Pardeep Kumar Vs. State of Haryana - Court Judgment

CRA No.975-DB of 2010 -1- In the High Court of Punjab and Haryana at Chandigarh CRA No.975-DB of 2010(O&M) Date of Decision: November 29, 2012 Pardeep Kumar ---Appellant versus State of Haryana ---Respondent Coram: Hon'ble Mr. Justice Rajive Bhalla Hon'ble Mrs. Justice Rekha Mittal Present: Mr. Jasjit Singh Bedi, Advocate for the appellant Mr. Dhruv Dayal, Deputy Advocate General,Haryana for respondent-State 1.To be referred to the Reporters or No.?. 2.Whether the judgment should be reported in the digest ?. *** REKHA MITTAL, J.

1. The present appeal lays challenge to the judgment of conviction and order of sentence dated 5.8.2010 passed by the Court of Sessions Judge, Hisar whereby appellant Pardeep Kumar son of Ram Narain has been convicted and sentenced for commission of an offence punishable under Section 302/34 of the Indian Penal Code (hereinafter referred to as “IPC”.) and Section 25 of the Arms Act in case FIR No.13 dated 11.1.2008 registered under Section 302/34 IPC and Section 25 CRA No.975-DB of 2010 -2- of the Arms Act in Police station, City Hansi, as detailed hereinbelow:- Under Section Sentence imposed 302 IPC To undergo imprisonment for life and to pay a fine of `10,000/-. In default of payment of fine to undergo rigorous imprisonment for six months 25 of the Arms Act To undergo rigorous imprisonment for three years and to pay a fine of ` 3,000/-. In default of payment of fine, to undergo rigorous imprisonment for three months Both the sentences were ordered to run concurrently.

2. This case relates to the murder of Parveen Kumar son of Ram Narain, real brother of appellant/convict Pardeep Kumar. The brief facts of the case are that on 10.1.2008, Satpal son of Surat Singh, brother-in-law (Sala ) of Parveen Kumar (deceased) got recorded his statement as first information report on the allegations that on 10.1.2008 at about 8-00 p.m. he met his brother-in-law, Pardeep Kumar, who runs a shop of ready made garments at sabzi mandi road, Hansi, he, at that time, was closing his shop. At about 8.25 p.m., he received a call on his mobile phone from an unknown person but from the mobile phone of his brother-in-law (Pardeep) informing him that the owner of the mobile is lying on the road in an injured condition. He reached there and shifted injured Pardeep Kumar to Malik Hospital, Hansi, from where he was referred to Hissar. Parveen was taken to CMC Hospital, Hissar, where he was declared brought dead. On the basis of statement of complainant Satpal, formal FIR was registered in Police Station, city Hansi. On 30.1.2008, accused Pardeep Kumar and CRA No.975-DB of 2010 -3- Rakesh Kumar @ Roki were produced before SHO Inder Singh by Mahinder Singh PW-2 and they were arrested. Pardeep Kumar made a disclosure statement in respect of his possession of weapon of offence and live cartridges and recovery of these incriminating articles was effected in pursuance thereof. The other accused Rakesh Kumar @ Roki also made a disclosure statement in respect of his possession of motor cycle used in the crime and he also got effected recovery of motor cycle in pursuance of his disclosure statement. The incriminating articles, got recovered by the accused, were taken into police possession. On completion of investigation, a charge sheet was presented in the Court for trial of the accused.

3. The Court of Magistrate, after complying with provisions of Section 207 of the Code of Criminal Procedure (hereinafter referred to as the “Cr.P.C.”

.) committed this case to the Court of Sessions as offence under Section 302 IPC is exclusively triable by the said Court.

4. Both the accused were charge sheeted for commission of offence punishable under Section 302 read with Section 34 IPC. In addition, accused Pardeep Kumar was charge sheeted for offence punishable under Section 25 of the Arms Act. The accused did not plead guilty and claimed trial.

5. To prove its case, the prosecution examined as many as 16 witnesses, namely, Satpal, Complainant, PW-1, Mahinder Singh PW-2, Ram Narain PW-3, Subhash Chander, Draftsman, S.P.Office, Hisar CRA No.975-DB of 2010 -4- PW-4, Constable Krishan Kumar PW-5, EHC Ramesh Kumar PW-6, ASI Bani Singh PW-7, ASI Shish Ram PW-8, EHC Dhup Singh PW-9, SI Tara Chand PW-10, ASI Ran Singh PW-11, Nihal Singh Reader to District Magistrate, Hisar PW-12, ASI Mahinder Singh PW-13, DSP Inder Singh PW-14, Dr. Suresh Kumar M.O. General Hospital, Hisar PW-15 and Dr. Manot Soni, Medical Officer, CMC Hospital, Hisar PW-16. Reports of the Forensic Science Laboratory, Exs. P30, P31 and P31/A, were also tendered into evidence.

6. On the evidence of the prosecution being closed, the accused were examined in terms of Section 313 Cr.P.C. to provide them mandatory opportunity to explain the incriminating circumstances. They denied the incriminating material put to them and pleaded their false implication. However, the accused did not lead any evidence in defence.

7. The learned trial Court, after appraising the evidence led on record in the light of the charge-sheet framed against the accused, recorded a verdict of guilt against accused Pardeep Kumar, as detailed hereinabove. However, accused Rakesh Kumar @ Roki was acquitted of the charge framed against him.

8. Feeling dissatisfied with the verdict of the learned trial Court, the present appeal has been preferred by convict Pardeep Kumar.

9. Counsel for the appellant submits that the prosecution case is primarily based upon circumstantial evidence. It is argued that the CRA No.975-DB of 2010 -5- main circumstances relied upon by the prosecution are (i) extra judicial confession of the accused before Mahinder Singh PW-2 (ii) recovery of incriminating weapon i.e. country made pistol with two live cartridges in pursuance of alleged disclosure statement of accused Pardeep Kumar (iii) recovery of motor cycle used in the crime at the behest of accused Rakesh Kumar @ Roki, and (iv) report of the Forensic Science Laboratory in respect of matching of bullet retrieved from dead body of Parveen Kumar during his post mortem examination with the country made pistol allegedly recovered from accused Pardeep Kumar. Counsel has further contended that complainant Satpal, Mahinder Singh, witness of extra judicial confession and Ram Narain PW-3 failed to support the prosecution version and these witnesses were declared hostile at the request of public prosecutor. It is further submitted that during their cross examination by public prosecutor, no such facts could be elicited which can connect the appellant with the crime. It has been argued with vehemence that recovery of incriminating weapon from the accused is not proved beyond doubt. To bring home his contention, counsel has argued that said recovery was effected from a place which is open and accessible to public at large. It has been submitted that the said recovery was effected 20 days after the occurrence. It is argued that there is no evidence to prove that appellant Pardeep Kumar wielded this weapon to cause injuries to Parveen Kumar. It has been further argued that there is no evidence on CRA No.975-DB of 2010 -6- record to prove that Pardeep Kumar had any animosity with his brother Parveen Kumar, to commit his murder. Counsel has submitted that the learned trial Court has failed to appreciate various principles of law culled out in number of judgments in respect of nature and quality of evidence required to be adduced in a case based on circumstantial evidence in order to record a finding that the circumstances relied upon by the prosecution have been proved by reliable evidence and further those circumstances form a chain complete in itself from which it can safely be concluded without any hesitation, that it was accused alone who is the author of the crime. Counsel argues that the only circumstance held to be proved against the appellant is the recovery of the incriminating weapon because as per the report of Forensic Science Laboratory, the bullet recovered from the dead body of Parveen Kumar matched with the pistol recovered from the appellant. He has submitted that this single circumstance is not at all sufficient to record a finding of guilt against the appellant. In support of his contention, he has referred to Dudh Nath Pandey vs. State of Uttar Pradesh (1981) 2 Supreme Court Cases 166 and Prem Singh Vs. State (NCT of Delhi) (2010) 1 Supreme Court Cases(Crl) 1324.

10. Counsel for the State of Haryana, on the other hand, has supported the judgment of learned trial Court by submitting that the prosecution has successfully proved its case. The bullet recovered from the dead body of Parveen Kumar has been proved to be fired CRA No.975-DB of 2010 -7- from the pistol recovered from the appellant, on the basis of scientific evidence. It is argued that the learned trial Court has correctly based the conviction on this material piece of evidence coupled with the fact that as the complainant PW-1 and Ram Narain PW-3 happen to be close relatives of the accused, it was not expected from them to depose against the accused or to support the case of the prosecution.

11. We have heard counsel for the parties and perused the records of the trial Court.

12. The case of the prosecution hinges upon circumstantial evidence. Before we proceed to adjudicate the merits of the case, it is necessary to recapitulate the legal position. Undoubtedly, for brining home the guilt of the accused on the basis of circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. Reference in this regard can be made to State of U.P. v. Ram Balak and another 2008(4) R.C.R.(Criminal) 845, Raju vs. The State by Inspector of Police 2009 (11) SCC 111.Gamparai Hrudayaraju vs. State of A.P. Through Public Prosecutor 2009(13) SCC 740.Aftab Ahmad Anasari vs. State of Uttranchal 2010(1) J.424 and Baldev Singh vs. State of Haryana 2011 AIR (SC) (Cri) 1789. CRA No.975-DB of 2010 -8- 13. The question for adjudication is ‘whether the recovery of the incriminating weapon in pursuance of the disclosure statement of the accused can be taken as a conclusive piece of evidence to record a verdict of guilt against the accused?.’ 14. The witness of extra judicial confession has failed to support the prosecution. Nothing material and tangible could be elicited during his cross examination by the public prosecutor. His testimony does not lend any support to the case of the prosecution.

15. The recovery of the incriminating weapon was effected 20 days after the occurrence. The possibility of Pardeep Kumar having got possession of this weapon during the intervening period cannot be ruled out. The Hon’ble Supreme of India in Dudh Nath Pandey’s case (supra) has held “that evidence of recovery of pistol at the instance of the appellant cannot by itself prove that he (the person) who pointed out the weapon wielded it in offence.”

. The evidence of the ballistic expert carries the proof a step ahead, but not enough to establish guilt beyond doubt, because at the most, it shows that the shot which killed Parveen Kumar was fired from the pistol which was got recovered by the appellant.

16. Another important aspect of this case is that the accused and the victim are real brothers. There is nothing on record to suggest that the appellant had any differences much less enmity with his deceased brother. It is difficult to accept that a brother would like to CRA No.975-DB of 2010 -9- kill his brother without any motive. In cases based on circumstantial evidence, motive assumes greater significance. As a natural human conduct, nobody would like to kill another without any object/motive to be satisfied. The absence of motive on part of the appellant for killing his real brother casts a serious doubt in the case of the prosecution. It also needs mention that as per the documents, in respect of the medical treatment of Parveen Kumar, the injured victim was shifted to hospital by appellant Pardeep Kumar. Had Pardeep Kumar fired a shot with an intention to kill his brother, Parveen Kumar, there was a remote possibility of Pardeep Kumar's shifting the injured to the hospital. The fact that Pardeep Kumar took the injured to the hospital further creates a suspicion in the case. The prosecution examined two police officials to adduce evidence in regard to disclosure statement of the accused and recovery of country made pistol (incriminating weapon) and two live cartridges at his (accused) instance. Of course, the testimony of these witnesses namely, ASI Bani Singh PW-7 and DSP Inder Singh PW-14, may not be discarded either for want of corroboration by a public person or because of their status as police officials but their evidence is not at all sufficient to establish the guilt of the accused beyond the shadow of reasonable doubt.

17. The prosecution has failed to prove the circumstances relied upon, except recovery of incriminating weapon from the appellant. CRA No.975-DB of 2010 -10- The recovery was not effected immediately after the occurrence. There is no chain of circumstances without any link missing which could lead to a hypothesis without any default that the appellant is the author of the crime. The prosecution has failed to lead cogent, convincing much less clinching evidence to establish the guilt of the appellant beyond shadow of reasonable doubt. In these circumstances, the appellant certainly deserves to be extended the benefit of doubt.

18. For the reasons recorded hereinabove, the appeal is accepted. The judgment of conviction and order of sentence passed by the learned trial Court are set aside. The appellant, if not required in any other case, be set at liberty forthwith. ( REKHA MITTAL) JUDGE (RAJIVE BHALLA) JUDGE November 29, 2012 PARAMJIT