Full Judgment
In the High Court of Punjab and Haryana at Chandigarh .....Criminal Appeal not D-1003-DB of 2009 ....Date of decision:17.5.2013 Khushi Ram alias Major ...Appellant v.
State of Haryana ...Respondent ...Coram: Hon'ble Mr.Justice M.
Jeyapaul Hon'ble Mr.Justice Inderjit Singh ....Present: Mr.Surender Deswal, Advocate for the appellant.
Mr.Kshitij Sharma, Assistant Advocate General, Haryana for the respondent-State.....Inderjit Singh, J.
Appellant Khushi Ram alias Major has filed this appeal against the judgment of conviction and order of sentence dated 14.9.2009 passed by Sessions Judge, Gurgaon, whereby he has been held guilty and convicted for the offences punishable under Section 302 of the Indian Penal Code (hereinafter referred to as `IPC') and Section 25 of the Arms Act.
He has been sentenced to undergo imprisonment for life and to pay a fine of `20,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year for the offence under Section 302 IPC.
He has also been sentenced to undergo rigorous imprisonment for three years and to pay a fine of `5,000/- and in default of payment of fine to further undergo Cr.
Appeal not D-1003-DB of 2009 [2].rigorous imprisonment for six months for the offence under Section 25 of the Arms Act.
Both the sentences have been ordered to run concurrently.
The brief facts of the prosecution case are that on 5.12.2007, Head Constable Viney Kumar, Police Post, Sushant Lok, Police Station DLF, Gurgaon along with EHC Rishi Pal etc.was present on patrolling and for checking of crimes near Kanhai Chowk.
There, they found a young boy coming running from Sushant Apartments side, who was apprehended on suspicion.
On inquiry, he disclosed his name as Khushi Ram alias Major and on search, from the right pocket of his pant, one country made pistol of 12 bore and one empty cartridge of 12 bore in its barrel was found.
Accused was arrested and information in this regard was given to In-charge, Police Post, Sushant Lok, SI Daya Nand, who came to the spot and thereafter took over the investigation of this case from him.
After preparing sketch, the pistol and cartridge were converted into a sealed parcel and taken into Police possession through recovery memo.
No licence was produced.
`Ruqa' was sent to the Police Station at 11.00 p.m.for registration of the case and FIR No.541 dated 6.12.2007 was registered for the offence under Section 25 of the Arms Act at Police Station, DLF, Gurgaon.
Then SI Daya Nand, In-charge, Police Post, Sushant Lok wrote a letter to Station House Officer, DLF, Gurgaon, who sent the same to SHO, Sector 56, Gurgaon, wherein it was mentioned that while conducting investigation of the case registered for the offence under Section 25 of the Arms Act near Kanhai Chowk, where accused Khushi Ram alias Major on further interrogation, while in Police custody, disclosed regarding the murder of Monu, as such he could go to the place of killing and could get Cr.
Appeal not D-1003-DB of 2009 [3].his dead body recovered.
Disclosure statement of Khushi Ram alias Major was recorded and signed by the accused.
Then accused Khushi Ram alias Major on the basis of the above said disclosure statement, while in Police custody, led the Police party from Kanhai Chowk to Gate No.4 of RD City near Wazirabad road, on a `Katcha' path, from road to RD City, demarcated the place of occurrence and got recovered the dead body of Monu.
On the back of Monu, there was a sign of hitting of bullet and there was clotted blood.
It was written in this letter that accused Khushi Ram alias Major, above said, by committing the murder of Monu had committed the offences punishable under Section 302 IPC and Section 25 of the Arms Act.
This letter was sent at 12.15 a.m.On the basis of this letter, formal FIR No.276 dated 6.12.2007 was registered at Police Station, Sector 56, Gurgaon for the offences under Section 302 IPC and Section 25 of the Arms Act.
Inspector/SHO Hawa Singh proceeded towards the place of occurrence along with other Police officials.
When Investigating Officer Inspector Hawa Singh reached the spot, SI Daya Nand along with other Police officials was present there.
In the meanwhile, Suresh and Ved Parkash also came there.
Ved Parkash identified the dead body of Monu (deceased).his nephew.
Inquest proceedings were conducted and inquest report Ex.PT was prepared.
Blood stained earth was lifted from the spot and the same was taken into Police possession vide memo Ex.PB.
He also took into possession Key Ex.P.6 of the motorcycle from the hands of Monu (deceased) and the same was also taken into Police possession vide memo Ex.PC.
Motorcycles i.e., one belonging to Monu (deceased) and another belonging to the accused, were also taken into Police possession vide Cr.
Appeal not D-1003-DB of 2009 [4].recovery memo Ex.PD.
Rough site plan Ex.PU of the place of occurrence was prepared.
The dead body was photographed.
Statements of witnesses were recorded.
Then custody of the accused present in the Court, after interrogation, was handed over to SI Daya Nand and the dead body was sent for post-mortem examination.
Then the custody of the accused was taken through the Court and he was joined in the investigation.
On 8.12.2007, he made disclosure statement Ex.PE and in pursuance of the same, he got recovered one saree Ex.P.3, a blouse Ex.P.4, besides a bag Ex.P.2 containing bunch of keys Ex.P.5 and ring Ex.P.1 from his house in Sector 51, Gurgaon, which were taken into Police possession vide recovery memo Ex.PE/1.
During investigation, ownership of the motorcycle was got verified and it was found that the motorcycle with the accused, was exchanged 4-5 hands before coming to him.
The ownership of the motorcycle of the deceased was in the name of his father.
After necessary investigation, the challan was presented in Court.
On presentation of challan, the trial Court finding prima facie case against accused-appellant Khushi Ram alias Major, framed charges for the offences punishable under Section 302 IPC and Section 25 of the Arms Act.
The accused pleaded not guilty to above charges and claimed trial.
In support of its case, the prosecution examined PW-1 Manot Kumar, Draftsman, who mainly deposed regarding preparing of scaled site plan Ex.PA.
PW-2 Constable Kuldeep Singh mainly deposed regarding delivery of special report to Illaqa Magistrate.
PW-3 Ved Parkash, maternal uncle of Monu (deceased).mainly deposed that the accused present in the Court had telephonically called Monu to take back saree and ring of his Cr.
Appeal not D-1003-DB of 2009 [5].niece Jaldeep at Gate No.4 of RD City, Gurgaon.
Accused was having illicit relations with her.
In response to it, Monu went to the desired place on his motorcycle bearing registration not HR-36-3665.
When he did not return for a quite long time, he (PW-3) along with Suresh, his cousin, and son Devinder went in his search and when reached at Gate No.4 of RD City, Gurgaon, they found Police present there along with one official vehicle and few independent persons.
He identified the dead body of his nephew Monu.
Accused in Police custody was also present there.
The Police collected blood stained earth from the spot vide recovery memo Ex.PC.
This witness also deposed regarding the disclosure statement and recovery of saree, a blouse, a handbag, one ring etc.belonging to Jaldeep.
PW-4 EHC Bhim Singh and PW-5 HC Ved Pal are formal witnesses, who tendered in evidence their affidavits Ex.PF and PG respectively.
PW-6 HC Harikesh mainly deposed regarding getting conducted post-mortem examination on the dead body of Monu.
PW-7 Dr.
Virender Baswana, who tendered his affidavit Ex.PW.7/A in evidence, deposed that he conducted post-mortem examination on the dead body of Monu (Pawan Kumar son of Sh.
Hardyal) on 6.12.2007 and found the following injuries:- “(ii) There was a lacerated wound of size 2.5 x 2 cm.
over upper part of back just near the lower part of left scapula on exploration of wound there was track going deeper.
(iii) The lacerated wound corresponded to hole in the clothes on exploration of the wound the metallic foreign body (bullet) was recovered from the body, it was sent for ballistic expert opinion.
Cr.
Appeal not D-1003-DB of 2009 [6].(iv) There was fracture of four Ribs of the left side and there was massive haemothorax left side of the chest the lung of the left side was badly lacerated.”
The cause of death in this case was acute Cardio-respiratory distress due to massive chest injury due to fire arm injury.
PW-8 Surender Rana, Reader to District Magistrate, Gurgaon deposed regarding sanction order Ex.PJ issued by Shri Rakesh Gupta, IAS, then District Magistrate, Gurgaon.
PW-9 Constable Mukesh Kumar is a formal witness, who tendered in evidence his affidavit Ex.PK.
PW-10 ASI Viney Kumar apprehended the accused near Kanhai Chowk and deposed regarding recovery of country made pistol and empty in the barrel of the country made pistol.
He also deposed regarding the investigation in that case.
He further stated that accused was arrested and information in this regard was given to In-charge, Police Post, SI Daya Nand, who came to the spot and thereafter took over the investigation of this case from him.
He also deposed regarding the disclosure statement and recovery of dead body at the instance of the accused Khushi Ram.
PW-11 Bhim Singh mainly deposed that he purchased motorcycle bearing registration not DL-3SF-5390 from one Aman, Mechanic.
On 20.8.2007, he sold the same to Khushi Ram for `15,000/-.
The RC of the vehicle was not got transferred in his name.
He handed over the sale letter of the said vehicle to Khushi Ram.
PW-12 Aman alias Zakir Hussain deposed regarding purchasing of the motorcycle for `9,000/- from one Ashish, which was not in working condition.
After making the same in working condition, he sold the same after 4-5 months for a consideration of `13,000/- to Bhim Singh.
Whatever documents were Cr.
Appeal not D-1003-DB of 2009 [7].handed over by Ashish were handed over to Bhim Singh.
PW-13 Pushkar Nath Goswami also deposed that he purchased the motorcycle, which was registered in his name and he sold the same to one Ashish for `12,000/- and he handed over all the sale purchase documents to Ashish for getting the said vehicle registered in his name.
PW-14 Ashish deposed regarding purchasing the motorcycle from one Pushkar Nath and after three months sold the same to one Aman alias Zakir Ali for `9,000/-.
PW-15 Jitender Dalal, Radiographer, Civil Hospital, Gurgaon mainly deposed regarding entries pertaining to conducting X-rays etc.by Dr.
Virender Baswana.
PW- 16 Inspector Daya Nand deposed regarding partly investigation conducted by him in this matter.
PW-17 Inspector Hawa Singh deposed regarding investigation conducted by him in this case.
PW-18 SI Prem Chand mainly deposed regarding recording of formal FIR for the offence under Section 25 of the Arms Act in Police Station, Sector 29, DLF, Gurgaon.
Another FIR for the offences punishable under Section 302 IPC and Section 25 of the Arms Act was registered at Police Station, Sector 56, Gurgaon and both these cases were decided together vide the impugned judgment.
At the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C.and was confronted with the evidence of the prosecution but he denied the correctness of the evidence and pleaded himself as innocent.
He stated that he had been falsely implicated in this case.
No defence evidence has been produced.
The learned trial Court after going through the evidence and material on record, vide the impugned judgment convicted and sentenced Cr.
Appeal not D-1003-DB of 2009 [8].accused-appellant Khushi Ram alias Major for the offences as mentioned above.
At the time of arguments, the learned counsel for the appellant argued that it is a case of circumstantial evidence and the prosecution has failed to connect the accused with the crime.
He argued that the version of the prosecution is improbable, when the accused-appellant has motorcycle with him, why he would run on foot and would not go on the motorcycle.
Learned counsel for the appellant further argued that the motive for the crime had not been proved by the prosecution as Jaldeep was not examined in the present case.
Learned counsel for the appellant further argued that there is no cogent evidence on the record to connect the appellant with the crime.
PW-3 Ved Parkash in cross-examination has stated that he was told by her mother that accused Khushi Ram called Monu on telephone.
Therefore, his evidence is hearsay and cannot be believed.
Learned counsel for the appellant further argued that the recoveries have been falsely planted upon the appellant and he is innocent and has been falsely implicated in this case.
On the other hand, learned Assistant Advocate General, Haryana appearing for the respondent-State argued that the case of the prosecution has been duly proved by leading cogent evidence.
The version of the prosecution is also supported and corroborated by medical evidence, FSL report and recovery of motorcycles of the deceased and the accused and from other recoveries.
The dead body was also got recovered by the accused in pursuance of his disclosure statement and the appellant was apprehended after some time of the occurrence along with the weapon of Cr.
Appeal not D-1003-DB of 2009 [9].offence and the empty.
Therefore, he argued that there being no merit in the appeal, it should be dismissed.
We have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellant and learned Assistant Advocate General, Haryana appearing for the respondent-State.
From the evidence on record, we find that it is a case of circumstantial evidence and in the present case, chain of circumstances is complete and there is no missing link.
The circumstances of the present case, if put together, point towards the guilt of the appellant only and none else.
The arguments of the learned counsel for the appellant has no merit.
Firstly, in the present case, Jaldeep has not seen the occurrence.
The illicit relations between Jaldeep and Khushi Ram have been alleged, which is a motive for causing the occurrence.
As per prosecution version, Monu (deceased) was called by the appellant to return some articles of Jaldeep but an altercation took place there as the deceased, who was cousin of the deceased, was objecting to relation of Khushi Ram with Jaldeep.
As Jaldeep had not seen the occurrence, therefore, she was not a material witness to be examined in the present case and her non-examination, in no way, creates a reasonable doubt in the prosecution version.
The appellant was running away after the occurrence and was apprehended by the Police party at Kanhai Chowk.
He was coming from RD City side.
The motorcycle was found lying at the place where the dead body of Monu was lying.
It is only the accused/appellant who could tell as to why he had not come on the motorcycle and why he ran on foot leaving the motorcycle at the spot.
These facts were only in the mind of the accused and he could explain.
He Cr.
Appeal not D-1003-DB of 2009 [10].may have seen some vehicle coming towards that side and he may have run away from the spot and it is also possible that motorcycle might not have started and in nervous condition he may have run away on foot.
Therefore, only on this ground, it cannot be held that the prosecution version is improbable.
Head Constable Viney Kumar, who apprehended the appellant, was present on patrol duty and on suspicion, accused was apprehended and on his search, a country made pistol having one empty in its barrel was recovered from him and `Ruqa' was sent to the Police Station for registration of the FIR.
The intimation was given to the In-charge, Police Post, Sushant Lok and SI Daya Nand reached there and he interrogated the appellant, on which the appellant made disclosure statement and in pursuance of that disclosure statement, he demarcated the place of occurrence and got recovered the dead body of Monu.
This evidence shows the conduct of the accused, who was running away after committing the crime and the evidence that he was apprehended with weapon of offence and with the empty supports and corroborates the prosecution version.
Further the recovery of the dead body of Monu at the instance of the accused is another circumstance which connects him with the crime.
The country made pistol, the empty and slug, which was marked as BC/1by the FSL and recovered from the dead body, also connects the appellant with the crime.
As per FSL report, country made pistol marked as W/1, which was recovered from the appellant, was found in working order.
The 12 bore fired cartridge case marked as C/1, empty which was in the barrel of the pistol and slug marked as BC/1, have been fired from country made pistol marked as W/1 and not from any other firearm.
The holes on the sweater Cr.
Appeal not D-1003-DB of 2009 [11].and shirt contained in parcel have been caused by shotgun/slug projectile.
This report of FSL further supports and corroborates the prosecution version and connects the appellant with the crime.
The other circumstance in the present case is that motorcycle of the deceased was lying on the spot, though the RC of the motorcycle was not in the name of the accused, therefore, so many witnesses have appeared to connect that the owner of the motorcycle was the accused.
The said motorcycle was sold without changing the RC from one person to another and all the PWs have deposed regarding the selling of the motorcycle to one another and lastly it was purchased by Khushi Ram.
Further, from the evidence on record, we find that Head Constable Viney Kumar is a Police official.
He has no enmity or motive against the appellant.
Similarly, SI Daya Nand and Inspector Hawa Singh, Police officials have no enmity or motive to falsely implicate the appellant in the present case.
There is no reason or ground as to why they will depose falsely against the appellant or would falsely implicate him in this case.
The statement of PW-3 Ved Parkash further supports and corroborates the prosecution version.
Though he has no direct knowledge that Monu was called by the appellant on telephone, even then he has deposed regarding the motive for causing the occurrence.
He has also deposed regarding the recovery of motorcycle etc.from the spot.
He identified the dead body.
The appellant was present there at the spot in Police custody.
This witness has also deposed regarding the disclosure statement made by the appellant and then he got recovered a ring, saree, blouse and handbag of Jaldeep in pursuance of his disclosure statement which further supports and Cr.
Appeal not D-1003-DB of 2009 [12].corroborates the prosecution version and is another circumstance to connect the accused with the crime.
The evidence of the prosecution is further supported by medical evidence.
If all these circumstances put together, these will point towards the guilt of the accused only and none else.
The argument of the learned counsel for the appellant that there is no cogent evidence to connect the appellant with the crime is having no merit.
Therefore, from the above discussion, we find that the prosecution has duly proved its case by leading cogent evidence beyond reasonable doubt.
The appellant has been rightly convicted and sentenced for the offences under Section 302 IPC and Section 25 of the Arms Act and the conviction and sentence recorded by the learned trial Court are upheld.
Finding no merit in the appeal, the same is dismissed.
(M.
Jeyapaul) (Inderjit Singh) Judge Judge May 17, 2013.
*hsp*