Crl. A. No.D-815-DB of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-815-DB of 2008 Date of Decision :
12. 2.2014. Udayveer alias Uda alias Sandeep ......... Appellant Versus State of Haryana ..... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE KULDIP SINGH Present:- Mr. K.D.S. Hooda, Advocate, for the appellant. Ms. Shalini Attri, Deputy Advocate General, Haryana, for respondent-State. KULDIP SINGH, J.
In this appeal, appellant has challenged the judgment and order dated 2.9.2008, passed by learned Additional Sessions Judge, Kaithal, vide which he has been convicted under Section 302 of the Indian Penal Code (in short 'IPC') and sentenced to undergo imprisonment for life and a fine of Rs. 50,000/-, in default thereof, to further undergo rigorous imprisonment for 5 years. It has been further ordered that out of the amount of fine, if recovered, half of the amount shall be paid to Didar Singh, father of the deceased Devi Lal. The case was registered on the statement of Didar Singh, father of the deceased Devi Lal (Ex.PV) dated 24.7.2004. In the said statement, Didar Singh stated that he was employed as Tubewell Operator in Sugar Mill, Kaithal. On 24.7.2004, his younger son Devi Lal aged about 21 years had come to Sugar Mill, Kaithal, for duty at 8:30 AM. Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -2- Thereafter, he left the premises of the mill and went to Kaithal City alongwith a young boy saying that he had some work in Raj Agency, Jind Bye-pass Road, Kaithal and that he was to purchase vehicle on finance from Raj Agency. He also asked his father Didar Singh to meet him at Karnal Bye-pass near the hotel of Banarsi, so that they could go to Kaithal Town in connection with their work. Thereafter, Didar Singh reached the said Banarsi Hotel. When at about 11:30 AM, Didar Singh was sitting in the hotel and waiting for his younger son Devi Lal, one motorcycle pulsar came from Jind Bye-pass side. It was without registration number. It was being driven by a boy. Another boy was riding the pillion. One Wagon-R Maruti car was also coming behind them. Didar Singh could not read the number of the said car. In front of the said hotel, the side of the car hit the motorcycle, as a result of which both the boys riding the motorcycle fell down. The pillion rider immediately got up and ran away towards traffic lights. 4-5 youths came out of the said car. They were carrying pistols and some iron gandasi like object. Those assailants started firing from the pistol and also gave gandasi blow on the head of the said boy lying on the ground. Thereafter, the assailants, while riding the said Wagon-R car, sped away towards Ambala. Didar Singh went near the said boy and found that the said boy was his son Devi Lal and was battling for life. In the presence of the complainant, his son Devi Lal breathed his last at the spot. Didar Singh also gave the description of assailants. According to him, 2 boys were tall, 2 were of medium height and 1 was moderately built. They were wearing jean pants and shirt. Didar Singh claimed that he can recognize the said assailants, if brought before him. Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -3- ASI Desh Raj received the intimation on 24.7.2004 about the crime on telephone around 12 noon. He reached the spot and recorded the statement (Ex.PV) of Didar Singh (complainant). Thereafter, he made the endorsement (Ex.PV/4) on the same day at 1:30 PM and sent the same to the Police Station City Kaithal, where a case under Sections 302/34 IPC and under Section 25 of the Arms Act was registered against the accused. Thereafter, the post mortem of the dead body of deceased Devi Lal was got conducted. Site plan of place of occurrence was prepared. The photograph of the place of occurrence was taken. Spot inspection was carried out. From the place of recovery, 2 empty cartridges of 12 bore, 1 missed cartridge of 12 bore and one empty cartridge of brass 8 mm were found. The same were taken into possession alongwith blood stained earth, vide recovery memo Ex.PV/3. It further comes out that present convict-appellant attempted to commit the murder of Surinder Geong in the Court Complex, Kaithal and was apprehended by the police at the spot. FIR No.511 dated 22.11.2004 under Sections 307/34 and Section 25 of the Arms Act was registered at P.S. City Kaithal. After the arrest, one loaded country made pistol of 12 bore was recovered from the left pocket of the present convict-appellant, whereas from his right pocket, one loaded 315 bore pistol was recovered. 3 cartridges of 315 bore were also recovered from the accused, vide recovery memo Ex.PNN. On 26.11.2004, convict-appellant Udayveer alias Uda alias Sandeep suffered a disclosure statement Ex.PAA to the effect that he has kept concealed a pistol of 315 bore in DLF Colony, Gurgaon. However, Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -4- on a raid, it was found that the accomplices of the accused had vacated the said house and ran away. The Wagon-R car used in the crime was taken into possession on 30.1.2005, vide recovery memo Ex.PDD. The rifle used in the crime was also recovered from accused Dilbag Singh. The empty and missed cartridges recovered from the spot were sent to Forensic Science Laboratory, Madhuban (in short 'the Laboratory'). The Laboratory submitted its report Ex.PU that 12 bore fired cartridges C/1 and C/2 and one misfired cartridge MC/1 have been fired from country made pistol marked W/1. It is the same pistol which was recovered from the accused when he was arrested by the police in FIR No.511 dated 22.11.2004, P.S. City Kaithal. After the completion of investigation, the challan was presented in the Court against the abovenoted six accused. In support of its case, prosecution examined Surinder Singh (PW1), Karam Singh (PW2), Ramphal (PW3), Dr. S.K. Jain (PW4), A.S.I. Rajinder Parshad, Investigating Officer (PW5), Didar Singh, complainant (PW6), Constable Kuldeep Singh (PW7), A.S.I. Jogi Ram (PW8), A.S.I. Desh Raj (PW9), Inspector Ramesh Chand (PW10), H.C. Jai Pal (PW11), E.H.C. Ram Partap (PW12), Constable Dilbag Singh (PW13), Constable Sunil Kumar (PW14), Inspector Ramphal (PW15), Pankaj Mahajan (PW16), E.H.C. Rajbir Singh (PW17), Akshay Kishore, Ahlmad of Court of Additional Sessions Judge-II, Kaithal (PW18), Constable Rajiv Kumar (PW19), Constable Madan Lal (PW20), Madan Lal, Reader to District Magistrate, Kaithal (PW21), H.C. Haweli Ram (PW22), S.I. Gurmail Singh (PW23), Joginder Singh son of Ishwar Singh (PW24) and closed the evidence. Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -5- When examined under Section 313 Cr.P.C., accused denied the charges levelled against them and claimed trial. Accused did not lead any evidence in defence. After hearing the prosecution, defence counsel and going through the evidence, learned Additional Sessions Judge, Kaithal, acquitted accused Makhan Singh, Surinder alias Mamu and Raja alias Balraj. However, accused Udayveer alias Uda alias Sandeep was convicted and sentenced as aforesaid. Accused Mahavir was declared proclaimed offender, whereas accused Dilbag @ Bagga died during trial. Aggrieved by the said judgment and order, convict-appellant Udayveer alias Uda alias Sandeep has filed the present appeal. We have heard learned counsel for the convict-appellant, learned Deputy Advocate General for the State and have also carefully gone through the case. The statement of Dr. S.K. Jain (PW4) shows that when the post mortem of the dead body of deceased Devi Lal was conducted on 24.7.2004, following injuries were found on the person of deceased Devi Lal :- 1. Incised wound 3 cm x .2 to .4 cm over the left eye brow, medial and obliquely placed, underlying bone was fractured into pieces.
2. Incised wound 6 cm x .5 to 1 cm. It was bone deep over scalp right side over temporo occipital region, clotted blood was present.
3. Incised wound 6 cm x .5 to 1 cm and 6 cm x .5 to 1 cm right Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -6- angle to injury No.2, just adjacent underlying bone was fractured into pieces. There was also haemotoma 4 cm x 6 cm in extra dural region.
4. Round wound with inverted margin 1.5 cm in the left mastoid region in the back of the ear. On tracing the wound, it (track) was going anterially and medially.
5. Lacerated wound 3.5cm x 2.5 cm over the left eye brow, multiple fracture of the orbit and there was laceration on the brain matter and the wound was of everted type and there was clotted blood also. On dissection further, one metal piece two cm. size with 2 cm size plastic ring, sealed and handed over to police. 1.5 cm round wound with inverted margin in the left iliac fossa, near posteriorly axillary line. Round wound 2.5 cm x 2 cm with everted margin 4 cm above left costal margin over anteriorly axillary line, underlying Liver lobe was badly crushed, injuring the gut at places, direction of the wound was upward and anteriorly. There was haemoperipontun. There was also brownish, reddish bluish over the right knee measuring 5 cm x 2 cm anteriorly placed, and there was also reddish, bluish, brownish bruise over the left knee also measuring 3 cm x 2.5 cm. Plura, larynx, trachea, right lung, left lung were healthy, heart was having fluid blood in small amount in both ventrical, over the Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -7- abdomenal wall, there were (on right side), there were abrasion reddish brownish colour measuring size 8 cm x 6 cm, 7 cm x 5 cm and 6 cm x 4 cm. Peritoneum was smeared with blood from inner side, stomach was having small semi digested food, small intestine was having digested food material in small amount, liver was badly lacerated, bladder was having 50 cc of urine, spleen, kidneys were normal. In the opinion of the doctor, the death in this case was due to shock and haemorrhage due to head injury and other associated injuries, which were sufficient to cause death. The doctor also recovered one metal piece .2 cm size with 2 cm size plastic ring from the dead body. The same were handed over to the police with the clothes of the deceased. Coming to the ocular version, it comes out that Didar Singh (complainant), while appearing as PW6, turned hostile. He stated that he was at home when he received information that his son Devi Lal has been murdered by someone at Karnal Bypass. Thereafter, he went there and found the dead body. Surinder Singh, who was stated to be riding the pillion of the motorcycle driven by deceased Devi Lal, was examined as PW1. Surinder Singh also turned hostile and stated that nothing happened in his presence. The third material witness in this case was Joginder Singh (PW24), who was introduced as eye-witness. He stated that on 24.7.2007, he was called by Devi Lal at bye-pass Karnal road, Kaithal. At about 11:00 AM, Devi Lal alongwith Surinder came on a pulsar motorcycle which was being driven by Devi Lal. Surinder was riding the pillion. On seeing him, Devi Lal stopped the motorcycle and asked him that he Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -8- (Joginder Singh) should wait for him as he (Devi Lal) was to fetch Ishwar from the office of Raj Motors and that he has also to go to Ambala in the car of Ishwar. Thereafter, Devi Lal left the place at 11:30 AM. He saw Devi Lal coming on a motorcycle from Jind side. The motorcycle was being followed by Wagon-R car. He thought that said Wagon-R car must be of Ishwar. When the motorcycle of Devi Lal came in front of STD booth where he was standing, the said car struck against the motorcycle driven by Devi Lal, as a result of which, Devi Lal fell on road alongwith the motorcycle. Surinder also fell on the road. There were 5/6 occupants in the car. All of them alighted from the said car. He also identified them as Deva, Bhaga and Mahavir. Dilbag was carrying country made pistol of 315 bore. Each of the assailants was carrying weapons, but he cannot definitely say as to which of the accused was carrying which of the weapons. All the assailants fired shots towards Devi Lal. Devi Lal received injuries in the shoot out. Pillion rider Surinder slipped away from the spot while the incident was going on. Thereafter, he was frightened and left the place. Accused Udayveer and Dilbag were openly declaring that they have taken revenge by killing Devi Lal. The statement of Joginder Singh was not believed by the trial Court. It also comes out that it is contrary to the first version given by Didar Singh in his statement Ex.PV. Didar Singh had not ever stated in his statement before police that Joginder was also there and that he (Joginder) has seen the occurrence. Rather, he makes mention of only one pillion rider, who immediately ran away from the spot and that after the shoot out, Didar Singh had himself gone to see the said boy. He found that the boy is none else than his own Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -9- son Devi Lal. Learned counsel for the appellant has vehemently argued that in this case, 2 eye-witnesses turned hostile and that the statement of Joginder Singh has been dis-believed. Thereafter, only circumstantial evidence is left, which does not establish the case of prosecution beyond doubt. Thus, the conviction and sentence of appellant is not sustainable. We have considered the arguments of the counsel for the appellant and have carefully perused the record of the case. It has come out that Udayveer and other accused were gangsters. Udayveer accompanied by some other assailants had come on 22.11.2004 to commit the murder of Surinder Geong in Court premises, Kaithal. There he fired at Surinder Geong in order to kill him. He was apprehended at the spot and FIR No.511 dated 22.11.2004 under Sections 307/34 IPC and Section 25 of the Arms Act was registered at Police Station City, Kaithal. When the accused was arrested in the Court premises at Kaithal after shoot out, his search had resulted in recovery of one 12 bore country made loaded pistol from left pocket and one 315 bore loaded pistol from the right pocket alongwith 3 cartridges of 315 bore. These were taken into possession through recovery memo Ex. PNN. The said country made pistol of 12 bore is stated to have been used in the present crime. It was sent to the Laboratory for testing alongwith 12 bore 1 missed and 2 used cartridges. The Laboratory, vide Ex.PU, opined that 12 bore cartridges marked C/1 and C/2 and misfired cartridge marked MC/1 have been fired and missed respectively from country made pistol marked W/1. Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -10- It is clear that as the appellant is a dreaded gangster, therefore, even the father of the deceased did not support the prosecution case, most probably out of fear of the accused. It being so, the other eye-witness Surinder Singh also turned hostile. This Court in Mohinder Singh and others Versus State of Punjab 2007(2) R.C.R. (Criminal) 227, while examining the issue of hostile witnesses observed as under :-
“36. The mere fact that the witness has been declared hostile; did not support the prosecution case on some material points; fumbled or contradicted due to the cross-examination made by legally trained brains; for the reason of old age and due to fading of memory with the passage of time or other reasons, the Court is not rendered helpless or handicapped to evaluate such evidence. In such cases, the Court is to scrutinize his testimony with anxious care and caution, and rely upon the part of his statement, if the said part is found to be creditworthy or stands strengthened or corroborated by any other evidence. This question regarding evaluation of such witnesses came before the Apex Court in case Gura Singh Versus State of Rajasthan 2001 (1) RCR (Criminal) 122, wherein after relying upon two Apex Court judgments, observed as under :- “There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -11- AIR1976Supreme Court 202 held that merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa, AIR1977Supreme Court 170 it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross- examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.”. 37. The mere fact that the witness has gone hostile, his testimony can't be thrown in the dustbin. In a criminal trial where a prosecution witness is cross- examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -12- as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.”
. This Court further went on to observe as under :-
“38. In this material world, it has now become the order of the day that the blood has gone white and lost lives are least bothered or valued in comparison to temptations which they are given by the accused to save themselves from the guilt committed by them. With the passage of lime, grief goes to the air and is replaced by the material consideration. No doubt, fate of criminal case is based on the witnesses but character of the witnesses, these days, is withering away. Therefore, it is high time to make such stricter laws to check resiling of the witnesses so that the State machinery and the Courts may not be befooled and the public time may not go waste. Necessary steps need be taken against those who first shed their tears for redress of their grievances but go back track by making false excuses either due to threats, coercion, lures or monetary considerations at the instance of those who are vested with financial or political power. While protecting the witnesses from going hostile adverse or unfavourable, the Apex Court observed in case Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors. 2006 (1) Apex Criminal 649:
2006. 2) RCR (Criminal) 448 (SC) Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -13- held, as under :- "Witnesses" as Bentham said : are the eyes and ears of justice. Hence, the importance and primary of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice, to be come ultimate causalities. Broader public and societal interests require that the victims of the crime who are not ordinarily par ties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -14- There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery.”
. While concluding, this Court has observed as under :-
“54. Before parting with the judgment, the matter which deserves to be observed is that no conflict can be raised with the fact that Courts have to ensure that the accused persons are punished and that the might or the authority of the State are not used to shield itself or its men or the accused. The justice delivery system over which the society reposes confidence should not be taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. We cannot also lose sight of the fact that justice delivery system is based on portable pillars of witnesses and if one slips or slides a little then victim keeps dazing helplessly and condemns his own pitable condition. Thus, in order to arrest such plight of the system the Courts have invariably settled that the Court should not sit to as a silent spectator, mute to the manipulations and prefer to be indifferent to sacrilege being committed to justice.”
. Therefore, the court is not to close its eyes, where the witnesses are won over by the accused by one or the other means. It is always open to the Court to examine the value of the testimony of hostile witnesses and also examine whether there is any other documentary, ballistic, medical or scientific evidence, which connect the accused with Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -15- the crime beyond all reasonable doubts. The Courts are also to consider the presumption, which can be raised against the accused under the Indian Evidence act and other enactments, where the accused is required to explain certain facts or circumstances of the case. The Court can also examine the facts as to whether the police has obtained the signatures of the complainant or other witnesses on the blank papers as claimed by them?. If it is establish that a correct truthful version was given at the earliest possible time, the statement of the complainant, so recorded by the Investigating Officer and as proved by the Investigating Officer can be used at least as corroborative piece of evidence to help in determining whether from the remaining evidences, documentary, ballistic, medical or scientific, the guilt of the accused is proved beyond all reasonable doubts. Now, the question would arise whether in a case where the eye-witnesses turned hostile, is it the end of road for prosecution ?. We are of the view that the evidence does not consist of only oral evidence. In addition to oral evidence, there can be other documentary, Ballistic, Forensic or other scientific evidence. If the Court finds that the complainant/witnesses do not support the prosecution case, the Court can always look into the documentary, Ballistic, Forensic and other scientific evidence to conclude as to whether from the said evidence, the commission of offence by the accused is proved beyond all reasonable doubts. If from documentary, Ballistic, Forensic or other scientific evidence, which is a strong, conclusive and dependable piece of evidence, it is found that accused has committed the crime, it could be safely concluded that accused is proved to have committed crime beyond all Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -16- reasonable doubts. In the present case, when the accused was arrested on 22.11.2004, while attempting to commit the murder Surinder Geong in Court premises, Kaithal. His search was carried out, from which one 12 bore country made pistol was recovered. It being so, the police had no time to plant the said 12 bore country made pistol on the accused. Therefore, when it is proved that the empties and missed cartridges recovered from the spot are fired from 12 bore country made pistol recovered from the accused, it was for the accused to explain the circumstances as to how he came in possession of said 12 bore country made pistol. These facts were within the special knowledge of the accused. Therefore, under Section 106 of the Indian Evidence Act, the burden of explaining the said fact was upon the accused. Learned counsel for the appellant has vehemently argued that it is not proved that 12 bore country made pistol was recovered from the accused on 22.11.2004 and that the said pistol was sent to the Laboratory for examination so as to connect the report of the Laboratory with the pistol allegedly recovered from the accused. It has been further argued that in the said case, investigation was carried out by ASI Rajinder Parsad, who appeared as PW5. ASI Rajinder Parsad has stated that accused Udayveer and his companion had come in the Court of ACJM, Kaithal, to commit the murder of Surinder Geong, who was to be produced in the said Court. Udayveer fired at Surinder Geong when the latter was being produced in the Court and regarding the said incident, FIR No.511 dated 22.11.2004 under Sections 307/34 IPC and under Section 25 of the Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -17- Arms Act was registered at Police Station City Kaithal. He also proved that the accused had suffered disclosure statement admitting that they had committed the murder of Devi Lal. The disclosure statement is Ex.PT. However, the said witness did not prove the recovery memo Ex.PNN. Learned Deputy Advocate General for the State, on the other hand, has argued that one Akshay Kishore, Ahlmad had appeared as PW18. He had brought the judicial file of FIR No.511 dated 22.11.2004 under Sections 307/34 IPC and under Section 25 of the Arms Act, Police Station City Kaithal. He proved the recovery memo Ex.PNN, vide which 2 country made pistols and cartridges were taken into possession. He also proved rough sketch of country made pistol Ex.PMM. During examination, only question put to the Ahlmad was that no document was prepared in his presence and that he has no personal knowledge about the preparation of the documents. However, the fact remains that the said recovery memos are on the judicial file and were proved in accordance with law. Learned counsel for the appellant has fairly conceded at the time of arguments that in the said FIR No.511 of 22.11.2004, the present appellant has been convicted and sentenced. Therefore, it is proved that 12 bore country made pistol used in the present case was recovered from the accused Udayveer when he was apprehended red handed on 22.11.2004 while attempting to commit the murder of Surinder Geong in the Court premises at Kaithal. Learned counsel for the appellant has further argued that the statement of H.C. Jai Lal shows that he had deposited one parcel of empty Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -18- cartridges, one parcel of cartridge duly sealed with the Laboratory. However, the affidavit of EHC Rajbir Singh Ex.PLL shows that on 1.2.2005, HC Jai Lal, Moharar Head Constable, had handed over him one parcel of pistol 12 bore country made duly sealed with seal RP/2 and KS/1 with the sample seals for depositing the same in the Laboratory. Then, the same was deposited with the Laboratory on the same day. The affidavit of EHC Rajbir Singh was not challenged during the cross examination when he proved his affidavit Ex.PLL as PW17. It was merely suggested to him that the affidavit is false. It being so, it is proved that the 12 bore country made pistol recovered from the appellant on 22.11.2004 at the time of shoot out in Court premises, Kaithal, was sent to the Laboratory. The report of the Laboratory, as discussed above, shows that the said pistol was used in firing the cartridges recovered from the spot and that the missed cartridge was also fired from the said pistol. Therefore, in this case, we are of the view that the scientific evidence makes it clear that the weapon used in the murder of Devi Lal was found in possession of present appellant a few months later on 22.11.2004 at the time of his arrest from the Court premises, Kaithal. The recovery of pistol from the accused at the time of his arrest inspires confidence since the police had no time to plant any weapon on the accused immediately after the shoot out in the Court premises. Accused has not furnished any explanation as to how the said weapon used in the murder of Devi Lal came in his possession. Rather, during interrogation, he had taken the stand before the police that he had committed the murder of Devi Lal. It being so, we are of the view that in the present case even if the oral evidence of the complainant and eye- Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh Crl. A. No.D-815-DB of 2008 -19- witness, who turned hostile, is ignored, the scientific evidence has proved beyond all reasonable doubts that it was only accused Udayveer, who had committed the murder of Devi Lal on 24.7.2004. Therefore, he was rightly convicted under Section 302 IPC and sentenced as aforesaid. As such, we do not find any merit in the present appeal. The same is accordingly dismissed. (SATISH KUMAR MITTAL) (KULDIP SINGH) JUDGE JUDGE122.2014 sjks Whether referred to the Reporter or not ?. : Yes / No Sharma Sanjiv Kumar 2014.03.12 10:39 I attest to the accuracy and integrity of this document Chandigarh