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2007 DIGILAW 689 (PNJ)

Moman v. State of Haryana

2007-03-26

H.S.BHALLA

body2007
JUDGMENT H.S. Bhalla, J.:-By this common judgment, I shall be disposing of two cases, being Criminal Appeal No. 731-SB of 1995 and Criminal Appeal No. 732-SB of 1995 together as they are being heard together. This appeal is directed against the judgment dated 8.11.1995 passed by Additional Sessions Judge, Hisar, whereby he convicted appellants, namely, Randhir Singh and Moman under Sections 307 of the Indian Penal Code and 27 of the Arms Act. Both the appellants were sentenced to undergo rigorous imprisonment for a period of three years each under Section 307 of the Indian Penal Code and they were ordered to pay fine of Rs.1,000/- each. Both the appellants were further sentenced to undergo rigorous imprisonment for one year each under section 27 of the Arms Act; in default thereof, they were further directed to undergo rigorous imprisonment for a period of six months each. However, the remaining two accused, namely, Pirthi Singh and Ram Parshad were acquitted of the charges framed against them. The substantive sentence awarded under sections 307 of the Indian Penal Code and 27 of the Arms Act were ordered to run concurrently. 3. Briefly stated the facts of the prosecution case are that on 10.3.1993 complainant Jai Chand, his maternal cousin’s son Ram Kumar and Randhir Singh son of Ajit Singh had gone to Central Jail, Hisar to meet Kalu Ram and Rajbir, residents of village Bana Wali, who were confined there in connection with murder of Bir Singh. They all had to return to the Farm House of Ram Singh in the area of village Bana Wali from Hisar. They hired a Jeep bearing registration No. HNM-9928 for Rs.250/-. Ramesh Kumar, resident of village Kanch, was the driver of the jeep. At about 6.30 P.M. they left Hisar in the jeep for going to Bana Wali. At about 8.00 P.M. when their jeep was still at a distance of two Killas from the Farm House of Ram Singh, the driver slowed down the jeep to cross a water course. Jai Chand complainant was sitting on the left back seat, whereas Ram Kumar and Randhir Singh were sitting on the right back seat of the jeep. At about 8.00 P.M. when their jeep was still at a distance of two Killas from the Farm House of Ram Singh, the driver slowed down the jeep to cross a water course. Jai Chand complainant was sitting on the left back seat, whereas Ram Kumar and Randhir Singh were sitting on the right back seat of the jeep. When the jeep slowed down, Jai Chand and the other occupants of the jeep saw Moman accused armed with a 12 bore gun, Randhir @ Gandhi armed with a licensed rifle, Pirthi accused empty handed and one more person standing near the heap of cotton sticks. The accused had been seen by the occupants of the jeep in its head light. Randhir Singh accused with intent to kill the occupants of the jeep fired a shot from his rifle, which after piercing through the wind screen hit above the left elbow of Jai Chand. Thereafter Moman also fired 3-4 shots from his gun. The occupants of the jeep in order to save themselves jumped from the jeep and concealed themselves in the field of sarson. Jai Chand complainant in his self defence also fired two shots from his licensed gun. Then all the accused ran towards their Farm Houe. The complainant and other occupants of the jeep by concealing themselves in the standing crops reached the Farm House of Ram Singh after leaving the jeep at the spot. Randhir Singh arranged conveyance at night in which he took Jai Chand injured to Civil Hospital, Bhattu, where he was admitted and medically examined. A memo was sent from the Hospital to Police Station Bhattu Kalan. On receipt of that memo, SI Badri Parshad, Station House Officer, Police Station Bhattu Kalan, came to the hospital and recorded the statement of Jai Chand, Ex. PR, on the basis of which, a case was registered. The investigation was carried out. A parcel containing blood stained clothes of Jai Chand was handed over by the doctor to the Investigating Officer. The Investigating Officer visited the place of occurrence and took into possession the broken pieces of glass as well as the jeep. The empties, Ex. P-15 and Ex. P-16 of 12 bore gun and empty Ex. P-17 of 315 bore were recovered from the spot, which were taken into possession. On 13.3.1993 SI Badri Parshad took into possession a bullet,Ex. The Investigating Officer visited the place of occurrence and took into possession the broken pieces of glass as well as the jeep. The empties, Ex. P-15 and Ex. P-16 of 12 bore gun and empty Ex. P-17 of 315 bore were recovered from the spot, which were taken into possession. On 13.3.1993 SI Badri Parshad took into possession a bullet,Ex. P-7, which was removed from the body of Jai Chand by means of operation. Randhir and Ram Kumar accused were arrested in this case on 22.3.1995. Randhir produced his rifle Ex. P-10, a cartridge Ex. P-18 and a chit Ex. P-11, which were taken into possession. Photographs of the place of occurrence, including the jeep were got obtained from Radhey Sham, Photographer on 11.3.1993. Moman Ram and Pirthi accused were arrested on 25.3.1992 by ASI Kanwar Singh. In pursuance of his disclosure statement, Moman accused got effected the recovery of a gun, Ex. P-12 of 12 bore and a cartridge, Ex. P-13, of the same bore, were taken into possession. The clothes of Jai Chand, empties, the pellet removed from the body of Jai Chand, the gun and rifle were sent to the Forensic Science Laboratory for examination. After completion of necessary investigation, all the accused were sent up for trial. 4. Accused were charge-sheeted under Section 307 of the Indian Penal Code and Section 27 of the Arms Act, to which they did not plead guilty and claimed trial. 5. Prosecution, in order to prove its case, examined as many as 12 witnesses, namely, Hardwari Lal (PW-1), Nand Ram (PW-2), Radhey Sham (PW-3), Dr. S.P. Mimani (PW-4), Dr. D.K.Dudhich (PW-5), Head Constable Kapur Singh (PW-6), Dr. Mahender Kumar Gupta (PW-7), ASI Kanwar Singh (PW-8), Balbir Singh (PW-9), Jai Chand (PW-10), Ram Kumar (PW-11), and SI Badri Parshad (PW-12) and closed its evidence. 6. In their statements recorded under Section 313 of the Code of Criminal Procedure, all the accused denied the allegations levelled against them. They pleaded that they have been falsely implicated in the present case on account of party faction in the village. 7. We have heard the learned counsel for the parties and have also gone through the record of the case carefully. 8. Learned defence counsel has vehemently argued that there is unexplained delay in lodging the First Information Report. They pleaded that they have been falsely implicated in the present case on account of party faction in the village. 7. We have heard the learned counsel for the parties and have also gone through the record of the case carefully. 8. Learned defence counsel has vehemently argued that there is unexplained delay in lodging the First Information Report. The occurrence in this case took place in the area of village Banna Wali at 8.00 P.M. on 10.3.1993, which according to the statement of SI Badri Parshad (PW-12), the Investigating Officer, is at a distance of 12 KMs from Police Station Bhattu. Still the First Information Report was lodged at 6.15 A.M. on 11.3.1993, causing a delay of more than 10 hours. The learned defence counsel has submitted that the evidence of the eye witnesses that they remained present in their Farm House for a long time on account of fear, cannot be relied upon when it has come in evidence that Ram Kumar (PW-11) went on foot and unarmed to bring the jeep in which the injured Jai Singh (PW-10) was taken from his Farm House to CHC Bhattu. Learned counsel also submitted that Ram Kumar as well as Randhir, who were the eye witnesses to the occurrence, also went to the hospital along with the injured, but no explanation was given as to why the report of occurrence was not lodged with the police by Ram Kumar or Randhir PWs. Special Report reached Ilaqa Magistrate at 1.30 P.M. on 12.3.1993 causing a delay of more than two days, for which no plausible explanation has been furnished by the prosecution. The learned defence counsel argued that time consumed by the complainant party in roping the accused persons in the commission of the crime causes a dent in the prosecution version and the appellants are liable to be acquitted of the charges levelled against them. 9. The submissions made by the learned counsel and the findings recorded by the learned Additional Sessions Judge, Hisar, have to be examined in the light of ocular accounts given by stamped witness Jai Chand (PW-10) and Ram Kumar (PW-11), who are the eye witnesses to the occurrence. 10. 9. The submissions made by the learned counsel and the findings recorded by the learned Additional Sessions Judge, Hisar, have to be examined in the light of ocular accounts given by stamped witness Jai Chand (PW-10) and Ram Kumar (PW-11), who are the eye witnesses to the occurrence. 10. In the instant case, the eye witnesses to the occurrence, namely Randhir and Ram Kumar (PW-11) were residing at a distance of one furlong from Police Station Bhattu, but none of them went to the Police Station to lodge a report. It is true that the First Information Report reached the Ilaqa Magistrate after a delay of more than two days of the registration of the case, but keeping in view the facts and circumstances of this case to be discussed now, I am of the opinion that this delay is not fatal to the case of the prosecution in any manner. It is an admitted case that there was an old enmity between the complainant party and the accused party. Ram Kumar (PW-11) arranged a jeep at night from a village adjoining his Farm House. For arranging this vehicle, he must have consumed some time. He and Randhir PW went to Bhattu along with Jai Chand injured and in view of the injuries suffered by Jai Chand (PW-10) They rightly went straight to the hospital and question of lodging a report at that stage does not arise. It was their endeavour to provide the medical aid to Jai Chand injured at the earliest. After Jai Chand was medically examined, intimation was sent to the Police Station and on receipt of the information, the police machinery was set into motion, therefore, Sub Inspector Badri Parshad rushed to the hospital and after obtaining the opinion of the injured about his fitness, he recorded the statement of Jai Chand, which was concluded by 6.05 A.M. Since the statement of the injured had been recorded within two hours of his arrival to the hospital, the question of any deliberations or consultations does not arise. Therefore, in such like circumstances, going to the hospital and not to the Police Station does not cause any dent in the prosecution version and delay, as discussed above, is fully explained by the prosecution. Then again, the First Information Report, Ex. Therefore, in such like circumstances, going to the hospital and not to the Police Station does not cause any dent in the prosecution version and delay, as discussed above, is fully explained by the prosecution. Then again, the First Information Report, Ex. PR/2 recorded on the basis of the statement of injured was sent through post, and it was bound to reach the Ilaqa Magistrate the next day at about 1.30 P.M.. Therefore the contention of the learned defence counsel with regard to the special report does not cut ice with me. The postal authorities were bound to consume some time and since the same was sent by post and not by special messenger, delay in receiving the special report by the Ilaqa Magistrate is again fully explained. 11. The learned defence counsel further submitted that the witnesses have made improvements in their earlier version about their meeting Rajbir and Kalu in the Jail and as well as the place of firing. He also submitted that the jeep in question did not belong to any member of the complainant party and it being a hired jeep was just a chance arrival from Hisar and the persons traveling in the jeep could not be visible to the accused, who were facing the head light of the jeep. While advancing his arguments, he further submitted that since the occurrence took place during dark night, therefore, the identity of the accused could not be established and the witnesses have changed their stand in order to establish the identity of the accused. I have considered the submissions made by the learned counsel appearing for the appellants and the same are liable to be noticed only for the sake of rejection for the reasons to be recorded hereinafter by me on the basis of evidence available on the record. 12. It has been established on the record beyond reasonable doubt that Ram Kumar (PW-11) met the inmates of the Jail at Hisar on the day of occurrence. Jai Chand (PW-10) has furnished an explanation that since he was armed with a gun, therefore, he did not go inside the jail and could not meet the inmates. 12. It has been established on the record beyond reasonable doubt that Ram Kumar (PW-11) met the inmates of the Jail at Hisar on the day of occurrence. Jai Chand (PW-10) has furnished an explanation that since he was armed with a gun, therefore, he did not go inside the jail and could not meet the inmates. Moreover, even if Jai Chand and Randhir did not meet the inmates, it does not make a difference as during the course of occurrence Jai Chand himself suffered injuries and record further spells out that though the village of Jai Chand falls enrollee to the farm house of Ram Singh while coming to Hisar and he could have got down in his own village because, but he being the relative of Ram Kumar PW-11, he preferred to accompany him to his farm house since it was night time and there was an old enmity between Ram Kumar etc. and the accused party. 13. So far as the knowledge of the occupants of the jeep is concerned, it may be possible that the accused were not aware of the occupants of the jeep, but they must have known that Ram Kumar (PW-11) was away from his farm house and they expected him to return in the jeep at night. Jai Chand (PW-10) is related to Ram Kumar (PW-11) and he could not be the target of the accused since they wanted to take revenge from Ram Kumar (PW-11) and other members of his family. Jai Chand was hit because the accused were apprehending that jeep is carrying Ram Kumar or some other members of his family. The suffering of injuries by Jai Chand (PW- 10 ) further advances the case of the prosecution case. If the occurrence had not taken place in that manner, the injured would have been Ram Kumar or some other members of his family and not Jai Chand (PW-10), who was related to him. The accused fired at the jeep presuming that it was carrying Ram Kumar or some other members of his family. The motive of the occurrence was to cause death of Ram Kumar or his family members and in order to fulfill that motive, they fired from their weapons at the persons traveling in the jeep. 14. The accused fired at the jeep presuming that it was carrying Ram Kumar or some other members of his family. The motive of the occurrence was to cause death of Ram Kumar or his family members and in order to fulfill that motive, they fired from their weapons at the persons traveling in the jeep. 14. Going through the entire evidence available on the file, it can easily be inferred that the occurrence which has been put forward by the witnesses produced by the prosecution is natural and the identity of the accused could be established in the head lights of the jeep even from a distance of 50 Karms. Therefore, the contention of the learned counsel as to the visibility of the accused persons in the head lights of the jeep from a distance of 50 Karms. falls to the ground. The identification of the accused cannot be held to be doubtful in any manner, especially when both the parties are known to each other and there was an old enmity between them. In such like circumstances, the question of identity of the accused persons does not arise. 15. The learned defence counsel has further contended that there was delay in sending the empties to the Forensic Science Laboratory. As per the testimony of Badri Parshad, Sub Inspector (PW-12), who is the Investigating Officer of this case, the empties were recovered from the spot on 11.3.1993. However, the report of the Forensic Science Laboratory, Ex. PZ, reveals that these empties were received on 8.4.1993. Learned counsel submits that this delay in dispatch of empties lends support to the fabrication of empties by firing from the gun and the rifle in the Police Station, but the record further spells out that the empties were, in fact, recovered from the spot on 11.3.1993, but immediately these were sealed with the seal BP, which was handed over to Ram Kumar (PW-11). The rifle was recovered from the possession of Randhir Singh accused on 22.3.1993 and the gun was recovered at the instance of Moman Ram accused on 25.3.1993. It was in the knowledge of the Investigating Officer that there was no use of sending the empties, unless the recovery of weapons was effected. After the recovery of the weapons, the Investigating Officer, without wasting time, sent the weapons as well as the empties, to the Forensic Science Laboratory for its examination. It was in the knowledge of the Investigating Officer that there was no use of sending the empties, unless the recovery of weapons was effected. After the recovery of the weapons, the Investigating Officer, without wasting time, sent the weapons as well as the empties, to the Forensic Science Laboratory for its examination. Therefore, the delay in dispatch of empties in this case cannot be taken to hold that these were fabricated by firing in the Police Station from the weapons of the accused. The contention of the learned defence counsel that no occurrence took place at the place pointed out and that it was a cock and bull story made by the prosecution to make the version reliable were introduced later on, do not hold any ground since a strong motive has been provided by the prosecution, which has also been fully established on the record of the case through the mouth of the witnesses, namely Jai Chand (PW-10) and Ram Kumar (PW-11) produced by the prosecution stating therein that there was an old enmity between the complainant party and the accused party. A case of the murder of Bir Singh, father of appellant No.2, is also pending in the Sessions Court at Hisar in which members of the complainant side are the accused. This possibility cannot be ruled out that in a fit of anger, appellant Randhir Singh must have opened the attack with the help of other companions on the complainant party with a view to avenge the murder of his father Bir Singh. Both the eye witnesses to the occurrence, namely, Jai hand (PW-10) and Ram Kumar (PW-11) have supported the version of the prosecution in its entirety. Their statements are found to be consistent on material particulars. Their testimony have not been shattered even on the lengthy crossexamination conducted by the learned defence counsel and nothing could come out in favour of the defence. The plea taken by the learned defence counsel that the occurrence, as alleged by the prosecution, is false, is not sustainable on the basis of evidence available on the record, which is further falsified from the medical evidence. The injuries on the person of Jai Chand (PW-10) have been proved from the medical evidence. Dr. The plea taken by the learned defence counsel that the occurrence, as alleged by the prosecution, is false, is not sustainable on the basis of evidence available on the record, which is further falsified from the medical evidence. The injuries on the person of Jai Chand (PW-10) have been proved from the medical evidence. Dr. Mahender Kumar Gupta (PW-7) medico-legally examined the injured and found the following injury on his person: “A lacerated wound round in shape 1.2 cm in dia meter with inverted edges with perfuse bleeding from the site of injury. That is on the middle of the post aspect of the left upper arm. Clotted blood was present in and around the wound.” 16. Corresponding part of the shirt bore the hole of the size of the injury and also blood socked. The shirt was sealed and handed over to the police. Injury was kept under observations. Advised X-ray. Probable duration of injury was 24 hours and the weapon used was gun. Ex. P-1 is the correct carbon copy of the MLR. It bears the signatures of Dr. Mahender Kumar Gupta. He sent ruqa Ex. PJ to Police Station Bhattu Kalan for information. Shirt Ex. P-9 of Jai Chand injured was sent to Forensic Science Laboratory along with the mutilated lead piece Ex. P-7 removed from the left arm of Jai Chand after operation. Empty cartridges cases Ex. P-15 to Ex. P-17, the rifle and gun recovered from Randhir Singh and Moman Ram respectively. As per report of the Forensic Science Laboratory Ex. PZ, the rifle and gun were found in working order. The empty cartridges Ex. P-15 and Ex. P-16 (referred to 0-2 and C-3 in the report) were found to have been fired with 12 bore gun recovered from Moman accused and the empty cartridge Ex. P-17 ( referred to as Ex. C-1 in the report) was found to have been fired from 315 bore rifle recovered from Randhir Singh accused. The hole on the shirt was opined to have been caused by led projectile. As per report of the serologist Ex. PZ/1, the human blood was detected on the shirt of Jai Chand. 17. Seen from every angle, I find that ocular version given by the eye witness to the occurrence find corroboration from the medical evidence as referred to above. As per report of the serologist Ex. PZ/1, the human blood was detected on the shirt of Jai Chand. 17. Seen from every angle, I find that ocular version given by the eye witness to the occurrence find corroboration from the medical evidence as referred to above. In my considered view, the prosecution has been able to prove its case beyond reasonable doubt. Therefore, conviction against the appellants recorded by the learned Additional Sessions Judge, Hisar under Section 307 of the Indian Penal Code and 27 of the Arms Act is maintained. Keeping in view the facts and circumstances of the case and also the fact that the appellants have been facing mental stress for the last 14 years since the registration of the case, I am inclined to take a lenient view on the point of quantum of sentence reducing the period of sentence from three years to one year each under Section 307 of the Indian Penal Code. Sentence of one year imposed on the appellants under Section 27 of the Arms Act is also maintained. Fine imposed shall remain intact. However, the period of sentence spent by both the appellants while remaining in custody, shall be set off out of the sentence awarded to them by this Court. The appellants, namely, Moman Ram and Randhir Singh @ Gandhi, who are on bail, are directed to be taken into custody to serve out the remaining sentence out of the sentence awarded to them by this Court. With the aforesaid reduction in the matter of sentence, Criminal Appeal No. 731-SB of 1995 is partly allowed. Since charge under Section 25 of the Arms Act framed against appellant Moman for possessing a gun of 12 bore, Ex. P-1, along with live cartridge, Ex. P-2, with him illegally for which no licence could be produced and further the same was used in the commission of the crime has been fully established on the record of the case beyond reasonable doubt, Criminal Appeal bearing No. 732-SB of 1995 filed by appellant Moman separately against the conviction recorded under Section 25 of the Arms Act fails and is hereby dismissed. The sentences awarded to the appellants under section 307 of the Indian Penal Code and Sections 25 and 27 of the Arms Act shall run concurrently. ————————————————