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2006 DIGILAW 1397 (PNJ)

Vijender Singh v. State Of Haryana

2006-03-30

AJAI LAMBA, MEHTAB S.GILL

body2006
Judgment MEHTAB S. GILL, J. 1. This is an appeal against the judgment of the Additional sessions Judge, Hissar dated 5.11.1996/7.11.1996 whereby he convicted vijender Singh, Satbir alias Minka and Sardul Singh alias Dula under section 302 read with Sections 120-B/34 IPC and sentenced them to undergo various sentences under different sections. 2. The case of the prosecution is unfolded by the statement Ex. PN of Tek Chand given to S. I. Mohinder Singh on 24.5.1994 at 2.15 P. M. in police Station Agroha. Tek Chand has stated that my maternal brother satbir, Galli, Teka and Ved Parkash son of Gulaba, all residents of village dharsul had committed the murder of Baba Maheshpuri in 1991. Tek chand is confined in jail and the other three are on bail. The said case was fixed for today i. e. on 24.5.1994 for evidence in the Court of Shri pritam pal, learned Additional Sessions Judge, Hissar. After attending and hearing of the case, Tek Chand and Vedi alias Ved Parkash started for village dharsul on a Rajdoot motor cycle bearing registration No. HYJ/6165. The motor cycle was driven by Vedi and complainant was sitting on the pillion. 3. They had to reach village Dharsul via Agroha. At about 1.30 P. M. when they reached near the houses of Balmikis in village Chikanwas, two young men on a Bullet motor cycle came from the side of Hissar. The driver of the bullet motor cycle, had fair complexion and was stoutly built. He was wearing a bushshirt of cream colour of check design with half sleeves. The pillion rider of the motor cycle was holding a pistol in his right hand. 4. On overtaking them, the pillion rider fired a bullet from his pistol on Vedi alias ved Parkash towards his right armpit. On receipt of the bullet shot, tek chand and Vedi alias Ved Parkash along with the motor cycle fell down on the kacha portion of the road. The rider of the Bullet motor cycle drove away towards Agroha. Tek Chand got up and when he went to check the condition of Vedi alias Ved Parkash, he found that he had breathed his last. 5. Tek Chand tried to stop vehicles plying on the road, but no one stopped. Subsequently, Phool Singh Chowkidar, resident of village Chikanwas reached the spot. Tek Chand got up and when he went to check the condition of Vedi alias Ved Parkash, he found that he had breathed his last. 5. Tek Chand tried to stop vehicles plying on the road, but no one stopped. Subsequently, Phool Singh Chowkidar, resident of village Chikanwas reached the spot. Tek Chand further stated that Vedi alias Ved parkash was got murdered by Sardul Singh alias Mansa Singh, Jat Sikh, resident of jamalpur Sheikhan by hatching a conspiracy. Vedi alias Ved Parkash was a co-accused in the murder of Baba Maheshpuri. Sardul Singh was wanting a share in the land of the Baba. It was because of this reason, Sardul singh got Vedi alias Ved Parkash murdered by some unknown persons. On the basis of this statement, FIR Ex. PN was recorded on 24.5.1994 at 2.15 P. M. The special report reached the Chief Judicial Magistrate, Hissar on the same day at 4.15 P. M. 6. The prosecution to prove its case brought into the witness box manphool alias Phul Singh as PW1, C. Umed Singh as PW2, HC hans Raj as PW3, HC Santu Ram as PW4, C. Nand Lal as PW5, C. Mohinder singh as pw6, HC Mandroop as PW7, Mangtu Ram as PW8, Tek Chand as pw10, satyawan as PW11, Ramesh Kumar as PW12, ASI Sadhu Ram as pw13 and SI Mohinder Singh as PW14. 7. Learned counsel for the appellants has argued that this is a case of solitary eye witness account. His testimony should be scrutinized with utmost care and caution. There are material discrepancies and improvements made in the statement he has given in Ex. PN and in his testimony before the Court. Tek Chand PW10 has stated that he left hissar along with deceased Vedi alias Ved Parkash at 1 P. M. after attending to a court case. Appellants Vijender Singh and Satbir came on a motor cycle and appellant Vijender Singh with a.315 bore country made pistol ex. P19, shot at the deceased. He remained at the spot for half an hour and it is thereafter he went on a motor cycle to Police Station Agroha. 8. Appellants Vijender Singh and Satbir came on a motor cycle and appellant Vijender Singh with a.315 bore country made pistol ex. P19, shot at the deceased. He remained at the spot for half an hour and it is thereafter he went on a motor cycle to Police Station Agroha. 8. Investigating officer SI Mohinder Singh PW14 has stated in his testimony, that Tek chand PW10 came to him at about 1.30 P. M. and he left for the place of occurrence at 2.15 P. M. Manphool alias Phool Singh PW1 has stated in his testimony before the Court that the police proceedings were conducted at about 12 noon. FIR Ex. PN came into existence on 24.5.1994 at 2.15 p. M. and the occurrence had taken place at about 1.30 P. M. If the occurrence had taken place on 24.5.1994 at 1.30 P. M. Tek Chand PW10 could not have reached the police station at 1.30 P. M. as he himself stated that he stood at the place of occurrence for half an hour and was trying to stop a vehicle. 9. Tek Chand PW10 has further stated that he along with the deceased were on the motor cycle. Appellants Vijender Singh and Satbir came parallel to the deceased while driving the motor cycle. In the FIR Ex. PN, he has stated that the unnamed pillion rider fired a shot, while in the testimony before the court, he has named appellant Vijender Singh having fired the fatal shot. In the statement before the Court, he has stated that the motor cycle fell down and the left legs of both deceased Vedi alias Ved Parkash and Tek chand pw10 came under the motor cycle. The motor cycle was dragged for about ten paces. If we go through the post mortem report Ex. PM as conducted by dr. Surender Singh PW9, we do not find any injury of fracture, abrasion or bruises on the left leg of the deceased or complainant Tek Chand pw10, in spite of their left leg being dragged under the motor cycle for about ten paces. The Investigating Officer SI Mohinder Singh PW14 has stated, that he did not find any scratch or any dent on the motor cycle, nor was there any injury visible on the body of the deceased. 10. As per FSL report Ex. The Investigating Officer SI Mohinder Singh PW14 has stated, that he did not find any scratch or any dent on the motor cycle, nor was there any injury visible on the body of the deceased. 10. As per FSL report Ex. PY/2 one.315 fired bullet marked BC/1 and one country made pistol.315 were sent. Bullet marked BC/1 was fired from the.315 country made pistol. Dr. Surender Singh PW9, who performed the post mortem, has stated that two wads and a bullet were recovered from the body of the deceased. Wads are found only in.12 bore cartridges and not in bullets. The medical evidence does not corroborate the ocular account. 11. Learned counsel for the State has argued that affidavits filed by mhc Hans Raj PW3 Ex. PD, C. Nand Lal Ex. PF, C. Mohinder Singh pw6 ex. PG and HC Mandrup Singh PW7 Ex. PH have gone unchallenged as to the tampering with the.315 bore country made pistol Ex. P19 or the bullet mark BC/1. No suggestion has been put to these witnesses, nor to dr. Surender Singh PW9 that the vial was tampered with. Material improvements have not been made by Tek Chand PW10. He along with the deceased saw appellants Vijender Singh, Satbir and Sardul Singh standing in front of the Khokha (Kiosk ). They were having cold drinks. Appellant sardul Singh pointed towards the deceased and Tek Chand PW10 and gave some sort of an indication to appellants Vijender Singh and Satbir. 12. Tek chand PW10 then left for Hissar on motor cycle No. HYT/6165, deceased vedi alias Ved Parkash was driving the motor cycle. When they reached near village Chikanwas, appellants Satbir and Vijender Singh came on a motor cycle, which was being driven by appellant Satbir. Vijender singh then fired at Vedi from his pistol hitting Vedi on his right flank. Tek chand pw10 identified the assailants. He waited for some time and tried to stop some vehicle to take the deceased to the hospital, but when he saw that vedi had died, he left Manphool alias Phool Singh Chowkidar at the spot and went to the Police Station, Agroha which was 8 Kms away. 13. Statement ex. PN was recorded on 24.5.1994 at 2.15 P. M. and the special report reached the C. J. M. Hissar on the same day at 4.15 P. M. There is no delay in lodging of the FIR. 13. Statement ex. PN was recorded on 24.5.1994 at 2.15 P. M. and the special report reached the C. J. M. Hissar on the same day at 4.15 P. M. There is no delay in lodging of the FIR. This in fact goes a long way for proving the case of the prosecution. Appellant Sardul Singh has been named in the FIR. We have heard learned counsel for the parties and perused the record and impugned judgment with their assistance. This is a case of a sole eye witness account. As per the prosecution case and as per statement Ex. PN, Tek Chand PW10, who is the first cousin of the deceased, was riding the motor cycle with the deceased. 14. They were coming from the Hissar Courts after attending to a Court case under Sec.302 IPC. On reaching about two acres from village chikanwas, appellants Vijender Singh and Satbir came on a Bullet motor cycle, which was driven by Satbir. The motor cycle came parallel to that of the deceased and the pillion rider took out a.315 bore country made pistol ex. P19 and fired at the deceased. Vedi alias Ved Parkash was hit on his right flank. Motor cycle of Tek Chand PW10 and the deceased fell down. In the FIR Ex. PN, Tek Chand PW10 has stated that two young persons came on a bullet motor cycle. The driver of the motor cycle had a fair complexion and was stoutly built man. The pillion rider of the bullet motor cycle was holding a pistol in his right hand. While overtaking, the man sitting on the pillion seat fired at Vedi deceased. The rider of the motor cycle drove away, towards Agroha. Motor cycle of Tek Chand PW10 and deceased Vedi fell down. In FIR Ex. PN it is stated that he suspected appellant Sardul Singh has got murdered Vedi alias Ved Parkash by hatching a conspiracy as deceased Vedi was a co-accused in the murder of baba Maheshpuri. Sardul Singh claimed a share in the land of Baba maheshpuri. Tek Chand PW10 in his testimony before the Court has stated that on 24.5.1994 he along with Vedi were facing a murder trial, in the court of Additional Sessions Judge, Hissar. On the fateful day, he had come to attend the hearing of the case. Sardul Singh claimed a share in the land of Baba maheshpuri. Tek Chand PW10 in his testimony before the Court has stated that on 24.5.1994 he along with Vedi were facing a murder trial, in the court of Additional Sessions Judge, Hissar. On the fateful day, he had come to attend the hearing of the case. When he along with Vedi came out of the court room in the verandah, they noticed appellants Vijender Singh, satbir and Sardul Singh in front of the Khokha (Kiosk ). They were having cold drinks. Sardul Singh pointed towards them and gave some indication to vijender Singh and Satbir regarding them. Tek Chand PW10 and vedi deceased left for Hissar. When they reached near village Chikanwas, appellants Vijender Singh and Satbir came along on a motor cycle and after coming parallel to their motor cycle, appellant Vijender Singh shot at the deceased. The motor cycle was being driven by Satbir, while Vijender singh fired at Vedi. As a result, Vedi lost control over the motor cycle which fell on the left side of the berm. Appellants Vijender Singh and Satbir then went away on the motor cycle towards village Agroha. It is clear from the testimony of Tek Chand PW10 that he at the time of occurrence had identified appellants Vijender Singh and Satbir as being the assailants. No reason is given as to why this witness did not name appellants vijender singh and Satbir in the FIR Ex. PN. Strangely both the assailants were recognized in the Court compound also. If the assailants had been recognized in the Court compound and Tek Chand PW10 saw that something suspicion was going on between Sardul Singh, Satbir and vijender Singh, Tek Chand PW10 and the deceased would have not gone out of the premises without caution. Tek Chand PW10 and deceased vedi were facing a murder trial in which the appellants also had a role to play. The improvements made by Tek Chand PW10 in fact have shaken the foundation of the prosecution case. 15. It is incumbent upon the Investigating Officer S. I. Mohinder singh PW14 to have had Tek Chand PW10 identified by Manphool alias phool Singh Chowkidar PW1, who was an independent witness, to this extent that along with the deceased, Tek Chand PW10 was standing by the motor cycle. 15. It is incumbent upon the Investigating Officer S. I. Mohinder singh PW14 to have had Tek Chand PW10 identified by Manphool alias phool Singh Chowkidar PW1, who was an independent witness, to this extent that along with the deceased, Tek Chand PW10 was standing by the motor cycle. Tek Chand PW10 has further stated in his testimony that cra No.624-DB of 1996 -8-appellants Vijender Singh and Satbir stood at the place of occurrence for five minutes. It is strange that no altercation took place between Tek chand pw10 and the appellants at the place of occurrence. Neither did they quarrel nor did the appellants try to harm Tek Chand PW10, who was also an equal enemy to them. We are of the considered view that Tek Chand PW10 has made material improvements, which go to the very root of the case. 16. His testimony cannot be believed. Dr. Surender Singh PW9 in his statement before the Court, has stated that the injury was a lacerated oval shape wound below the right axilla of inch x 1 inch size on the 4th costal rib. A colar of dark ring around the edges of the wound was present which were inverted. Tattooing to 6 inch diameter all around the wound was present. The corresponding area of shirt was partly burnt and hole of about 10 inch diameter was present in it. From this injury, one can safely conclude that the shot was fired from a close range. No where has Tek Chand PW10 stated that appellants vijender Singh fired the shot from 2 to 3 feet. Dr. Surender Singh PW9 has further stated that a metallic yellow coloured bullet of 3-1/2 cm in length and cm diameter was recovered from the left lung. Two wads pieces were recovered from the right lung. Learned counsel for the appellants Shri r. S. Cheema, Senior Advocate has rightly argued that wads are not found in bullets, but they are used in.12 bore cartridges. Dr. Surender Singh pw9 has further stated that he handed over to the police a sealed bottle containing bullet and two pieces of wad. Though the doctor has stated that two pieces were handed over, but in the FSL report Ex. PY/2, what reached the laboratory was a.315 bore fired bullet and a.315 bore country made pistol. Dr. Surender Singh pw9 has further stated that he handed over to the police a sealed bottle containing bullet and two pieces of wad. Though the doctor has stated that two pieces were handed over, but in the FSL report Ex. PY/2, what reached the laboratory was a.315 bore fired bullet and a.315 bore country made pistol. No where it has been mentioned in the report that two wads had also reached the FSL. 17. Convicting the appellants on the basis of the statement of the sole eye witness Tek Chand PW10 would be very unsafe, especially when he has made material improvements from what he has stated in FIR ex. PN and in his testimony before the Court. Appeal is allowed. Appellants are acquitted of all the charges framed against them.