Punjab And Haryana High Court · 2010

Judgment

1. Appellant Surjeet Singh was tried by the Court of Additional Sessions Judge, Gurgaon, for the offences under Section 302 IPC and 25 of the Arms Act, for committing the murder of his uncle Mahabir by firing two shots from a country made pistol of .315 bore. The trial court, vide its judgment dated 28.8.2004 and the order dated 31.8.2004, convicted and sentenced the appellant to undergo imprisonment for life and to pay a fine of ` 2,000/-, in default to further undergo rigorous imprisonment for a period of four months under Section 302 IPC; and to undergo imprisonment for one year and to pay a fine of ` 500/-, in default to undergo further rigorous imprisonment for a period of one month under Section 25 of the Crl. A. No. 822-DB of 2004 -2- Arms Act. Both the sentences of imprisonment have been ordered to run concurrently.

2. As per the prosecution version, which is based upon the statement (Ex.PK) of Ram Kumar (PW.16), on 7.12.2001 at about 5.30 AM, as usual, he had left his house for morning walk and while returning to his

house, he reached near the house of Shri Nafe Singh, Advocate, a Maruti Van of white colour bearing registration No. DL-4C-6030, which was being driven by his cousin Mahabir (deceased), came from the front site. The van was being followed by a Yamaha motor cycle of black colour, which was being driven by appellant Surjeet Singh and one young man was pillion rider. By over-taking the van, both of them came towards driver's side of the van and on getting signal from them, Mahabir stopped the vehicle by applying brakes. As soon as the van was stopped, appellant and the other young man accompanying him exhorted to teach a lesson to Mahabir for not giving the plot. The young man instigated the appellant to fire a shot, upon which the appellant fired a shot from the pistol at Mahabir, which hit on the right side of his forehead. The person accompanying the appellant told the appellant that Mahabir had not still died and he asked the appellant to fire again, upon which the appellant fired second shot, which hit on the right side of the abdomen of Mahabir, due to which he fell on the front seat of the van with his face downward. The complainant raised alarm, which attracted the people from the neighbourhood at the spot. Thereupon, the appellant and the person accompanying him escaped on the motor cycle along with Crl. A. No. 822-DB of 2004 -3- the pistol. The motive behind this occurrence, as stated by the complainant, was that Ranbir, father of the appellant, and Mahabir had adjoining houses, and adjacent to their houses, there was vacant land, out of which land to the extent of 20 feet was included by Mahabir in his house by raising boundary wall, to which appellant had raised objection, regarding which relatives and members of the brotherhood gathered for many times to resolve the controversy, but the dispute could not be settled. It was further stated by the complainant that at 6.30 AM, Mahabir was going to Delhi to take the school children from one place for dropping them to their school at Delhi in his van, when the occurrence took place. He further stated that Mahabir died in the van itself due to fire arm injuries. It is pertinent to mention here that complainant Ram Kumar is related to the deceased as well as the appellant.

3. On receipt of a VT message, Jitesh Kumar (PW.19), Sub Inspector, Incharge Police Post, New Colony, Gurgaon, to the effect that one person was shot dead in a Maruti van near the house of Shri Nafe Singh, Advocate, he along with other police officials reached the spot, where the aforesaid statement (Ex.PK) of Ram Kumar (PW.16) was recorded at 7.30 AM, on the basis of which formal FIR (Ex.PK/2) was registered at 7.45 AM. Special report was sent, which was received by the Ilaqa Magistrate on the same day at 12.20 PM.

4. After completing the inquest proceedings (Ex.PD/1), the dead body was sent to General Hospital, Gurgaon, for post mortem examination.

5. On the same day at 2.35 PM, Dr. B.K. Rajora (PW.10) and Dr. Crl. A. No. 822-DB of 2004 -4- S. Narula conducted the post mortem examination on the dead body of deceased Mahabir. They found three injuries on the body of the deceased. Injuries No.1 and 2 were entry and exit wounds in the skull, which were on the left side and right side of the skull, respectively, whereas injury No.3 was entry wound on the right side of middle 1/3rd of the abdomen. They opined that the cause of death was due to injury to the brain and various other vital organs of the body caused by gun shot injuries. All the injuries were ante mortem in nature and sufficient to cause death in normal course of life. One bullet was removed from injury No.3 and was handed over to the police, along with other articles.

6. It is also the case of the prosecution, as stated by Manjeet Singh (PW.18) son of deceased Mahabir, that on 7.12.2001, the appellant came to his house from the back side, where he along with his mother was present. The appellant stated that he had murdered the father of Manjeet Singh and now he would kill Manjeet Singh. Thereupon, the appellant fired a gun shot which hit left side of the chest of Manjeet Singh. In the meanwhile, he was able to be rescued with the intervention of his mother and a separate case regarding this occurrence was registered against the appellant. It is pertinent to mention here that in the aforesaid case registered under Section 307 IPC and Section 25/54/59 of the Arms Act against the appellant, the case of the prosecution was that the occurrence had taken place in the house of Manjeet Singh on 7.12.2001 at about 7/7.15 AM and the appellant was convicted and sentenced vide judgment and order dated 16.4.2004 (Ex.PQ). Crl. A. No. 822-DB of 2004 -5-

7. On 8.2.2001, Sub Inspector Jitesh Kumar lifted the blood stained earth, one empty cartridge from the spot, which were taken into possession vide recovery memo (Ex.PC) along with the Maruti Van, bearing registration No. DL-4C-6030. Rough site plan (Ex.PO) of the place of occurrence was also prepared.

8. The further investigation in the case was carried out by Dhani Ram, Sub Inspector (PW.17), who arrested the appellant on 9.9.2002 and in pursuance of his disclosure statement (Ex.PM) recorded on 10.9.2002, the appellant got recovered one .315 bore pistol, one live cartridge, from his own house, which were taken into possession vide recovery memo (Ex.PM/1).

9. As per the report (Ex.PF/1) of the Senior Scientific Officer (Ballistics) received from the office of the Forensic Science Laboratory Haryana, Madhuban (Karnal), .315 bore country-made pistol recovered from the appellant was found in working order. The bullet collected from the place of occurrence and the other bullet removed from the body of the deceased were found to have been fired from the aforesaid country-made pistol. The mis-fired cartridge taken out from the chamber of the aforesaid pistol was found to have missed-fire from the same pistol, which was recovered from the appellant.

10. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offences under Section 302 IPC and Section 25 of the Arms Act, to which he did not plead guilty and Crl. A. No. 822-DB of 2004 -6- claimed trial.

11. In support of its case, the prosecution examined 19 witnesses, out of whom PW.10 Dr. B.K. Rajora, PW.16 Ram Kumar (complainant), PW.17 Dhani Ram, Sub Inspector, who partly investigated the matter, PW.18 Manjeet Singh son of the deceased and PW.19 Jitesh Kumar, Incharge Police Post New Colony, Gurgaon, who conducted the initial investigation in the case, are the material witnesses.

12. PW.10 Dr. B.K. Rajora, who conducted post mortem examination on the dead body of deceased Mahabir, has proved the Post Mortem Report of the deceased as Ex.PD/2. He has also stated that one bullet was removed from injury No.3 of the deceased, which was handed over to the police, along with the other articles.

13. PW.16 Ram Kumar, complainant, who witnessed the entire occurrence, narrated the sequence of event and has fully supported the case of the prosecution, on each and every aspect of the occurrence.

14. PW.17 Dhani Ram, Sub Inspector, who partly investigated the case, has stated that on 9.9.2002, he had arrested the appellant and on

10.9.2002, in pursuance of the disclosure statement (Ex.PM) made by the appellant, he got recovered one .315 bore pistol, one live cartridge, from his own house, which were taken into possession vide recovery memo (Ex.PM/1).

15. PW.18 Manjeet Singh is the son of deceased Mahabir. He has stated that on 7.12.2001, the day of occurrence, appellant came to his house Crl. A. No. 822-DB of 2004 -7- from the back side and stated to him that he had murdered his father and now would kill him. He further stated that then the appellant fired a gun shot, which hit left side of his chest, and thereafter, he was able to rescue himself with the intervention of his mother. It is pertinent to mention here that in this regard, a separate case under Section 307 IPC and Section 25/54/59 of the Arms Act was registered against the appellant, wherein it was the case of the prosecution that the occurrence had taken place in the house of Manjeet Singh on 7.12.2001 at about 7/7.15 a.m., and the appellant was convicted and sentenced vide judgment and order dated 16.4.2004 (Ex.PQ).

16. PW.19 Jitesh Kumar, Incharge, Police Post, New Colony, Gurgaon, who conducted the initial investigation in this case, has proved all the material documents prepared by him.

17. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence and false implication. However, he did not lead any evidence in defence.

18. The trial court, while relying upon the medical evidence, the statement of the complainant, who is the sole eye witness of the occurrence, as well as the statement of PW.18 Manjeet, who was also given fire shot injury by the appellant, immediately after the occurrence, convicted and sentenced the appellant, as indicated above.

19. We have heard the arguments of learned counsel for the parties Crl. A. No. 822-DB of 2004 -8- and have gone through the trial court record.

20. Learned counsel for the appellant argued that case of the prosecution is based upon the testimony of a single eye witness, whose presence at the time of the occurrence is highly doubtful. According to the learned counsel, as per the prosecution, the occurrence had taken place in the thickly populated area and according to the evidence, available on record, soon after the occurrence, many persons gathered at the spot, but no independent witness was joined by the police. Learned counsel, while referring to the contradictions and improvements made by the sole eye witness, namely PW.16 Ram Kumar, contends that his testimony is not free from any blemish or suspicion and the same is not reliable and credible, on the basis of which conviction of the appellant for the offence of murder is not safe. In this regard, learned counsel pointed out that in his statement (Ex.PK) made before the police, on the basis of which the FIR (Ex.PK/2) was registered, Ram Kumar had stated that the appellant, after over-taking the Maruti Van, came towards the driver's side of the van, which was being driven by Mahabir. After getting the van stopped, the appellant fired a shot from the pistol on the right side of the forehead of Mahabir. He also stated that thereafter, when the person who was accompanying the appellant told that Mahabir had not died, the appellant fired second shot, which hit on the right side of the abdomen of Mahabir. Learned counsel argued that when the ocular version given by this witness did not tally with the medical evidence (Post Mortem Report), which indicated that the entry wound on skull was Crl. A. No. 822-DB of 2004 -9- on the left side and the exit wound was on the right side and another wound in the abdomen, which was an oval shaped, was on the right side of middle 1/3rd of the abdomen, this witness made material improvements in the court, while appearing as PW.16, where he stated that the appellant came on the spot on Yamaha motor cycle from the back side of the Maruti Van and after getting the van stopped, he parked the motor cycle in front of the said van and then opened the door of the van on the left side of the driver and fired a shot, which hit on the left side of temporal region of Mahabir and thereafter, he fired second shot which hit on the right side of abdomen. Learned counsel further argued that contradiction in the initial version of the complainant and the medical evidence and further improvements made by him in the court, further create serious doubt about the presence of the sole eye witness at the spot and having seen the occurrence. Learned counsel, while referring to the application (Ex.PD) made by the police to the Doctor for post mortem examination, wherein it was stated that an unknown person has murdered the deceased, argued that this application supports the contention of the appellant that Ram Kumar (PW.16) was not present at the spot and no body had seen the occurrence. Learned counsel, while pointing out the improvements made by Ram Kumar (PW.16) regarding the holding of arms by the appellant and the person accompanying him on the motor cycle, time of the occurrence and the purpose for which the deceased was going in the morning, argued that these facts further weaken the reliability of the testimony of this witness, namely Ram Kumar (PW.16). Learned Crl. A. No. 822-DB of 2004 -10- counsel, while referring to the statement of Ram Kumar (PW.16), wherein he admitted that after the occurrence, 50/60 persons had gathered at the spot, argued that the prosecution did not examine any independent witness to corroborate the ocular version given by the sole witness. Therefore, according to the learned counsel, conviction of the appellant solely on the basis of the testimony of a single eye witness, whose testimony is not reliable and trust-worthy, is not safe.

21. On the other hand, learned counsel for the respondent-State argued that in the facts and circumstances of the case, testimony of the single eye witness cannot be said to be suspicious and not reliable. He argued that the said witness is related to both the sides. There was no reason for him to depose falsely against the appellant. Learned counsel argued that presence of the said witness at the time of the occurrence was natural, as at that time, he was going back to his house, after completing the morning walk. According to the learned counsel, the minor contradictions in the initial version given by this witness regarding the seats of injuries might be because of his nervousness on seeing the occurrence, as the death of a close relative by another close relative had taken place in his presence. But the testimony of this witness has been corroborated by the subsequent occurrence in which the appellant caused injuries to the son of the deceased soon after the first occurrence. PW.18 Manjeet Singh son of the deceased stated that on the day of occurrence itself, the appellant came to his house from the back side, where he along with his mother was present, and stated Crl. A. No. 822-DB of 2004 -11- that he had murdered his (Manjeet Singh's) father and thereafter, he fired a shot from the pistol, which hit left side of the chest of Manjeet Singh. The said occurrence is duly proved by the fact that in a separate case registered against the appellant under Section 307 IPC and Section 25/54/59 of the Arms Act, wherein it was the case of the prosecution that the occurrence had taken place on 7.12.2001 at about 7/7.15 AM, he was convicted and sentenced vide judgment and order dated 16.4.2004 (Ex.PQ).

22. Learned counsel further argued that in this case, the FIR was promptly registered. The alleged occurrence had taken place at about 6.30 AM and on receiving a VT message, the police had reached on the spot, where they found the complainant to be present, whose statement (Ex.PK) was recorded at 7.30 AM, on the basis of which the formal FIR (Ex.PK/2) was registered at 7.45 AM. Regarding the application (Ex.PD) made by the police for post mortem examination, learned counsel argued that during cross-examination, no such suggestion was put to the Investigating Officer, namely PW.19 Jitesh Kumar, Incharge, Police Post, New Colony, Gurgaon. He further pointed out that with the application (Ex.PD), inquest report (Ex.PD/1) was also annexed, wherein it was categorically mentioned that the appellant had caused the death of Mahabir by firing two shots. Learned counsel contends that no suggestion was put to the Investigating Officer that with the application (Ex.PD), the inquest report (Ex.PD/1) was not annexed. Rather, PW.10 Dr. B.K. Rajora, has categorically stated that dead body of the deceased was brought by the police in the Hospital along with Crl. A. No. 822-DB of 2004 -12- application (Ex.PD) and the inquest report (Ex.PD/1). Therefore, according to learned counsel, the trial court has committed no illegality while convicting the appellant on the basis of the testimony of PW.16 Ram Kumar, which has been corroborated by the other evidence and circumstances as well as the documentary evidence, led by the prosecution, and available on record.

23. After considering the submissions made by learned counsel for the parties, we do not find any substance in the contention raised by learned counsel for the appellant. In our opinion, in the present case, the prosecution has fully established the guilt of the appellant beyond reasonable doubt and the trial court was fully justified in convicting and sentencing the appellant for the offences under Section 302 IPC and 25 of the Arms Act for committing the murder of Mahabir by firing two shots from a .315 bore country made pistol.

24. It is well settled that conviction of an accused can be based on the testimony of a sole eye witness, if the court is satisfied that the testimony of that witness is of such sterling quality that the court finds it safe to base conviction solely on the basis of testimony of that witness. Section 134 of the Indian Evidence Act, 1872 clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. But where the Court comes to the conclusion that testimony of that witness is having some contradictions, which render his testimony in the category of Crl. A. No. 822-DB of 2004 -13- not wholly reliable, then the court has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. In the light of these principles, we have carefully and cautiously examined the testimony of PW.16 Ram Kumar, keeping in view the other circumstances and the evidence available on record.

25. The first question arising for consideration is whether PW.16 Ram Kumar was present at the time of the alleged occurrence. He has stated that on 7.12.2001 at about 5.30 AM, as usual, he went for morning walk and when he was coming back, he had seen the alleged occurrence. No suggestion was put to this witness that he was not daily going for morning walk. We do not find any improbability in this part of the statement of this witness that on the day of occurrence at about 5.30 AM, as usual, he went for morning walk and when he was coming back, he witnessed the occurrence. His presence on the spot has also been established by the statement of PW.19 Jitesh Kumar, Incharge, Police Post, New Colony, Gurgaon, who immediately after receiving the VT message reached at the spot, where he found Ram Kumar (PW.16) to be present. Therefore, in our view, presence of Ram Kumar at the time of the occurrence is not doubtful at all and has been fully proved.

26. Now, the second question for determination is whether Ram Kumar (PW.16) had seen the occurrence or not. In this regard, this witness has categorically stated that after completing the morning walk, while he was coming back to his house, the appellant fired two shots from his .315 Crl. A. No. 822-DB of 2004 -14- pistol upon the deceased. As far as identity of the appellant and the deceased is concerned, since this witness is related to both of them, he could not have commit any mistake in identifying the appellant and the deceased. Immediately after the occurrence, his statement (Ex.PK) was recorded by the police. Though in the statement (Ex.PK) and the medical evidence i.e. the post mortem report (Ex.PD/2) of the deceased, there is a contradiction regarding the place of injuries, but in our opinion, this contradiction may be on account of nervousness of the complainant at the time of occurrence, because the death of his close relative by his another close relative had taken place in his presence. However, while appearing in the court, this witness has given the version, which is totally in conformity with the medical evidence. Therefore, in our opinion, the said contradiction does not assume greater importance. In the present case, the sole eye witness is related to the appellant as well as the deceased. There was no reason for him to depose falsely against the appellant. On the basis of such minor variation in the prosecution story and the medical evidence, the prosecution story cannot be rejected, particularly when testimony of this eye witness appears to be fully trust-worthy, reliable and credible. The prosecution story has been corroborated by the statement of Manjeet Singh (PW.18). In this case, after committing the murder of Mahabir, the appellant went to the house of Manjeet Singh and caused a fire shot injury to him. This occurrence had taken place at 7.30 AM i.e. immediately after the occurrence in the present case, regarding which a separate case was registered, in which the appellant Crl. A. No. 822-DB of 2004 -15- has been convicted and sentenced. This fact further strengthens the prosecution case and proves the involvement of the appellant in the alleged crime.

27. We do not find any substance in the contention of learned counsel for the appellant that in the application (Ex.PD) made by the police to the Doctor for post mortem examination, names of the appellant and the deceased were not mentioned. When PW.19 Jitesh Kumar, Incharge, Police Post, New Colony, Gurgaon, who moved the application (Ex.PD), appeared in the witness box, no question was put to him regarding this application. Moreover, the inquest report (Ex.PD/1) was annexed with the application (Ex.PD), wherein names of the appellant as well as the deceased have been clearly mentioned. Therefore, it cannot be said that it was a blind murder case and lateron, the appellant was falsely implicated.

28. As per the report (Ex.PF/1) of the Senior Scientific Officer (Ballistics) received from the office of the Forensic Science Laboratory Haryana, Madhuban (Karnal), .315 bore country-made pistol recovered from the appellant was found in working order. The bullet collected from the place of occurrence and the other bullet removed from the body of the deceased were found to have been fired from the aforesaid country-made pistol. The mis-fired cartridge taken out from the chamber of the aforesaid pistol was found to have missed-fire from the same pistol, which was recovered from the appellant. Thus, the link evidence is complete and it clearly establishes that the pistol recovered from the appellant in this case Crl. A. No. 822-DB of 2004 -16- was used by him for committing the death of Mahabir. Hence, in our opinion, the prosecution has led sufficient evidence, on the basis of which the appellant has been rightly convicted and sentenced by the trial court.

29. Consequently, the impugned judgment of conviction as well as the order of sentence is upheld and the appeal is, accordingly, dismissed. ( SATISH KUMAR MITTAL ) JUDGE September 16, 2010 ( JITENDRA CHAUHAN ) JUDGE