Full Judgment
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal not D-745-DB of 2008 Date of decision :
13. 12.2012 Harminder Singh and another ....Appellants VERSUS State of Punjab ....Respondent CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE INDERJIT SINGH *** Present : Mr.Baldev Singh, Senior Advocate with Mr.Deepinder Singh, Advocate, for appellant No.1 Harminder Singh.
Mr.R.S.Rai, Senior Advocate with Mr.D.S.Brar, Advocate, for appellant No.2 Pargan Singh.
Ms.Ritu Punj, Addl.
Advocate General, Punjab, for the respondent-State.
*** INDERJIT SINGH, J Appellants Harminder Singh and Pargan Singh have filed the present appeal against the judgment dated 25.09.2008 and order of sentence dated 27.09.2008, passed by the Sessions Judge, Kapurthala, vide which they have been convicted and sentenced as under:- Name of accused Under Section Sentence Harminder Singh 302 IPC Rigorous imprisonment for life and to pay a fine of Rs.50,000/- and in default of payment of fine to further undergo rigorous imprisonment for two years Criminal Appeal not D-745-DB of 2008 [2].Name of accused Under Section Sentence 307 read with Rigorous imprisonment for a period of ten Section 34 IPC years and to pay a fine of Rs.25,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year Pargan Singh 302 read with Rigorous imprisonment for life and to pay a Section 34 IPC fine of Rs.50,000/- and in default of payment of fine to further undergo rigorous imprisonment for two years 307 IPC Rigorous imprisonment for a period of ten years and to pay a fine of Rs.25,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year Harminder Singh and 397 IPC Rigorous imprisonment for a period of ten Pargan Singh years each All the sentences were ordered to run concurrently.
Brief facts of the prosecution case are that FIR in the present case has been registered on the statement of Navin Sharma who stated that on 25.03.1999 at about 5:00 p.m., he was going on his scooter not PB-08-5477 Bajaj Chetak and Varun Kumar @ Kaka was on scooter LML Vespa.
They reached in Bank of Punjab and withdrew Rs.4,00,000/-.
Varun Kumar placed the money bag in front of scooter and they were going towards their office situated at Gandhi Chowk, Phagwara.
Varun Kumar was going ahead and the complainant was following him at some distance.
When they reached at Chadha Market at about 5:30 p.m., one black colour scooter came from their backside on which two sikh gentlemen with trimmed beard, one was tall in height and other was of middle height, both of them wearing pants and shirts, started firing with pistol on Varun Kumar which hit him and Varun Kumar fell down from the scooter.
The person sitting on the pillion of scooter, snatched the Criminal Appeal not D-745-DB of 2008 [3].money bag from Varun Kumar which was also having one cheque book and they turned back their scooter.
Then Kamaljit Singh tried to stop them but out of whom one sikh gentleman, who was sitting on the pillion, fired with pistol on Kamaljit Singh and he fell down.
Both unidentified persons ran away on scooter with money bag.
Complainant Naveen Kumar and other persons arranged the vehicle and sent Varun Kumar and Kamaljit Singh to Civil Hospital, Phagwara.
When the complainant was going to police station to report the matter, the police party met him and his statement was got recorded by ASI Iqbal Singh (Investigating Officer).Police Station City Bhagwara at 6:00 p.m.on the same day.
Ruqa was sent to the police station on the basis of which FIR was registered.
Then Investigating Officer alongwith complainant and police party went to Chadha Market, City Phagwara and saw the dead body of Varun Kumar and one injured Kamaljit Singh at the spot.
The injured was sent to Civil Hospital, Phagwara.
Inquest proceedings were prepared and the dead body of Varun Kumar was sent for postmortem examination.
Blood stained earth was lifted from the spot and the same was taken into police possession after preparing a sealed parcel.
Vespa scooter lying at the spot was also taken into police possession.
On 18.07.2006, a special team was constituted to trace the culprits.
The Investigating Officer received a secret information on 24.07.2006 that accused Harminder Singh and Pargan Singh were the perpetrators of this crime.
He conducted the raids at the Criminal Appeal not D-745-DB of 2008 [4].houses of accused but could not arrest them.
On 02.08.2006, PW Vishwa Mitter made a statement before the Investigating Officer that both the accused have suffered extra judicial confession before him.
On 07.08.2006, a naka was laid and at about 6:45 p.m.both the accused were seen coming on a scooter which was being driven by Pargan Singh and Harminder Singh was sitting on the pillion.
Both the accused were apprehended and arrested.
On 08.08.2006, both the accused were produced before the Court and application was moved for conducting identification parade of the accused but the accused declined the same through separate statements Ex.PM/1 and Ex.PM/2.
Statements of witnesses were recorded.
After necessary investigation, challan against the accused was presented before the Court.
On presentation of challan, copies of challan and other documents were supplied to both the accused under Section 207 Cr.P.C.Finding a prima facie case against the accused, they were charged for the offences under Sections 302, 307 and 397 IPC to which they pleaded not guilty and claimed trial.
The prosecution, in support of its case, examined PW1 Vishwa Mittar, who mainly deposed regarding extra judicial confession made by both the accused on 30.07.2006.
PW2 Kamaljit Singh, who is injured witness in the present case and has seen the occurrence, deposed as per prosecution version.
PW3 Naveen Sharma, who is complainant and eye witness in the present case, Criminal Appeal not D-745-DB of 2008 [5].also deposed as per prosecution version.
PW4 Chaman Lal mainly deposed regarding identifying the dead body of Varun Kumar.
PW5 Dr.Kamaljit Singh, Medical Officer, Civil Hospital, Phagwara, deposed regarding conducting the postmortem examination on the dead body of Varun Kumar on 26.03.1999 alongwith Dr.Ajay Kumar and Dr.Gurdit Singh and found a lacerated wound 1.75 x 1.5 cm round to oval inverted margins situated just on left side of midline in the area of described upper half of scapula and back bone.
Blackish staining with burned margins present.
In the opinion of the doct ORS.injuries were ante-mortem in nature and the cause of death in this case was severe haemorrhage and shock and injury to vital organs lung, liver and major vessels which was sufficient to cause death in ordinary couRs.of nature.
PW6 Dr.Ajay Kumar, Medical Officer, Civil Hospital, Phagwara, mainly deposed regarding conducting the medico legal examination of Kamaljit Singh and found the following injuries:- 1.
Multiple lacerated wounds 8 in number of size 3 mm x 3mm x 2 mm in front of right shoulder.
Red in colour and bleeding from the wound was present.”
2. Lacerated wounds four in numbers of size 3 mm x 3mm x 2 mm in front of right side of neck.
Bleeding from the wound was present.
It was kept under observation and advised x-ray on neck.”
3. Three lacerated wounds 3 mm x 3mm x 3mm below the lower leg and chin on right side.
Bleeding from the Criminal Appeal not D-745-DB of 2008 [6].wound was present.
It was kept under observation and advised x-ray.”
4. Four lacerated wounds 3 mm x 3mm x 2 mm one above and one below the right eye, two on its lateral side.
Bleedings from the wounds were present, upper and lower eye lids were swollen and blackened.
Eye was closed.
It was kept under observation.
X-ray was advised and eye check up was advised.”
5. Lacerated wound on right side and below the tongue, which was 4 mm x 4 mm.
Bleeding from the mouth was present.
Tongue was edematous.
X-ray was advised and kept under observation.
All the injuries were caused with fire arm.
PW7 Constable Malkiat Singh mainly deposed regarding getting conducted the postmortem examination on the dead body of Varun Kumar.
Parvej Masih, Ahlmad in the Court of Sub Divisional Judicial Magistrate, Phagwara, produced the record pertaining to FIR No.227 dated 07.08.2006 under Section 25 of the Arms Act registered at Police Station City Phagwara against accused Pargan Singh.
PW8 Sukhraj Singh brought the statement of account showing the withdrawal of Rs.4,00,000/- from the account of Naveen Sharma on 25.03.1999.
PW9 Sub Inspector Rajinder Singh mainly deposed regarding conducting the personal search of Harminder Singh on his arrest and he recovered one country made .315 pistol Criminal Appeal not D-745-DB of 2008 [7].from his right dub which on unloading, one live cartridge of the same bore was recovered.
On further search of accused Harminder Singh, three live cartridges from the left pocket of his shirt were recovered for which the accused could not produce any licence or authorization.
PW10 ASI Iqbal Singh mainly deposed regarding the investigation of the case.
PW11 Manjit Singh, Draftsman, deposed regarding preparing the scaled site plan Ex.PK.
PW12 Sub Inspector Inderjit Singh also deposed regarding the investigation of the present case.
PW13 Babu Lal, Chief Pharmacist, mainly produced the record of Civil Hospital, Phagwara.
PW14 Sub Inspector Gurwinder Singh also deposed regarding the arrest of accused and further preparing the report under Section 173 Cr.P.C.At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C.and confronted with the evidence of prosecution.
The accused denied the correctness of the evidence and pleaded themselves as innocent.
However, the accused did not lead any defence evidence.
The trial Court, after appreciation of evidence, convicted and sentenced both the accused as stated above.
At the time of arguments, learned counsel for the appellants contended that in the present case, the identity of the accused is not proved beyond doubt.
No identification parade has taken place.
The PWs have already seen the accused in the police station, therefore, their identification in the Court is not the proper Criminal Appeal not D-745-DB of 2008 [8].identification as the accused were arrested after more than seven years of the occurrence and the witnesses were not knowing the accused earlier.
Learned counsel for the appellants further contended that the Investigating Officer has created the extra judicial confession and PW1 Vishwa Mittar has been falsely introduced in the present case.
Learned counsel for the appellants next contended that no recovery has been effected from the accused and there is no other incriminating evidence connecting the accused with the crime.
Learned counsel for the appellants contended that the presence of Naveen Sharma, complainant (PW3) on the spot is doubtful.
On the other hand, learned Addl.
Advocate General, Punjab contended that the case of the prosecution has been duly proved.
The presence of PW2 Kamaljit Singh, who is injured witness, cannot be doubted.
Secondly, there is no evidence on the record to doubt the presence of Naveen Sharma, complainant (PW3).The FIR was prompt one and the injured was shifted to hospital immediately within half an hour.
Statements of witnesses were recorded which rather prove the presence of Naveen Sharma, complainant on the spot.
Learned Addl.
Advocate General, Punjab, further contended that PW1 Vishwa Mittar before whom the extra judicial confession has been made by the accused is a reliable witness and there is nothing to doubt his testimony.
She also contended that as the accused were arrested after a gap of more than seven yeaRs.therefore, no recovery could be effected and on Criminal Appeal not D-745-DB of 2008 [9].this ground, no reasonable doubt exists in the prosecution version.
Learned Addl.
Advocate General, Punjab further contended that the identification in the Court is substantial evidence and there is no reason or ground to falsely identifying the accused in the Court.
She further contended that even the accused refused to get their identification from PWs, therefore, it cannot be argued that identification of the accused has not been proved.
We have heard learned counsel for the appellants and learned Addl.
Advocate General, Punjab and with their assistance, we have gone through the evidence on record minutely and carefully.
From the record, we find no merit in the arguments of learned counsel for the appellants.
FiRs.of all presence of Kamaljit Singh (PW2).who is injured and eye witness to the occurrence, cannot be doubted.
PW2 Kamaljit Singh has consistently deposed as per prosecution version.
The presence of Naveen Sharma, complainant (PW3) also cannot be doubted as he reported the matter within no time to police and the FIR was prompt one.
There is nothing on the record to doubt his presence on the spot.
There is nothing in the cross-examination from which a doubt can be created that complainant Naveen Sharam (PW3) was not present on the spot.
Rather as per record, an amount of Rs.4,00,000/- was withdrawn from the account of Naveen Sharma (PW3).PW2 Kamaljit Singh and PW3 Naveen Sharma, who is complainant in the present case, are consistent on material points and there are no Criminal Appeal not D-745-DB of 2008 [10].material improvements or material contradictions which may go to the root of the case.
As the accused were arrested after a period of more than seven yeaRs.therefore, question of any recovery from them does not arise.
The accused robbed Rs.4,00,000/- and they might have spent that amount during these seven yeaRs.Therefore, on this ground, no reasonable doubt exists in the prosecution version.
As regarding identification, the Investigating Officer gave the application in the Court for getting conducted the identification parade of the accused but the accused made statement in the Court refusing to take part in the identification parade.
not the argument of learned counsel for the appellants that the identification parade has not taken place or the witness has stated that he has seen the accused in the police station or in the Court does not have any merit.
PW2 Kamaljit Singh, injured and PW3 Naveen Sharma, complainant have duly identified the accused in the Court which is substantial evidence.
When the accused themselves refused to take part in the identification parade, therefore, it cannot be said that identity of the accused has not been established.
The accused also did not No.give any ground that why they do not want to get conducted their identification parade.
They have not stated before the Magistrate that they have been shown to the witnesses etc.It is in the cross- examination of PW2 Kamaljit Singh that police had called him so many times when suspects for causing the alleged occurrence were Criminal Appeal not D-745-DB of 2008 [11].nabbed but there is no evidence on record that this witness has identified wrongly any other person earlier.
If this witness had to wrongly identify any other person, he may have identified some other person earlier when he was called to identify those suspects.
Otherwise also, there is no enmity or motive of these eye-witnesses to depose falsely against the accused.
Even the accused in their statements have not alleged any enmity or motive of the PWs to falsely depose against them.
The statements of PW2 Kamaljit Singh, injured eye witness and PW3 Naveen Sharma, complainant are consistent on material facts which are further corroborated by medical evidence in this case.
The statements of PWs are further supported and corroborated by the statement of PW1 Vishwa Mittar before whom extra judicial confession has been made.
PW1 Vishwa Mittar has stated that he is Pardhan of his Mohalla from the last about seven yeaRs.It is in the evidence that secret information was received against the accused regarding this occurrence and police was searching them.
Therefore, there is every possibility that accused contacted PW1 Vishwa Mittar, Pardhan of the Mohalla of the deceased for producing them before the police.
The statement of PW1 Vishwa Mittar was recorded by the police earlier to the arrest of the accused i.e.on 02.08.2006.
There is no cogent evidence on the record to show that accused were arrested many days earlier to the date when their arrest was shown.
The newspaper report has not been duly proved by bringing the reporter who has reported this Criminal Appeal not D-745-DB of 2008 [12].report.
Otherwise also, why the PWs will falsely implicate the accused and to let off the actual culprits.
They are truthful and trustworthy witnesses.
The prosecution has duly proved its case beyond any reasonable doubt.
Therefore, from the aforesaid discussion, we do not find any merit in the appeal and the same is dismissed.
(SATISH KUMAR MITTAL) (INDERJIT SINGH) JUDGE JUDGE 13 12.2012 mamta Criminal Appeal not D-745-DB of 2008 [13].