramesh came there to call his
father Ramesh for dinner. In the meantime, one Honda City car, colour beige
stopped there, out of which Kuldeep and Sandeep who were having pistols in
their hands alighted. Sandeep fired shots with pistol at Ramesh, whereas,
Kuldeep fired shots at Rinku from his pistol, which hit his chest and
abdomen. On hearing the shots, his (Bijay Singh) nephew Rakesh alias Kala
reached at the place of occurrence. Kuldeep again fired shots at Rakesh alias
Kala hitting on his chest. He (Bijay Singh) and Dilbag tried to catch hold
Kuldeep and Sandeep, but they fled away in the said car along with their
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respective weapons. However, they noticed number of the car i.e. DL-3CY-
6092. The said injured persons were taken to PGIMS, Rohtak, where
Ramesh and Rinku were declared dead by Doctor and Rakesh alias Kala was
unconscious and was under treatment. The complainant further alleged that
there was previous money dispute of Rakesh and Rinku with the assailants
on account of installation of inverter in their house. Accordingly, it was
prayed that legal action be taken against the culprits. With these allegations,
present FIR was registered.
3. On this complaint, formal FIR No. 338 dated 10.08.2010 was
registered under Sections 302, 307, 34 of Indian Penal Code, 1860 (for short
'IPC') and under Section 25/54/59 of Arms Act. Investigation was
commenced. Statements of witnesses were recorded and it came to light that
only one weapon was used in the occurrence. The dead bodies of Ramesh
and Rinku alias Parmod were sent for postmortem examination. From the
place of occurrence, blood was lifted and five empty cartridges and one live
cartridge were recovered and taken into police possession. On the same day,
SI/SHO Rajbir Singh received information that car bearing registration No.
DL-4CY-6092 make Honda City used in the commission of crime was
parked in front of Devi Lal Park, Bahadurgarh. The car along with
Registration Certificate of Car and Driving License of Sandeep were taken
into police possession. During further investigation, accused Kuldeep was
arrested on 22.08.2010 and on the basis of his disclosure statement, one
country made pistol along with one empty and five live cartridges were
recovered. Accused Sunil was arrested on 30.08.2010, whereas, accused
Sandeep was arrested on 13.09.2010. After completion of investigation,
challan was presented in the Court of Illaqa Magistrate at Rohtak against
Kuldeep, Sandeep and Sunil alias Senior.
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4. Accused were supplied complete set of copies of challan report
as provided under Section 207 of Cr.P.C. Since the offence under Sections
302/307/212 of IPC are exclusively triable by the Court of Sessions,
therefore, the learned Judicial Magistrate Ist Class, Rohtak committed the
case to the Court of learned Sessions Judge, Rohtak for trial vide
commitment order dated 16.12.2010.
5. The learned Additional Sessions Judge, Rohtak, after hearing
the arguments, framed charge-sheet against all the accused persons. Accused
Kuldeep was charge-sheeted under Sections 302, 307 read with Section 34 of
IPC and under Section 25 of the Arms Act. Accused Sandeep was charge-
sheeted under Sections 302, 307 read with Section 34, 420 of IPC and under
Section 25 of the Arms Act, whereas, accused Sunil alias Senior was charge-
sheeted under Section 212 of IPC. The said charge-sheet was read over and
explained to them in simple language to which they pleaded not guilty and
claimed trial.
6. In order to prove the facts of the case, prosecution examined
Sunil Kumar as PW1, Bijay alias Vijay Singh complainant as PW2, Dilbag
as PW3, Rakesh alias Kala as PW4, EHC Shri Bhagwan as PW5, EHC
Karambir as PW6, HC Sumit Kumar as PW7, Constable Sunil Kumar as
PW8, Manish Chaudhary as PW9, HC Virender Singh as PW10, Pawan as
PW11, Constable Ramesh as PW12, Ram Bhagat as PW13, Yoginder Singh
as PW14, SI Ram Karan as PW15, ASI Ranbir as PW16, ASI Shri Bhagwan
as PW17, Ram Mehar (SI retired) as PW18, Daya Nand as PW19, ASI
Rajesh Kumar as PW20, EASI Suraj Bhan as PW21, ASI Sukhbir Singh as
PW22, Rajbir Singh as PW23, ASI Shamsher Singh as PW24, Bhupinder as
PW25, Dr. Abhinav, DMS, BPS, GMC, Khanpur Kalan, Sonepat as PW26
and Dr. Vikas, M.O., CHC Kiloi as PW27. Thereafter, learned Public
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Prosecutor for the State closed prosecution evidence.
7. Statements of all the accused were recorded under Section 313
Cr.P.C. While denying all incriminating evidence put to them, they pleaded
innocence and false implication.
8. Learned counsel for accused closed defence evidence without
examining any witness.
9. After hearing arguments advanced by learned Public Prosecutor
for the State and learned counsel representing the accused besides
considering evidence on record, accused Kuldeep and Sandeep were
convicted and sentenced for the commission of offence punishable under
Sections 302 and 307 read with Section 34 of IPC, accused Kuldeep was
further convicted and sentenced for the commission of offence punishable
under Section 25 of the Arms Act, vide judgment of conviction dated
03.01.2014 and order of sentence dated 08.01.2014 passed by learned
Additional Sessions Judge, Rohtak. Whereas, accused Sunil alias Senior was
acquitted for the commission of offence punishable under Section 212 of
IPC, as detailed in the judgment.
10. Feeling aggrieved of this judgment of conviction and order of
sentence, present appeal has been filed by the convicts Kuldeep and
Sandeep.
11. Learned counsel for appellants/convicts raised the argument that
judgment of conviction and order of sentence passed by trial Court is without
proper appreciation of the evidence on record. Prosecution has examined
witnesses, namely Bijay alias Vijay Singh PW2 who is the real brother of
Ramesh, Rakesh alias Kala PW4 who is son of Ramesh and real brother of
Parmod alias Rinku, whereas, Dilbag PW3 is also close associate of
complainant. All the witnesses are close relatives of deceased and their
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statements cannot be safely relied upon. The occurrence took place in a street
having residential houses where number of other persons were living, but no
independent witness has been examined to prove the prosecution case. In the
absence of independent corroboration, statements of aforesaid witnesses
cannot be safely relied upon.
It is further pointed out that learned trial Court has failed to
consider the discrepancies in the statements of aforesaid prosecution
witnesses. Bijay alias Vijay Singh PW2 claimed that both Kuldeep and
Sandeep were armed with pistols and Sandeep fired shot at Ramesh,
whereas, Kuldeep fired shot at Rinku. On the other hand, Dilbag as PW3 and
Rakesh alias Kala as PW4 in their respective statements claimed that it was
Sandeep who was having a pistol in his hand who fired shot at Ramesh and
thereafter, Kuldeep snatched pistol from Sandeep and fired shot at Rinku.
There is material discrepancy in the statements of prosecution witnesses
regarding the manner in which occurrence took place, therefore, their version
cannot be relied upon.
Learned counsel for appellants submitted that proper
investigation was not carried out by the police. Prosecution alleged that the
injured were shifted to hospital by Bijay alias Vijay Singh, Dilbag and Kapil.
In case they shifted the injured to hospital, their clothes must have been
stained with blood. However, their blood stained clothes were not taken into
police possession. Prosecution alleged that Kuldeep suffered disclosure
statement on the basis of which country made pistol was recovered. No
photographs were clicked at the time of said recovery nor any fingerprints
were lifted from the weapon. In-fact, appellants/convicts did not suffer any
disclosure statement nor pistol was recovered from the possession of
Kuldeep.
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Prosecution has failed to prove on record motive behind the
occurrence. It was the case of prosecution that Rakesh alias Kala and Rinku
had installed inverter in the house of Kuldeep and Sandeep. Altercation had
taken place two days prior to the occurrence regarding payment and for this
reason, occurrence took place but there is no evidence on record to show that
Rakesh and Rinku were running the business of installation of inverters nor
there is anything on record to show that they had installed inverter in the
house of appellants/convicts. Prosecution has failed to establish motive
behind the occurrence. In-fact, complainant party is involved in several
criminal cases. Therefore, there is a possibility that Ramesh and Rinku were
killed by some unknown persons due to their rivalry.
Learned counsel for appellants/convicts pointed out that Sunil
alias Senior, the other accused was also challaned in this case along with the
present appellants and he was charge-sheeted under Section 212 IPC. Later
he was found innocent and was ultimately acquitted under Section 212 IPC
by learned Additional Sessions Judge, Rohtak. On the same set of unreliable
evidence, present appellants/convicts have been wrongly held guilty and
convicted by learned trial Court. There was no proper appreciation of the
facts and evidence on record. Therefore, appeal preferred by
appellants/convicts may be accepted and they be acquitted by setting aside
judgment of conviction and order of sentence passed by learned trial Court.
12. On the other hand, learned counsel representing the State
pointed out that facts of the case and evidence on record were rightly
appreciated by the trial Court. Prosecution case was duly proved on record
by Bijay alias Vijay Singh complainant as PW2 and his version was duly
supported by Dilbag examined as PW3. Rakesh alias Kala had suffered fire
arm injury who is examined as PW4 and fully supported the prosecution
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case. Facts of the case are duly proved on record from the testimony of
aforesaid witnesses who were eye witnesses and out of them Rakesh alias
Kala was one of the injured. The ocular version is proved on record by Dr.
Abhinav, DMS, BPS, GMC, Khanpur Kalan, Sonepat PW26 who has proved
on record Postmortem Report of Ramesh Ex.PNN and Dr. Vikas, M.O.,
CHC Kiloi PW27 has proved on record Postmortem Report of Rinku as
Ex.PQQ. The medical file of Rakesh alias Kala is proved by Yoginder Singh,
Clerk of PGIMS, Rohtak as PW14. Dr. Vikas, MO examined as PW27 has
proved the MLR of Rakesh alias Kala as Ex.PSS. In the case in hand,
weapon of offence was recovered on the disclosure statement of Kuldeep
which is Ex.PX and he led the police party to recover one country made
pistol, five live cartridges, one empty cartridge, which were taken into
possession vide recovery memo Ex.PT. The report of Forensic Science
Laboratory (FSL) Madhuban, Karnal Ex.PKK further connects the weapon
with cartridges recovered from the body of deceased victims Ramesh and
Rinku as well as cartridge recovered from the body of injured Rakesh alias
Kala examined as PW4. The investigation carried out by Investigating
Officer SI Rajbir Singh is proved by examining him as PW23 along with
relevant recovery witnesses who joined the investigation from time to time.
It was argued that prosecution case is duly proved on record from the
testimony of eye witnesses supported by medical record. The weapon of
offence was also recovered which further connects appellants/convicts with
the said crime on the basis of report of FSL. There was ample evidence on
record to prove the charges framed against appellants/convicts. There was
proper appreciation of the facts and evidence on record. Therefore, judgment
of conviction and order of sentence passed by the trial Court do not require
any interference. There is no merits in the appeal preferred by
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appellants/convicts and the same deserves dismissal.
13. We heard arguments advanced by learned counsel for
appellants/convicts, complainant and learned counsel representing the State
and have gone through the record carefully with their able assistance.
Appellants/convicts Kuldeep and Sandeep were charge-sheeted under
Sections 302, 307 read with Section 34 of IPC and under Section 25 of the
Arms Act. Appellant/convict Sandeep was further charge-sheeted under
Section 420 of IPC, whereas, Sunil alias Senior was charge-sheeted under
Section 212 of IPC. As referred above, Sunil alias Senior has been acquitted
of the charge framed against him. Present appeal has been preferred by
appellants/convicts Kuldeep and Sandeep for their conviction under Sections
302, 307 read with Section 34 of IPC and further conviction of
appellant/convict Kuldeep under Section 25 of the Arms Act.
As per the facts of case, occurrence took place at about 09:30
pm and police came to know about this occurrence at about 10:05 pm on
09.08.2010. FIR has been registered on the statement of Bijay alias Vijay son
of Tek Chand who met police party at PGIMS, Rohtak. After recording
statement of Bijay alias Vijay Singh Ex.PA and endorsement Ex.PA/1, rukka
was sent at 12:45 am on 10.08.2010 to police station for registration of FIR
which is Ex.PR. Therefore, there is prompt registration of FIR without any
delay. The assailants who were known to the complainant Bijay alias Vijay
Singh were named by him in his statement Ex.PA.
To prove the charges, prosecution has examined complainant
Bijay alias Vijay Singh as PW2, one of the injured Rakesh alias Kala as PW4
and another eye witness Dilbag PW3 who had reached on the spot along with
Rakesh alias Kala. As per the testimony of aforesaid prosecution witnesses
on 09.08.2010, complainant Bijay alias Vijay Singh PW2 and his younger
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brother Ramesh were talking to each other opposite the house of Ram
Chander, Numberdar in the chowk. At about 09:30 pm, Rinku son of
Ramesh came to call his father for dinner. In the meantime, Kuldeep and
Sandeep came in Honda City car bearing No. DL-4CY-6092. It is matter of
record that Bijay alias Vijay Singh as PW2 deposed that both assailants were
armed with pistols in their hands. Sandeep fired shot at Ramesh whereas
Kuldeep fired shot at Rinku, as a result both fell down. On hearing fire shots,
Rakesh alias Kala and Dilbag also reached on the spot. Kuldeep fired shot at
Rakesh alias Kala, as a result he also fell down. In this regard, Rakesh alias
Kala as PW4 and Dilbag as PW3 claimed that it was Sandeep who was
armed with pistol who fired shot at Ramesh and thereafter Kuldeep snatched
pistol from Sandeep and fired shot at Rinku as well as at Rakesh alias Kala.
The aforesaid witnesses further confirmed that Bijay along with Dilbag tried
to catch hold of assailants but they ran away in their car. Thereafter, Bijay
alias Vijay Singh along with Dilbag and Kapil shifted the injured to PGIMS,
Rohtak where Ramesh and Rinku were declared dead, whereas Rakesh alias
Kala was under treatment.
Learned counsel for appellants argued that witnesses examined
by prosecution are close relatives thus interested witnesses and there was no
independent corroboration to the testimony of aforesaid witnesses and
secondly referred to the aforesaid discrepancy.
Before dealing with the facts of present case, it is well settled
proposition of law that in criminal cases trivial discrepancies in deposition of
witnesses cannot be given undue importance. Gainful reference can be made
to the authority cited in 2013(2) R.C.R.(Criminal) 620 of Hon'ble
Supreme Court of India, case title "Lal Bahadur and others Versus State
(NCT of Delhi)", where in para No. 19, it was explained regarding the
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contradictions and inconsistencies in the evidence of prosecution witnesses.
It was held that "entire evidence of the witnesses has to be considered and
the evidence of witnesses cannot be brushed aside merely because of some
minor contradictions, particularly for the reason that the evidence and
testimonies of the witnesses are trustworthy."
In case title "Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, 1983(2) RCR (Criminal), it was held by Hon'ble Supreme Court
of India that much importance cannot be attached to minor discrepancies on
the following reasons :-
"(1) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is not
as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so
often has an element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What
one may notice, another may not. An object or movement might
emboss its image on one person's mind, whereas it might go
unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and
reproduce the very words used by them or heard by them. They can
only recall the main purport of the conversation. It is unrealistic to
expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an
occurrence, usually, people make their estimates by guess-work on
the spur of the moment at the time of interrogation. And one cannot
expect people to make very precise or reliable estimates in such
matters. Again, it depends on the time-sense of individuals which
varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the
sequence of events which take place in rapid succession or in a short
time span. A witness is liable to get confused, or mixed up when
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interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the
court atmosphere and the piercing cross-examination made by
counsel and out of nervousness mix up facts, get confused regarding
sequence of events, or fill up details from imagination on the spur of
the moment. The sub-conscious mind of the witness sometimes so
operates on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and honest
account of the occurrence witnessed by him - Perhaps it is a sort of a
psychological defence mechanism activated on the spur of the
moment."
It was further elaborated by Hon'ble Supreme Court of India in
case title "Yogesh Singh Versus Mahabeer Singh & Ors." 2016(4) R.C.R.
(Criminal) in para No. 29, which runs as under :-
"29. It is well settled in law that the minor discrepancies are not to
be given undue emphasis and the evidence is to be considered from
the point of view of trustworthiness. The test is whether the same
inspires confidence in the mind of the Court. If the evidence is
incredible and cannot be accepted by the test of prudence, then it
may create a dent in the prosecution version. If an omission or
discrepancy goes to the root of the matter and ushers in
incongruities, the defence can take advantage of such
inconsistencies. It needs no special emphasis to state that every
omission cannot take place of a material omission and, therefore,
minor contradictions, inconsistencies or insignificant
embellishments do not affect the core of the prosecution case and
should not be taken to be a ground to reject the prosecution
evidence. The omission should create a serious doubt about the
truthfulness or creditworthiness of a witness. It is only the serious
contradictions and omissions which materially affect the case of the
prosecution but not every contradiction or omission."
Thus in the light of the above, we have considered the facts of
case and evidence on record. Site plan of place of occurrence Ex.PK shows
that occurrence took place in the inhabited area at about 09:30 pm. The
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appellants/convicts opened fire and injured Ramesh, Rinku and Rakesh alias
Kala. In such like situation, it cannot be expected that persons living in the
said area will come out to see the occurrence. At the same time, presence of
aforesaid witnesses cannot be doubted as one of the eye witness Rakesh alias
Kala PW4 himself suffered fire arm injury in his chest. There is discrepancy
in the statement of Bijay alias Vijay Singh PW2 where he alleged that both
the appellants were armed with pistols, whereas, Rakesh alias Kala PW4 and
Dilbag PW3 consistently stated that it was Sandeep who was armed with
pistol and fired shot at Ramesh and thereafter, Kuldeep snatched pistol from
Sandeep and fired at Rinku and Rakesh alias Kala. Consistent testimonies of
injured Rakesh alias Kala as PW4 as well as Dilbag PW3 cannot be brushed
aside on account of such discrepancy.
14. The ocular version of aforesaid witnesses is further supported by
medical record. Prosecution has examined Dr. Abhinav, DMS, BPS, GMC,
Khanpur Kalan, Sonepat PW26 who filed his affidavit Ex.PW26/A and
proved Postmortem Report Ex.PNN, according to which Ramesh age 45
years had suffered following injuries :-
"1. Laceration measuring 1.5 cm diameter, whose margins
were inverted with blackening around it. (Entry wound) on
inferior aspect of sternum on its left side, 3 cms from midline.
Clotted blood present. It was directed from left to right side,
going downwards, backwards and medially, piercing sternum,
pleura lacerating heart, going through the pleura on right side
penetrating the right lung going inferiorly obliquely, piercing
its muscles 9th space posteriorly and lodged in the muscles of
posterior thoracic cavity. The bullet recovered, sealed and
handed over to police. There is corresponding hole in the kurta
in the left pocket area. Thoracic cavity contained blood.
2. Another laceration wound of 1.5 cm with inverted margins
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and blackening around it. (Entry wound). There was clotted
blood present. It was present 15 cms away from umbilicus on
left side and 9 cms above left iliac crest. On dissecting the
track goes downwards, medially and backwards from left to
right side piercing anterior abdominal wall peritoneum,
intestine with its mesentry, then entering into L3 and L4
vertebra and found lodged in spinal canal, Spinal cord was
echhymosed. Bullet recovered, sealed and handed over to
police. Scalp and skull were healthy. L3 and L4 vertebrae were
fractured. Membranes and brain were pale. Spinal cord was
echhymosed in lumbarregion. Thoracic wall was pale and
thoracic cavity had blood. Ribs and cartilages pale, pleura
described. Larynx and trachea and hyoid were pale. Right lung
has been described and left lung was pale. Pericardium and
heart lacerated and pale, large vessels were pale.
Abdominal wall and peritoneum was pale, mouth
described, pharynx and oesophagus were pale. Stomach
contained semi-digested food particles. Small intestines
contained some digested food and large intestine contained
some fecal matter. Liver and kidneys were pale and bladder
was empty. No abnormality was detected on external and
internal organs of generation.
The cause of death in this case was due to firearm injuries and
its complications which were ante-mortem in nature and
sufficient to cause death in normal course of nature."
This witness has also proved information sent to police authority
regarding death of Ramesh, which is Ex.POO as well as his signatures on the
inquest report Ex.PC. He also proved the clothes of deceased Ramesh which
were sealed in a parcel and handed over to police. The white blood stained
shirt Ex.P41, pyjama Ex.P42, underwear Ex.P43 and banyan/waist Ex.P44
were produced in the Court. Similarly, he confirmed that two bullets were
recovered from the body of Ramesh which were sealed in a parcel and were
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handed over to police. Same are Ex.P45 and Ex.P46.
Prosecution examined Dr. Vikas, MO, CHC, Kiloi PW27 who
filed his affidavit Ex.PW27/A and proved Postmortem Report of Rinku alias
Parmod age 22 years Ex.PQQ. As per Postmortem Report, there were
following injuries on the person of deceased:-
"(1) Entry wound :- Lacerated wound of size 1x1.5 cm, oval in
shape, blacking. There was present lacerated wound of size 1.5
cm diameter, (margins inverted with blackening, tattooing,
scorching was present around it) directed laterally, front of Rt.
Side of chest 5 cm above and medially to nipples piercing skin,
superficial fascia, deep fascia, thoracic muscles, deep tissues
ecchymosed. Bullet recovered between thoracic muscles and Rt.
Lung, right lung ruptured. Thoracic cavity full of blood.
(2) Entry wound :- Oval in shape, margins inverted, irregular,
blackening, tattooing seen. 2.5x2 cm, 2 cm lateral to umblicus
over ant. abdominal wall, piercing only superficial fascia, no
congestion, no ecchymosis seen. Deep tissues healthy.
(3) Entry wound :- of size 2.5x2 cm, oval in shape, inverted
directed medially, upwards, margins irregular, over midline of
back, 15.5 cm below occiput, blackening, tattooing, scorching
around the wound present, piercing skin, superficial fascia, deep
fascia, making exit wound of size 3x2.5 cm, 10 cm above entry
wound No. 3, over inferior angle of scapula, margins irregular,
everted, directed laterally, deep tissues ecchymosed. (Note:
corresponding holes present over shirt and banyan).
(4) Scalp, skull healthy. Brain- Pale. Walls- pale, Larynx,
Trachea Pale, left lung, Pericardium - pale, right side of heart
contained dark liquid blood, left side empty, abdominal wall,
peritoneum, pharynx, oesophagus - pale, stomach contained
semi-digested food particles. Small intestine contained some
digested food. Large intestine - some facial matter. Liver,
spleen, kidneys - pale, bladder- empty, organs of generation -
NAD.
(5) The cause of death of deceased was firearm injuries and its
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complications. Injuries were ante-mortem in nature and
sufficient to cause death in normal course of life."
He had sent information regarding death of Rinku vide rukka
Ex.PRR. He further identified his initials on the inquest report of Rinku
Ex.PD. The deposing witness also proved MLR of Rakesh alias Kala
prepared by Dr. Ashish Chauhan Ex.PSS and rukka regarding the same is
Ex.PTT. The deposing witness identified writing and signatures of Dr.
Ashish Chauhan. The applications moved by SI/SHO Rajbir Singh seeking
opinion of doctor are Ex.PVV and Ex.PXX and opinion of Dr. Ashish
Chauhan is Ex.PVV/1 and Ex.PXX/1 respectively. The deposing witness
identified signatures and writing of aforesaid doctor as he had seen him
signing and writing. The deposing witness further confirmed that jeans pant
Ex.P47, blood stained shirt Ex.P48, blood stained underwear Ex.P49 and
blood stained banyan Ex.P50 were sealed in a parcel and were handed over
to police. One bullet Ex.P51 was recovered from the body of Rinku which
was sealed in a parcel and same was handed over to police.
15. There is report of FSL dated 12.05.2014 Ex.PKK which
confirmed that country made pistol marked W/1 was found to be in working
order. 7.65 mm five cartridge cases marked C/1 to C/5 were fired from the
aforesaid country made pistol marked W/1 and it was further confirmed that
fired bullets marked BC/1 to BC/5 were fired from country made pistol
marked W/1 and not from any other firearm even of same make and
bore/caliber because every firearm has got its own individual characteristic
marks. Bullet marked BC/1 was recovered from the place of occurrence.
Bullet marked BC/2 was recovered from the body of injured Rakesh alias
Kala. Bullets marked BC/3 and BC/4 were recovered from the body of
deceased Ramesh and bullet marked BC/5 was recovered from the body of
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deceased Rinku. The hole on T-shirt contained in parcel No. IV that is of
Rakesh alias Kala was caused by bullet projectile. The hole on kurta and
banyan contained in parcel No. VI that is of Ramesh was caused by bullet
projectile and holes on the shirt and banyan contained in parcel VIII that is
of Rinku was caused by bullet projectiles. The aforesaid detailed report of
FSL Ex.PKK clearly shows that Ramesh, Rinku and Rakesh alias Kala were
fired at from one pistol. Therefore, the version put forward by injured
Rakesh alias Kala PW4 and Dilbag PW3 that Sandeep fired from his pistol
firstly at Ramesh and same pistol was snatched by Kuldeep who fired shots
at Rinku and Rakesh alias Kala, is corroborated from the aforesaid report of
FSL Ex.PKK. Considering the testimony of aforesaid witnesses coupled with
medical record and supported by report of FSL, the stand taken by
appellants/convicts does not hold any ground.
16. The prosecution has examined SI Rajbir Singh the Investigating
Officer as PW23 who investigated the case from the beginning till
presentation of challan. In this case, Kuldeep was arrested on 22.08.2010. He
suffered disclosure statement on 24.08.2010 Ex.PX on the basis of which
pistol along with one empty cartridge and five live cartridges were recovered
vide recovery memo Ex.PT. The site plan of place of recovery is Ex.PJJ. Dr.
Abhinav, DMS, BPS, GMC, Khanpur Kalan, Sonepat and Dr. Vikas, M.O.,
CHC Kiloi categorically stated that bullets recovered from the body of
deceased victims Ramesh and Rinku, injured Rakesh alias Kala were sealed
in separate parcels and same were handed over to police which were taken
into police possession vide recovery memos Ex.PU and Ex.PCC
respectively. The Investigating Officer had visited the spot and prepared site
plan Ex.PK and further recovered five empty cartridges and one live
cartridge which were taken into police possession vide recovery memo
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Ex.PF. Investigation carried out by SI/SHO Rajbir Singh PW23 is further
supported by examining all relevant recovery witnesses. Ram Bhagat,
Reader to District Magistrate, Rohtak PW13 has proved sanction order
Ex.PQ signed by the then District Magistrate, Rohtak Shri P.C. Meena IAS.
Learned counsel for appellants/convicts could not point out any fault or
discrepancy in the investigation carried out by Investigating Officer.
17. Learned counsel for appellants/convicts pointed out that
prosecution had failed to lead any convincing evidence on record to prove
motive behind the occurrence. In-fact, complainant party is involved in
several criminal cases. Therefore, there is a possibility that Ramesh and
Rinku were killed by some unknown persons due to their rivalry. It is the
case of prosecution that Ramesh and Rinku had installed inverter in the
house of Kuldeep and Sandeep appellants/convicts and regarding payment of
money altercation had taken place about two days prior to the occurrence
and on account of this reason, appellants/convicts murdered Ramesh and
Rinku and further injured Rakesh alias Kala. Apart from the oral testimony
of prosecution witnesses, there is no documentary proof to prove that Rakesh
alias Kala and Rinku had installed inverter in the house of
appellants/convicts. It is well settled proposition of law that in case of direct
trustworthy evidence of witnesses as to commission of offence, the
question/existence of motive loses its significance. The ocular testimony of
witnesses regarding occurrence cannot be discarded only by the reason of
absence of motive, if otherwise, the evidence is worthy of reliance. Gainful
reference can be made to the judgment of Hon'ble Supreme Court of Indian
in case title "Madan Versus State of Uttar Pradesh" 2023(15) Scale 310,
where it was held in para No. 44 as under :-
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"44. .... It is a settled law that though motive could be an important
aspect in a case based on circumstantial evidence, in the case of
direct evidence, the motive would not be that relevant."
In the case in hand, assailants are specifically named right from
the first instance by complainant Bijay alias Vijay Singh who was present
along with Ramesh when the occurrence took place. Unfortunately, Ramesh
and Rinku lost their lives due to firearm injuries suffered by them. However,
Rakesh alias Kala who survived firearm injury has stepped into the witness
box as PW4 to prove the prosecution case. Identity of assailants is duly
proved on record by injured Rakesh alias Kala PW4 and eye witnesses Bijay
alias Vijay Singh PW2 and Dilbag PW3. Thus in the presence of eye
witnesses to the occurrence, motive behind occurrence cannot be given
undue weightage. The prosecution case is based on direct evidence,
therefore, this argument raised by learned counsel for appellants/convicts is
of no avail to them.
18. The prosecution pointed out that in the case in hand, Sunil alias
Senior was acquitted, whereas, present appellants/convicts are convicted by
relying upon same set of evidence. We have considered this aspect of present
case. Firstly, Sunil alias Senior was charge-sheeted only under Section 212
IPC for which he has been acquitted. The appellants/convicts Kuldeep and
Sandeep are specifically named in the commission of offence as discussed
above. Considering the role attributed to them, judgment of acquittal qua
Sunil alias Senior will not affect the merits of case qua the
appellants/convicts.
19. No other argument was raised by learned counsel for
appellants/convicts.
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20. Considering the aforesaid facts and evidence led by prosecution,
learned trial Court rightly held appellants/convicts Kuldeep and Sandeep
guilty under Sections 302 and 307 read with Section 34 of IPC and sentenced
them accordingly with appellant/convict Kuldeep being rightly held guilty
under Section 25 of the Arms Act as well and sentenced appropriately. The
appellants/convicts murdered Ramesh and his son Rinku and injured other
son Rakesh alias Kala by repeatedly firing shots with their pistol.
21. Resultantly, we do not find any reason to interfere in the
judgment of conviction dated 03.01.2014 and order of sentence dated
08.01.2014 passed by learned Additional Sessions Judge, Rohtak. Same is
accordingly, upheld.
22. Appeal preferred by appellants/convicts Kuldeep and Sandeep is
accordingly, dismissed.
23. Pending application(s) if any, also stands disposed of
accordingly.
(AMARJOT BHATTI) (LISA GILL)
JUDGE JUDGE
24.4.2024
lalit
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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