Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. A. No.D-590-DB of 2009 DATE OF DECISION :
01. 07.2014 Ramu alias Dushyant .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN Present: Mr. Vinod Ghai, Senior Advocate, with Mr. Vineet Kaushal, Advocate,for the appellant. Mr. Dhruv Dayal, DAG, Haryana. *** SATISH KUMAR MITTAL , J.
1. Eight accused, namely Sanjay, Ramu @ Dushyant (appellant herein), Yogesh @ Bablu, Dinesh @ Dinu, Ram Niwas @ Mota, Virender Singh, Dharam Chand and Zile Singh were challaned in case FIR No.465 dated 22.4.1998 registered at Police Station Sadar Gurgaon under Sections 396, 395, 412, 201 IPC and 25 of the Arms Act. On 14.9.2000, while framing charge, accused Zile Singh was discharged, whereas accused Dharam Chand was tried for the offence under Section 412 IPC and the remaining six accused were tried for the offences under Section 395 read with Section 397 IPC and Section 396 IPC. Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -2- 2. During trial, accused Sanjay absconded and he was declared proclaimed offender.
3. Vide judgment dated 24.1.2004, passed by the court of Additional Sessions Judge, Fast Track Court, Gurgaon, five accused, namely Ramu @ Dushyant (appellant herein), Virender Singh, Ram Niwas @ Mota, Dinesh @ Dinu and Yogesh @ Bablu were convicted under Section 395 read with Section 397 IPC and Section 396 IPC, whereas accused Dharam Chand was convicted under Section 412 IPC; and vide order dated 27.1.2004, Ramu @ Dushyant (appellant herein), Virender Singh, Ram Niwas @ Mota, Dinesh @ Dinu and Yogesh @ Bablu were sentenced to undergo rigorous imprisonment for life with fine of ` 2,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for one year each under Section 395 read with Section 397 IPC; and to undergo rigorous imprisonment for life with fine of ` 2,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for one year each under Section 396 IPC, and accused Dharam Chand was sentenced to undergo rigorous imprisonment for three years with fine of ` 500/- and in default of payment of fine, to further undergo rigorous imprisonment for three months under Section 412 IPC. All the sentences were ordered to run concurrently.
4. Against the aforesaid judgment and order, five accused, namely Ram Niwas @ Mota, Yogesh @ Bablu, Dinesh @ Dinu, Virender Singh and Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -3- Dharam Chand filed Criminal Appeals No.243-DB, 291-DB, 331-DB, 870- DB and 417-SB of 2004, respectively. Vide the common judgment dated September 22, 2006, passed by this Court, all these five appeals were decided. The appeals filed by accused Ram Niwas @ Mota, Yogesh @ Bablu and Dinesh @ Dinu were dismissed, upholding their conviction and sentence, whereas the appeals filed by Virender Singh and Dharam Chand were allowed and they were acquitted of the charges framed against them.
5. After the decision of the aforesaid five appeals, in the year 2009, Ramu @ Dushyant filed the instant appeal through jail authorities, challenging his conviction and sentence, with an application for condonation of delay in filing the appeal. On 15.10.2009, delay of 1945 days in filing this appeal was condoned and the appeal was admitted.
6. Today, when this appeal was taken for hearing, Mr. H.N. Sahu, Advocate, the legal aid counsel, did not appear. In that situation, we requested Mr. Vinod Ghai, Senior Advocate, who was present in the court, to argue this appeal on behalf of the appellant.
7. We have heard learned counsel for the parties.
8. In the aforesaid judgment dated September 22, 2006, passed by this Court, while deciding five separate appeals filed by co-accused of the appellant, the following observations were made against the present appellant :- “There is ample of evidence against accused Ramu alias Dushyant. A pistol 315 bore along with three live cartridges were Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -4- recovered from Ramu alias Dushyant in case F.I.R. No.397 of 1998, under Section 25 of the Arms Act, registered at Police Station Sadar, Ballabgarh. The pistol and the cartridges were later on got transferred in this case. The pistol was sent for test and as per report of the Forensic Science Laboratory, its machanism was found in a working condition. One 315 bore fired cartridge was lifted from the place of occurrence and was sent to the laboratory. Another fired bullet 315 bore, which was recovered from under the seat of the car, was also sent to the laboratory. As per report Exhibit P.J both these fired cartridges were fired from pistol 315 bore, which is proved to have been recovered from accused Ramu alias Dushyant. Ramu alias Dushyant had refused to join the test identification parade. He had pointed out the place of occurrence. He had pointed out where the looted car was later on left. This evidence of conduct is admissible against him under Section 8 of the Evidence Act. xxxx In view of the above discussed evidence, it is concluded that the identity of Ram Niwas alias Mota, Yogesh alias Bablu and Dinesh alias Dinu (appellants) and Ramu alias Dushyant (who has not filed appeal against the impugned judgment and sentence order) is cogently established.”. 9. Since the appellant was not heard at the time of making the aforesaid observations, as he filed the instant appeal subsequently, in the interest of justice, we have heard learned counsel for the appellant and perused the record of the case qua conviction and sentence of the appellant.
10. As per the prosecution case, which is based upon the statement (Ex.PF) made by Samay Pal (PW.5), driver of Vikas Kalra (deceased), on 22.4.1998 at 3.25 PM, at Kalyani Hospital, Gurgaon, Vikas Kalra was going Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -5- from Faridabad to Gurgaon in his Esteem Car No.HR-31-B-0036, being driven by Samay Pal. When the car was passing through Wazirabad Hills towards Gurgaon, a Maruti car No.DNC-1736 came from behind and while overtaking the car of Vikas Kalra by the right side, struck its side with the vehicle of Vikas Kalra. Thereupon, Samay Pal stopped the car. He and Vikas Kalra alighted from the car. Four persons came down from the Maruti car, two of whom were armed with pistols. They tried to overpower Samay Pal and Vikas Kalra by pushing them into the vehicle, but on seeing the persons coming in a truck, they fired shots at Samay Pal and Vikas Kalra. On receiving the fire shot injuries, both of them fell down. Those four persons ran away from the spot by taking the vehicle of Vikas Kalra and leaving their own car at the spot. Samay Pal further stated that he could identify all the four persons, if they were brought before him. Vikas Kalra succumbed to the fire shot injuries at the spot.
11. On 22.4.1998 itself at about 12.30 PM, on receiving an information that in Wazirabad Pahari on Gurgaon-Faridabad road, one dead body was lying and another person was lying injured, the police party headed by Hoshiar Singh, SI (PW.32), reached the spot, where they learnt that the injured was taken to hospital for treatment. Thereafter, Hoshiar Singh, SI (PW.32), reached Kalyani Hospital, Gurgaon, and after obtaining opinion (Ex.PE) of the Doctor that injured Samay Pal was fit to make statement, the aforesaid statement of Samay Pal was recorded by Hoshiar Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -6- Singh, SI (PW.32) in Kalyani Hospital, Gurgaon. The inquest proceedings were conducted with regard to the death of Vikas Kalra. The dead body was sent for post mortem examination. On spot inspection, blood stained earth was lifted from the place of occurrence. An empty cartridge of .315 bore, lying near the dead body, was also lifted. Blood stained earth and the empty cartridge were sealed in the shape of separate parcels. These parcels along with Maruti car No.DNC-1736 were taken into possession vide memo Ex.PY.
12. On 22.4.1998, post mortem examination on the dead body of Vikas Kalra was also conducted by Dr. S.K. Sharma (PW.1). A single oblong fire arm wound of the size of 2.5 inches x 1 inch was found on the left side of the face in the area of angle of jaw. The doctor further observed that there was well marked tattooing over the left side of the face. Tattooing which was more dense “almost like a sheet”. around the wound showed a clear cut border starting from the middle of the chin, extending horizontally backwards up to the middle of the nape of the neck. Scattering in an area upto the level of a line between left cheek and upper part of left ear and from left cheek to vertically below slightly away from the outer angle of the mouth and backwards in the area below left earlobule was minimal. Dispersal was relatively more in the left ear left temple, between chin and lower lip and also below lower eye lid. The part was photographed. The fire arm wound had everted edges and had strouting of the soft tissue. The body Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -7- was X-rayed. The X-ray skull, face and that of chest showed no bullet or pallet also there was no evidence of bony injury to skull and facial skelton. There was no viscera injury. On finger probing the wound extended backward below the angle of left mandible, horizontally upto cervical spine. On opening the skull there was patchy subarachnoid haemmohrage on the left cerebral hemisphere. There was massive collection of liquid blood in the infratentorial compartment. An indentation and few fractured fragment were left on left side of the upper cervical vertebrae. Medulla was contused. Major blood vessels were punctured through and through on the left side of the neck. There was extra vasation of blood in the soft tissues. Fire arm ammunition discharge entered and exited from the above noted injury after hitting cervical spine. The clothes and belongings of the deceased were sealed into parcels, which were handed over to the police. The cause of death was opined due to haemorrhage and shock consequent upon fire arm injury on the left side of the face. The noted injury had both the entry and the exit wound. The injury was close range injury and was caused by a single mass. The fire shot was from left to right. The injury was ante- mortem and was sufficient to cause death in ordinary course of nature.
13. On the same day, i.e. on 22.4.1998, Dr. Ashish Dhingra (PW.19) medico legally examined Samay Pal and found the following injuries on his person :-
“1. 1.5 cm x 1 cm wound over the right side of neck. 2 cm below the angle of mandible. Margins are irregular and lacerated and Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -8- inverted. Blackening around the wound was present. Clotted blood around the wound and wound is presently bleeding. Probing not done to avoid injury to the deeper structure. Diffuse swelling around the wound. Advise X-ray of the neck A.P and lateral view.
2. Complaint of pain in the elbow.
3. Small lacerated wound measuring 1 cm x 1 cm irregular margins over the left side of the neck in the middle.”
. Nature of injuries was kept under observation. Probable duration of injuries was fresh. Kind of weapon used was found fire arm.
14. On 23.4.1998, the looted car No.HR-31B-0036 was found parked in the area of Sector 39-46 in an abandoned place, which was taken into possession. The number plate of the car was lying inside the car. Two blood stained seat covers along with some other items like calculator, bill file, cheque books and one old diary containing three passport size photographs of the deceased, which were found in the car, were taken into possession vide memo Ex.PLL. Rough site plan (Ex.PLL/1) of the place of recovery was prepared.
15. On 29.4.1998, when Sandeep Kalra (PW.25) was cleaning his car, in which the dead body of Vikas Kalra was taken for post mortem examination, one lead (fired bullet) was found in the car. He handed over the same to the police, which was taken into possession vide memo Ex.PAA.
16. On 29.6.1998, production warrants of accused Dinesh and Yogesh were obtained and on 6.7.1998, they were produced in the court of Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -9- ACJM, Gurgaon, in muffled faces. They were formally arrested in this case. On 7.7.1998, their test identification parade was conducted and both of them were correctly identified by the witnesses.
17. On 13.8.1998, during interrogation of appellant Ramu @ Dushyant in a case under Sections 399/402 IPC registered at Police Station Sadar Ballabgarh, one country made pistol of .315 bore and three live cartridges were recovered from him, for which another FIR was registered against him in Police Station Ballabgarh. During his further interrogation on 16.8.1998, the appellant suffered disclosure statement (Ex.PCC) confessing that he along with accused Zile Singh committed the crime in this case using the recovered pistol. He further disclosed that the vehicle used in the crime was kept at the house of accused Zile Singh. The recovery memo (Ex.PQQ/1) of the pistol, rough sketch (Ex.PQQ/2) of the pistol and the rough site plan (Ex.PQQ/3) of the place of recovery were prepared. After obtaining transit remand of the appellant, he was produced in the court of ACJM, Gurgaon, on 22.8.1998 and on an application (Ex.PNN) moved by the police, vide his statement (Ex.PNN/3), the appellant agreed to participate in the test identification parade. However, on 26.8.1998, when the test identification parade was to be conducted, the appellant refused to participate in the same stating that he was shown to the witnesses on 25.8.1998, when he had come to attend the court hearing.
18. On 29.8.1998, the appellant suffered disclosure statement Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -10- (Ex.PU) confessing his involvement in the crime. In pursuance of his said disclosure statement, on 30.8.1998, he pointed out the place where the car was left.
19. On 24.9.1998, one country made pistol of .315 bore and three live cartridges which were recovered from the appellant in case FIR No.397 of 1998 under Section 25 of the Arms Act registered at Police Station Ballabgarh, and were got transferred in this case, were taken into possession vide recovery memo Ex.PDD.
20. The blood stained earth and one .315 bore fired cartridge lifted from the place of occurrence, blood stained seat covers of the car, one .315 bore fired bullet recovered from under the seat of the car of Sandeep Kalra and one .315 bore country made pistol along with three live cartridges were sent to the Forensic Science Laboratory, Haryana, Madhuban. Vide report Ex.PJ, the .315 bore pistol was found in working order. The fired cartridge and the fired bullet were found to have been fired from the .315 bore pistol recovered in this case and not from any other firearm even of the same make and bore.
21. After completion of investigation, the police filed challan against all the eight accused, namely Sanjay, Ramu @ Dushyant (appellant herein), Yogesh @ Bablu, Dinesh @ Dinu, Ram Niwas @ Mota, Virender Singh, Dharam Chand and Zile Singh. As has been mentioned in the first para of this judgment, on 14.9.2000, while framing charge, accused Zile Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -11- Singh was discharged. Accused Dharam Chand was charge sheeted for the offence under Section 412 IPC and the remaining six accused were charge sheeted for the offences under Section 395 read with Section 397 IPC and Section 396 IPC. All these seven accused did not plead guilty to the charge sheet and claimed trial. During trial, accused Sanjay absconded and he was declared proclaimed offender.
22. In support of its case, the prosecution examined forty one witnesses, including Dr. S.K. Sharma (PW.1), Samay Pal (PW.5), Ajit Singh, Tehsildar (PW.18), Dr. Ashish Dhingra (PW.19), Sandeep Kalra (PW.25), Rajinder Singh (PW.27) and Inspector Ranjeev Singh, CIA, Bahadaurgarh (PW.41).
23. PW.1 Dr. S.K. Sharma, who conducted post mortem examination on the dead body of Vikas Kalra, proved the Post Mortem Report (Ex.PA) and the pictorial diagram (Ex.PA/1) showing the seat of injury.
24. PW.2 Dr. B.B. Aggarwal, who conducted the X-ray examination on the dead body of Vikas Kalra, proved the X-ray films Ex.P1 to Ex.P7 and the X-ray report Ex.PC/1.
25. PW.3 Dr. Arun Vasishta, Kalyani Hospital, Gurgaon, stated that on police application, he made endorsement Ex.PE declaring Samay Pal fit to make statement, upon which Hoshiar Singh, SI, recorded the statement of Samay Pal in his presence. Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -12- 26. PW.4 Kanhiya Lal, Record Clerk, National Insurance Company, D.O. Faridabad, proved the insurance cover note (Ex.PG) of car No.HR- 29D-0036 in the name of Vikas Kalra.
27. PW.5 Samay Pal, injured-complainant, reiterated his entire version, which was stated by him to the police in Kalyani Hospital, Gurgaon in his statement Ex.PF. He proved proceedings of the identification parade (Ex.PH) regarding identification of accused Dinesh and Yogesh.
28. PW.6 Lekh Raj, Registration Assistant, Office of Transport Commissioner, Haryana, Chandigarh, proved the Registration Certificate (Ex.P8) of Maruti car No.HR-29D-0036 in the name of Vikas Kalra.
29. PW.7 Rajinder Singh, Photographer, who took the photographs of the place of occurrence, proved the photographs Ex.P9 to Ex.P15 and their negatives Ex.P16 to Ex.P22.
30. PW.8 HC Babu Lal and PW.9 Constable Jitender Singh are the formal witnesses.
31. PW.10 HC Mohan Lal, who took photographs of the place of occurrence, proved the photographs Ex.P23 to Ex.P30 and their negatives Ex.P31 to Ex.P38.
32. PW.11 Surat Singh, Head Constable, is a formal witness, who delivered the special report of this case to the Illaqa Magistrate and other senior police officers.
33. PW.12 Kalender Singh, ASI, PW.13 HC Jagdish Chand, PW.14 Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -13- HC Devi Sharan, PW.15 SI Ram Kishan, PW.16 Hawa Singh HC and PW.17 Shish Ram, retired Inspector, are also the formal witnesses.
34. PW.18 Ajit Singh, Tehsildar, who conducted proceedings of the identification parade regarding identification of accused Dinesh and Yogesh proved his report (Ex.PH) in this regard. He also proved his report (Ex.PS) regarding refusal of the appellant to join the identification parade.
35. PW.19 Dr. Ashish Dhingra, who medico legally examined Samay Pal, found three injuries on the body of the injured. He proved copy of the MLR (Ex.PT) and the ruqa (Ex.PT/1) sent by him to SHO PS Sadar Gurgaon.
36. PW.20 Ompal Singh, who is a witness to the disclosure statement made by the appellant before the police, supported the case of the prosecution.
37. PW.21 Sarwan Kumar, Draftsman, is a formal witness, who proved the scaled site plan (Ex.PV) of the place of occurrence prepared by him on the demarcation of Samay Pal.
38. PW.22 Bikesh Kumar, PW.23 Rakesh Kumar and PW.24 Govind Narula are the formal witnesses.
39. PW.25 Sandeep Kalra, in whose car the dead body was sent for post mortem examination, stated that on 29.4.1998 at about 10 A.M, when he was cleaning his car, one fired bullet was found in his car, which was handed over by him to the police and it was taken into possession vide Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -14- memo Ex.PAA.
40. PW.26 Gyanvinder is a formal witness.
41. PW.27 Rajinder Singh proved the disclosure statement (Ex.PCC) made by the appellant before the police in his presence, whereby he confessed about the occurrence of this case.
42. PW.28 Mahabir Singh, PW.29 Hira Lal, ASI PW.30 Inspector Samay Ram and PW.31 Om Parkash, retired Inspector, are also the formal witnesses.
43. PW.32 Hoshiar Singh, SI, is the Investigating Officer of the case. He stated regarding the entire investigation conducted by him and proved all the documents, prepared by him during investigation of the case.
44. PW.33 Arvinder Kumar HC, PW.34 D.N. Bharti and PW.35 Raj Kumar Sharma are the formal witnesses.
45. PW.36 Rampal SI, who arrested accused Ram Niwas, Dharam Chand, Virender and recorded their disclosure statements, supported the case of the prosecution.
46. PW.37 Kuldeep Singh, DSP Nuh, PW.38 ASI Dharambir, PW.39 Shri Ashok Bhardwaj, Addl. District and Sessions Judge, Kurukshetra and PW.40 Mrs.Vivek Bharti, Addl. Chief Judicial Magistrate, Bhiwani, are the formal witnesses.
47. PW.41 Inspector Ranjeev Singh, CIA, Bahadurgarh, stated that .315 bore pistol and three live cartridges were recovered from the Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -15- possession of the appellant, for which an FIR was registered against him in Police Station Ballabgarh. During interrogation, the appellant suffered disclosure statement (Ex.PCC) confessing that he along with accused Zile Singh committed the crime in this case using the recovered pistol. He further disclosed that the vehicle used in the crime was kept at the house of accused Zile Singh. This witness also proved the recovery memo (Ex.PQQ/1) of the pistol, rough sketch (Ex.PQQ/2) of the pistol and the rough site plan (Ex.PQQ/3) of the place of recovery.
48. Statements of all the accused were recorded under Section 313 Cr.P.C. The appellant, in his statement recorded under Section 313 Cr.P.C., pleaded innocence and his false implication. In defence, he did not lead any evidence.
49. After hearing learned counsel for the parties, while relying upon the prosecution evidence, the trial court convicted and sentenced the appellant, as indicated in the earlier part of this judgment.
50. Learned counsel for the appellant argued that the prosecution has failed to prove that the appellant is the same person, who had fired shot upon the deceased and injured Samay Pal. It has been argued that identification of the appellant has not been established. He argued that the appellant validly refused to join the test identification parade, as one day prior to the conducting of the test identification parade, he was shown to the witnesses, therefore, his identification by PW.5 Samay Pal for the first time Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -16- in the court is of no value. Learned counsel further argued that the prosecution has failed to establish the recovery of the pistol, which was allegedly used in the crime, and the pistol alleged to have been recovered from the appellant has also not been connected with the pistol used in the crime.
51. On the other hand, learned Deputy Advocate General, Haryana, argued that the trial court has rightly convicted and sentenced the appellant on the basis of the reliable and trust-worthy evidence led by the prosecution.
52. We have considered the submissions made by learned counsel for the appellant and learned Deputy Advocate General, Haryana, and have also gone through the record of the case.
53. As already discussed, five separate appeals filed by five accused, namely Virender Singh, Ram Niwas @ Mota, Dinesh @ Dinu and Yogesh @ Bablu and Dharam Chand, have already been decided by this Court.
54. In this appeal, we are not examining the entire case qua all the accused, nor we can do so. However, since appellant Ramu @ Dushyant has challenged his conviction and sentence later on by filing the instant appeal, we are only considering the case of the appellant, who along with the above named five accused was also convicted and sentenced by the trial court. Though this Court, while deciding the appeals filed by the above named five accused, had made certain observations regarding the involvement of the Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -17- appellant in the crime, but in the interest of justice, we have decided to consider the case of the appellant, as he was not heard earlier.
55. During the course of arguments, learned counsel for the appellant emphasises on two points. Firstly, that identification of the appellant with regard to his involvement in the crime has not been established and secondly, that the prosecution has failed to lead cogent evidence connecting the appellant with the crime.
56. As far as identification of the appellant is concerned, the prosecution is relying upon statement of PW.5 Samay Pal, who had identified the appellant in the court. PW.5 Samay Pal, while appearing in the court, stated that it is the appellant, who had fired shots at him and Vikas Kalra (deceased). PW.5 Samay Pal is the injured eye witness. His statement was recorded by the police, immediately after the occurrence, after obtaining fitness certificate from the Doctor. In his statement, he had stated the manner, in which the occurrence had taken place. He had categorically stated that if the assailants were brought before him, he could identify them. The appellant was arrested on 13.8.1998 in FIR No.397 of 1998 under Section 25 of the Arms Act registered at Police Station Ballabgarh, and .315 bore country made pistol was recovered from him. In the present case, he was arrested on 22.8.1998. He was produced before the Magistrate with muffled face. On 22.8.1998 itself, an application was moved for his test identification parade. On that day, the appellant agreed to participate in the Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -18- test identification parade. Subsequently, on 26.8.1998, at the time of conducting the test identification parade by the Tehsildar, the appellant refused to participate in the test identification parade on the ground that he was shown to the witnesses. However, PW.5 Samay Pal identified the appellant in the court, as the person who had fired shots on him and the deceased. The trial court relied upon the said identification of the appellant by PW.5 Samay Pal in the court.
57. Learned counsel for the appellant argued that before conducting the test identification parade, when the appellant was already shown to the witnesses, he was fully justified in refusing to participate in the test identification parade, therefore, no adverse inference in this regard can be drawn against him.
58. We have perused the record of the case and we do not find any evidence available on record, which indicate that prior to conducting the test identification parade of the appellant, he was ever shown to the witnesses. Therefore, his identification by PW.5 Samay Pal in the court is reliable and trust-worthy. Merely because the appellant took the stand that before conducting his test identification parade, he was shown to the witnesses, testimony of PW.5 Samay Pal, the injured eye witness, who identified the appellant in the court cannot be discarded and ignored. PW.5 Samay Pal had seen the accused while committing the crime. It was the day time. There was sufficient time for him to identify the accused involved in the crime. It is the Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -19- case of the prosecution that four accused, including the appellant, after alighting from the car came towards both the victims, namely Samay Pal (PW.5) and Vikas Kalra (deceased); and the appellant had fired shots from his country made pistol upon them. In these facts and circumstances of the case, we are of the opinion that there was sufficient time and opportunity for PW.5 Samay Pal to correctly identify the assailants. Even otherwise, there was no reason with this witness to falsely name the appellant and leave the real culprit. Therefore, identification of the appellant by this witness in the court cannot be discarded. This Court, while deciding the aforesaid five appeals of the co-accused of the appellant, has already believed the testimony of PW.5 Samay Pal with regard to his identifying the other accused. Thus, we do not find any reason to disbelieve the testimony of PW.5 Samay Pal with regard to identification of the appellant by him in the court.
59. The other important evidence against the appellant, which connect him with the commission of the crime, is the recovery of weapon of offence from him, one fired cartridge from the spot and one fired bullet recovered from under the seat of the car of Sandeep Kalra, as well as report of the Forensic Science Laboratory, Haryana, Madhuban. It is pertinent to mention here that one fired cartridge of .315 bore was recovered from the place of occurrence on 22.4.1998, i.e. the day of occurrence, and one fired bullet of .315 bore was recovered from under the seat of the car of Sandeep Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -20- Kalra on 29.4.1998. The aforesaid fired cartridge and the bullet along with blood stained earth lifted from the place of occurrence and two blood stained seat covers of the car used in the crime, were sent for examination to the Forensic Science Laboratory, Haryana, Madhuban, on 26.5.1998. Subsequently, the appellant was arrested on 22.8.1998 and one .315 bore country made pistol along with three live cartridges were recovered from him, which were also sent for examination to the Forensic Science Laboratory, Haryana, Madhuban, on 25.9.1998. The recovery of the country made pistol from the appellant has been duly proved by the prosecution by leading cogent and convincing evidence. No suggestion was put to the prosecution witnesses that the country made pistol was never recovered from the appellant. Even in the statement under Section 313 Cr.P.C., it is not the case of the appellant that the fire arm recovered from him was planted or manipulated. As per the report of the Forensic Science Laboratory, the .315 bore pistol recovered from the appellant was found in working order. It was also reported that the fired cartridge and the fired bullet were fired from the .315 bore pistol recovered in this case and not from any other firearm even of the same make and bore.
60. In view of the above, we are of the opinion that the prosecution has successfully proved its case against the appellant and he has been rightly convicted and sentenced by the trial court. We do not find any illegality in the impugned judgment and order. Thus, the impugned Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document Crl. A. No.D-590-DB of 2009 -21- judgment of conviction and the order of sentence is upheld qua appellant also and the instant appeal is, accordingly, dismissed. ( SATISH KUMAR MITTAL ) JUDGE July 01, 2014 ( MAHAVIR S. CHAUHAN ) ndj JUDGE Dass Narotam 2014.07.11 17:00 I attest to the accuracy and integrity of this document