This appeal has been filed by the appellants Gajender Parkash son of Kailash Chander and Kailash Chander son of Mukhtiar Singh appellants No.1 and 2 respectively against the judgment dated 13.7.2004 passed by the learned Additional Sessions Judge, Bhiwani whereby the appellants have been convicted for the offences punishable under Sections 302 and 307 read with Section 34 Indian Penal Code (“IPC” - for short) and Kailash Chander (appellant No.2) has also been convicted for the offence under Section 27 of the Arms Act, 1959 and the order of sentence dated 14.7.2004 whereby the appellants have been sentenced to undergo imprisonment for life, besides, pay a fine of Rs.2000/- each for the offence under Section 302 IPC and undergo rigorous imprisonment for five years, besides, pay a fine of Rs.2000/- each for the offence under Section 307 IPC; besides, Kailash Chander (appellant No.2) has been sentenced to rigorous imprisonment for one year for the offence punishable under Section 27 of the Arms Act,1959 and in default of payment of fine for the offences under Sections 302 and 307 IPC, the appellants have been ordered to undergo additional rigorous imprisonment for six months. All the sentences have, however, been ordered to run concurrently.
The FIR (Ex.PC) in the case has been registered on the statement of Sri Kishan (PW9) son of Mukhtiar Singh. It is stated by him that he is resident of village Patuwas and working as a ward-servant at the Civil Hospital Dadri. They were three brothers; the eldest was Kailash Chander (appellant No.2), younger to him is the complainant Sri Kishan (PW9) himself and the youngest is Parvinder (deceased). All the three brothers resided separately. Kailash Chander (appellant No.2) had a land dispute with the complainant Sri Kishan (PW9), his brother Parvinder (deceased) and father (Mukhtiar Singh) which was pending in Court. A day earlier to the lodging of the report i.e. on 2.2.2001 at about 5.30 p.m. in the evening, the daughter of the complainant namely Asha after giving water to the bufflao was returning and while she was coming, Gajender Parkash (appellant No.1) son of Kailash Chander (appellant No.2) followed her from behind and abused her and also beat her. In the morning, when the complainant Sri Kishan (PW9) raised a protest as to why his daughter was given a beating, an altercation ensued and Kailash Chander (appellant No.2) brought out a gun from his house. During this time Parvinder (deceased) brother of the complainant Sri Kishan (PW9) and Manmohan (PW10) son of the complainant Sri Kishan (PW9) had also reached at the spot. Then Kailash Chander (appellant No.2) with his licenced gun fired at Parvinder, brother of the complainant Sri Kishan (PW9) which hit Parvinder (deceased) on his forehead. Kailash Chander (appellant No.2) then again fired 2-3 shots which hit Parvinder, brother of the complainant (PW9) and he (Parvinder) fell down. Kailash Chander (appellant No.2) fired more shots which hit Manmohan (PW10), the son of the complainant Sri Kishan (PW9). Due to the shots that were fired, Rajesh son of Sri Narian who is their neighbour and was present on the roof of his house also received pellet injuries on his chest. Thereafter, Gajender Parkash (appellant No.1) after taking the gun from his father fired a shot with it on the mouth of Parvinder and they ran away. The occurrence was witnessed by the complainant Sri Kishan (PW9), his wife Shakuntla Devi and his son Manmohan (PW10) with their eyes. Kailash Chander (appellant No.2) and his son Gajender Parkash (appellant No.1) by taking the gun with them went to their house and they fired from the roof. The complainant Sri Kishan (PW9) by arranging a conveyance was taking his brother Parvinder (deceased) and his son Manmohan (PW10) to the General Hospital, Dadri that on the way Parvinder died. Rajesh son of Sri Narain was brought to the hospital at Dadri by his family members. The doctor referred Manmohan (PW10) son of the complainant Sri Kishan (PW9) and Rajesh son of Sri Narain to the Post-Graduate Institute (PGI - for short), Rohtak. The dead body of Parvinder was got kept in the dead house. The complainant Sri Kishan (PW9) after leaving his nephew and wife near the dead body had come to the police. The said statement was signed Sri Kishan (PW9), which was attested by Ajaib Singh SI/SHO, Police Station Sadar Dadri (PW11) on 3.2.2011. Police proceedings were recorded to the effect that the complainant Sri Kishan (PW9) on reaching the Police Station had got recorded his said statement, which was read over and explained to him and he after admitting it to be correct signed the same in English which was attested by Ajaib Singh SI/SHO, Police Station Sadar Dadri (PW11). The statement disclosed the commission of offences under Section 302 read with Section 34 IPC and Section 27 of the Arms Act. After registration of the case, Ajaib Singh SI/SHO (PW11) along with SI Sheotaj Singh (PW13), ASI Bishambar Dayal, Head Constable Subash Chander, Constable Balwant Singh and Constable Surinder Singh proceeded to the General Hospital, Dadri. Special report was being sent to the Ilaqa Magistrate and senior officers through Constable Satpal Singh. Some officer of the rank of Inspector was asked to be sent to the spot for investigation. The complainant Sri Kishan (PW9) was taken with the police party.
Ajaib Singh SI/SHO, Police Station Sadar Dadri (PW11) along with police officials reached General Hospital, Dadri. Inquest proceedings (Ex.PL) under Section 174 of the Code of Criminal Procedure (“CrPC” - for short) were initiated. After that Ajaib Singh SI/SHO (PW11) moved an application (Ex.PM) before the Medical Officer, General Hospital Dadri for conducting post mortem examination of Parvinder Singh (deceased). Then Ajaib Singh SI/SHO (PW11) reached the place of occurrence and lifted bloodstained earth with cotton. The statement of complainant Sri Kishan (PW9) and his wife namely Shakuntla were recorded. On the same day i.e. 3.2.2001 after post mortem examination of the dead body Ajaib Singh SI/SHO (PW11) took in possession vide recovery memo Ex.PN the clothes and pellets, which were handed over to him (PW11) by the doctor after post mortem. On 3.2.2001 Ajaib Singh, SI/SHO (PW11) also sought information from the Medical Officer, General Hospital Dadri regarding Manmohan (PW10) injured. He submitted an application (Ex.PQ) for seeking opinion regard Manmohan (PW10) and the doctor at 3.45 p.m. opined that the patient (Manmohan-PW10) was fit to make a statement. On 5.2.2001 Ajaib Singh SI/SHO (PW11) arrested Kailash Chander (appellant No.2) and recorded his disclosure statement (Ex.PO). The remaining investigation in the case was conducted by SI Sheotaj Singh (PW13). On 3.2.2001 SI Sheotaj Singh (PW13) had gone to the place of occurrence and prepared rough site plan (Ex.PS). Thereafter, he accompanied Ajaib Singh SI/SHO (PW11) for search of the accused. On 4.2.2001 on the direction of SI/SHO Ajaib Singh (PW11), Sheotaj Singh (PW13) went to PGI Rohtak to record the statement of Rajesh (neighbour of the complainant Sri Kishan-PW9), however, the injured Rajesh was not present on his bed. On 5.2.2001, Sheotaj Singh (PW13) joined SI/SHO Ajaib Singh (PW11) in the investigation of the present case. On that day SI Ajaib Singh (PW11) arrested Kailash Chander (appellant No.2) and recorded his disclosure statement (Ex.PO) in the presence of SI Sheotaj Singh (PW13). Then Kailash Chander (appellant No.2) was locked up in the Police Station and was produced in the Court on 6.2.2001. Sheotaj Singh SI (PW13) also prepared rough site plan (Ex.PT) and recovered six live cartridges and five empties and one gun, which were taken in possession vide recovery memo Ex.PF. The 'khakha' (sketch) (Ex.PE) of the gun was prepared. The gun was recovered on the disclosure statement (Ex.PO) of Kailash Chander (appellant No.2) from underneath of 'Turi Khota' (fodder room) of the accused (appellants). On 7.2.2001, SI Sheotaj Singh (PW13) arrested Gajender Parkash (appellant No.1) and recorded his disclosure statement (Ex.PU) and on the basis of the same, on 8.2.2001 two empty cartridges along with one scooter were recovered vide recovery memo Ex.PV. SI Sheotaj Singh (PW13) prepared site plan (Ex. PX) of the place of recovery of empty cartridges. The statements of the relevant witnesses were recorded and after completion of investigation, police report (challan) was prepared by SI Ajaib Singh (PW11). The police report (challan) in the case was filed in the Court of the learned Judicial Magistrate Ist Class, Charkhi Dadri on 24.4.2001. The said learned Magistrate in view of the offences under Sections 302 and 307 IPC being alleged observed that the case was triable by the Court of Session. Accordingly, the case was committed to the Court of Session at Bhiwani. The learned Additional Sessions Judge to whom the case was assigned vide order dated 16.7.2001 observed that a prima facie case for the commission of offences punishable under Sections 302 and 307 read with Section 34 IPC were found to be made out against both the accused (appellants) and a prima facie case for the commission of offence under Section 27 of the Arms Act, 1959 was found to be made out against Kailash Chander (appellant No.2). Accordingly, the charges were framed on 16.7.2001 by the learned Additional Sessions Judge, Bhiwani which are to the effect that both the appellants on 3.2.2001 in the area of village Patuwas, in furtherance of their common intention, did commit murder by causing the death of Parvinder son of Mukhtiar Singh and thus thereby they both committed an offence punishable under Section 302 read with Section 34 IPC. Secondly, on the same date, time and place, both the appellants in furtherance of their common intention caused injuries with fire arm to Manmohan (PW10) and Rajesh with such intention or knowledge or under such circumstances that if by that act they had caused death of Manmohan (PW10) and Rajesh, they would have been guilty of murder and thus thereby they committed an offence punishable under Section 307 read with Section 34 IPC. Thirdly, Kailash Chander (appellant No.2) on 3.2.2001 in the area of village Patuwas, used his licenced gun in contravention of Section 5 of the Arms Act and he thus thereby committed an offence punishable under Section 27 of the Arms Act. The appellants were directed to be tried by the said Court of the learned Additional Sessions Judge, Bhiwani for the said charges. The contents of the charge sheet were read over and explained to the accused (appellants) in simple Hindi, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 14 witnesses; besides, tendered documents in evidence including the FSL report (Ex.PG) and Serology report (Ex.PJ) and closed its evidence. The statements of the appellants in terms of Section 313 CrPC were recorded. Both the appellants took the defence that they were innocent and were not present at the spot at the time of alleged occurrence, so the question of their participating in the crime for causing any injury to the deceased or any other witness was out of question. They had not caused any injury either to the deceased or to any witness. In defence Ramesh Kumar Solanki, Draftsman (DW1) was examined who stated that he was a trained draftsman and working as such for the last five years. He (DW1) had appeared as witness as a Draftsman in many Courts and in many cases. He had seen the scaled site plan (Ex.DA) which was prepared by him (DW1) at the spot on 16.12.2002 on the pointing out of Laxmi Devi wife of Kailash Chander (appellant No.2). The marginal notes were correctly shown as per the spot and as per the pointing of Laxmi Devi. The crow-flight/distance between points N and P in the site plan (Ex.DA) was 38 feet (sic. 138 feet) and in between this there was the 'chaubara' of the house of Medha Ram son of Guljari which was 21 feet from the ground level. In cross-examination he stated that it was wrong to suggest that he had wrongly shown points P. It was also wrong to suggest that in between points N and P, 'chaubara' of Medha Ram did not appear to fall in between. It was also wrong to suggest that this 'Chaubara' remained on the side of the crow-flight. It was wrong to suggest that he had shown margin points wrongly. The learned Additional Sessions Judge after considering the evidence and material on record held the appellants guilty and convicted them for the offences under Sections 302 and 307 read with Section 34 IPC. Besides, Kailash Chander (appellant No.2) was also held guilty and convicted for the offence under Section 27 of the Arms Act. They were sentenced to undergo imprisonment for life for the offence under Section 302 IPC; besides, rigorous imprisonment for five years for the offence under Section 307 IPC and Kailash Chander (appellant No.2) was further sentenced to rigorous imprisonment for one year for the offence under Section 27 of the Arms Act. All the sentences were, however, ordered to run concurrently. Aggrieved against the said judgment and order passed by the learned Additional Sessions Judge, Bhiwani, the appellants have filed the present appeal.
Sh. Atul Lakhanpal, Senior Advocate with Mr. R.S. Chahal, Advocate appearing for the appellants submits that in the site plan (Ex.PD) even though blood-stained earth is shown to have been lifted from Point F, however, pellets are not shown to have been lifted. It is further submitted that in the site plan (Ex.PD), the distance between the house of Kailash Chander (appellant No.2) and Sri Narain, father of Rajesh-injured is shown between points N and P as 140 feet. However, the site plan (Ex.DA) prepared by Ramesh Kumar Solanki (DW1) shows that there is the house of Medha Ram in between, which is 21 feet from the ground level. The said house of Medha Ram is not shown between points P and N in the site plan Ex.PD. Therefore, Rajesh could not have been hit by the pellets said to have been fired by the appellants. It is submitted that projectile injuries on the dead body of Parvinder are from upwards to downwards whereas the prosecution case is that the firing was done from downwards. It is submitted that Dr. Ved Kumar (PW12) states that the injuries on the dead body were from upwards to downwards whereas Sri Kishan complainant (PW9) states that Parvinder (deceased) was at a little higher level when the pellets hit him. Besides, Manmohan (PW10) also states that Parvinder (deceased) was at a little higher level than Kailash Chander (appellant No.2). It is submitted that Rajesh, an independent witness who was injured has not been examined which casts serious doubts on the prosecution case. In any case it is submitted that the presence of Gajender Parkash (appellant No.1) has not at all been established by the prosecution and he has merely been roped in to include the male members of the family so that no one is there to pursue the case.
In response, Sh. H.S. Sran, learned Additional Advocate General, Haryana and Mr. Naresh Kumar Sanghi, Advocate appearing for the complainant submit that the firing in the case by Kailash Chander (appellant No.2) is admitted inasmuch as a suggestion was put to Manmohan (PW10) that Gajender Parkash (appellant No.1) was not present at the spot at the time of alleged occurrence or when the altercation had taken place between the father of Manmohan (PW10) i.e. Sri Kishan (PW9) and Kailash Chander (appellant No.2). Therefore, on the basis of the said cross-examination it is stated that the presence of Kailash Chander (appellant No.2) is admitted. It is submitted that Gajender Parkash (appellant No.1) was present at the time of incident inasmuch as he has been specifically named in the FIR (Ex.PC) and it has come in evidence in the statement of Sri Kishan (PW9) that he fired on the face of Parvinder (deceased). Therefore, it is submitted that the prosecution has established its case in all respects and the judgment and order passed by the learned trial Court is just and reasonable and warrants no interference by this Court. Therefore, it is submitted that the appeal is liable to be dismissed.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case. The dispute in the case is between the family members only. In order to appreciate the factual position the following pedigree table may be noticed:-
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A perusal of the above shows that Gajender Parkash (appellant No.1) is the son of Kailash Chander (appellant No.2). Kailash Chander (appellant No.2), Sri Kishan, complainant (PW9) and Parvinder (deceased in the case) are brothers. Manmohan injured (PW10) is the son of the complainant (PW9) and Asha is the daughter of the complainant (PW9). She was given a beating by Kailash Chander (appellant No.2) on 2.2.2001 and that the complainant Sri Kishan (PW9) on 3.2.2001 had gone to protest against the said beating given to Asha. At that time, Kailash Chander (appellant No.2) and Gajender Parkash (appellant No.1) are stated to have caused fire arm injuries on the person of Parvinder who died and Manmohan (PW10) as also Rajesh son of Sri Narain who has not been examined were injured. Sri Kishan (PW9) in his deposition in Court reiterated the version as has been given by him in his statement before the police on the basis of which FIR (Ex.PC) was registered. It is stated that on 2.2.2001 his daughter Asha was coming back after giving water to the buffalo. At that time Kailash Chander (appellant No.2) and Gajender Parkash (appellant No.1) abused her and gave a beating to her. Sri Kishan (PW9) was not present in the village at that time. On 3.2.2001 he took up the matter and protested to Kailash Chander (appellant No.2) for beating his daughter. There was an exchange of hot words between them. On this Kailash Chander (appellant No.2) brought out a double barrel gun from his house. During that time his brother Parvinder (deceased) and his son Manmohan (PW10) had also come at the spot. Kailash Chander (appellant No.2) fired with his double barrel gun upon the forehead of Parvinder. Kailash Chander (appellant No.2) opened more fire which hit his brother Parvinder and his son Manmohan (PW10) as also hit on the chest of Rajesh son of Sri Narain who was their neighbour and was present on the roof top. Thereafter, Gajender Parkash (appellant No.1) took the gun from his father (Kailash Chander-appellant No.2) and fired on the face of Parvinder. Both of them then fled away from the spot. The occurrence was seen by Sri Kishan, complainant (PW9), his wife Shakuntla and his son Manmohan (PW10) with their own eyes. Thereafter, Kailash Chander and Gajender Parkash (appellants) had gone to their house along with their gun and fired from the roof of their house. Sri Kishan complainant (PW9) had taken Parvinder (deceased) and his son Manmohan (PW10) to the General Hospital, Charkhi Dadri and Parvinder died on the way. Rajesh was taken to the hospital by his family members. Manmohan (PW10) and Rajesh were referred to PGI Rohtak for treatment. The dead body of Parvinder was kept in the mortuary and Sri Kishan (PW9) had gone to the Police Station for reporting the matter and he got the FIR (Ex.PC) recorded. On 3.2.2001, the police had taken blood-stained earth from in front of his house and from the roof top of the house of Sri Narain (father of Rajesh – injured). The police also took in possession the pellets which had hit the wall and door of his house. The same were sealed at the spot with seal ‘AS’ and taken in police possession vide memo Ex.PK which bears his (PW9) signatures. On 3.2.2001, the mattress was also taken in police possession. Sri Kishan (PW9) was cross-examined by the appellants in which it is inter alia stated that he (PW9) had informed the police in his local dialect that the fire was on the face of Parvinder. Sri Kishan (PW9) was confronted with Ex.PC where the words 'in the mouth' are written. It is stated that Parvinder (deceased) was at a little higher level when the pellet hit him. Parvinder (deceased), it is stated, was standing on the left side of his (PW9's) main door of the house and was standing close to the door. After firing, Parvinder fell down in the street with his face towards the sky. Gajender Parkash (appellant No.1) fired from a distance of 21 feet. Gajender Parkash (appellant No.1) was standing towards the left side of Kailash Chander (appellant No.2) and at a distance of about two feet. It is also stated by Sri Kishan (PW9) that Gajender Parkash (appellant No.1) opened fire towards him but that did not hit him. He had disclosed this to the police. He was confronted with Ex.PC, where it was not so recorded. It is also stated that it was wrong to suggest that on the date of the alleged occurrence, an altercation took place between him (PW9) and accused Kailash Chander (appellant No.2) and in the meantime he picked up his licenced gun which used to be hanged in his ‘baithak’ (sitting room) and started firing at Kailash Chander (appellant No.2) or that Kailash Chander (appellant No.2) saved himself by lying down on the ground and because of the firing by him (PW9), Parvinder (deceased) and Rajesh as also Manmohan (PW10) received pellet injuries and because of the pending and criminal and civil litigation he (PW9) got this case registered against the accused.
Manmohan (PW10) who is the son of Sri Kishan (PW9) and is an injured witness supported the prosecution case. It is stated that Kailash Chander (appellant No.2) brought out his gun from his house. He (PW10) and his uncle Parvinder (deceased) had also come at the spot. Kailash Chander (appellant No.2) opened fire with his gun which hit his uncle Parvinder (deceased) on his forehead. Kailash Chander (appellant No.2) opened two-three more fires which hit Parvinder. Parvinder (deceased) fell down and Kailash Chander (appellant No.2) opened another fire which hit Manmohan (PW 10) on his right leg. The pellets from the firing also hit Rajesh son of Sri Narain on his chest. Gajender Parkash (appellant No.1) then took the gun from Kailash Chander (appellant No.2) and fired upon Parvinder (deceased) which hit him on his face. Then both the accused (appellants) had gone to their house. In cross-examination it is stated by Manmohan (PW10) that seven fires were opened at the time of occurrence. Seven empty cartridges were recovered from the spot. Five empty cartridges were recovered from Kailash Chander (appellant No.2) and two were recovered from Gajender Parkash (appellant No.1). Manmohan (PW10) did not know the date of recovery of the cartridges. The house of Parvinder (deceased) is in the other street. He also states that Parvinder (deceased) was at a little higher level than Kailash Chander (appellant No.2). Besides, he states as incorrect to suggest that Gajender Parkash (appellant No.1) was not present at the spot at the time of alleged occurrence or that the altercation had taken place between his father (Sri Kishan – PW9) and his (PW10's) uncle Kailash Chander (appellant No.2). Manmohan (PW 10) states that it was wrong to suggest that his father (Sri Kishan PW 9) picked up the licenced gun of his uncle Kailash Chander (appellant No.2) from his ‘baithak’ (sitting room) and started firing at Kailash Chander (appellant No.2) or that Kailash Chander (appellant No.2) saved himself by lying down on the ground or that while his (PW10) father Sri Kishan (PW9) was firing at the accused Kailash Chander (appellant No.2), he (PW10) and Parvinder (deceased) as also Rajesh received pellet injuries from his father (PW9) or that he (PW10) had made a false statement because of pending criminal and civil litigations between his (PW10) father, grandfather, mother, uncle Parvinder from one side and Kailash Chander (appellant No.2) on the other side.
Dr. Ved Kumar, Medical Officer, ESI Hospital, Bhiwani (PW12) on 3.2.2001 when he was posted at General Hospital, Dadri, on police request (Ex.PM) along with Dr. Ishwar Singh conducted the post-mortem examination (Ex.PR) on the dead body of Parvinder (deceased). The injuries noticed on the dead body of Parvinder were to the following effect:-
“There was multiple punctured wound covering anterior surface of left side of chest. Anterior end left side of neck, face, left shoulder and anteromedial of left arm. Size of wound was varying from .5 to 1 cm in diameters. Margins were inverted, lacerated. Clotted blood was present all over the chest and other parts.
On dissection of chest the wounds were going deep into the pleural cavity and upto the lung tissues which were lacerated. Plural cavity was filled with blood. A few pellets were lodged in lung tissues which were taken out. Some were going deep into the posterior wall of chest upto the vertebrae. A few pellets were on left atrium cavity. There was laceration cardiac of left tissue and passing to right vertical. A few wounds of neck were extending upto the muscle and face muscle and vental aspect of facial muscle and scalp. Achymosis of tissue was present. Dead body was X-rayed for localization of site of pellets.
Stomach was empty. Small intestines contained chymes. Large intestines contained faucal matter. Rest of the organs were healthy as described in the injuries.
Opinion :
The cause of death in the case was as a result of injuries to the vital organs i.e. lung and heart, causing shock, which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature.”
In cross-examination it is stated by Dr. Ved Kumar (PW-12) that he did not notice any injury on the forehead of deceased Parvinder. There was no injury on the forehead. However, there were marks of injury on the scalp which had been shown in the skiagram, which are on frontal part of the scalp and on the right temporal region. It is stated as correct that the wounds of the neck were shown on dissection extending upto the muscle and the facial muscle and the scalp. He had not mentioned any injury on the mouth, nor did he find the same at the time of examination. It is also stated that the injuries were from upwards to downwards. Injuries on the person of the deceased could be caused by the spread of pellets of a single shot.
Dr. H.L. Beniwal, SMO, General Hospital Charkhi Dadri (PW8) had Radiologically examined Parvinder (deceased) to locate the bullet or pellets or any radiologically opaque shadow. It is stated that there were multiple radio opaque shadow present in chest, neck and skull. His radiological report was Ex.PI. X-ray films were Ex.PI/1 to Ex.PI/4. On 3.2.2001 Dr. H.L. Beniwal, SMO, General Hospital Charkhi Dadri (PW8)radiologically examined Manmohan (PW10). As per his MLR there was a radio opaque shadow present at lower part of right thigh. His radiological report was Ex.PJ and X-ray films were Ex.PJ/1. In cross-examination it is stated that he could not tell the exact number of pellets located by him in the dead body of Parvinder (deceased). He even could not tell how many radio opaque shadows were seen in the skull, neck and chest. There were about six-seven radio opaque shadow of skull in xray film in Ex.PI/1. There were three to four radio opaque shadows in the neck in X-ray film No.R-109. There were multiple radio opaque shadow in chest in – X ray film No.R-111. It is further stated that there was a single radio opaque shadow present at the lower part of right thigh of Manmohan (PW10).
Dr. Anil Chaudhary, Medical Officer, General Hospital, Dadri (PW7) had medico legally examined Rajesh son of Sri Narain and he found the following injuries on his person:-
“1. 3mm round wound with healed margin over the right cheek lateral to right angle of mouth and one over the right side of chin and this injury was advised X-ray.
2. 3 mm circular wound over the front of right shoulder, 4 cm above and lateral to right nipple, one 3 cm below the right nipple, one 6 cm lateral to right nipple, one 5 cm below the left nipple and another 5 cm below this wound. This injury was advised X-ray.
3. One 3 mm circular wound with healed margin over the middle of front of left thigh and this injury was advised X-ray.
4. 3 mm circular wound with healed margins over the front of middle of right thigh and this injury was advised X-ray.
5. 3 mm circular wound with healed margin over the middle of front of right leg and this injury was advised X-ray.”
All the injuries were kept under observation and probable duration of injuries was within 4 to 7 days. Ex.PH was the copy of MLR which bore signatures of Dr. Anil Chaudhary (PW7). In cross-examination it is stated that the victim (Rajesh) was fired at from more than 20 feet. The victim was fired from his right side and front side. He could not say whether the assailants were at a higher pedestal or at equal level of the victim as the injuries were not fresh and the same had healed. He could not say whether the injuries were as a result of one shot or more than one shot. He had advised for X-ray but no report of Xray was shown to him. So he could not say whether the pellets were inside the body or not. As per his opinion most likely it was a case of pellet injuries.
As per the FSL report (Ex.PG), Parcel I contained the clothes of deceased Parvinder. Parcel II contained pellets stated to have been taken out from the body of deceased Parvinder. Parcel III contained pellets stated to have been lifted from the place of occurrence. Parcel IV stated to contain blood swab lifted from the place of occurrence. Parcel V stated to contain blood stained ‘Gadela’ collected from place of occurrence. Parcel VI stated to contain blood swab lifted from the roof of house of injured Rajesh. (Parcels IV, V and VI were sent to the Serology Divison in original packing) Parcel VII contained one 12 bore DBBL gun stated to have been recovered from accused Kailash Chander (appellant No.2) (marked as W/1 by the examiner), Parcel VIII contained five 12 bore fired cartridge cases stated to have been recovered from accused Kailash Chander (appellant No.2) (marked C/1 to C/5 by the examiner). Parcel IX contained two 12 bore fired cartridge cases stated to have been recovered from accused Gajender Parkash (appellant No.1) (marked C/6 to C/7 by the examiner). The results of the FSL were mentioned as follows:-
“1. The 12 bore DBBL gun marked W/1 is a firearm as defined in Arms Act 54 of 1959. Its firing mechanism was found in working order.
2. The 12 bore fired cartridge cases marked C/2, C/3 and C/7 have been fired from right barrel of 12 bore DBBL gun W/1 and not from any other firearm even of the same make and bore, because every firearm has got its own individual characteristic marks.
3. The 12 bore fired cartridge cases marked C/1, C/4, C/5 and C/6 have been fired from left barrel of 12 bore DBBL gun W/1 and not from any other firearm even of the same make and bore, because every firearm has got its own individual characteristic marks.
4. Holes in shirt, sweater and banian contained in parcel No.I have been caused by pellet projectiles.
5. Pellets contained in parcel No.II were found to be fired lead pellets of size (1). Such pellets are usually loaded in shotgun cartridges including 12 bore.
6. Pellets contained in Parcel No.III were found to be fired lead pellets of size (1). Such pellets are usually loaded in shotgun cartridges including 12 bore.
7. Report in original from Serology Division is enclosed herewith.”
As per the Serologist report (Ex.PG/1) in respect of parcels sent to the Serology Division, human blood was found on shirt, sweater, banian (vest), pants, swab, piece of cloth and swab.
In order to appreciate the contentions raised by learned Senior counsel for the appellant, the site plan Ex.PD is reproduced as under:-
“CHART”
The contention that in the site plan (Ex.PD) pellets are not shown to be lifted although blood-stained earth is shown to be lifted from point F is not of much consequence. The site plan (Ex.PD) has been prepared by Ravinder Kumar, Draftsman, Court Compound, Charkhi Dadri (PW5). It is stated that the site plan (Ex.PD) was prepared by him on 5.4.2001 after visiting the spot and on pointing out by Sri Kishan (PW9). In cross-examination it is stated that rough notes were prepared at the spot. However, he had not brought the same. It is accepted as correct that there were houses and trees in between points N and P. It was stated as incorrect to suggest that one cannot oversee from point N to point P. Distance between points A and B was less than 4 feet. The site plan (Ex.PD) had been prepared on the demarcation given by Sri Kishan (PW9). It was endorsed by Ravinder Kumar, Draftsman (PW5) that the site plan had been prepared by him which was true and correct. As per the existing position, mark A is the place where the deceased Parvinder was standing. Markc C is the place where Sri Kishan (PW9) was standing. Mark K is the place where the son of the complainant namely Manmohan (PW10) was standing. Mark P is the place where witness Rajesh was standing on his roof. The double barrel gun is said to have been fired from point P to point N. In the site plan, the distance between mark ‘A’ to mark ‘E’ is 19 feet and from mark ‘A’ to mark ‘D’ is 21 feet. The distance from ‘A’ to ‘K’ is 20 feet and from 'F' to ‘C’ is 7’ 3”. In the site plan, mark ‘F’ is the place where blood-stained earth was lifted. At point mark ‘B’ Shakuntla was stated to be standing. A note is appended that in the presence of the police and on the demarcation of Sri Kishan (PW9) the site plan was prepared. The said site plan is stated to be contrary to the site plan (Ex.DA). The site plan (Ex.DA) is similar to the site plan (Ex.PD) except that in between points N and P the distance is mentioned as 138 feet and a 'pucca makan' of Medha Ram son of Guljari is depicted. On the strength of the same it is contended that the alleged gun shot said to have been fired by Kailash Chander (appellant No.2) could not have hit Rajesh who was standing on the roof of his house at point P. There may be some merit in the said contention that the gun shot fired by Kailash Chander (appellant No.2) may not have been such that it would have hit Rajesh. However, as noticed above Rajesh nevertheless did suffer fire-arm injury as have been deposed by Dr. Anil Chaudhary (PW7) and the injuries that he had received in the occurrence have been reproduced above. In any case the same would not in any manner show that Kailash Chander (appellant No.2) had not fired on the person of Parvinder who died. Besides, the fact that the place from where bloodstained earth is shown to be lifted at point ‘F’ and the pellets are not shown to be lifted in the said site plan (Ex.PD), is not such a circumstance to hold that the pellets were not lifted from the place of occurrence. Ravinder Kumar, Draftsman (PW5) who has drawn and proved the site plan (Ex.PD), it may be noticed was not cross-examined by the defence in this regard. In Jit Singh v. State of Punjab, AIR 1976 SC 1421 it was held by the Supreme Court that the notes on the site plan prepared by the Investigating Officer in accordance with the various situations pointed out to him by the witnesses are statements recorded by the police officers in the course of investigation. These notes can be used only for the purposes of contradicting the prosecution witnesses concerned in accordance with Section 145 of the Evidence Act and for no other purposes. Where this was not done and the witnesses were never confronted and contradicted with this record the notes on that site plan cannot be used to contradict the account given by the witness in Court in regard to the distance from which they saw the occurrence. Therefore, there being no cross-examination of Ravinder Kumar, Draftsman (PW5) and the fact that the place where the pellets were lifted were not shown in the site plan (Ex.PD) would not be of any significance.
Ajaib Singh SI/SHO (PW11) and SI Sheotaj Singh (PW13) had carried out the investigation in the case. Sheotaj Singh (PW13) states that he prepared rough site plan (Ex.PT) and recovered six live cartridges and five empties and one gun which was taken in possession vide memo Ex.PF. The site plan Ex.PT prepared by SI Sheotaj Singh (PW13) mentions mark A as the place from where the accused after entering his 'baithak' (sitting room) himself got recovered one 12 bore gun along with six live cartridges and five empties of 12 bore. Therefore, the recovery of one 12 bore gun along with six live cartridges and five empties of 12 bore having been depicted in the site plan Ex.PT, the mere fact that is not mentioned in the site plan (Ex.PD) is inconsequential. Even the recovery of pellets in Ex.PS in another site plan prepared by SI Sheotaj Singh (PW13) as contended by the learned Senior Counsel being not there is inconsequential. As regards Rajesh being not injured from the gun fired by Kailash Chander (appellant No.2) as the house of Medha Ram intervenes between points N and P in the site plan Ex.DA and which is not depicted in the site plan Ex.PD would not, in any manner, mitigate or lessen the role of Kailash Chander (appellant No.2) as regards the gun fired by him at Parvinder, which resulted in his death. Therefore, the role that has been attributed to Kailash Chander (appellant No.2) of firing at Parvinder (deceased) is not affected even if it is to be taken that the gun shot fired by him could not have hit Rajesh.
The contention of the learned Senior Counsel that the projectiles are from upwards to downwards whereas the prosecution case is that the firing was done from downwards may be considered. Dr. Ved Kumar (PW12) states that the injuries on the person of Parvinder were from upwards to downwards. He further states that the injuries on the person could be caused by the spread of pellets with a single shot. However, Sri Kishan, complainant (PW9) it is pointed out by the learned Senior Counsel states that Parvinder (deceased) was at a little higher level when the pellets hit him. Parvinder (deceased) was standing on the left side of the main door of the house Sri Kishan, complainant (PW9) and was standing close to the door. Manmohan (PW10) also states that Parvinder (deceased) was at a little higher level than Kailash Chander (appellant No.2). It may, however, be noticed that Sri Kishan (PW9) in his cross-examination states that after the firing Parvinder fell down in the street with his face towards the sky. It may be noticed that even though according to the prosecution witnesses Sri Kishan (PW9) and Manmohan (PW10) it has come in evidence that Parvinder (deceased) was at a little higher level than Kailash Chander (appellant No.2) and as per Dr. Ved Kumar (PW12) the gun shots were from upwards to downwards, the same would not be of any consequence as Parvinder (deceased) who may be on a higher level himself must have ducked down at the gun being aimed at him and then the fire arm shot hit him. When a gun is aimed at a person it is quite normal for him to duck down as a reflex action to ward off the blow. Therefore, the said circumstance as pointed out by the learned Senior Counsel is not such a circumstance which would, in any manner, dislodge the actual act of firing on the part of the Kailash Chander (appellant No.2) on the person of Parvinder (deceased).
The non-examination of independent witness Rajesh in the facts and circumstances of the case is inconsequential as there is a direct evidence of Sri Kishan (PW9) and Manmohan (PW10) that the injuries on the person of Parvinder were caused by Kailash Chander (appellant No.2). Learned Public Prosecutor on 11.3.2002 had given up Shakuntala and Rajesh Kumar as unnecessary. Therefore, in case Rajesh has not been examined would not in any manner affect the prosecution case.
The contention of the learned Senior Counsel for the appellants regarding the presence of Gajender Parkash (appellant No.1) at the time of the incident has some merit. Gajender Parkash (appellant No.1) according to Sri Kishan (PW9) had taken the gun from his father Kailash Chander (appellant No.2) and fired on the face of Parvinder. Sri Kishan (PW 9) in his statement (Ex.PC) stated that Gajender Parkash (appellant No.2) had fired on the mouth of Parvinder. In his deposition in Court in cross-examination it is stated by Sri Kishan (PW9) that he had disclosed to the police that the fire was on the face of Parvinder in his local dialects. He was confronted with Ex.PC where words ‘in the mouth’ is written. Therefore, the firing attributed to Gajender Parkash (appellant No.2) is on the mouth of Parvinder or may be even on his face. The injuries on the dead body of Parvinder have been reproduced above. The same do not make a mention of any pellet injury being caused on the mouth of Parvinder. It is mentioned by Dr. Ved Kumar (PW12) that a few wounds of neck were extending upto the muscle and face muscle and vental aspect of facial muscle and scalp. Besides, Dr. Ved Kumar (PW12) in his cross-examination states that it was correct that the wounds of the neck were shown on dissection extending upto the muscle and the facial muscle and the scalp. He further states that he had not mentioned any injury on the mouth nor did he find the same at the time of examination. Therefore, the first version of Sri Kishan (PW9) was that the gun shot injury was inflicted by Gajender Parkash (appellant No.1) on the mouth of Parvinder, however, on the mouth there was no injury. This was sought to he changed by Sri Kishan (PW9) while deposing in Court that the injuries were on the face. There being no injury on the mouth which though is alleged to have been caused by Gajender Parkash (appellant No.1), his presence at the time of the incident is indeed doubtful. This is even otherwise moreso for the reason that Dr. Ved Kumar (PW12) also states that there were no injuries on the forehead of Parvinder. Besides, he (PW12) states that the injuries on the person of deceased Parvinder could be caused by spread of pellets with a single shot. Therefore, the role of firing in the case on the person of Parvinder Singh is attributed to Kailash Chander (appellant No.2) and the presence of Gajender Parkash (appellant No.1) at the time of the incident is doubtful. The learned trial Court has held that the appellants in furtherance of their common intention inflicted fire arm injuries on the person of Manmohan (PW10) with such intention or knowledge that they would have caused the death of Manmohan (PW10) and thus they had committed the offence under Section 307 read with Section 34 IPC. However, no gun shot injury on the person of Parvinder was found to be inflicted by Gajender Parkash (appellant No.1). The role attributed to Gajender Parkash (appellant No.1) insofar as causing injury to Manmohan (PW10) is concerned is also not substantiated. In fact it is not the case of Sri Kishan (PW9) and Manmohan (PW10) that Gajender Parkash (appellant No.1) had fired at them. Sri Kishan (PW9) only during his cross-examination states that Gajender Parkash (appellant No.1) fired towards him but that did not hit him. He further states that he had disclosed in this regard to the police. He was confronted with Ex. PC where it was not so recorded. Therefore, indeed it was not the initial case of Sri Kishan (PW9) that Gajender Parkash (appellant No.1) had fired towards him and it is not the case of the prosecution that he had fired towards Manmohan (PW10).
Dr. Giriraj, Medical Officer, General Hospital Rohtak (PW14) had medico legally examined Manmohan (PW10). He found the following injuries on his person:-
“A circular lacerated wound 6 mm x 6mm in size on the anteromedial aspect of right thigh. 11 cm above the right knee. Redness was present around the wound and whole wound was dark brown bladish (sic. - bloodish) coloured. X-ray was advised and injury was kept under observation.”
It is further stated that on 24.4.2001 opinion regarding the injury was requested from police and he opined that injury No.1 was declared simple and weapon fire arm ‘chhara’ could not be ruled out. Manmohan (PW10) was referred to PGI Rohtak along with other patients but they sent him back. Therefore, the injury on the person of Manmohan (PW10) is simple in nature. In the circumstances, the conviction of Kailash Chander (appellant No.2) for the offence under Section 307 read with Section 34 IPC would not be sustainable and injury being simple in nature, it would make out an offence under Section 323 IPC. The presence of Gajender Parkash (appellant No.1) having been doubted the conviction as against him for the offence under Section 307 IPC for causing injuries to Manmohan (PW10) is in any case unsustainable.
As regards the conviction of Kailash Chander (appellant No.2) for the offence under Section 27 of the Arms Act, it may be noticed that Brij Lal Sharma, Passport Licence Assistant, Office of SDM, Bhiwani (PW3) appeared. He had brought the summoned record relating to Arms Licence dated 12.6.1995 which was valid till 11.6.1998 as per their record. The Arms Licence was issued in the name of Kailash Chander (appellant No.2). In cross-examination it is stated that there was nothing to show that the licence was renewed by the Licencing Authority, Charkhi Dadri or any other Licencing Authority. Kailash Chander (appellant No.2) had used his licenced gun in contravention of Section 5 of the Arms Act and therefore, he indeed committed the offence under Section 27 of the Arms Act.
In the circumstances, the firing on the persons of Parvinder (deceased) was done by Kailash Chander (appellant No.2) which is established from the evidence and material on record. The eye-witnesses accounts of Sri Kishan (PW9) and Manmohan (PW10) have duly established the same. The post-mortem examination on the dead body of Parvinder conducted by Dr. Ved Kumar (PW12) shows gun shot pellets to be present. The FSL report (Ex.PG) opines that the 12 bore fired cartridges cases marked C/2, C/3 and C/7 which were recovered from Kailash Chander (appellant No.2) were fired from the right barrel of 12 bore DBBL gun W/1 which was recovered from Kailash Chander (appellant No.2) and not from any other firearm even of the same make and bore, because every firearm has got its own individual characteristic marks. Besides, 12 bore fired cartridge cases marked C/1, C/4, C/5 which were recovered from Kailash Chander (appellant No.2) and C/6 recovered from Gajender Parkash (appellant No.1) are shown to have been fired from the left barrel of 12 bore DBBL gun W/1 and not from any other firearm even of the same make and bore, because every firearm has got its own individual characteristic marks. Holes in shirt, sweater and banian contained in parcel No.I i.e. clothes of the deceased Parvinder had been caused by pellet projectiles. The pellets contained in parcel No.II i.e. pellets that had been taken out from the body of deceased Parvinder were found to be fired lead pellets of size (1) and such pellets are usually loaded in shotgun cartridges including 12 bore. The pellets contained in parcel No.III i.e. pellets stated to have been lifted from the place of occurrence were found to be fired lead pellets of size (1) and such pellets are usually loaded in shotgun cartridges including 12 bore. Therefore, FSL report (Ex.PG/2) corroborates the firing of 12 bore gun by Kailash Chander (appellant No.2). The Serologist Report (Ex.PG/2) of FSL finds human blood on the clothes worn by Parvinder (deceased). Therefore, the conviction of Kailash Chander (appellant No.2) recorded by the trial Court for the offence under Section 302 IPC and Section 27 of the Arms Act is just and proper. However, his conviction for the offence under Section 307 for causing injuries to Manmohan (PW10) is not sustainable as injuries on his person were simple in nature. Therefore, Kailash Chander (appellant No.2) is liable to be convicted for the offence under Section 323 IPC for causing simple injuries on the person of Manmohan (PW10). The presence of Gajender Parkash (appellant No.1) at the place of occurrence is doubtful. The possibility of roping in him in the occurrence being the son of Kailash Chander (appellant No.2) cannot be entirely ruled out. No role of the gun shot said to have been fired by him is shown to have been established or received on the person of Parvinder (deceased). Besides, no injury is said to have been inflicted by him on the person of Manmohan (PW 10). Therefore, benefit of doubt is liable to be given to Gajender Parkash (appellant No.1).
For the foregoing reasons, the appeal is partly allowed. The judgment and order of the learned trial Court convicting and sentencing Gajender Parkash (appellant No.1) for the offence under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC are set aside. However, the conviction of Kailash Chander (appellant No.2) for the offence under Section 302 read with Section 34 IPC is modified to conviction for the offence under Section 302 IPC. Besides, the conviction of Kailash Chander (appellant No.2) for the offence under Section 307 read with Section 34 IPC is modified to that under Section 323 IPC. Besides, the conviction of Kailash Chander (appellant No.2) for the offence under Section 27 of the Arms Act is upheld and is kept intact.
Consequently, Kailash Chander (appellant No.2) is sentenced to imprisonment for life for the offence under Section 302 IPC; besides pay a fine of Rs.2000/- and in the event of default of payment of fine, he shall undergo further rigorous imprisonment for six months; for the offence under Section 323 IPC Kailash Chander (appellant No.2) is sentenced to imprisonment for one year and for the offence under Section 27 of the Arms Act, the sentence of imprisonment of one year passed by the learned trial Court is maintained. The sentences of imprisonment shall run concurrently. Besides, the period of detention undergone by Kailash Chander (appellant No.2) during the investigation and trial of the present case shall be set off against the term of imprisonment imposed on them on such conviction in the contemplation of Section 428 CrPC.
As, the sentence of imprisonment of Kailash Chander (appellant No.2) was suspended by this Court during the pendency of appeal on 26.5.2006, he shall be taken in custody to serve the remaining sentence of his imprisonment. The sentence of imprisonment of Gajender Parkash (appellant No.1) was suspended by this Court during the pendency of the appeal on 10.8.2006, therefore, the bail bonds furnished by him shall stand discharged.